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State v. J.L.S.

Superior Court of New Jersey, Appellate Division

November 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
J.L.S., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 13, 2013

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-04-0268.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

Before Judges Simonelli, Koblitz and Accurso.

ACCURSO, J.A.D.

Defendant J.L.S. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Judge Batten merged the convictions for sexual assault and endangering into the conviction for aggravated sexual assault and sentenced defendant as a persistent offender to a twenty-year term of imprisonment, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.

These are the most pertinent facts. A.M. regularly left her five-year-old daughter, Jill, [1] in the care of her next-door-neighbor (the neighbor). The neighbor also cared for her own son, Jimmy, and A.M's boyfriend's son, Eddie, who likewise lived nearby. When A.M. picked up her daughter on November 8, 2007, a man she had never met before was in the house, and her daughter was crying. The neighbor identified the man, defendant, as her brother and advised A.M. that Jill had been awakened from a nap by a nightmare.

As A.M. walked her daughter next-door to their home, defendant followed. Jill told her mother that defendant had done something to her. A.M. asked, "what did he do, honey?" The child replied, "Mommy, he touched me here, my pee-pee, " pointing to her genital area, and complained that it hurt too much to walk up the stairs. When A.M. immediately confronted defendant, he denied that he had touched Jill and said, "the child's a liar."

When A.M. examined Jill, she discovered blood on the child's underpants and immediately called the police. Because A.M. was not fluent in English, her boyfriend, E.R., explained what had happened to the dispatcher. Officer Trotter of the Wildwood Police Department responded and spoke with A.M. and E.R. about Jill's allegations on the stairwell outside A.M.'s apartment. Jill was standing, crying, next to A.M. As they were talking, Trotter saw a man walking about below them. Jill pointed towards defendant and said, "that's the man." Defendant was then arrested by other officers.

Nurse Lynn Rybicki, the "SART SANE" (Sexual Assault Response Team, Sexual Assault Nurse Examiner) Coordinator for Cape May County, examined Jill in A.M.'s presence. She took photos of Jill's genital region and collected samples of fibers and other debris. As Rybicki wiped the area, Jill complained that it "hurt." Rybicki observed that Jill's genital region was abnormally red and irritated and consistent in appearance with a recent digital penetration.

Lieutenant William Kirkbride of the Cape May County Prosecutor's Office interviewed Jill later that evening. The interview was recorded on DVD and observed by Detective Chris Korobellis. Jill told Kirkbride that she was napping in the neighbor's bedroom when a "big boy" pulled down her pants and underpants and touched her vagina, which she called her "wear woo, " with his finger. She had never seen this "big boy" before, and did not know his name. Jill said that the neighbor had been in the bedroom but had left to go to the bathroom, and she and the "big boy" were alone during the incident. Jill related that it hurt when the "big boy" touched her, and that she cried. The "big boy" told her he was "sorry, " and also offered her some of Jimmy's Halloween candy. Jill said she told the neighbor what the "big boy" had done.

Following Kirkbride's interview of Jill, he and Korobellis interviewed defendant, who agreed to provide them with a DNA sample. Defendant insisted he was innocent and that the police would not find his DNA "anywhere near" Jill.

Forensic scientist Christina Molnar tested items seized by police from the neighbor's home, as well as Jill's underwear and the samples taken by Rybicki, to determine whether there was any detectable saliva, semen or blood. One external swab of Jill's genitals tested positive for blood while another was positive for saliva. A swab of Jill's right buttock was positive for blood, and the crotch area of her underwear also tested positive for blood and saliva.

Harpreet Singh, a forensic DNA analyst with the New Jersey Office of Forensic Science, subsequently determined that defendant's DNA was present on Jill's underwear and that male DNA, which could have come from defendant, was present in the swab of Jill's genitals. He also determined that neither E.R. nor his son Eddie was the source of the male DNA found on Jill's genitals.

At the request of the prosecutor's office, Dr. Marita Lind, a pediatrician employed by UMDNJ's Care Institute, a regional diagnostic and treatment center for child abuse, examined Jill the day after the incident. Jill told Lind that "a boy touched me right here, " pointing to her genital area. When Lind asked Jill how big the boy was, Jill replied that he was a "big boy, a grown up." Jill said that the boy touched her once with his finger and that it hurt. Afterwards he said that he was sorry. Lind examined Jill's genital region and noted increased redness and many small broken blood vessels, consistent with injury. Based upon her examination and the history provided, Lind concluded that Jill had experienced digital contact to her genital region. Lind found no evidence of penetrating trauma.

Jill, seven years old at the time of trial, testified for the State. Although she readily answered preliminary questions, Jill was not forthcoming with details of the incident. The court sustained defense counsel's objections to leading questions, leaving the prosecutor to struggle to elicit answers to direct questions of the child. Jill confirmed that the last time she was at the neighbor's house, which was during a "cold" month, she went into the neighbor's bedroom to take a nap. She stated that "somebody touched me on my private" while she was in the neighbor's bedroom, and that her "private" hurt when her mother walked her home. She also related that she was alone in the neighbor's bedroom when the incident occurred and denied that anybody other than the neighbor was in the house. Although she told her mother who hurt her, she had never seen this person before and did not know the person's name. She also stated that it hurt when she was subsequently examined by a doctor.

Jill did not identify defendant or even specify the gender of the person who had touched her. On cross-examination, Jill denied knowing what a "wear woo" was, and that she ever spoke to someone named "Bill, " although she remembered details of the room in which Kirkbride interviewed her.

Defendant presented several witnesses. The first, then-ten-year-old Jimmy, testified that on November 8, 2007, his mother and defendant were watching television in his mother's bedroom, while he, Jill and Eddie were playing video games in the living room. At some point, Jill went into his mother's room, and thereafter his mother went into the bathroom and defendant went into the kitchen. While defendant was in the kitchen looking for Jimmy's Halloween candy, he gave Jimmy some cereal.

While defendant was still in the kitchen, Jimmy heard Jill start to cry in the bedroom, and told his mother. He, his mother, and defendant then went into the bedroom and Jill told them that she had had a bad dream. After A.M. and E.R. took Jill home, he and Eddie went next door and played with a toy. E.R., A.M., and Jill subsequently came in, went into a bedroom, and shut the door. Jimmy testified that E.R. emerged with a pair of panties in his hand just as defendant entered the apartment. E.R. was angry with defendant, who stated, "no, I didn't do it." E.R. then shoved the panties into defendant's mouth. Defendant pushed E.R. and left. E.R. held the panties until the police arrived.

On cross-examination, Jimmy admitted that he first told that story to his mother in May of 2008 and then repeated it to the police in February 2009. Jimmy confirmed that he told defendant in the kitchen that the candy was in his mother's bedroom, and that defendant went back into the bedroom where Jill was sleeping. Jimmy denied he told an investigator from the Department of Youth and Family Services (DYFS), John Mathis, that he had heard Jill crying when defendant was in the bedroom and his mother was in the bathroom. On re-direct, Jimmy testified that he did not remember where the Halloween candy was and also denied that he saw defendant go into the bedroom with Jill while his mother was out of the room.

The neighbor testified that defendant, who lived in Wildwood, stayed at her home the night of November 7, 2007 and remained the following day. Defendant drank a twelve-pack of beer on the 7th, and consumed six to eight beers during the day on the 8th.

The neighbor recalled that, at some point during the afternoon on the 8th, Jill and she went into her bedroom to rest while watching television. Defendant came into the room and stretched out on the floor. Jill eventually fell asleep. During a commercial break, the neighbor went to the bathroom and defendant got up and went into the kitchen. During the ninety seconds she was in the bathroom, she could hear defendant looking for Jimmy's Halloween candy in the kitchen. She heard Jimmy tell defendant that the candy was in her bedroom.

When the neighbor came out of the bathroom, defendant was just entering her bedroom and she followed him in and watched as he retrieved some candy. She testified that Jill was awake and crying and seemed scared. She asked Jill whether she had had a nightmare and Jill nodded and said that she wanted her mommy. At this point, A.M. and E.R. arrived to take Jill and Eddie home. Jimmy followed while defendant stayed behind with her.

On cross-examination, the neighbor admitted she had previously told police that when she came out of the bathroom, defendant was already in her bedroom. She insisted, however, that he was merely a step ahead of her and that he was never out of her sight. She acknowledged that she spoke to the DYFS investigator, Mathis, a few days after the incident, but denied that she told him that she was in the bathroom for three minutes. The neighbor testified that it was not until May 2008 that her son Jimmy first told her about the fight between E.R. and defendant involving Jill's panties. She acknowledged that this was the same month that defendant found out that his DNA was on Jill's underwear.

Defendant raises the following issues on appeal.

POINT I:
THE ADMISSION OF [JILL'S] DVD STATEMENT TO THE POLICE VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESS[] AGAINST HIM AND DID NOT SATISFY THE REQUIREMENTS OF N.J.R.E. 803(c)(27).
POINT II:
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE STATE VIOLATED THE COURT'S SEQUESTRATION ORDER AND THE COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A MISTRIAL.
POINT III:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE [FOURTEENTH] AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ARTICLE] 1, [PARAGRAPH] 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED EXPERT WITNESS OPINIONS (Partially Raised Below).
POINT IV:
THE USE OF CONFIDENTIAL RECORDS BY THE STATE NOT PREVIOUSLY PROVIDED TO DEFENSE COUNSEL DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT V:
THE JUDGE ERRED IN PERMITTING A.M. TO OFFER "FRESH COMPLAINT" TESTIMONY REGARDING STATEMENTS MADE BY [JILL].
POINT VI:
THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY FROM DR. LIND, WHICH BOLSTERED [JILL'S] IN-COURT TESTIMONY AND DENIED DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT VII:
THE TRIAL COURT ERRED IN PERMITTING OFFICER TROTTER TO TESTIFY TO DOUBLE HEARSAY TESTIMONY, THEREBY IMPROPERLY BOLSTERING THE TESTIMONY OF A WITNESS FOR THE STATE.
POINT VIII:
DURING HER OPENING STATEMENT, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE [FOURTEENTH] AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).
POINT IX:
DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE [FOURTEENTH] AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).
POINT X:
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE, DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL (Not Raised Below).
POINT XI:
THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

Defendant first contends that the court erred in admitting the DVD of Jill's statement to the police. He argues that Jill's trial testimony was "non-responsive, " and admitting the DVD denied him his Sixth Amendment right to confront the evidence against him. We disagree.

The DVD of Jill's interview with Kirkbride was the subject of a N.J.R.E. 104 hearing conducted in advance of trial. After hearing Detective Kirkbride's testimony and viewing the DVD, the judge presiding over the hearing determined that Jill's DVD statement was trustworthy and would be admissible if Jill testified at trial. See N.J.R.E. 803(c)(27) (a statement by a child under the age of twelve relating to sexual misconduct committed against the child is admissible in a criminal proceeding if the adverse party has been provided fair opportunity to prepare to meet it; the court finds the statement trustworthy at a N.J.R.E. 104 hearing; and the child testifies at the proceeding, or, if the child is unavailable, admissible evidence corroborating the sexual abuse is offered). Although contending that the decision on admissibility of the DVD should await Jill's testimony at trial, defense counsel did not argue that the child's statement to Kirkbride was not sufficiently trustworthy to be admitted into evidence.

Following testimony by Jill and Detective Kirkbride, the prosecutor announced her intention to play Jill's DVD statement for the jury. Defense counsel objected, arguing that Jill was so unforthcoming in her testimony that she "effectively, has not testified." Judge Batten overruled the objection. The judge found that the child did not refuse to testify, or indicate that she could not recall what occurred, and thus could not be considered "unavailable" under N.J.R.E. 804(a). Judge Batten surmised that the cross-examination had been brief because the child's testimony had been favorable to defendant, a proposition with which defense counsel agreed. The judge determined that based on the record before him, he could only conclude that "the child was both available and testified, and was subject to . . . a crucible of cross-examination." Accordingly, the judge ruled that the requirements of N.J.R.E. 803(c)(27) had been satisfied and defendant's confrontation rights not impaired.

We agree with Judge Batten's cogent analysis of this evidentiary question. The Supreme Court confronted precisely this issue in State v. Nyhammer, 197 N.J. 383, 389, cert. denied, 558 U.S. 831, 130 S.Ct. 65, 175 L.Ed.2d 48 (2009), and held that "a defendant cannot assert that he was denied his right of confrontation unless he first attempts to cross-examine the witness on the core accusations in the case."

Here, as Judge Batten noted, defendant's counsel made the strategic decision not to ask Jill about the accusations she made against defendant to Detective Kirkbride on the DVD. Counsel confirmed that he did so because Jill's in-court testimony was not damaging to his client. The child's failure to implicate defendant in her testimony and the inconsistencies between her testimony and the statements recorded on the DVD inured to defendant's benefit. Certainly, a more vigorous cross-examination "might have elicited the type of damning responses that eluded the prosecutor on direct-examination." Id. at 414. Here, as in Nyhammer, counsel cannot be faulted for not pursuing cross-examination that might well have damaged his client's case. Having made that strategic choice however, defendant cannot now claim that he was denied the opportunity of cross-examination. Ibid. Accordingly, the admission of the DVD did not violate defendant's rights under the Confrontation Clause.

Defendant's contention that the judge committed reversible error in failing to grant a mistrial after the prosecutor violated the court's sequestration order is likewise without merit. The prosecutor acknowledged that she had inadvertently violated the sequestration order by asking A.M. through one of the court interpreters to confirm that the panties that had been presented as a State exhibit were the ones that Jill had been wearing when she was allegedly assaulted by defendant. The violation occurred on an overnight break in defense counsel's cross-examination of A.M. Defense counsel thereafter requested a mistrial, arguing that the prosecutor had attempted to rehabilitate A.M. Although the prosecutor denied any intent to interfere in the cross-examination, she initially joined in defense counsel's request as she had "obviously" violated the sequestration order. After reviewing the case law, however, the prosecutor altered her position and asked that the court hold a hearing to determine whether a miscarriage of justice had occurred.

After taking the testimony of the prosecutor, the court interpreter, the victim-witness coordinator, and A.M., Judge Batten ruled that, although there had been a technical transgression, there was no actual or potential prejudice to defendant and, thus, no need for a mistrial. The judge described the meeting between A.M. and the prosecutor as an "inadvertent" and "seemingly chance convergence" during which there was merely "innocuous" dialogue between the prosecutor and A.M. Although finding no prejudice to defendant, Judge Batten was nevertheless persuaded that a sanction was warranted. The judge determined that the denial of any further examination of A.M. by the State would "effectively render[] any contact and all contact between the State and [A.M.], both last night and this morning, irrelevant." Judge Batten was of the opinion that such a sanction, which he viewed as "exceedingly severe" under the circumstances, would "render[] virtually impossible" any disadvantage to defendant as a result of the improper contact. The judge denied defense counsel's request for a curative instruction, ruling that, because the contact was so innocuous, a charge as to the specific reason for the trial delay would unfairly penalize the State and provide no advantage to defendant. The judge ultimately instructed the jury that the delay in the proceedings had been occasioned by issues of law that had to be addressed by the court outside of its presence and "implore[d]" the jury to direct all of its frustration towards the court.

We see no error in Judge Batten's fair and thorough response to this issue. The primary purpose of a sequestration order is to ensure that each prospective witness's testimony is based only upon the witness's own knowledge. State v. Miller, 299 N.J.Super. 387, 399 (App. Div.), certif. denied, 151 N.J. 464 (1997). When it appears that a violation of a sequestration order has occurred, a trial judge should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of the violation. State v. Tillman, 122 N.J.Super. 137, 143 (App. Div.), certif. denied, 62 N.J. 428 (1973). In the extraordinary case where the violation has resulted in actual prejudice to the defendant, and the prejudice cannot be dissipated by other remedial action, the trial court, in its discretion, may grant a mistrial or exclude the testimony of the offending witness. Ibid. Where, however, it does not clearly appear that the violation of the sequestration order possesses a potential for prejudice, no such drastic remedial action is required. Id. at 144. We are satisfied that Judge Batten's painstaking approach to addressing the violation of his sequestration order was in accord with the case law and his rulings well within the broad discretion afforded trial judges in confronting such violations.

Defendant's contention that the trial judge committed plain error in permitting Nurse Rybicki to offer expert opinions requires only brief comment. Before Rybicki took the stand, the prosecutor clarified that she was not presenting Rybicki as an expert witness, "although a lot of her testimony is somewhat like it" and that she intended to elicit Rybicki's qualifications as a nurse trained in caring for victims of sexual assault. In the ensuing colloquy, Judge Batten asked defense counsel whether he wished to be heard with regard to the prosecutor's "characterization of [Rybicki's] testimony as . . . expert or otherwise." Defense counsel responded:

[Defense counsel]: I know from the past that Ms. Rybicki's qualifications are that she is an R.N., that she has experience, the specialized training as a SANE nurse, but basically her job is to make observations, to record those observations, to record a history, and as long as the testimony is limited to that, I don't feel the need for an expert witness [charge].
THE COURT: Well, if at some point during the examination your position changes . . . let us know.

Rybicki proceeded to testify, without objection, as to her examination of Jill.

Defendant now contends that Rybicki's testimony strayed into offering expert opinions, which because it was cumulative of testimony offered by Dr. Lind, deprived defendant of a fair trial. We disagree.

Although it is generally true that lay opinion testimony may not cross into the realm of expert testimony, if the witness possesses sufficient qualifications to have testified as an expert, any error in allowing lay opinion testimony that crosses the line into expert testimony may be deemed harmless. State v. Kittrell, 279 N.J.Super. 225, 235-36 (App. Div. 1995). Our review of Nurse Rybicki's testimony convinces us that the witness took pains to avoid offering her opinion in response to questions posed by both counsel. As defendant does not challenge Rybicki's qualifications, however, we conclude that any error in the admission of particulars of her testimony was harmless.

Defendant next contends that he was denied a fair trial as a result of the State's use of a confidential record not previously provided to the defense. He submits that he was not provided a copy of the report by DYFS investigator John Mathis, which the prosecutor used in cross-examining the neighbor's son, Jimmy. He argues that he was thus precluded from discussing any inconsistent statements with Jimmy or assessing the risks of Jimmy's testimony to defendant. We disagree that defendant suffered any prejudice, even assuming the document was not provided in discovery, because the prosecutor was precluded from referencing the report during her examination of defendant's witnesses.

Prior to releasing a confidential DYFS record to defense counsel, the State is required, under N.J.S.A. 9:6-8.10a(b)(6), to submit the record to the court for an in camera review and a determination that information contained therein is necessary for the determination of an issue before it. In re Z.W., 408 N.J.Super. 535, 538-39 (App. Div. 2009). Although that was apparently not done in this case, the prosecutor represented that her file indicated that the report was sent to defense counsel in discovery. Moreover, defense counsel conceded that he was defendant's second attorney and that the prosecutor may very well have furnished the report to prior counsel.

Judge Batten noted that Mathis had long been on the State's witness list. The judge thus declined to find that the State had committed a willful discovery violation. Notwithstanding, the judge sustained defense counsel's objection to use of the report. The judge required the prosecutor to immediately furnish a copy to defense counsel and prohibited any reference to the report by the prosecutor during cross-examination. As the prosecutor was precluded from using the report, any alleged statutory violation or discovery failure was incapable of producing an unjust result. R. 2:10-2.

We turn next to defendant's contention that the prosecutor committed misconduct in her opening and closing statements. Although failing to object at trial, defendant now contends that the prosecutor improperly attempted to "bolster [Jill's] anticipated weak testimony by neutralizing it in advance" in her opening statement. He also contends that the prosecutor improperly appealed to the emotions of the jury by "linking the State's burden to a 'badge of honor.'" After reviewing the remarks, we do not conclude that the prosecutor exceeded the proper bounds of advocacy.

In her opening, the prosecutor explained to the jury that seven-year-old Jill would have to testify at trial, and that court rules prohibited her mother from being with her in the courtroom. The prosecutor said she did not know how Jill would react to being in a courtroom full of adult strangers, including defendant, and offered that the child might tell them what happened in her own words, or might be scared and say nothing. The prosecutor reminded the jury that this was not television scripted for their entertainment but the real world and asked the jury to bear those thoughts in mind during the child's testimony. The prosecutor concluded her opening by referring to the State's burden of proof, saying that "in this case, that responsibility, that burden, for [Jill] is a badge of honor."

"The scope of the [prosecutor's] opening statement is limited to the 'facts he intends in good faith to prove by competent evidence.'" State v. Wakefield, 190 N.J. 397, 442 (2007) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008). Reviewing courts generally "'afford counsel on both sides latitude for forceful and graphic advocacy.'" Id. at 437 (quoting State v. Reddish, 181 N.J. 553, 640-41 (2004)). A review of the prosecutor's opening establishes that she presented an overview of the State's case, including the testimony of her first witness, seven-year-old Jill. We find no error in the prosecutor's brief remarks expressing her uncertainty of how the little girl would handle testifying in front of a large group of adult strangers, including defendant, without the presence of her mother for support. The prosecutor's concluding comments suggested no more than her intent to do her best to vindicate Jill's rights and cannot fairly be characterized as anything beyond "forceful" advocacy. Ibid.

Although he did not object at trial, defendant now contends that he was prejudiced by the prosecutor's emphasis on expert opinions elicited from Nurse Rybicki. Because we find no error in the admission of the whole of Rybicki's testimony, we reject defendant's argument that he was prejudiced by the prosecutor's references to the testimony in her summation. Defendant also contends that the prosecutor made a factually incorrect attack on the defense's theory of the case.

Midway through her summation, the prosecutor stated:

So, [Jimmy] told you part of that story about the panties in the mouth. And he said, when I had asked him well, did it happen really fast, did it happen fast[?] Did [E.R.] ball it up and it happened fast? He said yes. Well, ladies and gentlemen, if you're going to go with that defense, if you're going to consider this defense, you're going to have to suspend all logic and all common sense and reasonableness. Because that would've meant that [E.R.] rolled it up so quickly and put it in, but he rolled it up just at the point of the inside crotch area and just put it in enough just to get an amount [of saliva] just in the crotch area, that's all. Not in the entire panty, but just in that crotch area. That is what you have to go with if you're going to believe what [Jimmy] said.

Defense counsel objected that the prosecutor had misstated the evidence because, according to Molnar, the entirety of the panty was not tested for saliva. Judge Batten overruled the objection, based on his recollection of Molnar's testimony. The judge, however, noted the objection and charged the jury that, in the event of any disagreement between their recollection of the evidence and comments made by either the prosecutor or defense counsel in summation, their recollection would govern.

Defendant renews his objection on appeal. A review of the record, however, indicates that Molnar testified that she visually examined the underwear for any biological stains including saliva, semen or blood. Molnar discovered a stain in the crotch area, and cut out a portion of it for saliva testing. The portion came back positive for saliva that was later determined to be defendant's. Given Molnar's testimony that she inspected the entirety of the underwear for biological stains and found only one, the prosecutor's remarks constitute fair comment on the evidence. State v. Perry, 65 N.J. 45, 48 (1974). Further, because the judge properly instructed the jurors that their recollection of the evidence would control, defendant cannot demonstrate any prejudice by the remarks.

We comment only briefly on defendant's claims that the trial court erred in permitting the victim's mother to offer fresh complaint testimony regarding statements made by her daughter, and in allowing the State's witnesses to offer hearsay testimony.

Judge Batten's ruling that Jill's out-of-court statements to her mother were admissible pursuant to the fresh complaint rule is well-supported by the evidence. State v. Hill, 121 N.J. 150, 163 (1990). Defendant's arguments, raised for the first time on appeal, that A.M. was permitted to offer too many details in her fresh complaint testimony and improperly allowed to expand upon that testimony on cross-examination, are without merit. Id. at 169-70 (noting that it is within the trial court's discretion to decide when otherwise admissible fresh complaint testimony should be excluded because it is duplicative or prejudicial).

We likewise reject defendant's argument, not raised to the trial court, that it was error to permit Dr. Lind to testify to hearsay statements made during the course of her examination of Jill. Prior to Dr. Lind's testimony, Judge Batten, at defense counsel's request, defined the permissible parameters of Lind's testimony with specific reference to N.J.R.E. 803(c)(4) (statements made in good faith for purposes of medical diagnosis or treatment), and provided a consonant limiting instruction to the jury, without objection.

Defendant now contends that because the record indicates that Jill was not taken to Lind for purposes of treatment, Lind should not have been permitted to testify to any statements made to her by Jill. Lind specifically testified, however, that she examined Jill for purposes of preparing a diagnostic assessment and treatment plan. Lind was the only doctor who saw Jill for that purpose. That the prosecutor's office arranged for Jill's appointment with Lind does not render Judge Batten's ruling pursuant to N.J.R.E. 803(c)(4) erroneous.

We reject defendant's contention that the trial judge erred in permitting Officer Trotter to offer double hearsay testimony regarding A.M.'s and Jill's identification of defendant thereby improperly bolstering the testimony of the State's witnesses. Trotter first testified that Jill pointed to defendant and said "that's the man." The judge overruled defendant's objection, finding the statement admissible as both a prior identification under N.J.R.E. 803(a)(3) and as an excited utterance under N.J.R.E. 803(c)(2). Minutes later, Trotter testified that Jill pointed toward defendant while A.M. said, "that's the man." The judge sustained defendant's objection to that testimony as double hearsay and instructed the jury to disregard it. In light of the limiting instruction and the other identification evidence in the record, we do not conclude that the stricken testimony prejudiced defendant.

Finally, defendant contends that his conviction must be vacated because of the cumulative effect of the errors occurring during his trial. We reject this argument. It is well-established that "incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair" may not be invoked to upset defendant's otherwise valid conviction. State v. Orecchio, 16 N.J. 125, 129 (1954). As a review of the entire trial proceedings convinces us that no other type of error is present on this record, reversal on this ground is unwarranted.

We have considered the arguments defendant has offered to establish that his twenty-year extended term sentence for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), is excessive and determined that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Judge Batten's determination to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a, is in accord with State v. Pierce, 188 N.J. 155, 164-68 (2006), and his findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record. The twenty-year term imposed was at the bottom of the extended-term range authorized under N.J.S.A. 2C:43-7a(2), and the maximum that would have been permissible had defendant received an ordinary sentence. N.J.S.A. 2C:43-6a(1). The sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.


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