December 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-05-0986 and 09-04-0634.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Yannotti and Ashrafi.
Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count four). Prior to the trial, the judge granted the State's motion to dismiss count four. Defendant was tried before a jury and found guilty on the remaining counts. Defendant appeals from the amended judgment of conviction entered by the trial court on July 21, 2011. For the reasons that follow, we affirm.
Defendant filed a motion to suppress a videotaped interview with K.S., defendant's daughter, in which she stated that defendant had sexually abused her at various times. K.S. was seven years old when she reported the abuse. Defendant argued that the videotaped interview was not admissible under N.J.R.E. 803(c)(27) because K.S.'s statements were not trustworthy. He also argued that the interview should be suppressed pursuant to State v. Michaels, 136 N.J. 299 (1994), because the detective allegedly used suggestive interviewing techniques. The State moved to admit the videotaped interview into evidence, as well as unrecorded statements that K.S. made to M.H., who is defendant's aunt.
The motion judge conducted a N.J.R.E. 104 hearing on the motions. The judge found that K.S.'s statements to M.H. and the videotaped interview were admissible pursuant to N.J.R.E. 803(c)(27). The judge additionally found that the interview should not be barred pursuant to Michaels. The judge did, however, preclude M.H. from testifying at trial about certain anatomical demonstrations K.S. made when she told M.H. about the alleged sexual abuse.
Defendant additionally filed a motion to suppress the statement he gave to the police, and the State moved to admit evidence regarding defendant's prior convictions for sexual assault pursuant to N.J.R.E. 404(b). The motion judge conducted a N.J.R.E. 104 hearing on these motions. The judge denied defendant's suppression motion. The judge also denied the State's motion to admit evidence regarding defendant's prior sexual assault convictions.
The matter was thereafter tried before a jury. We briefly summarize the evidence presented at trial. In the summer of 2007, when K.S. was seven years old, she moved with her mother J.S. and her three younger sisters into M.H.'s three-bedroom apartment on Avenue C in Bayonne. M.H. and her husband shared one of the bedrooms. Their daughter and grandson shared the second bedroom. J.S. shared the third bedroom with K.S. and her other two daughters.
Defendant resided with his brother but slept at M.H.'s apartment on the weekends. During the week, defendant visited J.S. and the children at M.H.'s apartment. When defendant stayed at M.H.'s apartment on the weekends, he slept with J.S. in her bedroom. At those times, K.S. slept on a pull-out sofa bed in the living room.
M.H. testified that, on January 12, 2009, K.S. and her sisters came home from school. M.H. spoke with them. Initially, they said everything was "good with school, " but then L.S., one of K.S.'s sisters, blurted out that "mommy and daddy were naked in the bedroom in the back room." M.H. told L.S. she would have a talk with her mother. K.S. looked "kind of angry, upset."
M.H. went into the bathroom to have a cigarette, because she had a vent in that room. J.S., K.S. and L.S. followed her. M.H. closed the lid and sat on the toilet. J.S. sat on the tub and the two girls stood by the door. According to M.H., K.S. blurted out, "Daddy touched me." M.H. looked at J.S., and J.S. looked at her.
M.H. asked K.S. what she was talking about. K.S. repeated, "Daddy touched me." M.H. asked her where defendant had touched her. K.S. repeated her statement and said, "I told mommy, mommy was supposed to tell you . . . . You were supposed to call the cops." J.S. looked surprised.
M.H. asked K.S. if she knew the difference between her and her boy cousin, and she responded that her cousin had a penis and she had a "Mary." M.H. then asked K.S. when her father had touched her, and K.S. told her this occurred at the other home where the family resided before J.S. and the children moved to M.H.'s apartment.
M.H. asked K.S. to describe what had happened. K.S. stated that her mother would be asleep in the bedroom, and defendant would come into her room. K.S. said she would close her eyes. She "wanted to make believe she was someplace else." K.S. said defendant would "get on top of her" and "go up and down" between her legs. K.S. also said that, when defendant finished and she opened her eyes, he ran and she saw that he had no clothes on.
M.H. asked K.S. if defendant touched any of her sisters, particularly L.S. K.S. said no. She told M.H. that defendant "would have killed" L.S. because, if he had gotten on top of her, she would not have been able to breathe.
M.H. called the Bayonne police, and police officers transported members of the family to police headquarters. After learning that the matter involved an allegation of a sexual assault, the family members were taken to the Special Victim's Unit at the county prosecutor's office. The State's Division of Child Protection and Permanency also was notified.
Detective-Sergeant Chonda Rosario interviewed K.S. After she developed a rapport with K.S., Rosario showed K.S. anatomical representations of a male and a female and asked K.S. what the pictures showed. K.S. responded that they were "Marys" and penises and pointed to each. She said girls have "Marys, " which are vaginas.
Rosario asked K.S. if there were places on her body that no one is supposed to touch. K.S. said her "butt" and her "Mary." She stated that her father had touched her "butt" and her "Mary." K.S. said defendant first touched her when she was seven years old.
K.S. told Rosario that defendant would touch her at night on the weekends when she was sleeping; the touching happened at the "old house" where the family lived; and defendant would touch her "everywhere" when she was asleep. She said defendant "attacked" her when she was on the top bunk. K.S. explained that their "old house" had two bedrooms. K.S. and L.S. slept in one of the bedrooms and shared a bunk bed. L.S. slept on the bottom bunk and K.S. slept on the top bunk. Defendant and J.S. slept in the other bedroom.
K.S. said that, one day, she found defendant's black hair in her bed. She knew it belonged to defendant because he was the only one in the family with dark black hair. K.S. also knew defendant had sexually assaulted her because she saw him on top of her, and she saw him run when he got off of her. She felt defendant's penis inside her "Mary" and he was going up and down.
K.S. said she was awakened by the "emotion." When she saw defendant's face, she knew it was not a dream. She also knew it was not defendant's friend. She said defendant had "jumped" upon her. She also stated that defendant began to do this to her when she was seven years old, and he continued doing so until she was eight.
K.S. explained that sometimes defendant would touch her "butt" with his penis and put his penis in her. She said that when she was sleeping, defendant would turn her around, sit on her and put his penis on her. Defendant also used his tongue on her "Mary." K.S. said that, at these times, she was clothed and defendant had no clothes on. At other times, defendant held her head and put his penis in her mouth.
K.S. additionally explained that defendant was wearing underwear during most of the incidents she described. She said, however, that defendant was "butt naked" during the last incident, which was in the living room at M.H.'s apartment. She stated that defendant removed her clothes and performed the same up and down "emotions" but faster, but she awoke and screamed and defendant ran away quickly. K.S. said her scream woke "everybody" up. K.S. drew pictures illustrating what defendant had done to her.
At the end of the interview, Rosario asked K.S. if the acts she described were something that she had seen her parents doing. K.S. said they were not. She stated that she had described what defendant had done to her, and it was the truth.
After Rosario took K.S.'s statement, K.S. was examined at the emergency room of a local medical center. No physical injuries were discovered. K.S. was also examined at the Audrey Hepburn Children's House (AHCH) at Hackensack University Medical Center; however, biological substances were not recovered due to the delay in reporting the abuse.
Dr. Nina Agrawal, a child abuse pediatrician at AHCH, testified that, in order to collect bodily fluids from a sexual assault, the forensic evidence must be collected within seventy-two hours of the assault. After ninety-six hours, it is unlikely that bodily fluids or forensic evidence can be recovered from a child. Dr. Agrawal also opined that it is rare to see injury in children who have been sexually abused and report penetration. She said physical findings are unlikely in reports of oral sex, unless there has been ejaculation, which would disappear soon thereafter.
Detective Mark Groninger testified that he took a videotaped statement from defendant. Groninger informed defendant of his Miranda rights. Defendant waived his Miranda rights in writing and agreed to give a statement. Groninger then questioned defendant about K.S.'s allegations.
Defendant admitted that he had been on top of K.S. He acknowledged that he was naked at the time, and that his penis touched K.S.'s thigh. Defendant said this incident occurred two years before the interview. He stated that K.S. woke up as he was getting off of her, and he ran out of the room.
K.S. testified. She was eleven years old at the time of the trial. She said that there were places on her body that no one is supposed to touch, specifically her chest, her "Mary" and her "butt." K.S. said defendant had touched her "butt" and "Mary" while they were living in their "old house." She explained that, after she moved to M.H.'s house with her mother and sisters, she would sleep in the living room on weekends because her father stayed over.
K.S. could not recall if defendant touched her "Mary" inside or outside. She could not recall how her father touched her "butt." She did not remember what her father had been wearing when he touched her. She did not recall telling M.H. anything about her father. She stated that it hurt when defendant touched her "Mary."
In addition, Dr. Lynn Taska testified for the State as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Taska discussed the five characteristics of CSAAS: secrecy, helplessness, entrapment and accommodation, delay and unconvincing disclosure, and retraction or recapitulation.
Defendant did not testify, nor did he present any witnesses on his behalf. Defense counsel maintained, however, that K.S. had fabricated the allegations.
As we noted previously, the jury found defendant guilty on counts one (aggravated sexual assault), two (sexual assault) and three (endangering the welfare of a child). Thereafter, the State filed a motion for imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6.4(e), because defendant had previously been convicted of endangering the welfare of a child and his sentence had included community supervision for life (CSL). The judge granted the State's motion.
The judge merged count two with count one and sentenced defendant on count one to an extended fifty-year term of imprisonment, which must be served in its entirety. The judge also sentenced defendant to a concurrent ten-year term on count three. The judge entered a judgment of conviction dated June 3, 2011. An amended judgment was filed on July 21, 2011, and this appeal followed.
Defendant raises the following arguments for our consideration:
THE IMPROPER ADMISSION OF K.S.'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING SEXUAL ABUSE, PURSUANT TO N.J.R.E. 803(C)(27) DENIED DEFENDANT THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARS., 1, 9, 10).
THE TRIAL WAS TAINTED BY EVIDENCE ABOUT A RESTRAINING ORDER AGAINST DEFENDANT AND HIS ARREST FOR VIOLATING THAT ORDER. THE EVIDENCE WAS IRRELEVANT, PREJUDICIAL, AND IMPROPERLY ADMITTED AS "OTHER CRIMES" EVIDENCE, WITHOUT BEING SCRUTINIZED UNDER N.J.R.E. 404(B) AND STATE V. COFIELD, 127 N.J. 328 (1992), AND WITHOUT A LIMITING INSTRUCTION TO RESTRICT THE JURY'S USE OF THAT EVIDENCE, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS., 1, 9, 10) (Not Raised Below).
THE TRIAL JUDGE ERRONEOUSLY SENTENCED DEFENDANT TO AN EXTENDED TERM, IMPROPERLY DOUBLE COUNTED ELEMENTS OF THE OFFENSES AS AGGRAVATING FACTORS, AND THE AGGREGATE SENTENCE IMPOSED, A 50-YEAR STATE PRISON TERM TO BE SERVED IN ITS ENTIRETY, WAS EXCESSIVE BECAUSE IT WAS CONTRARY TO THE CONCEPT OF PROGRESSIVE PUNISHMENT INHERENT IN OUR SENTENCING SCHEME AND IT PENALIZED DEFENDANT FOR DEFENDING AGAINST THE CHARGES.
A. The Extended Term.
B. Aggravating and Mitigating Factors.
C. The Excessive Terms.
Defendant has filed a pro se supplemental brief in which he raises the following argument:
THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARY [sic] MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1).
We turn first to defendant's contention that the trial judge erred by admitting K.S.'s out-of-court statement to M.H. and K.S.'s videotaped interview with Detective-Sergeant Rosario. Defendant contends that K.S.'s statements should not have been admitted into evidence because they were inconsistent and made under circumstances that were unduly suggestive. Defendant also contends that the statements were insufficiently trustworthy to be admitted into evidence.
N.J.R.E. 803(c)(27), the tender years exception to the hearsay rule, governs the admission of out-of-court statements about sexual misconduct by a child less than twelve years old. The rule provides in pertinent part that:
[a] statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to [N.J.R.E.] 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . (i) the child testifies at the proceeding . . . .
Thus, admissibility of the child's statement is conditioned upon the State giving prior notice to the defendant of its intention to introduce the statement at trial, a pre-trial determination by the court that the statement is trustworthy, and defendant is afforded an opportunity to cross-examine the child at trial. State v. P.S., 202 N.J. 232, 249 (2010) (citing State v. R.B., 183 N.J. 308, 318 (2005)).
In undertaking the required trustworthiness analysis, the trial court must consider "the totality of the circumstances." Ibid. (quoting State v. Roman, 248 N.J.Super. 144, 152 (App. Div. 1991)). Among other factors, the court should consider whether the statement is spontaneous, whether the statement was repeated consistently, the declarant's mental state, whether the declarant used terminology that is unexpected of a child of similar age, and whether the declarant had a motive to fabricate. Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638, 656 (1990)).
Where the child's statement arises out of an interview, the court also should consider whether the interview technique "has the requisite indicia of reliability." Id. at 250 (citing Michaels, supra, 136 N.J. at 309). "Relevant to the analysis are details such as 'lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements[.]'" Ibid. (quoting Michaels, supra, 136 N.J. at 309). If the interview was recorded on videotape, the tape should be considered as part of the trustworthiness analysis. Ibid. (citing Michaels, supra, 136 N.J. at 313-14 n.1).
A trial court's decision to admit a child's statement pursuant to N.J.R.E. 803(c)(27) is entitled to deference on appeal. Ibid. Furthermore, we must uphold the trial court's factual findings if they are supported by "sufficient credible evidence in the record." Id. at 250 (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We also must give due deference to the court's credibility findings. Id. at 250-51 (citing State v. Locurto, 157 N.J. 463, 471 (1999)).
Here, the State informed defendant of its intent to introduce K.S.'s statements to M.H. and her videotaped interview with Rosario at trial. The motion judge conducted the pretrial hearing on the State's application, as required by N.J.R.E. 803(c)(27).
At that hearing, M.H. testified concerning the statements K.S. made to her reporting the alleged sexual misconduct. Detective-Sergeant Rosario also testified concerning the videotaped interview, and the judge viewed the videotape.
Defendant presented testimony from Dr. Gerald Cooke, a psychologist who has had experience in the evaluation of allegations of sexual abuse. Dr. Cooke reviewed the videotape and other evidence. He testified that Rosario's interview initially was done appropriately but became "problematic." Dr. Cooke stated that Rosario asked K.S. a leading question about where defendant had touched her, and this may have influenced K.S.'s response.
Dr. Cooke also said that K.S. told M.H. that there had been no penetration, while she told Rosario that there had been penetration. Dr. Cooke said there may have been suggestiveness in the way Rosario questioned K.S. on this issue, which led K.S. to change her account.
Dr. Cooke additionally stated that he thought it was unusual for K.S. to focus immediately on the genitalia in the anatomical drawings that Rosario showed her. He said it was "possible" that someone had spoken to K.S. about what she was going to be telling the interviewer, but he acknowledged that this could have been due to the fact that K.S. was exposed to "so much sexuality throughout her life[.]"
In his decision, the motion judge noted that K.S.'s report of defendant's sexual misconduct was not the result of any interrogation by M.H. The judge stated that M.H. had only made a "simple normal general inquiry" which any parent or guardian might make when a child returns from school. The judge said the inquiry was not suggestive. Moreover, K.S. made her disclosures spontaneously. The judge concluded that the details of K.S.'s disclosures were trustworthy.
The judge found, however, that M.H.'s testimony concerning K.S.'s "anatomical discussion" was questionable at best, because that discussion did not occur during K.S.'s spontaneous disclosures but later, after the child had spoken with the police. Thus, the judge concluded that M.H.'s testimony regarding the child's "anatomical discussion" was not reliable or trustworthy and could not be presented at trial.
The judge additionally found that K.S.'s statements to Rosario during the videotaped interview were spontaneous, because they were made on the same day that K.S. made her disclosures to M.H. The judge noted that, while K.S.'s description of the abuse was more expansive than her earlier disclosures, they were consistent. The judge pointed out that a trained and experienced investigator would be better able to obtain more detailed facts "than a civilian."
The judge also noted that on the videotape, K.S. appeared comfortable reporting the incidents to Rosario. The judge observed that there was no indication that the child was under any stress, and K.S. had no reason to fabricate the allegations. In addition, the child did not appear to be angry with defendant, and she did not appear to understand "the true nature or implications" of her accusations.
The judge found that K.S. had a clear ability to recall the events, and supplemented the drawing prepared by the detective with graphic depictions of the incidents she described. He noted that, in at least one instance, K.S. distinguished "what her parents did sexually from what her father allegedly did to her."
The judge also found that Michaels did not require suppression of the videotaped interview. The judge was not persuaded by Dr. Cooke's testimony. The judge noted that the doctor had focused on one or two questions, and "even if you conclude that they were misleading, [the doctor's] best opinion was that there was a possibility of suggestion."
The judge stated that Michaels does not require an interview to meet "clinical standards of perfection." He said Rosario's interviewing technique was "an accepted methodology" among experts, and Rosario had been objective in her approach. Before the interview, Rosario had no contact with K.S. She had only observed the questioning of M.H., which contained very basic facts.
During the interview, Rosario and K.S. were both "relaxed, comfortable and engaged." Rosario gave K.S. no inducements, threats or bribes. The judge found that Rosario's questions were not unduly suggestive. He concluded that the interview was not so suggestive as to give rise to a substantial likelihood of false recollection of the material facts.
We are convinced that there is sufficient credible evidence in the record to support the judge's findings. The judge made the trustworthiness analysis required by N.J.R.E. 803(c)(27) and in doing so, considered the totality of the circumstances. The record supports the judge's finding that K.S.'s disclosures to M.H. were spontaneous and not the result of any interrogation by M.H.
The record also supports the judge's finding that K.S.'s videotaped statement was made spontaneously and Rosario's questioning was not unduly suggestive. The judge provided cogent reasons for his rejection of Dr. Cooke's testimony, and the evidence supports the judge's determination that K.S.'s statements were trustworthy.
We therefore conclude that the judge's decision to admit K.S.'s statements to M.H. and the videotaped interview with Rosario was not an abuse of discretion.
Next, defendant argues that the trial was tainted by evidence concerning a restraining order entered against him and his arrest for violating that order. Defendant maintains that the jurors were allowed to consider the restraining order as evidence of his propensity to commit crimes, including the alleged sexual assaults for which he was being tried. Defendant also maintains that the trial judge erred by failing to provide the jury with a limiting instruction regarding this evidence.
These arguments were not raised in the trial court. We therefore consider whether the evidence was erroneously admitted and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2.
The restraining order was mentioned on the videotaped statement that defendant gave to the police. Prior to the trial, defense counsel made specific requests to redact portions of the statement before it was played for the jury, but counsel did not seek redaction of the references to the restraining order.
At the trial, the State elicited brief testimony concerning the restraining order from the officers present when defendant made his statement. Defense counsel did not object to this testimony. The recorded statement was then played for the jury.
In her summation, defense counsel referred to the restraining order. She asserted the K.S.'s allegations were fantasy. She said the family had its ups and downs, noting that a restraining order had been in place in January 2009, but "everybody was ignoring [the order] because [defendant] and [J.S.] were working out their differences, [and] things were going well."
Defense counsel reviewed K.S.'s videotaped interview and argued that her allegations were not credible. She noted that defendant had been interviewed by the police and he had been cooperative. He did not hold back any information. She said defendant had acknowledged he had violated the restraining order.
The record therefore indicates that defense counsel used the restraining order in an apparent effort to discredit K.S.'s allegations. Defense counsel argued that, although J.S. and defendant had marital problems and a restraining order had been issued, defendant had continued to stay over at M.H.'s apartment on weekends and visited the children during the week. Defense counsel apparently was suggesting that defendant was an attentive father, who would not engage in the alleged unlawful acts.
If admission of evidence regarding the restraining order was an error as defendant claims, it was an error invited and acquiesced in by the defense. In our view, the doctrine of invited error precludes defendant from arguing that his conviction should be reversed because the order was mentioned at trial. A defendant cannot ask the court to take a certain course of action and, after the court has done so, '"condemn the very [action] he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting from State v. Pontery, 19 N.J. 457, 471 (1955)).
Furthermore, even if erroneous, the references to the restraining order were not "clearly capable of producing an unjust result." R. 2:10-2. The restraining order was mentioned briefly, and there was no explanation as to the reasons why the order had been issued. The order had nothing to do with the charges in this case, and the references to it were not likely to lead the jury to believe that defendant was predisposed to commit the sexual offenses for which he was being tried.
Moreover, despite defendant's claim to the contrary, the trial judge provided the jury with a limiting instruction regarding the restraining order. The judge stated, "[y]ou have heard testimony about a restraining order and you are not to draw an adverse inference regarding the restraining order that existed January 12, 2009." The judge added that this evidence "should not enter your deliberations or discussions in any manner at any time." We must assume the jury followed the judge's instruction. State v. Scherzer, 301 N.J.Super. 363, 437 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997).
In his supplement pro se brief, defendant argues that the motion judge erred by admitting the statement he gave to the police. He says that, while he understood the Miranda warnings that were provided to him, he gave the statement under conditions that amounted to psychological coercion. Defendant therefore argues that his statement was not voluntary, and its admission violated his right to due process of law and his privilege against self-incrimination.
A defendant is free to waive his Miranda rights and subject himself to police interrogation so long as he does so knowingly, voluntarily and intelligently. State v. Knight, 183 N.J. 449, 461-62 (2005). The State must show "beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." Id. at 461 (citing State v. Galloway, 133 N.J. 631, 654 (1993)). In determining whether a defendant's statements were made voluntarily, the court must consider the totality of circumstances. Id. at 462-63.
As we noted previously, the motion judge conducted a N.J.R.E. 104 hearing on the admissibility of defendant's statement. At the hearing, the State presented testimony from Detective Groninger, who took the statement. The judge also viewed the videotape of the statement.
The judge found that defendant knowingly, voluntarily and intelligently waived his Miranda rights. The judge pointed out that defendant was eager to speak with the investigating detective and he did so. The judge found that statement was voluntary and admissible.
We are convinced that the judge correctly determined that defendant's statement should not be suppressed. Defendant's contention that his statement was not voluntary is not of sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Defendant challenges his sentence on several grounds. He argues that he was not subject to a mandatory extended term under N.J.S.A. 2C:43-6.4(e). He contends that the aggregate fifty-year term, which must be served in its entirety, was improperly arrived at by double counting elements of the offenses as aggravating factors. Defendant also contends that the sentence is excessive, and a term of twenty years should have been imposed instead.
A. Eligibility for an extended term sentence.
As initially enacted, N.J.S.A. 2C:43-6.4 provided in pertinent part:
a. Notwithstanding any provision of law to the contrary, a court imposing sentence on a person who has been convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S. 2C:13-1, endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S. 2C:24-4, luring or an attempt to commit any such offense shall include, in addition to any sentence authorized by this Code, a special sentence of community supervision for life.
e. (1) A person serving a special sentence of community supervision imposed pursuant to this section who commits a violation of 2C:11-3, 2C:11-4, section b. of 2C:12-1, 2C:13-1, 2C:13-6, 2C:14-2, 2C:14-3, 2C:24-4, a crime of the second degree under 2C:18-2 or subsection a. of 2C:39-4, shall be sentenced to an extended term of imprisonment.
[L. 1994, c. 130, § 2.]
In 2003, the statute was amended to state in pertinent part:
a. Notwithstanding any provision of law to the contrary, a judge imposing sentence on a person who has been convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S. 2C:13-1, endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to § a. of N.J.S. 2C:24-4, endangering the welfare of a child pursuant to paragraph (3) of subsection b. of N.J.S. 2C:24-4, luring or an attempt to commit any of these offenses shall include, in addition to any sentence authorized by this Code, a special sentence of parole supervision for life.
. . . .
e. A person who, while serving a special sentence of parole supervision for life imposed pursuant to this section, commits a violation of N.J.S. 2C:11-3, N.J.S. 2C:11-4, N.J.S. 2C:11-5, subsection b. of N.J.S. 2C:12-1, N.J.S. 2C:13-1, N.J.S. 2C:13-6, N.J.S. 2C:14-2, N.J.S. 2C:14-3, N.J.S. 2C:24-4, N.J.S. 2C:18-2, when the offense is a crime of the second degree, or subsection a. of N.J.S. 2C:39-4 shall be sentenced to an extended term of imprisonment as set forth in N.J.S. 2C:43-7, which term shall, notwithstanding the provisions of N.J.S. 2C:43-7 or any other law, be served in its entirety prior to the person's resumption of the term of parole supervision for life.
[L. 2003, c. 267, § 2.]
The record shows that, on April 22, 2004, defendant pled guilty to third-degree endangering the welfare of a child, as charged under Hudson County Accusation No. 04-04-514. Defendant was sentenced on October 1, 2004. The sentence included CSL. Defendant asserts that because that sentence pertained to an offense that was committed before the effective date of the 2004 amendments to N.J.S.A. 2C:43-6.4(e), the sentence included CSL rather than parole supervision for life (PSL).
Defendant argues that because he was serving a sentence with CSL rather than PSL, he was not subject to the extended term under the amended N.J.S.A. 2C:43-6.4(e) as a result of his convictions in this case. He further argues that he was not subject to an extended term under the 1994 statute because that statute did not establish the parameters for the extended term. We do not agree.
The legislative history makes clear that the 2004 amendments to N.J.S.A. 2C:43-6.4(e) were merely "clarifying and technical in nature." Senate Law and Public Safety and Veterans' Affairs Committee, Statement to S. 2659 (Nov. 24, 2003). The Legislature amended the statute "to clarify that the lifetime community supervision required by [L. 1994, c. 130, § 2, eff. Oct. 31, 1994] is parole supervision which commences upon the defendant's actual release from incarceration, and is to be supervised like any other period of parole." Ibid.
Thus, the trial judge correctly determined that defendant was subject to the extended term provided under N.J.S.A. 2C:43-6.4(e). Defendant's 2004 sentence included CSL and the 2004 amendments merely indicated that CSL was PSL. Furthermore, the amended statute, which was in effect when defendant committed the offenses at issue here, established the requisite parameters for the extended term that could be imposed.
In support of his argument that he was not subject to an extended term sentence, defendant relies on State v. Olsvary, 357 N.J.Super. 206 (App. Div.), certif. denied, 177 N.J. 222 (2003). In that case, the defendant was convicted in 1998 of endangering the welfare of a child and his sentence included CSL. Id. at 207 n.1. The defendant later pled guilty to fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b), and the trial court sentenced him to an extended term pursuant to N.J.S.A. 2C:43-6.4(d). Id. at 207-08.
We noted that N.J.S.A. 2C:43-6.4(e) provided for the imposition of an extended term, but did not provide any specific sentence for a fourth-degree offense. Id. at 210. We rejected the State's contention that the court could follow the range established for extended term sentences "for the next higher degree crime." Id. at 212. We stated that "omission of the parameters within which a sentencing judge may impose" an extended term sentence on a fourth-degree offense "is fatal." Id. at 214.
Defendant's reliance upon Olsvary is clearly misplaced. In the 1994 legislation, the Legislature had not established the parameters for the imposition of an extended term when a defendant is convicted of fourth-degree criminal sexual contact. However, in the 1994 legislation, the Legislature had provided those parameters for extended terms for first-degree offenses.
Moreover, in the 2003 amendments to N.J.S.A. 2C:43-6.4, the Legislature additionally provided that the entire extended-term sentence must "be served in its entirety prior to the person's resumption of the term of parole supervision for life." L. 2003, c. 267, § 2. Defendant committed the instant offenses after the 2003 amendments took effect, and he was properly sentenced under those statutory provisions.
B. The sentence imposed.
As we explained previously, the trial judge merged count two (sexual assault) with count one (aggravated sexual assault). Regarding count one, the judge found aggravating factors two (gravity and seriousness of harm inflicted on the victim); three (risk that defendant will commit another offense); six (defendant's criminal record); and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(2)(3)(6) and (9). The judge found no mitigating factors. The judge sentenced defendant on count one to an extended term of fifty years, which must be served in its entirety.
On count three (endangering the welfare of a child), the judge found aggravating factors three, six and nine. The judge found no mitigating factors. On this count, the judge sentenced defendant to a concurrent term of ten-years of imprisonment.
Defendant argues that, in imposing the sentence on count one, the judge improperly "double counted" elements of aggravated sexual assault to find aggravating factor two. He also argues that the judge erroneously focused solely on his prior criminal record as a basis for finding aggravating factor three.
Defendant additionally maintains that the judge should have given aggravating factor nine "minimal weight" because the judge did not state a specific need for deterrence. Defendant contends that he should have been sentenced to twenty-years of imprisonment.
The judge did not double count the element of aggravated sexual assault in finding aggravating factor two. The judge's finding was based upon the emotional and psychological harm to the victim, which results when a parent sexually abuses his child. Such considerations are not elements of aggravated sexual assault under N.J.S.A. 2C:14-2(a).
In finding aggravating factor three, the judge noted that K.S. was defendant's fourth sexual assault victim. Thus, the record supported the judge's determination that there was a likelihood defendant would commit another offense. In addition, the judge properly found that there was a need to deter defendant and others from violating the law.
Defendant further argues that the "imposition of a maximum sentence is not the norm of our sentencing scheme" He maintains that he was "punished" for exercising his right to go to trial This argument is without sufficient merit to warrant discussion R 2:11-3(e)(2)
We conclude that defendant's sentences are not manifestly excessive or unduly punitive do not represent an abuse of the judge's sentencing discretion and do not shock the judicial conscience State v O'Donnell 117 N.J. 210 215-16 (1989); State v Roth 95 N.J. 334 363-65 (1984)