NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2279.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Parrillo, Sabatino and Maven.
Defendant appeals from his convictions and sentence for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), (c) (count two); N.J.S.A. 2C:14-2(a)(6) (count three); and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3) (count four). The trial court sentenced defendant to two concurrent eighteen-year terms of imprisonment, with a nine-year period of parole ineligibility, on counts two and three; and a consecutive eight-year term of imprisonment, with a four-year parole bar, on count four. The State dismissed count one of the indictment, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), after the jury failed to reach a verdict.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SECOND[-]DEGREE SEXUAL ASSAULT, IN VIOLATION OF N.J.S.A. 2C:14-2(c).
II. THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE FOR A REASONABLE JURY TO FIND THAT HE COMMITTED THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT, IN VIOLATION OF N.J.S.A. 2C: 14-2(a)(2) AND N.J.S.A. 2C:14-2(a)(6).
III.[DEFENDANT'S] SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
Because we determine that the lesser-included offense, sexual assault, should have been additionally charged to that jury on count three, we reverse the conviction on that particular count and remand for a new trial.
The facts adduced from the State's proofs at the first trial are as follows. In 2005, O.M., thirty-two years old, disclosed to her aunt for the first time that defendant, her stepfather, sexually abused her as a child. O.M.'s aunt encouraged her to report the events to the authorities.
Following an investigation, a grand jury issued a four count indictment charging defendant with first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M. while she was less than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count one); first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M. while she was at least thirteen but less than sixteen years old, and defendant was related to O.M. by affinity, N.J.S.A. 2C:14-2(a)(2)(a), and/or defendant stood in loco parentis within O.M.'s household, N.J.S.A. 2C:14-2(a)(2)(c) (count two); first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M while using physical force or coercion, and O.M. sustained severe personal injury, N.J.S.A. 2C:14-2(a)(6) (count three); and second-degree sexual assault, by committing an act of sexual penetration with O.M while she was at least sixteen but less than eighteen years old, N.J.S.A. 2C:14-2(c)(3) (count four).
At trial, O.M. testified that defendant began touching her when she was twelve years old. She testified that defendant would come into her room every night, and either perform oral sex on her, or digitally penetrate her. He eventually began having sexual intercourse with O.M. against her will and without a condom. O.M. testified that she tried to make him stop by ...