STATE OF NEW JERSEY v. G.C

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4464-03T44464-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.C.,

Defendant-Appellant.

________________________________

Submitted May 2, 2005 - Decided May 25, 2005

 
Remanded by Supreme Court July 24, 2006

Resubmitted April 23, 2007 - Decided

Before Judges Lintner, S.L. Reisner and

C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

02-08-0934.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Jan, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This appeal comes before us on remand by the Supreme Court in State v. G.C., 188 N.J. 118, 134 (2006), following its reinstatement of defendant's conviction 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 second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.

We need not restate the underlying facts in detail as they are set forth at length in the Court's opinion. G.C., supra, 188 N.J. at 121-28. Defendant's conviction was essentially based upon statements given by his then three years and five- months-old daughter, as well as the daughter's testimony at trial (five years old at the time) and defendant's audiotape admission that he "wiped her with some toilet tissue and [his] finger went inside of her." Id. at 124. After waiving his Miranda rights, defendant initially claimed that he inserted his finger by accident. However, he later retracted that explanation, admitting that he knew what he was doing at the time.

Following his conviction, defendant was sentenced to an aggregate term of ten years with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THE VICTIM'S STATEMENTS WERE ADMISSIBLE UNDER N.J.R.E. 803(c)27.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT THE VICTIM WAS COMPETENT TO TESTIFY.

POINT III

THE TRIAL COURT ERRED IN FINDING THE VICTIM'S VIDEOTAPED STATEMENT ADMISSIBLE.

POINT IV

DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JURY'S VERDICT CONSTITUTES A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT V

THE CUMULATIVE EFFECT OF ALL THE ABOVE ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VI

UNDER THE FACTS OF THIS CASE, THE INTEREST OF JUSTICE REQUIRES DEFENDANT BE SENTENCED AS IF HE WAS CONVICTED OF A CRIME ONE DEGREE LOWER.

In our previous per curium opinion, we found no basis to disturb the trial judge's determination to admit evidence of the victim's out-of-court statement or her subsequent videotaped interview as urged by defendant in Points I and III. However, we reversed defendant's conviction and remanded the matter for a new trial on defendant's Point II contention, believing "that the inquiry into [the daughter's] understanding of her duty to tell the truth was insufficient." State v. G.C., No. A-4464-03T4 (App. Div. May 25, 2005) (slip op. at 3). Reversing our judgment and reinstating defendant's conviction, the Court remanded the cause for us to consider defendant's remaining points, namely those raised in Points IV, V, and VI. We reject defendant's remaining contentions and affirm the judgment of conviction and sentence imposed.

Defendant contends in Point IV that the judge erred in denying his motion for a new trial. Although he concedes that "it was for the jury to decide the credibility of [his daughter's] statements," he argues that no reasonable jury could have determined exactly what happened beyond a reasonable doubt because of certain inconsistencies in her testimony. He points to inconsistent testimony from the child based upon her telling her mother and the Division of Youth and Family Services' representative that defendant rubbed her vagina with his hand and later claiming that he touched her vagina with his fingers. He also points to a discrepancy in his daughter's statement as to whether she had her clothes on or off at the time of the assault. In denying defendant's motion, the trial judge noted defendant's admission of similar actions in his taped interview with the investigator from the prosecutor's office. Matters of credibility are within the exclusive dominion of the jury. State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); see also State v. Locurto, 157 N.J. 463, 474 (1999). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Defendant's contention to the contrary is without merit.

Defendant's Point V contention that the cumulative effect of the errors raised in Points I through IV deprived him of a fair trial is rendered moot in light of our decision here, our previous decision, and the decision of the Supreme Court. Finally, defendant asserts that his sentence should be downgraded to that of a second-degree offender. He argues that the interest of justice requires a reduction of the sentence to a seven-year term. The trial judge found aggravating factors, N.J.S.A. 2C:44-1a(4) and (9), and mitigating factors, N.J.S.A. 2C:44-1b(2), (7), (8) and (10). We have considered defendant's contention and supporting argument and are satisfied that there are no compelling reasons presented to justify downgrading defendant's sentence to that of a second-degree offender. See State v. Megargel, 143 N.J. 484, 502 (1996). Moreover, the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The judge merged the second-degree sexual assault conviction with the first-degree aggravated sexual assault conviction and imposed a ten-year NERA term. He also imposed a concurrent six-year term on the endangering conviction.

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6

A-4464-03T4

RECORD IMPOUNDED

May 14, 2007