STATE OF NEW JERSEY v. J.S.T.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0067-04T40067-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.S.T.,

Defendant-Appellant.

__________________________________________________________

 
 

Submitted February 28, 2006 - Decided August 21, 2006

Before Judges Kestin, Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 771-02-01.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, J.S.T., was charged under Camden County Indictment No. 771-02-01 with six counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts two, three, four, ten, eleven and twelve); ten counts of second degree sexual assault, N.J.S.A. 2C:14-2b and 2C:14-2c (counts five, six, seven, eight, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen); and three counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts one, nine, and nineteen).

The jury found defendant guilty on all counts tried. At sentencing, the court determined merger was not necessary for any of the counts. The court imposed an aggregate sentence of sixty-five years in prison, with a parole disqualifier of forty-three years. More specifically, the court imposed a ten-year term with a five-year parole disqualifier on count one; a concurrent twenty-year term with a ten-year parole disqualifier on count two; a fifteen-year term with a seven and one-half year parole disqualifier on count three, consecutive to the terms imposed on counts one and two; a fifteen-year term with a seven and one-half year parole disqualifier on count four, concurrent to the term imposed on count two; consecutive seven-year terms with three and one-half year parole disqualifiers on counts five, six and eight, consecutive to the terms imposed on counts one and two and concurrent to the term imposed on count three; a seven-year term with a three and one-half year parole disqualifier on count seven, concurrent to the term imposed on count two; a seven-year term with a three and one-half year parole disqualifier imposed on count nine, consecutive to the term imposed on count one and concurrent to the terms imposed on counts two and three; a fifteen-year term with an eighty-five percent parole disqualifier on count ten, consecutive to the terms imposed on counts one, two and three; a fifteen-year term with an eighty-five percent parole disqualifier on count eleven, consecutive to the terms imposed on counts one, two, three and ten; a seven-year term with an eighty-five percent parole disqualifier on count thirteen, consecutive to the terms imposed on counts one, two and three and concurrent to the term imposed on count ten; a seven-year term with an eighty-five percent parole disqualifier on count fourteen, consecutive to the terms imposed on counts one, two, three and ten and concurrent to the terms imposed on counts eleven and thirteen; a seven-year term with an eighty-five percent parole disqualifier on count sixteen, consecutive to the terms imposed on counts one, two, three and ten and concurrent to the terms imposed on counts eleven, thirteen and fourteen; a seven-year term with an eighty-five percent parole disqualifier on count seventeen, consecutive to the terms imposed on counts one, two, three and ten and concurrent to the terms imposed on counts eleven, thirteen, fourteen and sixteen; and a seven-year term with an eighty-five percent parole disqualifier on count fourteen, consecutive to the terms imposed on counts one, two, three and ten and concurrent to the terms imposed on counts eleven, thirteen, fourteen, sixteen and seventeen.

On this appeal, defendant makes the following assertions of error:

POINT I: THE TRIAL COURT'S CHARGE TO THE JURY AS WELL AS THE CORRESPONDING ASPECTS OF THE VERDICT SHEET REGARDING THE APPLICABILITY OF THE NO EARLY RELEASE ACT IN COUNTS X, XI, XIII, XIV, XVI AND XVII WAS SUFFICIENTLY AMBIGUOUS, MISLEADING AND ERRONEOUS AS TO PRECLUDE THE CONCLUSION THAT THE DEFENDANT WAS ACTUALLY FOUND GUILTY OF THE NO EARLY RELEASE ACT ASPECTS OF THOSE COUNTS, REQUIRING THAT THE 85 PERCENT PAROLE DISQUALIFIERS IMPOSED THEREON BE VACATED. (NOT RAISED BELOW).

POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A STATE'S WITNESS CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT. (PARTIALLY RAISED BELOW).

POINT IV: THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS, ALL OF WHICH OCCURRED 19 YEARS PRIOR TO TRIAL, WERE ADMISSIBLE TO ATTACK CREDIBILITY.

POINT V: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IRRELEVANT AND PREJUDICIAL TESTIMONY ELICITED BY THE STATE CONNECTING THE DEFENDANT WITH THE USE OF DRUGS. (NOT RAISED BELOW).

POINT VI: THE TRIAL COURT ERRED BY FAILING TO EFFECTUATE NUMEROUS MERGERS UNDER THE CIRCUMSTANCES OF THE PRESENT CASE.

A. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VII (SEXUAL ASSAULT) INTO COUNT II (AGGRAVATED SEXUAL ASSAULT) AND COUNT VIII (SEXUAL ASSAULT) INTO COUNT IV (AGGRAVATED SEXUAL ASSAULT).

B. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT XVI (SEXUAL ASSAULT) INTO COUNT X (AGGRAVATED SEXUAL ASSAULT) AND COUNT XVII (SEXUAL ASSAULT) INTO COUNT XI (AGGRAVATED SEXUAL ASSAULT).

C. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT V (SEXUAL ASSAULT) INTO COUNT II (AGGRAVATED SEXUAL ASSAULT), COUNT VI (SEXUAL ASSAULT) INTO COUNT III (AGGRAVATED SEXUAL ASSAULT), COUNT XIII (SEXUAL ASSAULT) INTO COUNT X (AGGRAVATED SEXUAL ASSAULT) AND COUNT XIV (SEXUAL ASSAULT) INTO COUNT XI (AGGRAVATED SEXUAL ASSAULT).

POINT VII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE BASE TERMS AND PAROLE DISQUALIFIERS ON COUNTS I AND II, AND FURTHER ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE PAROLE DISQUALIFIERS IN CONJUNCTION WITH PRESUMPTIVE TERMS ON COUNTS III THROUGH IX AND COUNT XIX.

B. THE TRIAL COURT'S IMPOSITION OF NUMEROUS CONSECUTIVE TERMS, RESULTING IN THE FUNCTIONAL EQUIVALENT OF A LIFE IMPRISONMENT TERM WITH NO REALISTIC POSSIBILITY OF PAROLE, CONSTITUTED AN ABUSE OF ITS SENTENCING DISCRETION.

POINT VIII: THE SENTENCES IMPOSED ON COUNTS I THROUGH IX ARE UNCONSTITUTIONAL SINCE THEY EXCEED THE MAXIMUM SENTENCES AUTHORIZED BY THE JURY'S VERDICT.

Our review of the record in light of the arguments advanced by the parties discloses that most of the issues raised on appeal are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). For example, the judge adequately instructed the jury on the No Early Release Program (NERA). The prosecutor's summation was in response to defendant's argument or based upon the evidence and was within permitted bounds. The prosecutor should not have asked a witness about defendant's threats to others, but the judge's prompt instruction to disregard was sufficient to cure any prejudice. See State v. Winter, 96 N.J. 640, 646-47 (1984); Williams v. James, 113 N.J. 619, 632 (1989). Evidence of defendant's drug use was res gestae and admissible. To the extent plain error standards are implicated, see R. 2:10-2, defendant has not satisfied the burden of showing that the asserted errors had the capacity to produce an unjust result.

We do discuss more fully the arguments raised by defendant in Points IV and VI. We find no error in the court's determination of the Sands issue. State v. Sands, 76 N.J. 127 (1978). We do, however, agree with defendant that certain convictions for separate crimes that arose out of a single factual episode should have merged into the more serious offenses arising out of the same event. We, therefore, remand for the court to merge such convictions. On the other hand, we do not find persuasive defendant's arguments that the court abused its discretion when it imposed consecutive sentences and we do not find the sentences are manifestly excessive or unconstitutional.

The issues raised by this appeal do not require an extensive recitation of the facts. It suffices to say that defendant was charged with numerous offenses relating to and including sexual assaults upon N.L.G., the son of defendant's paramour and later wife, over a period of nine years. N.L.G. was born in October 1982 and the sexual assaults charged in the indictment are alleged to have taken place between October 1990 and October 1999. N.L.G. accepted defendant as his father, and defendant appeared to accept and treat N.L.G. as his son. N.L.G. testified and described numerous incidents of both physical and sexual assault. N.L.G. testified that defendant frequently penetrated him anally, forced N.L.G. to perform fellatio upon him, performed fellatio on N.L.G., and provided alcohol and marijuana to N.L.G.

Defendant asserts the court erred by ruling that, if he testified, his thirteen first degree convictions in 1984 would be admissible to impeach his credibility. Defendant's claim is cognizable on appeal despite his decision to refrain from testifying. See State v. Whitehead, 104 N.J. 353, 360-61 (1986).

N.J.R.E. 609 provides that "for the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144. The decision to admit evidence of a prior conviction rests "within the sound discretion of the trial judge." Ibid. This discretion is broad, and the "key to exclusion is remoteness." Ibid.

The trial judge should consider the passage of time and the nature of the prior convictions, but also may consider whether the defendant has an extensive prior criminal record and the crime for which he is being tried. Id. at 145. The Sands Court observed:

Serious crimes, including those involving a lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at 144-45.]

While defendant's convictions were nineteen years old, defendant had only completed his sentence seven-and-one-half years prior to the commencement of the trial. In this case, we are convinced the judge exercised proper discretion when he ruled that evidence of defendant's prior convictions would be admissible if defendant opted to testify at trial. Defendant was convicted of thirteen first degree crimes for robbery in 1984. For those convictions, he was sentenced to an aggregate term of fifteen years, with parole ineligibility for five years. Defendant was periodically in and out of prison, finally "maxing out" in September 1996. The offenses that are the subject of this appeal occurred between 1990 and 1999.

The lapse in time between defendant's prior convictions and his current crimes did not preclude admissibility of those prior convictions for purposes of assessing defendant's credibility. See, e.g., Sands, supra, 76 N.J. at 146 (admitting numerous convictions occurring between 1950 and 1971 in trial for incident occurring in 1973); State v. Morris, 242 N.J. Super. 532, 544-45 (App. Div.) (admitting ten-year-old murder convictions), certif. denied, 122 N.J. 408 (1990), certif. denied, 127 N.J. 321 (1992); State v. Harkins, 177 N.J. Super. 397, 400-01, 403 (App. Div. 1981) (admitting thirteen-year-old conviction for assault with intent to rob and ten-year-old convictions for breaking and entering and malicious damage to property).

The crimes at issue were serious as they were first degree crimes. Had defendant testified, it would have been improper and misleading to prevent the jurors from considering his disregard for the rules of ordered society in evaluating his credibility. See Morris, supra, 242 N.J. Super. at 544-45. As to the issue of credibility, the probative value was not outweighed by the potential for unfair prejudice. State v. Brunson, 132 N.J. 377, 390 (1993).

Defendant argues the court erred by failing to merge counts five and seven into count two, count six into count three, count eight into count four, count thirteen and sixteen into count ten, and counts fourteen and seventeen into count eleven. Defendant contends, among other things, that there is no indication from the verdict sheet whether the jury found separate instances involving sexual contact that were not a part of an episode that culminated in sexual penetration or fellatio. Defendant also asserts that the additional statutory element of age of the victim, either younger than thirteen or between thirteen and sixteen, which elevates the seriousness of the crime, should not obscure the fact that the first and second degree offenses of which he was found guilty involved the same conduct. Thus, the argument continues, the identified second degree offenses of which defendant was convicted were lesser included offenses of the first degree crimes.

The State contends that merger is not required even if the jury verdict is ambiguous, when the evidence supports a broader lawful purpose. It points out that the court identified the additional elements which differentiated the first degree crimes from the second degree and found that those additional elements preclude merger. The State also urges that the Legislature, by defining the offenses in relation to age and other elements, clearly intended to create separate offenses to protect victims of sex crimes, especially young victims. It suggests that each offense, repeated over the eight years in the case, warrants punishment that would be diluted if merger were required.

It has been recognized that "[t]he overall principle guiding merger analysis is that a defendant who has committed one offense 'cannot be punished as if for two.'" State v. Hill, 182 N.J. 532, 542 (2005), (quoting State v. Brown, 138 N.J. 481, 561 (1994), overruled on the other grounds, State v. Cooper, 151 N.J. 326 (1997)). "Convictions for lesser included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge." Ibid. (emphasis in original).

In this case, the sentencing judge concluded, for example, that "while count five [second degree sexual assault] deals with the same subject as count two [first degree aggravated sexual assault], there are additional elements of using force or coercion . . . that would not necessarily merge[.]" Using similar reasoning, the court stated "count six [second degree sexual assault] is similar to count three [first degree aggravated sexual assault], however, there is the additional elements of using force and coercion and not sustaining severe personal injury [in count six]."

The court utilized similar inverse reasoning when it determined that count seven would not merge into count two because count seven, the lower graded offense, contains additional elements, "[t]hat is, [he acted] for purposes of sexually . . . gratifying himself or to humiliate or degrade N.L.G. with the defendant being at least four years older." The court then added "it would be similar on count eight [second degree sexual assault] . . .," which defendant contends should have merged into count four [first degree aggravated assault.]

Thus, the additional element to which the court alludes in each instance is in the lower graded crime. Therefore, if as the court appears to have acknowledged, the offenses are otherwise based on the same criminal conduct, the lower graded crimes are components of the more serious crimes, and they should merge if the defendant is not to be punished twice for the same conduct. See State v. Dillihay, 127 N.J. 42, 55 (1992) (construing anti-merger language of the school-zone statute "to allow merger of school-zone offenses into first- and second- degree Section 5 [N.J.S.A. 2C:35-5] offenses provided that a defendant convicted of a drug offense in a school-zone is sentenced to no less than the mandatory minimum sentence generated in the school-zone statutes"). "[O]rdinarily the offense with fewer elements would merge into the offense with greater elements." Id. at 54. However, as the Dillihay Court recognized, where "the offense with fewer elements is more severe, . . . we assume that the Legislature would prefer that that conviction survive." Id. at 54-55.

It is not clear from the record in this case whether the counts challenged by defendant do in fact refer to the same acts or conduct. For example, count four is based on defendant's commission of "an act of sexual penetration, to wit fellatio, upon N.L.G." during the period between July 1992 and August 1994, when N.L.G. was less than thirteen years of age. By comparison, count eight is premised on the commission of "the crime of sexual assault upon N.L.G., a child less than thirteen years of age by the defendant touching N.L.G.'s penis for the purpose of sexually arousing or sexually gratifying himself or to humiliate or degrade N.L.G., the defendant being at least four years older than the victim." If the two counts refer to the same conduct, they should merge. If they do not refer to the same conduct, merger would not be proper. Defendant argues, and, based upon the sentencing judge's comments, the judge apparently assumed, both counts did refer to the same conduct. Beyond that, defendant maintains that the touching conduct described in count eight was "preparatory" to and an integral part of the eventual sexual penetration that served as the basis for the conviction for aggravated sexual assault. We regard that theory as mere speculation, but we acknowledge the ambiguity present in the verdict.

The difficulty is that the indictment and the proofs were not confined to specific isolated events. Rather, the charge and the proofs encompassed acts occurring within stated time frames. We have recognized that an indictment may permissibly charge conduct within such a time frame when a young victim had been repeatedly assaulted. The more liberal pleading and proofs are allowed because it is unrealistic to expect that a young victim who had been repeatedly assaulted would be able "to differentiate the details of the thirtieth rape from the fortieth." State v. L.P., 338 N.J. Super. 227, 239 (App. Div.) certif. denied, 170 N.J. 205 (2001). See also State v. K.A.W., 104 N.J. 112, 123-24 (1986) (recognizing that the complaint need not specify one or more exact dates). As a consequence, although there was ample evidence of regular and frequent sexual assaults, it is not possible to know whether the jury predicated its verdict on a single event or on several. One can only speculate, as defendant does, whether the jury found the touching or the force and coercion and sexual penetration occurred on separate occasions or as part and parcel of a single uninterrupted event. Under such circumstances, the defendant must be given the benefit of the doubt and the counts must be merged.

In this case, the sentences on the unmerged convictions were to be served concurrently. Therefore, whether or not the convictions are merged may not have an effect on the time defendant will actually serve in prison. But, the Court has observed that merger can have ramifications beyond the immediate penal consequences. Hill, supra, 182 N.J. at 542. We are, therefore, constrained to remand this matter to the trial court for further consideration of the issue of merger. We remind the trial court that "[t]he purpose of merger is to avoid double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). Consequently, the approach would involve:

analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Id. at 638 (quoting State v. Davis, 68 N.J. 69, 81 (1975)).]

As to defendant's challenge of the consecutive nature of his sentences, the trial judge adequately addressed the Yarbough factors. State v. Yarbough, 100 N.J. 627, 643-44 (1985). According to the judge:

The first principle of Yarbough is that there should be no free crimes. The Court also should determine whether or not the crimes or the objects . . . were . . . independent of each other. It is clear that Count One, the object of Count One was independent of the others. However, with regard to the various sexual assaults, other than the other crimes of . . . endangering the welfare of a child, the objects, basically, were the sexual gratification of this defendant. They were similar but they occurred at separate times, separate acts of violence, separate threats of violence.

They were committed at different times rather than being committed so close in time and place as to indicate a single period of aberrant behavior. Each of these assaults was separate and each one caused harm to the victim.

There were not multiple victims in this matter. While there are extended family who have suffered as a result of this, the victim was one on each time.

There were also -- the last Factor is that the convictions for which sentences are to be imposed are numerous. Therefore, in this matter, I am satisfied that consecutive sentences would be in order.

Finally, since defendant's sentence on counts one, two and five exceeded the then-presumptive term, we remand for the judge to consider the base sentences in light of State v. Natale, 184 N.J. 458 (2005). See State v. Thomas, ___ N.J. ___, ___ (2006) (slip op. at 34-35).

Remanded for merger in accordance with this opinion and reconsideration of the base sentences in excess of the then-presumptive term in light of Natale. Affirmed in all other respects.

 

Before trial, counts seven, fifteen and eighteen were dismissed. After the dismissal, the remaining counts were renumbered. This opinion, in accordance with both parties' briefs, refers to the counts as they were originally numbered.

(continued)

(continued)

18

A-0067-04T4

RECORD IMPOUNDED

 

August 21, 2006