STATE OF NEW JERSEY v. J.P.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6211-03T46211-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 16, 2006 - Decided June 20, 2006

Before Judges Fall, Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 02-07-0613.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sharon A. Quinn,

Designated Counsel, on the brief).

Ronald J. Casella, Cumberland County

Prosecutor, attorney for respondent

(Elizabeth C. Vogelsong, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.P. appeals from a judgment of conviction entered on April 15, 2004 after a jury found him guilty of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant was indicted on sixteen counts of various sexual assault and endangering charges involving his wife's thirteen-year-old niece, B.B., and two other minor children. Counts 8 and 9 were dismissed by the State and Counts 10 through 16 were severed prior to trial. Defendant was acquitted on five of the six counts tried. After the jury found him guilty on the second degree endangering charge, defendant was sentenced to the minimum term of five years.

The events leading to the charges occurred on June 25, 2002. That evening, B.B. was at defendant's home. B.B., defendant's wife and several cousins were camped out in the living room on various mattresses and couches to sleep. B.B. claimed that defendant took her hand to touch his "private part." When she pulled her hand away, he pulled it back again. She alleged that defendant moved toward her, placed his hand on her vagina and ultimately inserted his finger, and that he attempted to penetrate her anally. She pulled away and ran upstairs to tell her cousin what had happened. Defendant's wife then questioned B.B. about the incident before taking her home.

The next day, B.B.'s mother took her to the doctor where she was examined by a sexual assault nurse examiner. The examination did not reveal any physical evidence of assault.

In this appeal, defendant argues:

POINT ONE

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT THREE

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO OBTAIN DISCOVERY FROM THE ALLEGED VICTIM'S SCHOOL CONCERNING FALSE ACCUSATIONS MADE BY B.B. AGAINST AN UNIDENTIFIED PARTY.

POINT FOUR

THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE.

The essence of defendant's argument in his first two points - that his motions for a judgment of acquittal and a new trial should have been granted - is that since he was acquitted on the first five counts alleging sexual assault, the jury must have "engaged in groundless speculation that the defendant must have been guilty of some kind of sexual offense, even if that offense was never alleged by B.B." The standard for the two motions differ:

On a motion for a judgment of acquittal, the standard is whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459 (1967); State v. Kluber, 130 N.J. Super. 336, 341-342 (App. Div. 1974). The test on a motion for a new trial is whether there was a manifest denial of justice. See State v. Rodriguez, 141 N.J. Super. 7 (App. Div. 1976), certif. denied, 71 N.J. 495 (1976).

[State v. Johnson, 203 N.J. Super. 127, 133-34 (App. Div.), certif. denied, 102 N.J. 312 (1985).]

In order to find defendant guilty of second degree endangering the welfare of a child, the State had to prove three elements: (1) B.B. was a child under the age of sixteen; (2) defendant had a "legal duty" for the care of B.B. or had "assumed responsibility for [her] care;" and (3) defendant engaged in sexual conduct that "would impair or debouch the morals" of the child or cause harm that would make her "an abused or neglected child" as defined by N.J.S.A. 9:6-8.21. N.J.S.A. 2C:24-4a and b. Defendant's motion for a judgment of acquittal was properly denied because B.B.'s testimony, when afforded "all of the favorable inferences which reasonably could be drawn therefrom," was "sufficient to enable a jury to find that the State's charge [had] been established beyond a reasonable doubt." Johnson supra, 203 N.J. Super. at 133-34.

In his motion for a new trial, defendant argued that the verdicts were against the weight of the evidence and inconsistent, demonstrating the jury's "lack of understanding of the elements of the crimes with which defendant was charged." He maintains that B.B.'s testimony was not credible. The trial judge agreed that there were inconsistencies in the child's testimony but properly noted that it is for the jury to resolve those inconsistencies. State v. Afanador, 134 N.J. 162, 178 (1993).

"Inconsistent verdicts are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004) (citing State v. Grey, 147 N.J. 4, 11 (1996) (stating that "we should not speculate as to whether the verdicts resulted from jury lenity, compromise or mistake not adversely affecting the defendant")). We have carefully considered the record in light of defendant's arguments and we are satisfied that defendant has not clearly and convincingly demonstrated a miscarriage of justice under the law to warrant a new trial. R. 3:20-1; Johnson, supra, 203 N.J. Super. at 134.

Defendant next argues that the trial judge erred in denying his motion to obtain discovery from B.B's school. Defendant sought "access to documents which would have supported the assertion that [B.B.] had previously made false charges." Generally, we "defer to a trial court's disposition of discovery matters unless the trial court has misapplied its discretion." Terrell v. Schweitzer-Mauduit Int'l, Inc., 352 N.J. Super. 109, 115 (App. Div. 2002).

Here, defendant has not demonstrated that records regarding the purported false allegations even existed. The judge stated that he would not allow defendant to go on a "fishing expedition." We agree. If defendant had been able to identify a specific individual or incidents or records relating to the alleged false allegations, that would be a different story. As the trial judge noted, however, at the time of trial - almost a year and a half after the alleged incident - defendant still could not produce probative evidence of a false identification. The trial judge properly denied the motion. See Korostynski v. Div. of Gaming Enforcement, 266 N.J. Super. 549, 559 (App. Div. 1993) (holding that the Law Division erred in allowing "plaintiff's discovery request [which] amounts to little more than a fishing expedition").

Finally, defendant argues that the sentence is manifestly excessive. He contends that the trial judge should have applied several mitigating factors and weighted them sufficiently to sentence defendant as a third degree offender. We find no merit in this argument. The trial judge appropriately applied mitigating factors seven and eight which did not overcome the strong presumption of incarceration for a second degree crime. We are not persuaded that the other mitigating factors suggested by defendant are appropriate here, given the circumstances. Moreover, defendant was sentenced to the minimum term for a second degree offense.

We are "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" State v. Natale, 184 N.J. 458, 489 (2005) (quoting State v. O'Donnell, 117 N.J. 210 (1989)). Here, the aggravating and mitigating factors applied were supported by the evidence and defendant's sentence to the minimum term on a second degree charge was not excessive.

Affirmed.

 

N.J.S.A. 2C:44-1b(9), (10) and (11).

(continued)

(continued)

7

A-6211-03T4

RECORD IMPOUNDED

June 20, 2006

 


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