STATE OF NEW JERSEY v. JUAN PAULINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4755-06T44755-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN PAULINO,

Defendant-Appellant.

_________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Grall and Ashrafi.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 05-11-1630.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael Confusione,

Designated Counsel, of counsel and on

the brief).

Anne Milgram, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Juan Paulino appeals from a final judgment of conviction and sentence. The grand jurors alleged that the conduct charged in each of the six counts of the indictment occurred between February 1, 2002 and July 8, 2004, in the home of the victim, A.B. Judgment of acquittal on counts five and six was entered at the close of the State's case, but the jury found defendant guilty of two counts of first-degree aggravated assault by penetration of a child under the age of thirteen, N.J.S.A. 2C:14-2a(1) (counts one and three), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and four). After merging the convictions, the judge imposed sentence on counts one and three concurrent eighteen-year terms of imprisonment subject to parole ineligibility and parole supervision terms required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

For the reasons set forth below, we affirm the convictions but remand for correction of the judgment of conviction, which misstates defendant's convictions and includes monetary assessments for the convictions that were merged. I

In February 2002, A.B. and her mother J.B. moved to an apartment in West New York. A.B. was three years old at the time. They shared the apartment with A.S., a friend of defendant. Defendant was their landlord, and he is thirty years older than A.B.

J.B. considered defendant a friend. He visited her home once or twice a week, and he played with A.B. and read her stories in her bedroom. In J.B.'s view, defendant and A.B. also had a friendly relationship. The child had never exhibited fear in defendant's presence and, on occasion, asked whether defendant was coming to visit. Although J.B. said she never left defendant alone with A.B., once, when she was doing laundry in the basement, she left A.B. there with defendant while she went upstairs to get something. And, when defendant read stories to A.B. in her bedroom, J.B. watched television in the living room.

On July 8, 2004, just after J.B. came home from work, A.B. announced that "Juan touched [her] butt." J.B., who had been intimate with defendant, did not report A.B.'s complaint.

On July 9, 2004, A.B.'s father, R.B., picked the child up from daycare for his scheduled weekend parenting time, which commenced every week on Friday afternoon and ended on Saturday evening. R.B. had to go to work and planned to have A.B. stay at his mother's home that night, as she frequently did. That evening, A.B. and her grandmother, D.M., played cards. During the game, A.B. told her grandmother that "Juan had touched her 'peepee.'" Assuming "Juan" was a child who attended day care with A.B., D.M. asked A.B. if she had told her teacher. A.B. said no and explained that "Juan" was her mother's friend. When D.M asked A.B. if she had told her mother, the child said she had but her mother did not believe her.

A.B.'s grandmother asked what had happened, and A.B. described two incidents. Defendant once took her to a bathroom in the basement, removed her pants and "touched her peepee real hard like he was pushing a button"; he did the same thing when he was reading to her in her bedroom.

A.B.'s grandfather was not in the room for this conversation, and her grandmother asked the child to tell "poppy." D.M. called J.B., who indicated that she did not believe the child. D.M. then called her son, who left work and went to his mother's home. When R.B. arrived, he assured A.B. that she could tell him anything, and he would not get mad at her. Speaking about "Juan," A.B. told her father that "somebody had touched her."

After listening to A.B., R.B. called J.B. The next day, he asked J.B. for defendant's address, but he did not call the police because he was considering "tak[ing] the law in[to his] own hands." On Sunday July 11, however, R.B. reported his daughter's complaint to the police.

On Monday July 12, Detective Victoria Regal of the Hudson County Prosecutor's Office, Sexual Assault Victim's Unit, interviewed A.B. Although the detective spoke to A.B.'s father and grandmother before interviewing A.B., she did not speak to A.B. until they were in a room equipped for recording images and sound during interviews. The recording was played at trial.

Detective Regal began the interview by asking the child her name and age. The detective turned to a blank easel, drew a picture of the face of a girl and asked A.B. to spell her first name. A.B. said she wanted to draw a picture of her "grandma," but the detective said they would start with A.B.'s house. Drawing while they talked, the detective asked A.B. who lived with her. The child named her grandmothers, her mother and A.S. She said her father lived in Bayonne.

The detective then showed A.B. a drawing of a female child, and as the detective pointed she asked A.B. to name various parts of the anatomy. A.B. identified hair, eyes and mouth but did not know what to call the pubic or anal areas. The detective suggested terms that could be used and asked A.B. to select the ones she wanted to use. A.B. selected "peepee" and "bottom."

As the detective repeated the process with a drawing of a male, A.B. interrupted to tell the detective that she had skipped the "nose" when they were labeling the girl's features.

When asked about touches she liked such as hugs and tickles, A.B. said she liked hugs from Mommy, Grandma and Daddy and being tickled by Daddy. When asked if there were "any places that she did not like to be touched," she said, on her "peepee" and "bottom."

The detective asked A.B. if anyone had ever touched her on her peepee or bottom. A.B. said, "yes." When the detective asked who, A.B. said, "Juan." When asked how many times Juan had touched her peepee, A.B. said "one time" and in the basement bathroom of her house. "Mommy was downstairs washing rags," but "went upstairs for more soap," and "that's when he did that." After "Mommy left," defendant "turned off the lights" and touched her peepee, on her skin, not over her clothes.

A.B. also told the detective that "[defendant] did it again" upstairs in the bedroom, while he was reading her a story and when he finished the story. He touched her "very hard," "went through," and "pushed." Using anatomically correct dolls, A.B. arranged them to show their respective positions in the bathroom and bedroom, and she showed how defendant removed her pants. Although A.B. had selected the word "bottom" to use when shown the drawing, when giving the detective a narrative of what had happened A.B. used the word "butt." She said that defendant had pushed "hard . . . all the way in" and that her mother was home but "watching her show."

A.B. responded "no," when asked if defendant had touched her with any other part of his body, touched her anywhere else or touched her in locations other than the basement bathroom or the bedroom.

As the detective was ending the interview, A.B. interrupted and informed the officer the male doll she had selected was not right. She said, "Juan is not like this, he is white." As she spoke, A.B. walked to the cabinet from which the detective had earlier taken the dolls, selected another and said, Juan "is like him."

The same day, Dr. Pelliccia, a medical doctor with expertise in child abuse, examined A.B. Dr. Pelliccia found a partial transection of A.B.'s hymen, the location of which in the doctor's opinion was consistent with digital penetration.

A.B. testified at trial. While she was unable to provide a date, she recalled what she was wearing on the day that defendant touched her "peepee" in the basement bathroom, which felt "not good," and she testified that her mother was upstairs at the time. A.B. indicated that defendant had read books to her in her bedroom. She did not recall whether defendant did anything else in the bedroom, but she testified that her mother was watching television when she and defendant were in the bedroom. She could not say how she got to the basement, whom she next told about the abuse after telling her mother or what topic her parents argued about when they "fighted." There were no other questions posed by defense counsel to which A.B. could not respond.

R.B.'s testimony about his conversation with A.B. was given over defense counsel's objection. The prosecutor asked R.B. what his conversation with A.B. was about. In response to that objection, the judge told R.B. he could tell the jurors the topic without saying what was said. R.B. said, "The topic is that [A.B.] told me somebody had touched her." Defense counsel objected, and the prosecutor instructed R.B. that he was "just asking who it was about, not what." R.B. responded, "Oh who was it about? It was about a Juan."

Ziomara Perez Betances was the only witness presented by the defense. According to Betances, J.B. told her that she had never left A.B. alone with defendant and that the things others "were saying" could not have happened. Betances acknowledged, however, that J.B. had mentioned that she once left A.B. in the basement with defendant while she went upstairs to get something.

During the State's closing argument, the prosecutor replayed portions of A.B's video-recorded interview with Detective Regal. The deliberating jurors asked the court if they could see again the portion of that video in which A.B. identified parts of the human anatomy; the court arranged for a replay of that segment of the interview in the courtroom.

II

On appeal defendant's counsel raises the following issues:

I. PERMITTING THE JURY TO HEAR A.B.'S

HEARSAY STATEMENTS AS RECOUNTED BY THE FATHER, MOTHER, AND DETECTIVE REGAL, AS WELL AS PERMITTING THE JURY TO VIEW THE VIDEOTAPED INTERVIEW OF THE CHILD THREE TIMES, EXCEEDED N.J.R.E. 803(c)(27) AND VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND A FAIR TRIAL (RAISED BELOW).

A. THE TRIAL COURT ABUSED ITS

DISCRETION BY ADMITTING THE CHILD'S HEARSAY STATEMENTS AS RELAYED BY THE FATHER, MOTHER, AND DETECTIVE REGAL.

B. EVEN IF THE STATEMENTS SATISFIED

RULE 803(c)(27), THEIR ADMISSION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

C. EVEN IF SOME OF THE OUT-OF-COURT

STATEMENTS WERE PROPERLY ADMITTED INTO EVIDENCE, THE COURT DISREGARDED THE UNFAIR PREJUDICE CAUSED BY ADMITTING ALL OF THEM.

II. THE INDICTMENT WAS DEFECTIVE BECAUSE

THE TIME OF THE CRIME ALLEGED "ON OR ABOUT A DATE BETWEEN FEBRUARY 1, 2 002 AND JULY 8, 2004" WAS TOO BROAD TO PERMIT DEFENDANT A REASONABLE OPPORTUNITY TO DEFEND AGAINST THE CHARGES (PLAIN ERROR).

III. PERMITTING THE GRANDMOTHER TO SIT

BEHIND THE PROSECUTOR'S TABLE IN PLAIN VIEW OF THE CHILD DURING HER TESTIMONY IMPROPERLY INFLUENCED AND SWAYED THE CHILD'S TESTIMONY (PLAIN ERROR).

IV. THE EXPERT TESTIMONY INFRINGED UPON THE

JURY'S ASSESSMENT OF GUILT, AND THE JURY INSTRUCTIONS ON HOW TO EVALUATE THE TESTIMONY WERE INSUFFICIENT (PLAIN ERROR).

V. THE CONVICTIONS UNDER N.J.S.A. 2C:14-3

NOTED ON THE JUDGMENT OF CONVICTION SHOULD BE VACATED BECAUSE THESE CRIMES WERE NOT CHARGED IN THE INDICTMENT, THEY WERE NOT CHARGED TO THE JURY, AND THE JURY MADE NO FINDINGS THAT DEFENDANT COMMITTED THEM (PLAIN ERROR).

VI. DEFENDANT'S SENTENCE IS IMPROPER AND

EXCESSIVE.

Defendant has filed a supplemental brief on his own behalf in which he raises these issues:

I. THE JURY CHARGE ISSUED BY THE TRIAL

COURT WAS INAPPROPRIATE BASED UPON THE DISMISSAL OF COUNTS FIVE & SIX BY THE TRIAL JUDGE AND ARBITRARILY INVENTED LESSER OFFENSES OF SEXUAL CONTACT FOR WHICH DEFENDANT WAS NEVER INDICT[ED] FOR.

II. COUNSEL WAS INEFFECTIVE IN THE

PREPARATION OF THIS CASE AND BECAUSE OF INSUFFICIENT PREPARATION A VERDICT WAS ACHIEVED RENDERING DEFENDANT GUILTY.

III. THE PROSECUTOR'S OFFICE AT THE VERY

INCEPTION OF THIS CASE SHOULD HAVE DISMISSED THEMSELVES FROM ANY FURTHER INVOLVEMENT AFTER THEY HAD REVIEWED AND GATHERED ALL TESTIMONY AND EVIDENCE FROM ALL THE WITNESS[ES] AND THE MINOR VICTIM.

IV. THE CREDIBILITY OF THE STATE WITNESSES

WAS CLEARLY INCREDIBLE AND TAINTED WITH INCONSISTENCIES AND WAS MOTIVATED FOR OTHER REASONS.

V. THE EXPERT CLINICAL FORENSIC EXAMINER

FRANCES B. PELLICCIA, M.D. REPORTS AND TESTIMONY SHOULD HAVE BEEN SUPPRESSED AND DEEMED THOSE FINDINGS AS TAINTED AND OUTRAGEOUS.

VI. APPELLANT AT THE INCEPTION OF THIS CASE

DID TELL INVESTIGATORS AND ASSERTED HIS INNOCENCE BY-WAY OF A DEFENSE AND DIRECTED INVESTIGATORS ATTENTION TO MR. ANTHONY SMALZ.

VII. THE GRAND JURY WAS MIS-INFORMED AND

LEAD TO BELIEVE THE STATES CASE WAS WORTHY OF INDICTMENT AND THE FACTS WITHHELD THAT INDICATED OTHERWISE.

VIII. COUNTS 1-6 OF THE INDICTMENT VIOLATED

DEFENDANT'S RIGHTS UNDER THE "NATURE AND CAUSE" CLAUSE OF THE SIXTH AMENDMENT AND ART. I, PARA. 10 OF THE NEW JERSEY CONSTITUTION, AND THE TRIAL COURT ERRED IN FAILING TO DISMISS ALL SAID COUNTS.

After review of the record and consideration of the

arguments presented, we conclude that the issues raised in Points III and IV of the main brief and Points III, IV, V, VI and VII of the supplemental brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

There are additional arguments that require only brief comment. Defendant's claim of ineffective assistance of counsel is premised on the adequacy of counsel's preparation. That issue is one this court should decline to consider on direct appeal because such claims generally involve matters outside the trial record that are best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

Point II of counsel's brief and Point VIII of defendant's pro se brief raise untimely objections to the specificity of the indictment. R. 3:10-2. The contentions are that the breadth of the time period alleged in the indictment and the State's failure to identify the alleged method of penetration deprived defendant of notice adequate to permit preparation of a defense. Counts one and three, as noted above, alleged acts of penetration between February 1, 2002 and July 8, 2004. Count one specified an act committed in the basement of A.B.'s home and count three an act committed on the second floor.

With narrow exceptions inapplicable here, defects in an indictment must be raised prior to trial and cannot be asserted thereafter without a showing of good cause. R. 3:10-2(c)-(d). Defendant does not offer any facts to establish good cause. On that basis alone, defendant is not entitled to relief.

Even if the defendant had not waived the right to challenge the specificity of the indictment, he would not be entitled to relief. The State's obligation is to "charge the defendant with the commission of a crime in reasonably understandable language setting forth all . . . critical facts and . . . essential elements" of the alleged crimes so as to enable defendant to prepare a defense. State v. Wein, 80 N.J. 491, 497 (1979). Our courts recognize the inherent difficulty of alleging with specificity the date of a sexual offense committed against a young child. See State in the Interest of K.A.W., 104 N.J. 112, 113-20 (1986). Thus, when there is an objection to the adequacy of notice of the date of a sexual offense committed against a young child the question is "whether, in light of the facts in the particular case (e.g. the age of the victim, the number of offenses and the time period involved), the defendant has received 'fair notice' of the charges against him." State v. Hass, 218 N.J. Super. 133, 138 (App. Div. 1987). Considering the age of this child, the surrounding circumstances alleged in the indictment that provide context for the charges, and defense counsel's decision to proceed to trial without objection or request for greater specificity, there is no ground on which one could conclude that the notice given here was infirm.

III

A

We turn to consider defendant's objections to admission of statements describing the crime that A.B. made prior to trial. Defendant challenges the judge's application of the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), and further contends that the judge abused her discretion by allowing the State to introduce cumulative evidence of A.B.'s statements. In addition, he argues that A.B.'s inability to respond to questions on cross-examination effectively deprived him of his right of confrontation.

The "tender years" exception to the hearsay rule was adopted in recognition of the importance of the testimony of a child who is a victim of sexual misconduct, the potential reliability and credibility of the victim's spontaneous out-of-court statements and the impact of lapse of time and the stress of the courtroom setting on the child's ability to testify credibly before the jury. State v. D.R., 109 N.J. 348, 358-60 (1988); State v. Burr, 392 N.J. Super. 538, 565-66 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008).

In pertinent part, N.J.R.E. 803(c)(27) provides:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible . . . 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 Rule 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 . . . .

Thus, admissibility pursuant to this rule of evidence is conditioned upon prior notice of the State's intention to introduce the statement, "a pre-trial judicial finding of trustworthiness, and [an] opportunity to cross-examine the child at trial." State v. R.B., 183 N.J. 308, 318 (2005). When the child testifies and is available for cross-examination at trial, there is no violation of the right of confrontation. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct 1354, 1369 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004); State v. Nyhammer, 197 N.J. 383, 411-14 (2009).

Factors relevant to the probability of trustworthiness include "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999); see Nyhammer, supra, 197 N.J. at 411 (discussing significance of child's statements "exhibit[ing] sexual knowledge beyond the experience of a typical child of similar age"). The ultimate question is "'whether the child declarant was particularly likely to be telling the truth when the statement was made.'" D.G., supra, 157 N.J. at 125 (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)).

In reviewing a trial court's decision to admit evidence pursuant to N.J.R.E. 803(c)(27), the questions for this court are whether the trial court has considered the relevant factors; whether the record of the hearing on admissibility includes sufficient credible evidence to support the trial court's findings on trustworthiness; and whether the trial court has abused its discretion by failing to exclude repetitive corroborative testimony, the probative value of which is substantially outweighed by the risk of undue prejudice, N.J.R.E. 403. See State v. Smith, 158 N.J. 376, 391 (1999); Burr, supra, 392 N.J. Super. at 572-73. These determinations are reviewed for abuse of discretion. Nyhammer, supra, 197 N.J. at 411 (applying that standard in reviewing admission of evidence pursuant to N.J.R.E. 803(c)(27)); State v. Lykes, 192 N.J. 519, 534 (2007) (noting "appellate review of a trial court's application of the balancing test of N.J.R.E. 403 also is subject to the abuse of discretion standard"). Thus, this court must "sustain[] the trial court's ruling unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." Lykes, supra, 192 N.J. at 534 (internal quotations and alterations omitted).

In this case the State gave timely notice of its intention to introduce statements A.B. made to D.M., her father and Detective Regal. The judge conducted the requisite hearing pursuant to N.J.R.E. 104 prior to trial in order to consider the State's request. All three of the witnesses testified at the hearing, and the judge reviewed the video recording of A.B.'s interview by the detective.

The judge determined that A.B.'s disclosure to her grandmother during their game of cards was one made to a person with whom A.B. had a close relationship and to whom she could be expected to turn for help. The judge found that D.M. initially thought "Juan" was a child and had no idea what had happened. In the judge's view, when A.B. explained that "Juan" was an adult and not a child, D.M. responded by asking logical questions to be expected in the circumstance.

Implicit in the judge's discussion of D.M.'s testimony is a finding that A.B.'s initial disclosure to D.M. was spontaneous and that D.M. had not suggested the responses to her appropriate follow-up questions.

Considering the three-day lapse between A.B.'s initial disclosure to her grandmother and the detective's interview, the judge concluded that it was conducted at a time reasonably proximate to the child's initial disclosure. And, crediting the detective's testimony, the judge further found that the detective had no discussion with the child prior to the interview. Further, based on her viewing of the video recording, the judge found that the detective did not coach or lead the child, who was not only able to communicate but also able to correct the detective when she selected a doll that did not have the same skin coloring as defendant.

Recognizing that there were some inconsistencies in A.B.'s reports to her mother and grandmother, the judge nonetheless determined that there was a sufficient probability of trustworthiness to warrant admission of the evidence.

There is no basis for disturbing the judge's determination. The factual findings upon which it is based are fully supported by the record, including the video recording of the interview which we have viewed, and the judge's ruling is based on consideration of the controlling legal standards.

In fact, with respect to the trustworthiness of the statements A.B. made to D.M., defendant presents no argument to the contrary. Defendant's argument on trustworthiness is directed to the statements A.B. made to her father and while being interviewed by the detective. With respect to those statements, defendant contends that A.B. did not make them spontaneously but told her father, who had a bad temper, on her grandmother's demand and told the detective in response to suggestive and leading questions.

Defendant identifies only one question from the detective that he deems leading: he notes that the child was asked questions "such as how many times 'Juan' had touched her." If such a question had been posed before A.B. had said what had happened to her and who did it, defendant's point might be well-taken. But the questions were not asked in that order.

When the questions posed by the detective and answers given by A.B. are viewed in context, the judge's findings on the absence of suggestiveness during this interview and, ultimately, the judge's determination on the probability of the trustworthiness of the statements made to the detective are supported by the record and not clearly mistaken. See D.R., supra, 109 N.J. at 360.

With respect to the statements A.B. made to R.B., the judge did not address their trustworthiness because she deemed that evidence cumulative. Thus, R.B.'s testimony as to what A.B. told him was admitted without the requisite finding on trustworthiness.

Defendant also contends that J.B.'s testimony about what A.B. said to her on July 8, 2004 was admitted in a manner inconsistent with the notice and hearing requirements of N.J.R.E. 803(c)(27). That assertion is clearly correct; the State gave no notice of its intention to introduce A.B.'s disclosure to J.B., through J.B.'s testimony. And, J.B. did not testify at the pretrial hearing. Nevertheless, the prosecutor asked J.B. if "anything unusual happened with respect to [A.B.] on Thursday, July 8, 2004." And, J.B. responded: "[A]ll of a sudden [A.B.] just [said] Juan touched my butt." Because the evidence in this case includes no reference to any pertinent event on July 8 other than the disclosure A.B. made to her mother, the prosecutor must have expected the answer J.B. gave.

Given the failure to comply with the procedures on N.J.R.E. 803(c)(27), the question was improper. But there was no objection to the question or application to strike the answer.

Although the hearsay statements introduced through R.B. and J.B. were not admitted in full compliance with rule N.J.R.E. 803(c)(27), we conclude that the error was harmless. R. 2:10-2. A.B.'s statements to her grandmother included one in which she said she had told her mother what Juan had done. Similarly, while inappropriate, the reference to A.B.'s repetition of her report about Juan to R.B. added no additional information incriminating defendant. In both cases, the only potential prejudice was the capacity to bolster A.B.'s credibility.

The spontaneity of the child's unsolicited disclosures to her mother and grandmother, her demeanor as depicted on the videotape of her interview, her testimony at trial and the corroborating medical evidence was persuasive evidence of the credibility of her account of defendant's conduct. Given that evidence, we have no doubt that the jurors would have reached the same verdict if J.B. and R.B. had not given this repetitive testimony. See R.B., supra, 183 N.J. at 330 (noting that the possibility that the error led to an unjust outcome "'must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached'" (quoting Bankston, supra, 63 N.J. at 273)).

The central focus of defendant's objection to this hearsay evidence is on prejudice from the presentation of cumulative evidence A.B.'s testimony at trial plus her out-of-court statements admitted through D.M., R.B., J.B., the detective and the video-recorded interview. That is a question of the balance of probative value and undue risk of prejudice pursuant to N.J.R.E. 403, not admissibility pursuant to N.J.R.E. 803(c)(27), and the burden of establishing that the balance requires exclusion pursuant to N.J.R.E. 403 is on the party urging that result. Rosenblit v. Zimmerman, 166 N.J. 391, 401 (2001).

Defendant has not made that showing. The video-recorded interview had substantial probative value and was not cumulative of A.B.'s trial testimony. The interview contained the details that A.B. was able to report and describe, as a five-year-old, at a time closer to the incidents. Moreover, from viewing the video recording, the jurors were given additional information relevant to their obligation to assess whether A.B. was repeating information conveyed by the detective, or others, or facts that she recalled based on abuse she experienced.

As discussed above, the testimony that was cumulative was that given by R.B. and J.B. The reasons that led us to conclude that admission of that testimony was harmless error, preclude a grant of relief on the ground that the judge abused her discretion by declining to exclude the evidence pursuant to N.J.R.E. 403.

Finally, defendant's claim that his right to confrontation was infringed requires little discussion. When a defense attorney questions a child witness but does not directly confront the child with respect to claims made in a videotaped statement, then a court cannot conclude that the right to confrontation was curtailed based on the witness's direct testimony or inability to respond to tangential questions. Nyhammer, supra, 197 N.J. at 413-14. That is what happened here.

B

Defendant also contends that the trial court erred by allowing the prosecutor to replay segments of the video of A.B.'s interview during the State's closing argument. This issue is raised for the first time on appeal and is reviewable for plain error. R. 2:10-2.

"Trial judges have broad discretion in setting the permissible boundaries of summations." State v. Muhammad, 359 N.J. Super. 361, 381 (App. Div.), certif. denied, 178 N.J. 36 (2003). "The determination is guided in each case by balancing the benefit to the proponent against the possible prejudice to the opposing party." Ibid.

In order to ensure that video recordings are not overused or edited to unfairly "emphasiz[e] only one litigant's side of the case" or "distort or "misstate the evidence," attorneys who intend "to use th[is] technique" must give prior notice to their adversary and the court. Id. at 379. When notice is given, courts must conduct a hearing "to assure avoidance of these potential pitfalls." Ibid. And, if the trial court permits replaying of video-recorded statements, the court should inform the jurors that the attorney has selected testimony the attorney deems significant, but the jurors must consider all of the evidence and may not "place any extra emphasis on portions of testimony played back." Id. at 382. There is no indication that any of these measures were taken in this case.

The circumstances of this case lead us to conclude that the deviations from the procedures set forth in Muhammad do not amount to plain error. First, the court's general instruction to the jurors informed them of their obligation to consider all of the evidence and provided proper guidance on the significance of arguments presented by the attorneys. See id. at 383-84. Second, in his closing argument, defense counsel had invited the jurors to ask to see the video again if they wished and posed no objection before, during or after the prosecutor's summation. The invitation and absence of a contemporaneous objection give rise to the inference that the defense did not view the use of the video during summation as prejudicial. State v. Ingram, 196 N.J. 23, 42 (2008). Finally, defendant's argument is general and does not indicate how the prosecutor's selection of segments for replay improperly emphasized, distorted or misstated the evidence. Thus, there is no basis upon which we could conclude that the prosecutor's use of the video deprived defendant of the right to have the jurors reach a verdict based on a proper consideration of the evidence.

C

Defendant also claims the trial court erred by granting the deliberating jurors' request to review a portion of the child's videotaped interview. Defendant did not object or urge the judge to take a different course.

During deliberations, the jurors asked the court to replay the portion of the interview video in which A.B. identifies the parts of the human anatomy. Since this case was tried, the Supreme Court has set standards for replaying video-recorded statements introduced at trial in response to a request from the jurors made during deliberations. See State v. Burr, 195 N.J. 119, 133-34 (2008) (endorsing the procedures and standards for replaying video-recorded trial testimony adopted in State v. Michaels, 264 N.J. Super. 579, 643-45 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994)). There is no need to describe those procedures in detail, because the Court limited the reach of its holding. The Court directed, "[I]n the future, if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements." Id. at 134 (emphasis added).

In any event, the portion of the video replayed at the jurors' request does not include any reference to defendant. It depicts nothing other than the child supplying or selecting labels for various parts of the human body. The judge did not abuse her discretion by arranging to have that segment of the video replayed.

After considering each of defendant's objections to the admission and use A.B.'s out-of-court statements, we have no doubt that both were incapable of producing an unjust result. R. 2:10-2.

IV

Point V of counsel's brief and Point I of defendant's pro se brief are based on an error in the judgment of conviction. It erroneously indicates that defendant was convicted of the crimes charged in counts five and six of the indictment. Both defendant and his appellate counsel correctly note that those counts were dismissed. The defense is not correct in its assertion that the jurors considered and returned guilty verdicts based on the charges included in those counts of the indictment.

Simply put, the erroneous references to counts five and six are the product of an obvious mistake attributable to the reliance on the verdict sheet in preparation of the form of judgment. The crimes listed on the verdict sheet include two separately numbered entries for second-degree aggravated sexual assault. Instructions on second-degree aggravated sexual assault were submitted for the jurors' consideration as lesser crimes included in the first-degree aggravated assaults charged in counts one and three. As a consequence of that numbering, the crimes of endangering the welfare of a child, which were charged in counts two and four of the indictment, were respectively listed as five and six on the verdict sheet. Those numbers were transferred to the judgment, which now indicates that defendant was convicted of the crimes charged in counts five and six. That mistake must be corrected.

There is an additional error. The judgment of conviction inappropriately reflects two convictions for second-degree aggravated sexual assault, submitted as lesser crimes included in the crimes charged in counts one and two of the indictment, as merged with defendant's two convictions for first-degree aggravated sexual assault. A judgment of conviction may not reflect two convictions for one count of an indictment. That mistake must be corrected.

Further corrections are required. The judgment indicates imposition of VCCB assessments and SNSF assessments for convictions that were merged. Those assessments must be vacated.

V

Defendant also contends that his aggregate sentence concurrent eighteen-year sentences for crimes of the first degree subject to parole ineligibility and parole supervision terms mandated by N.J.S.A. 2C:43-7.2 is excessive and improper. These concurrent sentences are within the range set for crimes of the first degree. N.J.S.A. 2C:43-6a(1).

The standard for our review is narrow. Unless a sentence shocks our judicial conscience, we are bound to uphold a sentence imposed by a trial court that has followed the sentencing guidelines so long as there is "competent credible evidence" to support the court's findings. State v. Cassady, 198 N.J. 165, 169, 180, 183 (2009).

Here the judge articulated factual findings relevant to the aggravating and mitigating factors that have adequate support in the record. The judge identified two aggravating factors the risk of recidivism and a need to deter, N.J.S.A. 2C:44-1a(3), (9), and one mitigating factor the fact that defendant had led a law abiding life for a substantial period of time, N.J.S.A. 2C:44-1b(7).

In an effort to demonstrate that the court misapplied the sentencing law, defendant claims that a person such as himself, who has one juvenile adjudication acquired long before commission of the crimes for which he was being sentenced, cannot be found to pose a risk of reoffending or to be in need of deterrence. There is, however, authority to the contrary consistent with the trial court's interpretation and application of these aggravating factors. See, e.g., State v. O'Donnell, 117 N.J. 210, 216 (1989); State v. Hess, 198 N.J. Super. 322, 328-29 (App. Div. 1984). Thus, there is no ground for modification of defendant's sentence.

Affirmed and remanded for correction of the judgment of conviction in conformity with this opinion.

We recognize the judge indicated reliance upon the fresh complaint exception to the hearsay rule for admission of A.B.'s statements to her grandmother. Nonetheless, the facts found by the judge and the judge's evaluation of their significance provide a sufficient basis for us to conclude that admission of the statements made to D.M. as substantive evidence was warranted pursuant to N.J.R.E. 803(c)(27).

Actually, the judge's relevant pretrial ruling authorized the testimony R.B. gave. The judge stated: "[T]he father's testimony at this point . . . strikes me as cumulative and not necessary, given that I am going to permit the grandmother to testify in full and the videotape to be played." The judge added, "for completeness sake . . . the State should be allowed to to put in, through grandmother or whoever the appropriate witness is, that the father was called and that what [A.B.] had said to grandma was repeated to him." That ruling authorizes the introduction of hearsay. There is no substantive difference between allowing testimony that A.B. told her father what she had told her grandmother and allowing R.B. to testify about what A.B. said. In both cases, there is a repetition of the statements offered for their truth; the only difference is that one is an explicit repetition and the other is implicit. See State v. Bankston, 63 N.J. 263, 269 (1973) (discussing impermissibility of introducing hearsay indirectly through testimony that gives rise to an inescapable inference of inadmissible hearsay).

We digress to emphasize that prosecutors, who have an obligation to do justice, should not view this or any other decision applying the harmless error rule as one authorizing non-compliance with established legal principles. The legal principle, not the result in a case in which an error is found to be harmless, establishes the standard to which officers of the court must conform their conduct. If there was a discussion off the record about the propriety of the prosecutor's plan to use the video, the outcome should have been placed on the record. If there was not, then it is difficult to understand why the prosecutor who took care in selecting portions of the video to include in his summation neglected to provide notice and obtain the court's approval to use the material in his summation as required by Muhammad.

(continued)

(continued)

30

A-4755-06T4

RECORD IMPOUNDED

August 31, 2009