STATE OF NEW JERSEY v. T.E.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3602-06T43602-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.E.,

Defendant-Appellant.

________________________________

 

Argued: October 21, 2009 - Decided:

Before Judges Stern, Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Burlington County, Indictment No. 04-09-1073-I.

Edward J. Crisonino argued the cause for appellant.

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant was convicted of twenty counts of sexual offenses related to his step-daughter and sentenced to an aggregate term of sixty years with eighty-five percent to be served before parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The sentence aggregate was based on four consecutive sentences on four counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (2). Defendant argues that N.J.R.E. 404(b) evidence of an act of fellatio at Hershey Park, Pennsylvania, was not admissible; that the hearsay testimony of Dr. David Hulbert, who was not qualified as an expert, but who confirmed K.R. had been sexually active, was improper; that Detective Darren Anderson should not have been permitted to testify as to what K.R. said to him or to his interpretation of a sound recording; that the aggregate of errors warrant a new trial; and that the sentence is excessive. We affirm the judgment, but remand for resentencing.

K.R. was born on May 24, 1990, and lived with her mother when she was ten years old. Her mother lived with defendant in Cherry Hill. K.R. has a younger half-sister, K.E., who was born in 2002.

When K.R. was in the fifth grade, she would watch wrestling on television, sometimes accompanied by defendant, who would wrestle with her. According to K.R., the wrestling led to defendant "rubbing up on" her. Eventually, defendant began "dry humping" K.R. and removing her pants and underwear. On the first occasion, defendant penetrated K.R.'s vagina with his penis. After he finished, he ejaculated on her stomach and wiped it off with his undershirt. It caused K.R. to be in pain afterward, both while she sat on the floor and while she attempted to use the bathroom.

Thereafter, on another occasion, while K.R. was asleep on the floor and her mother was in the shower, defendant began "pacing back and forth" in the bedroom, which K.R. shared with her mother and defendant. Defendant then pulled off K.R.'s pants and underwear and had vaginal sex with her.

On a third occasion, while K.R. was waiting for one of her mother's friends to come to the house, she and defendant were wrestling on the living room floor. Again, defendant began "dry humping" K.R. and then he took her clothes off and "enter[ed]" her.

In the summer of 2001, before K.R. entered the sixth grade, the family moved from Cherry Hill to Edgewater Park. Shortly thereafter, in September, defendant and K.R.'s mother married. According to K.R., while in Edgewater Park, defendant had sex, including cunnilingus, with her in her room, on the pool table "in the basement," defendant's room, the computer room, and on the stairs leading up from the basement. On one such occasion, while in the basement, defendant asked K.R. if he could take a picture to show her what intercourse looked like. He took the picture on a digital camera while defendant was "in" her.

The last incident K.R. could remember occurred in May 2004, while K.R. was in the shower. When K.R. turned around, she saw defendant peeking in. He remarked that she had "nice breasts" and told her things he wanted to do to her if he could. She then wrapped herself in the shower curtain, which caused defendant to continuously ask to see her breasts, "just once" and that he would leave her alone. In order to end the situation, K.R. showed defendant her breasts. Approximately two minutes later, after defendant had left the bathroom, he re-entered and grabbed K.R. who was now out of the shower and "picked [her] up, took [her]" to his bedroom, where he had vaginal sex with her and "started kissing it and licking around it." K.R. remembered the date, May 12, 2004, because her eighth grade class took a trip to Philadelphia.

About a week later, K.R. was having an argument with her mother. While angry with her mother for calling defendant on the phone to tell him about the fight, K.R. yelled out "while you're sitting there telling him everything about me, why doesn't he tell you what he's been doing to me all these past years. Tell . . . her, Tom [defendant]. Tell her how you have been having sex with me." Defendant then asked to speak with K.R., calling her by her nickname "Gatti," and asked her why she said that when he was "sticking up" for her. K.R.'s mother then hung up the phone, and K.R. told her mother about the abuse.

Shortly thereafter, defendant arrived home. Defendant and K.R.'s mother then began to argue, and defendant looked over at K.R. and pleaded with her "please don't do this to me."

Subsequently, K.R.'s mother took her to see Dr. David Hulbert, a obstetrician/gynecologist who sent K.R. to the emergency room. However, the hospital personnel would not examine her because "it wasn't an incident proximate to what was going on," and Dr. Hulbert examined K.R. in his office. He found that she had "normal external genitalia, the hymen was not intact and easily allowed Peterson speculum." He concluded that she had been sexually active because the hymen was not intact, which usually occurs "through penetration of the penis." However, he did not find any acute external trauma, which would have indicated recent activity. Additionally, he did not find any lesions on K.R.'s cervix or uterus, but noted that he "could easily fit two fingers into her vagina[,]" which "would be consistent with [K.R.] being sexually active."

Later that evening, K.R.'s mother took her to the Burlington County Prosecutor's Office. While there now into the early morning hours of May 21 she met with Detective Darren Anderson who took a videotaped statement from K.R. Therein, she recounted the various instances of sexual abuse involving defendant. The interview ended at approximately 2:20 a.m., at which time Detective Anderson obtained consent from K.R.'s mother to search their house to look for the digital camera defendant used to photograph intercourse with K.R. A camera was recovered, but no incriminating photographs were found. However, later that day, Detective Robert Hageman did find an "unlabeled eight millimeter video" depicting a white male, which then went dark, but contained a female voice. Utilizing a UV light, the detectives also obtained evidence from the pool table, couch, and stairwell, which indicated the presence of semen.

Several days later, Detective Anderson watched the videotape found by Detective Hageman, which showed a white male concealing a camera he was focusing on a plaid couch. The individual maneuvering the camera had "a tattoo on the upper right-hand shoulder" and "the upper left-hand shoulder as well as a pendant attached to a chain." In the bottom right-hand corner of the video was a time-stamp, which read "9:15 p.m. on March 11 of 2003." The image then went blank and only the audio functions of the tape continued. Detective Anderson heard a voice which, from conversations he had with her, Anderson believed to be K.R. repeatedly saying "[s]top, Tom, stop." The detective then heard sounds he believed to signify "sexual activity" followed by sounds from a movie, "Queen of the Damned," which was playing on the television. At some point during the recording, a voice from the television program indicated that "Six Feet Under" would be airing at 11:00 p.m. A voice also could be heard saying "wake up, G[a]tti" as well as an unidentified "cough" followed by the sound of a door being shut.

On June 4, Detective Anderson executed a search warrant that permitted the detective to obtain visual images of defendant's tattoos. Accordingly, the detective brought defendant to the Prosecutor's Office, where images were captured on a digital camera. The image of defendant's right shoulder depicted an Irish Flag with "Thomas" written in the middle of the flag. Detective Anderson also photographed defendant's upper left-hand shoulder, which contained an image of a "Claddagh." The images taken on June 4 were consistent with those portrayed on the unlabeled videotape.

The Prosecutor's Office also contacted HBO, in an effort to determine what shows were being played on March 11, 2003. Detective Anderson was informed that from 9:00 p.m. to 11:00 p.m., "Queen of the Damned" aired on HBO. He also learned that "Six Feet Under" was scheduled to begin at 11:00 p.m.

Several weeks later, on June 18, 2004, K.R., accompanied by her mother, again went to the Burlington County Prosecutor's Office so that K.R. could give Detective Anderson a letter indicating that she lied about the alleged incidents of sexual abuse she reported. Apparently, K.R. felt as though she upset her family and caused pain to her mother and sister. K.R. subsequently went to be with her grandmother in Puerto Rico, where she remained up until the trial. Despite K.R.'s recantation, the Prosecutor's Office proceeded with the prosecution.

At a N.J.R.E. 104 hearing, both K.R. and Detective Anderson testified. K.R. was able to identify the voices on the tape, as well as defendant's tattoos and the medallion on the necklace. Detective Anderson recounted how he obtained the search warrants that resulted in his ability to identify defendant's tattoos. Following the hearing, the judge determined that the videotape's relevance was not outweighed by its prejudicial value, and permitted its admissibility.

K.R. testified at the trial. On cross-examination, she was questioned extensively about the videotape and her recantation. As to the videotape, she recalled that she fell asleep while the movie was playing and that no one else was present in the house, other than defendant. K.R. admitted that she felt defendant "ruined" her family and did not want him to replace her father.

The State introduced proof of K.R.'s initial statement, the semen stained pool table and couch, and the videotape. K.R.'s mother testified that she had sex with defendant on the couch in the basement on several occasions. She stated, however, that she and defendant never had sex in any other portion of the basement; nor did they have sex on the steps leading to the basement or on the pool table. She also testified that defendant used a T-shirt to wipe himself off following intercourse and that he would occasionally throw dirty clothes down the basement steps and on the pool table.

On cross-examination by the defense, K.R.'s mother was questioned about K.R.'s letter in which K.R. recanted her earlier allegations. She admitted that K.R. was not particularly fond of defendant because of an affinity she had for her ex-husband, "Dave," and that she forbade K.R. from having any boys over.

Defendant did not testify, but presented character witnesses.

Defendant argues that the trial judge improperly permitted the State to question K.R., over objection, about an instance of sexual abuse that occurred in Hershey Park, Pennsylvania, which was not charged in the indictment. The State contended that the testimony was being offered as "identity" evidence. Specifically, the State contended that K.R. would testify that defendant had a large "vein on the top of his penis," having obtained that information during oral sex at Hershey Park. The judge permitted introduction of the incident under N.J.R.E. 404(b) "for the limited purposes of establishing identity[.]" The judge added, "I don't view the probative value being substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury. None of the 403 factors appear to apply here." The following exchange then occurred:

[Prosecutor:] [K.R.] you have been asked a question about Hershey Park, and you had told us that you stopped I think at a gas station to get a soda. Do you remember what soda that was?

[K.R.:] A Sprite Remix.

[Prosecutor:] And what happened from that point forward?

[K.R.:] When we were walking back there [to the park] there was kind of like heaters or like something around there. And it was like covered with like lots of bushes and trees and stuff. And he went through there -- [defendant] went through there and stopped there. Behind us was like a fence covering the heaters and all of that. Stuff I guess from the hotel. And he asked me if I would put my mouth around his penis.

[Prosecutor:] What did you say?

[K.R.:] I said no.

[Prosecutor:] What happened next?

[K.R.] He just said come on, just once and then we'll go. And then we'll go back. And he kept repeating the same thing.

[Prosecutor:] What happened?

[K.R.:] I ended up doing what he had asked me to do.

[Prosecutor:] Did you observe anything at that time on his penis?

[K.R.:] Well, I noticed one thing. It was a vein that was like -- it was like -- I don't know how to explain it. It was bigger than it should have been. Like I don't know. It just looked like it was popping out.

[PROSECUTOR:] And where on his penis was that vein?

[K.R.:] On the top.

[(emphasis added).]

Defendant contends that identity was not at issue, and therefore, admission of the Hershey Park testimony was improper. He also maintains that, even if the testimony was admissible, the mandatory limiting instruction was not given.

N.J.R.E. 404(b) provides that:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

In State v. Cofield, 127 N.J. 328 (1992), the Supreme Court reaffirmed the general notion that "[t]he limited purposes for which other-crime evidence may be admitted include, but are not limited to, establishment of a common scheme or plan, a signature crime, motive, and most frequently, to impeach the accused who takes the witness stand, but only through a conviction." Id. at 336 (internal quotation omitted). And, to avoid misapplication of Evid. R. 55, now N.J.R.E. 404(b), the Court set forth the following four-factor test:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Id. at 338 (citation omitted).]

The Court cautioned however, that where, for example "identity is not really in issue . . . it would be improper to justify the use of other-crime evidence on that basis." Ibid.

The Cofield Court relied upon its earlier decision in State v. Stevens, 115 N.J. 289 (1989) where it noted:

The trial judge should be careful to exclude other torts or crimes evidence, even though it is independently relevant, wherever he [or she] can reasonably do so without damaging the plaintiff's or prosecutor's case. For example, if the prosecutor has adequate proof of identity, or of motive and the like, he should not be permitted to use the highly inflammatory evidence of other crimes to establish those facts.

[Id. at 303 (citation omitted; emphasis added).]

Moreover, a trial judge must instruct the jury on the limited purpose of the evidence, see State v. Williams, 190 N.J. 114, 133-34 (2007); State v. Angoy, 329 N.J. Super. 79, 88-89 (App. Div.), certif. denied, 165 N.J. 138 (2000), and it is not sufficient that the trial judge inform the jurors that they may not use the evidence to infer propensity. Rather, the judge must instruct the jurors on the specific, limited purpose, relevant to a genuine, disputed issue, for which they may consider the evidence. See Williams, supra, 190 N.J. at 133-34; State v. Oliver, 133 N.J. 141, 156-58 (1993).

Here, the judge gave the following limiting instruction in his charge to the jury at the end of the case:

The Hershey Park alleged incident. Some evidence is admitted for limited purposes. I told you about that a few minutes ago. An example of limited admissibility evidence that if established beyond a reasonable doubt may be considered by you is the alleged victim's testimony regarding an incident that she said occurred at Hershey Park. You may consider that evidence only for the purpose of establishing identity. It may not be considered by you to prove that the defendant was predisposed or disposed to commit a criminal act nor for any other purpose.

[(emphasis added).]

We find no basis for reversal. Certainly, the victim's description of the vein is significant testimony that some exposure to his genital organ occurred, and that testimony has enhanced K.R.'s credibility because her mother verified the description. But that description could, and undoubtedly should, have been given without indicating the location of the observation. Nevertheless, it is important to note that it was the victim, and only the victim, who described the event in Pennsylvania as well as the other sexual abuse. Assuming the evidence of the event at Hershey Park was inadmissible to prove defendant's identity, notwithstanding the description of the unique feature of the vein on defendant's penis, or as part of an on-going scheme or as res gestae evidence, the victim's credibility was not enhanced by anyone else's testimony concerning defendant's criminal activity or other wrongdoing. Either the jury essentially believed K.R. or it did not, and the fact that one of many on-going events occurred outside the State cannot have made a difference in the credibility of the State's case. Moreover, the limiting instruction that was given was adequate to protect defendant. In sum, we find no abuse of discretion warranting reversal of the conviction. See State v. Lykes, 192 N.J. 519 (2007).

Defendant also contends that the trial judge improperly permitted Dr. Hulbert to repeat the allegations of abuse K.R. made to the doctor while the he was examining her. Of course, as a general rule, "[h]earsay is not admissible[.]" N.J.R.E. 802. However, under N.J.R.E. 803(c)(4),

[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment

are admissible as an exception to the hearsay rule.

Over objection, the prosecutor was permitted to ask Dr. Hulbert what K.R. told him during their first meeting. He responded, "[s]he states that her stepfather [defendant] had sexually abused her about [forty-eight] times, the last time was last week which was the week before the visit and that there was penetration of the penis into her vagina." Defendant claims this was prejudicial error requiring reversal.

He relies upon State in Interest of C.A., 201 N.J. Super. 28, 31 (App. Div. 1985), in which a juvenile was charged with delinquency for engaging in acts of sexual assault and criminal sexual contact with a two-year-old boy and three-year-old girl he was babysitting. Analyzing Evid. R. 63(12), the predecessor of the present rule, we held that because the young girl was taken to a doctor by police, her statements describing the abuse were not admissible because they were not made to a physician for "purposes of treatment." Id. at 33.

Unlike C.A., where the young girl was taken to a doctor solely for evidence gathering purposes, here K.R. was treated, and given several tests to determine whether she was sexually active and whether she contracted any sexually transmitted diseases. In fact, no investigative authorities had been contacted at that point in time.

We are not convinced that the trial judge abused his discretion in permitting Dr. Hulbert's testimony. Certainly, it would have been more prudent for the trial judge to have stricken the unanticipated reference in Dr. Hulbert's testimony to the identification of the perpetrator, but defendant did not ask him to do so. Moreover, not only was K.R.'s physical condition at the time relevant to the issues in dispute, but it was also material to a course of testing and the "treatment plan" by the doctor, particularly if the perpetrator was within the home, as opposed to a male friend or stranger.

In any event, as we have previously indicated, the only identification of defendant came from K.R., and the jury had to know that Dr. Hulbert's reference to defendant was based exclusively on K.R.'s identification of him, the credibility of which was squarely before it. The number of people K.R. told that defendant abused her does not impact on the credibility of her identification.

Defendant next contends, as plain error, that much of Detective Anderson's testimony was inadmissible hearsay. In response, the State asserts it merely recounted the steps he took during the investigatory process. Defendant argues that Detective Anderson's testimony regarding the contents of the videotape amounted to improper hearsay and/or opinion testimony because "[h]e was not there when this recording was made and cannot know through any first hand knowledge who is on the tape or what they are doing."

Detective Anderson did not testify as to what he was told during the investigation. He discussed the steps he took to find and review the tape, and compare the relevant images thereon with defendant's tattoos. Even in response to the prosecutor's questions regarding his interview with K.R., he did not repeat what she said.

When questioned about the tape, the detective did state the following:

[Detective Hageman] explained that he located an item that he deemed to be concerning.

. . . .

He had located an unlabeled eight millimeter video at the home. He had indicated that he -- while at the home he inserted this video . . . an[d] while watching it he could see a adult white male appearing to conceal a camera. He then stated that he could hear some conversation because the screen had gone dark. He said he could hear conversation consistent with a female he believed to be [K.R.]

But Detective Anderson then went on to discuss his own personal observation of the tape, the voices he heard on it, and the comparisons he personally made regarding the tattoos on the tape and defendant. We find no basis for precluding these perceptions. See N.J.R.E. 701. Cf. State v. Loftin, 287 N.J. Super. 76, 99-100 (App. Div.), certif. denied, 144 N.J. 175 (1996) (permitting a detective to testify about a composite videotape of the hotel in which a murder occurred because his opinions satisfied both prongs of N.J.R.E. 701). Contrary to defendant's assertion on appeal, Detective Anderson did not attempt to "bolster" the State's case by repeating the allegations made against defendant by others, as in State v. Branch, 182 N.J. 338 (2005) or in State v. Bankston, 63 N.J. 263 (1973).

The second objection related to Detective Anderson's trial testimony related to K.R.'s recantation. Specifically, defendant contends that Detective Anderson improperly rendered a lay opinion regarding its lack of veracity.

Detective Anderson testified as to the circumstances surrounding the receipt of K.R.'s recantation letter. He recalled that the letter stated that things had "escalat[ed] too far" and that K.R. thanked him for his support. The prosecutor then asked whether Anderson "became concerned" after his receipt of the letter and he responded that he was concerned because he "had seen the video," he "had seen other evidence to corroborate [K.R.'s] statement" and he had repeatedly requested her mother to watch the video, which she refused to do. At no point during this line of questioning, however, did Detective Anderson assert that "in his opinion" K.R. was lying or defendant was guilty. See State v. J.Q., 130 N.J. 554, 573-82 (1993).

In our view, Detective Anderson simply noted how he felt when he received the recantation letter, and the steps he took afterward to ensure that K.R. was not returned to an environment that he believed based on first-hand observation of the semen stained basement and the videotape could be dangerous to K.R. Accordingly, N.J.R.E. 701 does not preclude this evidence because the detective did not offer an expert opinion on the letter's veracity and the testimony was based on his perceptions.

Irrespective of the technicalities of the Rules of Evidence, we can find no plain error. Had there been relevant objections, the State could have remedied any exclusion of evidence if it felt necessary to do so. Suffice it to say that, particularly because both K.R. and her mother testified at the trial, there were no hearsay problems and certainly no basis for finding an "unjust result." State v. Macon, 57 N.J. 325, 336 (1971). See also State v. Daniels, 182 N.J. 80, 95 (2004); R. 2:10-2.

Having found no error as to any point, we must summarily reject defendant's "cumulative error" contention.

Finally, defendant objects to the sentence imposed. Defendant claims that the sentence was excessive, particularly because of the trial judge's decision to impose four consecutive sentences of fifteen years each.

In State v. Roth, 95 N.J. 334 (1984), the Supreme Court established a three-prong test for appellate review of a trial court's sentence. We must

determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[Id. at 365-66 (emphasis added).]

In addition, as noted in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), it is within the trial judge's discretion to impose either consecutive or concurrent sentences. The Yarbough Court instructed sentencing judges to focus on five "facts relating to the crimes:"

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous[.]

[Id. at 644.]

See also State v. T.E., 342 N.J. Super. 14, 37 (App. Div.), certif. denied, 170 N.J. 86 (2001) (a sex abuse case where we affirmed the imposition of a consecutive sentence on a second-degree endangering the welfare of a child conviction). In any event, the sentencing court must state reasons for the imposition of consecutive terms and "the fairness of the overall sentence." See State v. Miller, 108 N.J. 112, 121 (1987).

Here, the sentencing judge considered numerous letters regarding defendant's character as "part of [his] reasoning in not imposing the 20-year maximum sentence as permitted by law for a first degree offense." However, the judge noted that the imposition of concurrent sentences, as the defense requested, would ignore the "requirement of [Yarbough]" to impose consecutive sentences when the crimes involved separate acts of violence. See State v. Fraction, 206 N.J. Super. 532 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986) (separate acts of abuse at the same time may be punished separately). The judge then found aggravating factors one, two, three, four, and nine to apply, and gave reasons for each. N.J.S.A. 2C:44-1(a)(1), (2), (3), (4), (9).

The judge determined that the emotional impact of the extended abuse for more than three years clearly impacted K.R. as was evident in her testimony. The only mitigating factor found by the judge was factor seven, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" N.J.S.A. 2C:44-1(b)(7).

The judge sentenced defendant to fifteen years each on counts three, seven, eleven, and thirteen, and citing the Yarbough decision, stated: "I do find that" these are "separate definable act[s]" and thus, each count must run consecutively to the other. He properly found that the sexual assaults occurred over a three-year period of time and were separate acts. As noted by the Court in State v. Abdullah, 184 N.J. 497, 513 (2005), "there is no presumption in favor of concurrent sentences[.]" "Thus, 'every [criminal] knows he is risking' an aggregate sentence covering all the offenses he has committed," id. at 514 (quoting Blakely v. Washington, 542 U.S. 296, 309, 124 S. Ct. 2531, 2540, 159 L. Ed. 2d 403 (2004)), as there can be "no free crimes." Yarbough, supra, 100 N.J. at 643.

Nevertheless, there is no statement as to why there should be four consecutive sentences or why each of the consecutive sentences imposed was warranted. While there is no statutory maximum for consecutive sentences, see N.J.S.A. 2C:44-5, the Yarbough guidelines remain relevant. See State v. Candelaria, 311 N.J. Super. 437, 454 (App. Div.), certif. denied, 155 N.J. 587 (1998). Thus, the judge should have explained why more than forty years (the outside limit for two first-degree crimes) should have been imposed, particularly given the real time component of NERA.

Accordingly, we remand for further consideration of the number of consecutive sentences imposed, considering that the sentences can be adjusted subject to the aggregate of sixty years. See State v. Young, 379 N.J. Super. 498, 506-07 (App. Div. 2005), remanded in part by, 188 N.J. 269 (2006); State v. Espino, 264 N.J. Super. 62, 67-73 (App. Div. 1993).

 
The judgment of conviction is affirmed, and the matter is remanded for resentencing.

Defendant was convicted of seven counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (2) (c); one count of sexual assault, N.J.S.A. 2C:14-2(b); two counts of aggravated sexual contact, N.J.S.A. 2C:14-3(a); and ten counts of endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). Based on the sentence transcript and sentence it appears defendant was not found to come within the purview of the Sex Offender Act.

We received no photos or videotape with the record on appeal.

He did elect to have the judge give the jury instructions on a defendant's election not to testify.

If res gestae, a limiting instruction was not required. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) is not implicated because K.R. was present at trial and subject to cross-examination. See State v. Buda, 195 N.J. 278, 299-302 (2008).

Prior to the testimony on this issue, the prosecutor admonished the doctor not to disclose the identity of the abuser. He nevertheless did so in an answer, and defense counsel brought out that K.R.'s mother told him "they were arguing heatedly just prior to the patient stating she was being sexually abused by her stepfather."

N.J.R.E. 701 provides that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."

(continued)

(continued)

10

A-3602-06T4

RECORD IMPOUNDED

July 8, 2010