STATE OF NEW JERSEY v. REGINALD HELMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3937-07T43937-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD HELMS aka ANTHONY HELMS aka

MALIK HELMS aka REINALD FRANK HELMS,

Defendant-Appellant.

___________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1386.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Reginald Helms was found guilty of the lesser-included offenses of second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree child endangerment, N.J.S.A. 2C:24-4a, involving S.B., born on June 3, 1995. On the second-degree crime, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3a, to an extended term of ten years, eighty-five percent without parole, and, on the third-degree offense, to a concurrent five-year term. Defendant appeals. Save for a limited remand to both correct the judgment of conviction and resentence to reflect the merger of the child endangerment conviction with the sexual assault conviction, we affirm.

According to the State's proofs, then nine-year old S.B. lived in an apartment in Newark with her mother, D.B., father, R.K., younger brother, K.K., and her father's friend, defendant Helms, whom she considered her uncle. Defendant has been living with S.B.'s family since the summer of 2004 and would take care of S.B. and her brother when her parents ran errands.

Normally, S.B. and her brother would go directly from school to the after-school program at the housing complex's recreation center, where their mother would later pick them up and drive them home. On November 12, 2004, however, D.B. had a medical appointment and gave S.B. a key to the apartment because she was not sure she would return in time to pick her children up. Instead of going straight to the after-school program, however, S.B. first went home to drop off her and her brother's book bags. When she opened the door and went upstairs, defendant came from behind her, held her arms and lifted her up. S.B. dropped the book bags and tried to pull away, but was unsuccessful. Defendant carried her into a bedroom and threw her on the bed sideways. He then put his right hand on her chest, and with his other hand, pulled down her pants and placed his index finger into her vagina, which hurt her. S.B. had one of her legs hanging over the bed, and defendant was in front of her. When he stepped to the side, S.B. was able to run out the door.

S.B. went directly to the recreation center where she encountered school program aides Yolanda Berry and Selena Gilmore. When Berry told S.B. that her mother called and said she had to go home, S.B. burst out crying. Because she was crying loudly, Berry took S.B. to the back to comfort her, but S.B. kept crying. Berry called over Gilmore, who asked her what was wrong, and S.B. said that "her uncle was touching her in the wrong places." Berry then went next door to the program manager, Millie Mendez, while Gilmore remained with S.B. and asked her to explain the touching. S.B. responded that her uncle was putting his finger "down there," pointing to her vagina. The police were then summoned.

Newark Police Officer Quintar Mathis responded to the recreation center around 5:00 p.m., where he met with Gilmore, Berry and the child. S.B. was upset, and it was apparent she had been crying because her eyes were swollen and her face was red. Accompanied by S.B.'s mother, who had since arrived, Officer Mathis and his supervisor then went looking for defendant at the apartment, leaving S.B. with her Aunt Betty, who by then had also arrived at the recreation center. When they could not locate defendant, the officers returned to the recreation center and escorted S.B. to the hospital to be examined.

Thereafter, the Division of Youth and Family Services (DYFS) contacted the family to have S.B. come for a forensic interview, which took place on November 29, 2004 at the Wynona's House Child Advocacy Center. The interview was conducted by Arlin Alvarado, an employee of the Center, who had been given a brief synopsis of the case by Detective Michelle Patrick of the Essex County Prosecutor's Office Child Abuse Unit. During the interview, Alvarado employed the five step RATAC method in which she was trained. She builds rapport with a child; transitions into anatomical male and female drawings to identify the child's language communication for body parts; goes into a touch inquiry defining abusive touch and non-abusive touch, such as hugs, kisses and tickles; provides the child with an opportunity to talk about their abuse; and discusses safety rules to give the child the chance to ask questions and provide closure. If during the phase where the child has the opportunity to talk about abuse she actually discloses an abuse, then Alvarado asks the child for specific facts as to who, what, where, and when, depending on age.

Only Alvarado and S.B. were present in the room although the interview was videotaped by Detective Patrick, who along with another detective from the Prosecutor's Office, an assistant prosecutor, and a therapist, observed the interview via a television monitor. None of them spoke to S.B. prior to Alvarado's interview. Before concluding the interview, Alvarado came to the observation room and asked if there were additional questions or the need for clarification.

During the interview, S.B. indicated that there were other acts of sexual abuse by defendant. She mentioned one occasion in her Aunt Betty's home when, watching television with her brother in her mother's bedroom, defendant grabbed her from behind, took her into another bedroom, and put his finger inside her vagina. This taped interview was played for the jury, but in redacted form, without reference to the other incidents of sexual abuse reported by S.B.

Defendant denied ever touching S.B. in an inappropriate or sexual manner on November 12, 2004. Although he lived with the family for about a year, he denied ever being in the apartment when S.B. and her brother came home from school, and admitted to being alone with them only once or twice during the entire year. Although he could not recall where he was after November 12th, defendant admitted that S.B.'s father told him that the police were looking for him, but he did not turn himself in.

Crediting the State's account, the jury convicted defendant of second-degree sexual assault and third-degree child endangerment.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT IMPROPERLY ADMITTED S.B.'S UNTRUSTWORTHY AND UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE.

A. S.B.'s Statement Concerning Alleged Sexual Abuse Made During Her Forensic Interview With Ms. Alvarado Lacked Reliability And Trustworthiness As Said Statement Was Inconsistent With Her Trial Testimony and Because Ms. Alvarado Was Not An Impartial Party.

B. S.B.'s Statements To Ms. Berry And Ms. Gilmore Lacked Trustworthiness And Reliability Due To Prompting And S.B.'s Motive To Fabricate.

II. THE TRIAL COURT ERRED WHEN IT ADMITTED REPETITIVE CORROBORATING HEARSAY EVIDENCE PROFFERED PURSUANT TO N.J.R.E. 803(c)(27).

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED MR. HELMS' REMOTE CONVICTIONS.

IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. HELMS' MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE PRODUCED AT THE TRIAL.

V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENSE COUNSEL'S REQUEST FOR A JURY CHARGE IN ACCORDANCE WITH STATE V. CLAWANS, 38 N.J. 162 (1962).

VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MERGE MR. HELMS' CONVICTION FOR THIRD-DEGREE ENDANGERING THE WELFARE OF A MINOR, N.J.S.A. 2C:24-4(A), WITH HIS CONVICTION FOR SECOND-DEGREE SEXUAL ASSAULT, N.J.S.A. 2C:14-2(B).

A. A Clear Legislative Intent To Impose Multiple Punishments Does Not Exist.

B. Mr. Helms Faced Multiple Punishments For The Same Offense.

C. Even If The Offenses Are Technically Different, The Offenses Are Designed To Protect The Same Interest.

VII. THE TRIAL JUDGE ABUSED ITS DISCRETION WHEN IT GRANTED THE STATE'S MOTION FOR AN EXTENDED TERM FOR MR. HELMS' CONVICTION FOR SECOND-DEGREE SEXUAL ASSAULT, N.J.S.A. 2C:14-2(B) (COUNT ONE).

VIII. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. HELMS

TO TEN YEARS OF IMPRISONMENT FOR SECOND-DEGREE SEXUAL ASSAULT, N.J.S.A. 2C:14-2(B) (COUNT ONE) AND FIVE YEARS OF IMPRISONMENT FOR THIRD-DEGREE ENDANGERING THE WELFARE OF A MINOR, N.J.S.A. 2C:24-4(A) (COUNT THREE) BECAUSE THE TRIAL COURT FAILED TO FIND MITIGATING FACTORS AMPLY SUPPORTED BY THE RECORD.

We address the issues in the order raised.

I.

Defendant argues that S.B.'s statements to Berry and Gilmore and her videotaped forensic interview conducted by Alvarado were inadmissible as unreliable hearsay. We disagree.

Statements by a child relating to a sexual offense are an exception to the hearsay rule under N.J.R.E. 803(c)(27), also known as the "tender years" exception. Under this exception:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding 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) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

[N.J.R.E. 803(c)(27).]

See generally State v. D.R., 109 N.J. 348 (1988). Thus, admission of a child's out-of-court statement about acts of sexual abuse is authorized if the statement possesses "sufficient indicia of reliability." Id. at 363. As N.J.R.E. 803(c)(27) itself indicates, the inquiry centers on whether the statement is "probably trustworthy." State v. T.E., 342 N.J. Super. 14, 36 (App. Div.) (citing State v. Michaels, 136 N.J. 299, 317-18 (1994)), certif. denied, 170 N.J. 86 (2001).

In determining whether the statement is trustworthy under N.J.R.E. 803(c)(27)(b), a court looks at factors such as "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) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 827, 110

S. Ct. 3139, 3150, 3153, 111 L. Ed. 2d 638, 656, 659-60 (1990)). At the pre-trial hearing to determine "taint," the focus is on

the coercive and suggesting propensity of the investigative questioning of each child and whether that questioning, examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable.

[Michaels, supra, 136 N.J. at 322.]

The trial court's finding of trustworthiness under N.J.R.E. 803(c)(27) will not be disturbed on appeal if it is supported by "substantial credible evidence in the record[.]" T.E., supra, 342 N.J. Super. at 36.

Following the Rule 104(a) hearing in this case, the trial judge found as to the videotaped interview:

[T]he statement that was made to Arlin Alvarado was not suggestive in any way. Again, there's no indicia of coaching. The questions were asked in a very neutral fashion. There was, again, no incessantly repeated questioning. I don't find that the questions themselves were suggestive in any way. The statements were -- the questions that were asked called for open-ended answers by the child. And the child seemed to be happy and composed and the child also responded in a way that one would expect a child of nine years -- nine years of age to react.

As to S.B.'s statements to Berry and Gilmore, the judge similarly concluded:

[T]he questioning by Miss Berry and Miss Gilmore was not suggestive in any way. There's no indicia of coaching. I don't find that the statements were molded by interrogation in any way. And there was no incessantly repeated questioning or [probing] that one would find undertaken by, for example, a seasoned detective who is questioning an adult suspect in a crime.

. . . .

I find that the child spoke spontaneously . . . . I don't find here on the basis of what I've seen any motive to fabricate in the child. The child used appropriate terminology and there's no evidence of any manipulation.

In challenging the videotaped interview, defendant argues S.B.'s statement was inconsistent with her trial testimony and the result of a partisan process. We disagree.

In State v. Smith, 158 N.J. 376, 388 (1999), a forensic interview was conducted by a detective in the Union County Prosecutor's Office, Child Abuse Unit. The detective conducting the interview took a break to get input from another detective, and after returning for the "re-interview," the questions became repetitive and somewhat leading. Id. at 388-91. Nevertheless, the Court held that the entire videotaped interview was admissible under the tender years exception. Id. at 391.

Here, the fact that Alvarado previously worked for the police department and was assigned to the Prosecutor's Child Abuse Unit, that she received a synopsis prior to the interview, and that she consulted with Detective Patrick during a break in the interview, does not affect the trial court's determination that the statements were trustworthy under N.J.R.E. 803(c)(27).

Rather, the "trustworthiness" analysis focuses on the questioning itself, which was done pursuant to the RATAC protocol and which the court found to be non-suggestive. Moreover, S.B. was calm, spoke spontaneously, and responded in a manner and with terminology appropriate for her age of nine years. Significantly, there was no discussion with S.B. prior to the interview, which was conducted solely by Alvarado. Thus, on the basis of time, content and circumstances, the redacted videotaped statements were deemed trustworthy.

Furthermore, even assuming S.B.'s out-of-court statement may have been inconsistent with her trial testimony, the "trustworthiness" determination does not equate to a credibility finding, which is reserved for the jury. Michaels, supra, 136 N.J. at 323 (finding that if a trial court determines "that a child's statements . . . do retain sufficient reliability for admission at trial, then it is for the jury to determine the probative worth and to assign the weight to be given to such statements or testimony as part of their assessment of credibility.") Here, S.B. testified and defendant was free to cross-examine S.B. on any inconsistencies between her out-of-court and in-court statements.

Defendant also argues that S.B.'s statements to Berry and Gilmore were prompted by them. Here again, the child's statements were spontaneous. As soon as she was told by Berry that her mother wanted her to return home, S.B. burst out crying. In response to Berry's open-ended inquiry, "what's wrong?", S.B. said her uncle touched her in the wrong way. She repeated the accusation consistently in front of Gilmore when asked to explain. There was no suggestiveness, coaching, or prompting S.B. to fabricate a story in this encounter. As with S.B.'s videotaped interview, the reliability of her statements to Berry and Gilmore is supported by sufficient credible proof in the record and we perceive no abuse of discretion in their admission into evidence under N.J.R.E. 803(c)(27). State v. Coder, 198 N.J. 451, 468 (2009).

II.

Defendant next complains that because S.B. testified, the testimony of Berry, Gilmore, and Alvarado was cumulative, repetitive, and prejudicial. We disagree, as any prejudicial impact was substantially outweighed by the probative value of such evidence. N.J.R.E. 403.

Significantly, N.J.R.E. 803(c)(27) itself expressly contemplates that sex abuse victims will testify at the proceeding in which their out-of-court statements are sought to be admitted. To be sure,

the trial courts in a proper case must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to New Jersey Rule of Evidence 803(c)(27). Consequently, "a trial court should be cognizant of its right under N.J.R.E. 403, to exclude evidence if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value."

[Smith, supra, 158 N.J. at 391 (quoting D.G., supra, 157 N.J. at 128).]

Thus, N.J.R.E. 803(c)(27) attempts "a reasonable balance between the State's probative needs in child abuse cases and the defendant's right to confrontation and basic procedural due process." State v. E.B., 348 N.J. Super. 336, 345-46 (App. Div.), certif. denied, 174 N.J. 192 (2002). Our "review of a trial court's application of the balancing test of N.J.R.E. 403 . . . is subject to the abuse of discretion standard, which sustains 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.'" State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)); accord E.B., supra, 348 N.J. Super. at 345-46. Our review of the record in this case reveals the trial court struck the appropriate balance.

Obviously concerned with the evidential consequence of cumulative testimony, the trial judge excluded S.B.'s statements to her mother and to responding Officer Mathis. He admitted S.B.'s statements to Gilmore and Berry because they were highly probative, having been spontaneously entered so close to the act of sexual abuse, and to explain how the crime actually came to light. Similarly, statements made by S.B. during the forensic interview, only two weeks after the incident, were highly relevant to the jury's assessment of the child victim's credibility and the nature of the State's investigation. None of these statements was needlessly cumulative nor unduly prejudicial. We discern no abuse of discretion in their admission into evidence.

III.

Defendant argues that it was error to admit, on his cross-examination, his convictions prior to 1996 on the basis of remoteness. We disagree.

Under N.J.R.E. 609, "[f]or 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." In State v. Sands, 76 N.J. 127, 144-45 (1978), the Supreme Court held:

whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one which should be guided by the considerations which follow. Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.

The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes . . . should be considered as having a weightier effect. . . . 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 the 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.

[Ibid. (emphasis added).]

In applying Sands, the trial court ruled that defendant's prior convictions were all admissible:

So even though Mr. Helms' first conviction dates back to 1986, the fact is that his convictions of '86, '88, '91, '97 and 2002 reference in my view a pattern of criminal activity which the jury should be able to utilize in weighing whether or not he is a person that is likely to ignore the oath requiring veracity on the witness stand.

So I will allow in all of these even though when viewed in isolation they may be -- the earliest conviction may be seen as remote, when viewed in the totality I find that they should be admissible because of the series of criminal acts of the course of time. . . .

I find that the crimes of possession of controlled dangerous substances and seven controlled dangerous substances are serious crimes and consequently, I find that these should be admitted.

The judge then proceeded to instruct the jury as to the limited use of such evidence. We perceive no abuse of discretion in the court's evidentiary ruling. Lykes, supra, 192 N.J. at 534 (2007); State v. Darby, 174 N.J. 509, 518 (2002).

IV.

Defendant next contends the court erred in denying his motion for a new trial. This argument is without merit.

Under Rule 3:20-1:

[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

"On appeal, our standard of review is essentially the same. The trial judge's ruling 'shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Gaikward, 349 N.J. Super. 62, 82 (App. Div. 2002) (quoting R. 2:10-1); State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).

Defendant appears to base his challenge to the verdict primarily on the claimed inconsistency between S.B.'s interview statement and her in-court testimony. However, we do not overturn a verdict "'merely because [we] might have found otherwise upon the same evidence.'" Smith, supra, 262 N.J. Super. at 512 (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985)). "Where the jury's verdict [is] grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." Ibid. (citing State v. Haines, 20 N.J. 438, 446-47 (1956)). Defendant has not presented any evidence that the jury was mistaken or prejudiced in accepting S.B.'s testimony as credible. Accordingly, the trial court properly denied defendant's motion for a new trial.

V.

Defendant also argues that the trial court erred in failing to provide a Clawans charge, instructing the jury that it may draw a negative inference against the State for its failure to produce seven-year old K.K. at trial, since S.B. stated in the videotaped forensic interview that K.K. was present during the alleged sexual abuse. We disagree.

In Clawans, supra, the Court held that, "[g]enerally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." 38 N.J. at 170.

A Clawans instruction is appropriate when the court finds

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue; and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hill, 199 N.J. 545, 561 (2009) (quoting State v. Hickman, 204 N.J. Super. 409, 414, (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

The trial court denied defendant's request for a Clawans charge because defense counsel had the opportunity to subpoena K.K. "I think that the defense could have subpoenaed him just as easily as the Prosecutor in connection with this case, and it's not a witness that you would ordinarily expect the State necessarily would want to call in connection with a case like this." We agree.

K.K., who was seven years old at the time of the incident, was not "peculiarly within the control or power of" the State nor was there a "special relationship" between the State and K.K. The State also did not have superior knowledge of either K.K.'s identity or the testimony he might be expected to give, since the State produced K.K.'s statement in discovery and that statement pertained to other matters not the subject of the present indictment. Indeed, according to S.B.'s trial testimony, K.K. was not even present during the November 12th incident and, therefore, his testimony would not be relevant. And although arguably equally available to both, the defense made no attempt to subpoena K.K. for trial. Under the circumstances, there was no error in declining to give a Clawans charge.

VI.

Defendant's remaining issues challenge the claimed excessiveness of his sentence, only one of which we deem meritorious. As the State concedes, the third-degree endangerment conviction merges with the second-degree sexual assault conviction because the former is based on the identical conduct underlying the latter. See N.J.S.A. 2C:1-8a; State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992).

We perceive no other error in defendant's sentencing. Defendant qualified for a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3, being over twenty-one years old and convicted of at least two crimes at different times, the latest within ten years of his sexual assault conviction. We find no abuse of discretion in either the imposition of an extended term, or its quantum, State v. Roth, 95 N.J. 334, 364-65 (1984); State v. Cook, 330 N.J. Super. 395, 420 (App. Div.), certif. denied, 165 N.J. 486 (2000), given the weight of the aggravating factors found by the court, N.J.S.A. 2C:44-1a(3), (6) and (9), and supported by sufficient evidence in the record.

Remanded for resentencing and correction of the judgment of conviction in accordance with this opinion. In all other respects, the judgment of conviction is affirmed.

 

Alvarado previously worked as a detective for the Newark Police Department (1991-2003) and was assigned to the Essex County Prosecutor's Office Child Abuse Unit.

The indictment charged acts of sexual abuse between July and November 2004. It was the State's position that the incident of sexual abuse by defendant at Aunt Betty's home in the presence of S.B.'s brother, described in S.B.'s videotaped statement to Alvarado, was in addition to the sexual abuse incident referred to in her trial testimony that occurred at her family's home when only S.B. and defendant were present.

The judge stated:

I don't want to have anymore testimony under [803(c)(27)] because I'm afraid that what the jury is going to be faced with is . . . a number of statements made out of court that are not really the subject of cross-examination 'cause they were made so long ago. I've allowed in the November 12, 2004 statements. I'm allowing in the November 29, 2004 statements. And that's about as far as I'm prepared to go.

Possession and distribution of a controlled dangerous substance (CDS) from March 13, 1986; possession of a CDS on August 5, 1988; and possession of a CDS with intent to distribute on March 21, 1991.

Defendant does not claim error with regard to the admission of his convictions of eluding and possession of a CDS with intent to distribute from April 4, 1997 or unlawful possession of a weapon and hollow point bullets from September 17, 2002.

State v. Clawans, 38 N.J. 162 (1962).

Defense counsel acknowledged at trial that K.K.'s statement concerned other instances of abuse, not including the alleged incident occurring on November 12, 2004, which was the subject of the indictment.

The Judgment of Conviction incorrectly states that count two of the indictment charging defendant with second-degree sexual assault, N.J.S.A. 2C:14-2b, was dismissed on motion of the prosecutor and incorrectly states that defendant was convicted of aggravated sexual assault. On remand, the judgment of conviction should be corrected accordingly.

(continued)

(continued)

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A-3937-07T4

RECORD IMPOUNDED

March 29, 2010