STATE OF NEW JERSEY v. JOHN M. HELLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4685-07T44685-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v

JOHN M. HELLER,

Defendant-Appellant.

________________________________________________________________

 

Argued March 17, 2010 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-00336.

John Vincent Saykanic argued the cause for appellant.

Anne Marie Gibbons-Lejnieks, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Gibbons-Lejnieks, of counsel and on the brief).

PER CURIAM

Defendant appeals from his sentence and convictions for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); sexual assault, N.J.S.A. 2C:14-2(b) (count two); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). We affirm.

These convictions arise from the events of July 1, 2005, when defendant was babysitting for N.G., "Nancy," the six-year-old daughter of P.G., "Peggy," an acquaintance of his.

Defendant and Peggy met in February 2005 at a bar where Peggy worked as a go-go dancer. Defendant stated that they quickly developed a romantic relationship; that by April, Peggy planned to move into his home with Nancy and by June, he had proposed marriage and given her an engagement ring. Peggy denied such a relationship and said that they were just friends.

In June 2005, when Nancy's babysitter requested an increase in pay, defendant offered to babysit for less money and Peggy accepted his offer. Peggy testified that, on the evenings when she worked, defendant arrived at her apartment in the early evening and watched Nancy until Peggy arrived on the following morning between 3:00 and 4:00 a.m. Peggy stated that defendant slept on the couch or in Peggy's bed but that she did not sleep with him.

Defendant denied being a paid babysitter. He stated that he was living with Peggy, although he admitted on cross-examination that he lived at his house and kept no toiletries or personal belongings at Peggy's apartment.

In mid-July 2005, Peggy hired a new babysitter because she had learned that defendant was "on some kind of medication." During this time, Peggy also noticed a change in Nancy. She had become colder and did not watch television and talk with her as she had done in the past.

Approximately three months later, in October 2005, Peggy was loading minutes into Nancy's cell phone while she was at school. She saw two photographs of defendant on the phone. In one, he was sitting in a chair in her bedroom and in the other he was in the kitchen. She deleted the photographs and then came across a photo of Nancy's panties and photographs of Nancy that she described as: (1) Nancy "sitting at the toilet with the fingers on her private parts[,]" (2) Nancy's "private parts[,]" (3) a photo of Nancy's private parts covered with panties and with defendant's "fingers on the top of it[,]" (4) Nancy's "private parts [without underwear] and [defendant's] fingers opening them up[,]" (5) Nancy's "private parts" and the toilet, and (6) Nancy's "private parts [without underwear and] with [defendant's] fingers on top." The phone recorded the time the photos were taken as between 9:19 p.m. and 9:25 p.m. on July 1, 2005. Peggy testified that, at the time the photos were taken, she was working and defendant was at her apartment, babysitting for Nancy.

The records for defendant's cell phone reflected a call at 8:43 p.m. to his mother's phone from a location in Hillside. Peggy's apartment was located within the area covered by the tower that transmitted the call. The records for Peggy's cell phone corroborated her testimony that she was working that night.

After seeing the photos on the phone, Peggy picked up Nancy at school. In an effort to open a conversation, Peggy told her that she was going to ask defendant to watch her that evening. Nancy stated that she did not want him to watch her "because when he would kiss her on the face it would feel like glue, like his saliva." Peggy asked if there was any other reason why Nancy did not want defendant to watch her. She testified that Nancy looked frightened, as though she was hiding something, and repeated the comment about defendant's kiss feeling like glue. Peggy showed Nancy the phone and told her that she had seen the pictures on it. Peggy testified that Nancy "lowered her little face, embarrassed and said, 'Yes, Mommy.'" Peggy showed her the pictures. Nancy looked down, avoiding the images and then said that "Johnny" had taken the pictures. Peggy testified that defendant was the only "Johnny" that Nancy knew. Nancy also told her that defendant had touched her "periquita," the word she used for vagina, with his hand. When Peggy asked, Nancy said that she had not seen or touched any of defendant's body parts.

On the next day, Peggy took Nancy to school and then went to the Hillside Police Department. She reported the incident and gave the police the phone. After school, Peggy brought Nancy to the police department. An officer took them to the Union County Prosecutor's Office, where Detective Stephen McGuire videotaped an interview with Nancy.

During the interview, Nancy said that "Johnny" took some "really bad pictures" of her while she was in the bathroom and identified the photos on the cellphone. She said that she had been coloring in her bedroom when she needed to use the bathroom. Nancy was in the bathroom, on the toilet with the door closed, when "Johnny came in and do those stuff to me." At Detective McGuire's request, Nancy used a doll to demonstrate what defendant had done to her. She pointed to the doll's vaginal area and said that he had taken pictures of it. She said that he had touched her with his hands, fingers and his whole face. To demonstrate what he did with his fingers, Nancy placed her fingers opened in the shape of a "V" on the doll's vagina. Asked if he put his fingers inside, she answered, "He just um, inside and the part of the skin was out." As to how defendant had touched her with his whole face, Nancy answered, "He went down" and then she pulled the girl doll's underpants down and put the boy doll's face on the girl doll's vagina. Nancy said that she did not feel defendant lick her and that he had not put his fingers or anything inside her. Nancy also said that defendant told her to hide the phone from Peggy and that if she showed the pictures to her mother, he would "[h]it me and pull [my] ears all the way to the sky." Nancy's testimony at trial was consistent with the statements she made to Detective McGuire.

Defendant, who filed a notice of alibi, testified that he returned home from work at 6:30 to 7:00 p.m. He helped his brother move some belongings to his new house and then they returned to his house, where they cooked food on the grill. After they finished eating, defendant watched television. Earlier that evening, he had told Peggy that he could not watch Nancy that evening because he had other plans. Defendant testified that, at approximately 8:20 p.m., he decided to go to Peggy's house. He stated that he stopped en route to call his mother at 8:43 p.m. because he had second thoughts about going to Peggy's. Defendant's mother testified that in the conversation, she told him to go home. Defendant testified that, after their conversation, he went home without going to Peggy's apartment. He spent the rest of the evening at home with his brother, spoke to his mother again at approximately 9:15 and fell asleep between 9:30 and 9:45 p.m. Defendant's brother, Michael, gave a similar account of the evening. Defendant denied seeing Nancy that evening, ever doing anything inappropriate with Nancy and denied that the hands and fingers in the cell phone photos were his.

Defendant was convicted on all charges. Prior to sentencing, his new counsel filed a motion for judgment of acquittal, or alternatively, for a new trial on the grounds that: (1) he was denied a fair trial because he was incompetent to stand trial; and (2) he had been denied the effective assistance of counsel because his trial attorney had failed to recognize his incompetence, investigate his mental illness and assert defenses of insanity and diminished capacity. Defense counsel also asked the court to hold a hearing to assess defendant's mental health. The court denied the motion and the request for a hearing.

At sentencing, the court merged count two into count one. On the first-degree aggravated sexual assault conviction, the court sentenced defendant to twelve years and, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, required that he serve 85% of that sentence before becoming eligible for parole. The court imposed a concurrent term of eight years on count three, endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was also sentenced to mandatory parole supervision and community supervision for life, to comply with Megan's Laws requirements and assessed appropriate fines and penalties.

Defendant raises the following issues on appeal:

POINT I

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE OR ASSERT AN INSANITY DEFENSE--A PRESUMPTION OF INEFFECTIVENESS EXISTS UNDER CRONIC AND FRITZ; ALTERNATIVELY, TRIAL COUNSEL'S PERFORMANCE WAS DEFICIENT AND THIS DEFICIENT PERFORMANCE MATERIALLY AFFECTED THE OUTCOME OF THE PROCEEDINGS; AT THE VERY LEAST, THE MATTER SHOULD BE REMANDED FOR A PLENARY HEARING ON THIS ISSUE; U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. 1, PAR. 10.

POINT II

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE OR ASSERT THE DEFENSE OF MENTAL DISEASE OR DEFECT; AT THE VERY LEAST, THIS MATTER SHOULD BE REMANDED FOR A PLENARY HEARING; U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. 1, PAR. 10.

POINT III

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AND A NEW TRIAL MUST BE ORDERED AS THE DEFENDANT WAS NOT COMPETENT TO STAND TRIAL IN VIOLATION OF HIS FEDERAL CONSTITUTIONAL DUE PROCESS RIGHT TO A FAIR TRIAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL; TRIAL COUNSEL SHOULD HAVE RAISED THE ISSUE OF DEFENDANT'S COMPETENCY TO TESTIFY (PARTICULARLY SO SOON AFTER THE DEATH OF HIS FATHER) AND DUE TO MEDICATION THAT THE DEFFENDANT WAS TAKING WHEN HE TESTIFIED (U.S. CONST. AMEND. XIV N.J. CONST. (1947) ART. 1, PAR. 10.

POINT IV

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED SINCE DEFENDANT WAS INCOMPETENT TO TESTIFY [ON] HIS OWN BEHALF; THE DEFENDANT WAS NEVER QUESTIONED AS TO HIS RIGHT TO REMAIN SILENT OR AS TO HIS ABILITY TO TESTIFY IN HIS OWN DEFENSE IN A COMPETENT MANNER IN VIOLATION OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

POINT V

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED SINCE, EVEN IF HE IS DEEMED TO HAVE BEEN COMPETENT TO STAND TRIAL, HE WAS NEVERTHELESS INCAPABLE OF MAKING A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF THE INSANITY OR DIMINISHED CAPACITY DEFENSES; DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS WERE VIOLATED.

POINT VI

THE TRIAL JUDGE ERRED IN ADMITTING N.G.'S EXTRAJUDICIAL STATEMENTS TO HER MOTHER AND ERRED IN ADMITTING THE VIDEOTAPED POLICE INTERVIEW OF N.G. IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT CONFRONTATION RIGHTS AS N.G.'S TESTIMONY WAS MANIPULATED AND COERCED BY HER MOTHER.

POINT VII

THE JURY SELECTION CONDUCTED BY THE TRIAL COURT DEPRIVED DEFENDANT OF HIS SIXTH AND FOURTEENTH AMENDMENT FEDERAL CONSTITUTIONAL RIGHTS AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (NOT RAISED BELOW).

POINT VIII

THE STATE FAILED TO PROVE "PENETRATION" AS REQUIRED FOR A CONVICTION UNDER COUNT ONE IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS (PARTIALLY RAISED BELOW).

POINT IX

THE TRIAL JUDGE FAILED TO DISTINGUISH DIGITAL PENETRATION, AN ESSENTIAL ELEMENT OF THE GREATER OFFENSE OF AGGRAVATED SEXUAL ASSAULT, FROM TOUCHING, AN ELEMENT OF THE LESSER-INCLUDED OFFENSE OF SEXUAL CONTACT, IN VIOLATION OF DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS (NOT RAISED BELOW).

POINT X

THE TRIAL JUDGE ERRED IN REFUSING THE JURORS' REQUEST FOR THE WRITTEN ELEMENTS OF THE CHARGES IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

POINT XI

THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A TERM ONE DEGREE LOWER ON COUNT ONE (AGGRAVATED SEXUAL ASSAULT), OR AS A SECOND OFFENDER PURSUANT TO N.J.S.A. 2C:44-1f(2) SINCE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH ANY AGGRAVATING FACTORS.

POINT XII

THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO THE MINIMUM TERM PERMISSIBLE SINCE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH ANY AGGRAVATING FACTORS [].

I

The arguments raised in Points I, II, III, IV and V are all rooted in defendant's contention that that he suffered from a mental illness that rendered him incompetent to stand trial.

This issue was not raised before or during the trial but rather, raised for the first time in a motion for a new trial. At that time, defendant's new counsel advised the court that he was in the process of obtaining defendant's mental health records regarding defendant's psychiatric record which, he said, went back over twenty years. The thrust of his argument was that prior counsel's failure to investigate "a possible mental illness defense," such as incompetence, insanity or diminished capacity, deprived defendant of the effective assistance of counsel. In denying the motions for a new trial and an evidentiary hearing regarding defendant's competency, the court noted the "significant flaw" in the argument that the defenses of insanity or diminished capacity should have been raised, i.e., in two trials, the defense asserted was that defendant was innocent because "he wasn't there." In addition to his own testimony, defendant supported his alibi defense with testimony from his mother, brother and a neighbor. A defense that admitted the conduct but denied the requisite mental status would be in conflict, if not irreconcilable with, defendant's alibi defense. In addition, the court reviewed the report of Jonathan M. Riley, Ph.D. dated April 3, 2008. Dr. Riley stated that defendant is of average intellectual functioning. Defendant told Dr. Riley that he was diagnosed as bipolar, was seeing the same doctor for many years, was compliant with medication and had been stable for a long time. The court also referred to his observations of defendant during the trial, that "he was assisting [counsel] during the trial on a number of matters[,]" and was "very helpful in the preparation and the defense of this case." The court stated:

Although he has had some psychiatric history, this does not in any way suggest that there is actually a basis for the assertion of insanity or for diminished capacity. Clearly, he was competent to stand trial. I mean that's so obvious from the record.

The standard for reviewing a court's decision not to order a hearing to determine defendant's competency "is a strict one." State v. Harris, 181 N.J. 391, 458 (2004) (quoting State v. Spivey, 65 N.J. 21, 37 (1974)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The court's failure to exercise its authority to order an inquiry into the defendant's mental qualifications to stand trial "will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial." Ibid. (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)). To meet this standard, a defendant must demonstrate a "'bona fide doubt' as to [his] competence to stand trial." Ibid. (quoting Spivey, supra, 65 N.J. at 37) (alteration in original). The test for determining whether a defendant is competent to stand trial is "whether [he] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960)).

Defendant cites excerpts from the trial record to support his claim that he was incompetent to stand trial. The first reference is to the prosecutor's comment to the court that defendant was picking at his hands under the table during his attorney's opening statement. No explanation is provided as to why this observation is proof of his incompetence or should have alerted the court to the need to inquire into his competence. The next reference is to the fact that defendant had been under medication for mental problems. Having a mental illness alone does not render one incompetent to stand trial. Spivey, supra, 65 N.J. at 39. A defendant "may engage in [bizarre] behavior to appear psychotic," and may still be competent to stand trial if he meets the competency standard." Ibid. Therefore, while evidence that defendant took medication may support a conclusion that he suffers from some mental illness, it does not show, standing alone, that he was incompetent. Defendant also makes reference to his performance as a witness at trial. He notes comments by his counsel that he appeared to be having difficulty testifying, that there were inconsistencies between his testimony at the two trials, and that, during cross-examination, he appeared confused at times and gave some answers that were "non-sequiturs, non-responsive and non-sensical."

We are satisfied from our review of the record that, while defendant's testimony provided a legitimate basis for questioning his credibility, it did not raise a bona fide doubt as to his competence. None of the references cited on appeal raise a bona fide doubt as to his "ability to consult with his lawyer with a reasonable degree of rational understanding" or his "rational [and] factual understanding of the proceedings against him." See Purnell, supra, 394 N.J. Super. at 47. The trial court noted its observations of defendant's active involvement in his defense and that he was "obviously" competent to stand trial. The excerpts cited by the defense fail to clearly and convincingly show otherwise. Therefore, the trial court did not err in declining to conduct an inquiry into defendant's mental competence and the arguments asserted in Points III, IV and V lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

To the extent that defendant's claim of ineffective assistance of counsel relies upon information that is not contained in the record, it is more appropriately raised in a petition for post-conviction relief. State v. Castagna, 187 N.J. 293, 313 (2006); State v. Preciose, 129 N.J. 451, 460 (1992). As to the record before this court, we are satisfied that defendant has failed to show that the evidence of incompetence or mental illness was sufficient to trigger an obligation on the part of counsel to investigate further to present defenses of insanity or diminished capacity. Further, as the trial court noted, the evidence, which included cell phone pictures that recorded the time and date of the photos and cell phone records that placed defendant in the vicinity within minutes of the alleged conduct, was "overwhelming." For this reason and because such a defense would be incompatible with the alibi defense that had been asserted at two trials, this record fails to show that defendant could satisfy the second prong of the Strickland/Fritz test, that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

II

In Point VI, defendant challenges the admission of Nancy's statements to her mother and the videotaped interview into evidence on the grounds that Nancy's statements were manipulated by her mother. This argument lacks merit.

For a child-victim's statement to be admissible pursuant to N.J.R.E. 803(c)(27), the trial court is required to conduct a hearing pursuant to N.J.R.E. 104(a) and find "that on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy." State v. D.G., 157 N.J. 112, 128 (1999). The trial court conducted the required hearing prior to trial and made detailed and expansive findings regarding relevant factors that were more than adequate to support the court's conclusion that there was a probability that the videotaped statement was trustworthy and therefore admissible. See Idaho v. Wright, 497 U.S. 805, 814, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638, 651 (1990); D.G., supra, 157 N.J. at 125-26. The evidence reflects that Peggy suspected defendant when she saw the pictures on the cell phone because he was the only man to babysit for Nancy. While it is true that she mentioned his name to Nancy, the reference was independent of any association with the pictures on the cell phone. When she let Nancy know that she had discovered the pictures, she again did not accuse defendant of being involved. After the initial conversation, Peggy did not discuss the matter with Nancy again before taking her to the police department. The record therefore fails to support the conclusion urged by defendant that Peggy improperly suggested that he was the person who took the pictures or that she manipulated Nancy into fabricating an accusation against him.

III

In Point VII, defendant argues that the trial court's refusal to excuse two jurors for cause constituted a deprivation of his constitutional right to be tried by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, 10.

Juror Number 711 advised the court that, as teenagers, each of his three sons had been molested by a priest. He stated that the crimes were not reported and that they forgave the priests involved. The court asked him, "Anything from those experiences make it difficult for you to be fair and impartial here today?" The juror replied, "No."

Juror Number 675 stated that she had "a problem with this minor child thing" and that she "may be biased" against people who abused children. Follow-up questions were asked and when the court asked her if she could weigh the evidence and determine credibility, the juror answered, "I guess I could listen, yes."

The court denied defendant's requests to excuse these jurors for cause and counsel exercised peremptory challenges to excuse each of them. Defendant announced that the jury was satisfactory after exercising additional peremptory challenges. He does not contend that he was forced to exhaust his peremptory challenges or deprived of the right to challenge another juror he deemed to be unsatisfactory as a result.

"The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). Jurors must be "as nearly impartial 'as the lot of humanity will admit.'" State v. Singletary, 80 N.J. 55, 62 (1979). "[J]urors who have formed an opinion as to the guilt or innocence of the defendant must be excused" unless "it is demonstrated that 'the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court[.]'" Williams, supra, 93 N.J. at 61. Because appellate courts are unable to fully appreciate the dynamics of a trial proceeding, trial courts are afforded considerable discretion in determining the qualifications of prospective jurors. State v. DiFrisco, 137 N.J. 434, 459 (1994). Even in cases in which the trial court errs in the exercise of that discretion, a conviction will not be reversed based upon that error alone. To prove reversible error,

a defendant must show (1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.

[Id. at 471.]

In this case, we need not review the trial court's decision not to excuse these jurors for cause because defendant cannot satisfy the second and third elements necessary to a finding of reversible error.

IV

In Points VIII and IX, defendant challenges the sufficiency of the State's proof and the court's instruction regarding penetration to support a conviction on aggravated sexual assault, N.J.S.A. 2C:14-2(a). Defendant argues that defendant's conviction for aggravated sexual assault must be reversed because Nancy "never testified that there was any penetration." He further argues as plain error that the court's instruction to the jury failed to adequately distinguish between the penetration required to support a conviction for first-degree aggravated sexual assault and the touching that will support a conviction for second-degree sexual assault, N.J.S.A. 2C:14-2(b).

Sexual penetration, an element of aggravated sexual assault, is defined in N.J.S.A. 2C:14-1(c) as:

vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.

In State v. J.A., 337 N.J. Super. 114 (App. Div.), certif. denied, 169 N.J. 606 (2001), we approved a charge on "penetration" that stated:

The depth of insertion is not relevant. This means that if you find from all of the evidence presented beyond a reasonable doubt that there was penile penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law.

[Id. at 119 (emphasis added).]

There was testimony from Nancy, who was six years old at the time of trial, that would support a conclusion that defendant performed cunnilingus on her. However, there was also testimony from Nancy that defendant used his fingers to open her "periquita," the term she used to describe her vagina. This was plainly sufficient to satisfy the element of penetration required for a conviction on aggravated sexual assault.

The trial court provided the jury with the Model Jury Charge on aggravated sexual assault, a charge that is consistent with that approved in J.A. and is sufficient to distinguish between "penetration" and "sexual contact" or "touching." In light of defendant's failure to object to the charge as required by Rule 1:7-2, our review is limited to a determination whether the charge constituted plain error, R. 2:10-2; as we are satisfied that none existed here.

V

The arguments raised in Points X, XI and XII lack sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2).

The decision to provide the jury with a written copy of the elements of the charges was a matter within the trial court's discretion. R. 1:8-8(a). The court's decision was not an abuse of discretion and did not result in a denial of constitutional rights to defendant.

Defendant was convicted of a first-degree offense, which required the imposition of a custodial term between ten and twenty years. The sentence of twelve years' incarceration was in the lower part of the range of terms that could be legally imposed. The trial court properly identified the relevant aggravating and mitigating factors that were supported by competent credible evidence, balanced the relevant factors, and arrived at an appropriate sentence. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). We are also satisfied that the court did not abuse its discretion in declining to find the following mitigating factors, requested by defendant: N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm); N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate serious harm); N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct); N.J.S.A. 2C:44-1(b)(6) (the defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service); N.J.S.A. 2C:44-1(b)(7) (no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time); N.J.S.A. 2C:44-1(b)(8) (circumstances unlikely to recur); N.J.S.A. 2C:44-1(b)(9) (defendant unlikely to commit another offense); N.J.S.A. 2C:44-1(b)(10) (defendant is particularly likely to respond affirmatively to probationary treatment). In short, the sentence imposed does not "shock[] the judicial conscience." See State v. Roth, 95 N.J. 334, 364 (1984).

 
Affirmed.

Fictitious names are used to protect the identity of the child and her mother.

Defendant's first trial, at which he also asserted an alibi defense, ended in a mistrial after a juror advised the court that although she and the rest of the jurors believed that defendant was guilty as charged, she could not convict defendant because of her religious beliefs.

Although defendant contends that the adequacy of the State's evidence was partially raised below, he has provided no citation to the record to reflect that fact.

(continued)

(continued)

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A-4685-07T4

RECORD IMPOUNDED

August 31, 2010