STATE OF NEW JERSEY v. A.R

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6105-07T46105-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.R.,

Defendant-Appellant.

_________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Graves, Sabatino, and Kestin.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-05-0556.

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant A.R. was found guilty of second-degree endangering the welfare of a child who was less than sixteen years of age, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). The jury found defendant not guilty of first-degree aggravated sexual assault and second-degree criminal sexual contact.

The charged offenses arose out of multiple instances of sexual contact between defendant and his wife's younger sister, V.C., when V.C. was between the ages of five and nine. The events took place between 1990 and 1993, when V.C. was living in the same Vineland residence with defendant and other family members. Defendant was the only adult in the household who was not employed during this period. As a result, he often served as a babysitter for the four minors in the household, including three of his own children and V.C.

According to the State's proofs, defendant exposed himself to V.C. on several occasions when he was babysitting her and the other children at the family residence. Defendant at times would make V.C. "ride the horse" on his lap, and get her to "model" for him in dresses and bathing suits. The State further alleged that defendant sexually penetrated V.C. and played games with her as a means to commit acts of sexual assault.

V.C. allegedly told her mother, defendant's mother-in-law, about these incidents when she was fourteen, but neither she nor her mother did anything about them at that time. V.C. did not report the incidents to outsiders until several years later when she was in high school. V.C. initially spoke with a student counselor, Angela Stanley, to whom she revealed the abuse after initially denying it. Stanley met V.C. through a mentoring program for students at the local high school. V.C. waited a few more years, until she was eighteen or nineteen, before she finally went to the police and lodged complaints against defendant.

V.C. was the State's primary witness at trial. The State further presented testimony from V.C.'s mother, Stanley, and Steven O'Neill, the Vineland police detective who led the investigation.

Additionally, the State presented testimony from defendant's son Andrew, who had been living in the family residence at the time of the events. In a pretrial statement to the detectives, Andrew told them that defendant had exposed himself to the children during hide-and-seek games. On direct examination in the State's case at trial, however, Andrew denied ever personally seeing defendant expose himself to V.C. The prosecution then used Andrew's prior out-of-court statement for purposes of impeachment. When confronted with the prior statement, Andrew acknowledged that his father did pull his pants down and expose himself to at least one child, although not to the victim in this case, V.C.

In defending against the State's allegations, defendant contended that these incidents of sexual wrongdoing and lewdness did not occur. He did not testify, but he did present the testimony of his eldest daughter, Amy, in his behalf. Amy, like Andrew and V.C., was a minor at the time of these incidents and present while defendant babysat the children. Consistent with Andrew's testimony, Amy denied ever witnessing any sexual contact between defendant and V.C.

Following his conviction, defendant made several unsuccessful motions to the trial court seeking to set aside the verdict. The motions were largely based on a series of post-verdict letters and statements by Andrew, in which he essentially claimed that his trial testimony had been coerced by the prosecutor and his mother, and that his testimony was untruthful. Upon receiving these statements, the trial judge found Andrew's attempted recantations to be insincere and insufficient to warrant a new trial.

After denying defendant's final post-trial motion, the trial judge sentenced defendant. The judge imposed eight years of imprisonment for the conviction on second-degree endangering the welfare of a child, with a four-year period of parole ineligibility. As to the conviction on forth-degree lewdness, the judge sentenced defendant to eighteen months, a sentence which was to run concurrently with the longer sentence on the endangering offense. The judge also imposed various fines and fees. Defendant was given jail credit for 1515 days of time served, which satisfied his period of parole ineligibility. Defendant was also made subject to the provisions of Megan's Law, except he was not required to submit to community supervision for life.

On appeal, defendant presents the following issues for our consideration:

POINT I

THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY FAILING TO GIVE THE JURY ANY LIMITING INSTRUCTION ON THE FRESH[-]COMPLAINT DOCTRINE.

POINT II

THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT EXCLUDING TESTIMONIES WHICH WERE INADMISSIBLE UNDER THE FRESH[-]COMPLAINT DOCTRINE.

A. ANGELA STANLEY'S TESTIMONY.

POINT III

THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE O'NEILL IN VIOLATION OF MIRANDA.

A. VINELAND POLICE OFFICER, DETECTIVE O'NEILL, VIOLATED THE MIRANDA REQUIREMENT.

B. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE O'NEILL IN VIOLATION OF MIRANDA WARNINGS.

POINT IV

THE PROSECUTOR'S SUMMATION AND DIRECT EXAMINATION EXCEEDED THE BOUNDS OF PROPRIETY AND THEREBY VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL WARRANTING A REVERSAL.

A. PROSECUTOR'S SUMMATION.

B. PROSECUTOR'S DIRECT EXAMINATION OF [ANDREW]

POINT V

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S R. 3:20-1 MOTION TO SET ASIDE THE VERDICT.

POINT VI

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S R. 3:20-2 MOTION FOR A NEW TRIAL.

POINT VII

THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE SECOND DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE WELFARE OF A CHILD CHARGE AND HENCE SUBJECT TO THE REGISTRATION REQUIREMENTS OF MEGAN'S LAW IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE SECOND DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE WELFARE OF A CHILD CHARGE.

B. THE TRIAL COURT ERRED IN IMPOSING THE MEGAN'S LAW REGISTRATION REQUIREMENTS ON DEFENDANT.

C. THE SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.

Having fully considered these points in light of the record and the applicable law, we conclude that defendant's conviction and his corresponding sentence must be affirmed.

I.

Defendant initially argues that the trial court violated the tenets of the "fresh-complaint" rule by admitting inadmissible testimony about V.C.'s communications with Angela Stanley. He further contends that the judge erred in failing to provide the jury with an instruction limiting its consideration of such fresh-complaint testimony. We disagree.

As an uncodified hearsay exception, the fresh-complaint rule allows the State, among other things, to introduce evidence of a sexual assault victim's out-of-court statements about the assault to a confidante shortly after the assault occurs. See State v. Hill, 121 N.J. 150, 163-66 (1990). The fresh-complaint testimony is intended to enable the State to negate a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. Ibid.; see also State v. J.A., 398 N.J. Super. 511, 517 (App. Div.), certif. denied, 196 N.J. 462 (2008).

The victim's complaint must be made within a reasonable time to come within the parameters of the fresh-complaint rule. State v. Buscham, 360 N.J. Super. 346, 357 (App. Div. 2003). Additionally, fresh-complaint testimony is admissible "to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime. Detailed testimony is impermissible under the rule." State v. Bethune, 121 N.J. 137, 146 (1990).

If fresh-complaint testimony is elicited, the trial court "should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case." Id. at 148. "The trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent." Ibid.

However, as this court has recognized, in some cases, "failure to give a proper limiting instruction on the use of fresh[-]complaint testimony [is] not plain error." Buscham, supra, 360 N.J. Super. at 359 (citing State v. Tirone, 64 N.J. 222, 227 (1974)). If there is sufficient other evidence upon which to rest the conviction and there is not detailed testimony or comment on the nature of the fresh complaint, then the court's failure to instruct the jury on the limits of the fresh-complaint testimony is not reversible error. Tirone, supra, 64 N.J. at 227, Buscham, supra, 360 N.J. Super. at 359-60.

To qualify as admissible fresh-complaint testimony, the offered testimony must satisfy a three-part test established by our Supreme Court. Hill, supra, 121 N.J. at 163. Specifically, the statements by the victim must be: (1) "to someone she would ordinarily turn to for support"; (2) "made within a reasonable time after the alleged assault"; and (3) "spontaneous and voluntary." Ibid.

Defendant contends that the testimony of Stanley included fresh-complaint evidence that was improperly admitted, and that the trial court further erred in failing to provide a limiting instruction. The State, on the other hand, argues that Stanley did not present fresh-complaint testimony, as the statements to her by V.C. were made long past any "reasonable time," as required by Hill and Buscham.

As both parties acknowledge, the eight years between the abuse and V.C. meeting with Stanley is far too long of a period for her testimony to qualify as "fresh" complaint testimony. In essence, Stanley's testimony on direct examination only discussed the dates and general time periods of her meetings with V.C. When pressed about the substantive content of those meetings, Stanley spoke in general terms. Their meetings were described as covering "various issues" and "a number of different personal issues." Stanley did acknowledge that V.C. became "more open" with her over time. She never testified about any complaint of abuse, let alone the details of such alleged abuse. Moreover, it was undisputed that Stanley was V.C.'s counselor and that the two of them had met.

On cross-examination, Stanley testified that V.C. had confided in her and that the two of them had a good relationship. As on direct examination, Stanley did not tell the jury on cross-examination that V.C. had complained to her about abuse, nor did she testify as to any details of such a complaint. Consequently, Stanley's direct examination was not fresh-complaint testimony, and thus did not trigger the need for a limiting instruction.

The only other proof at trial relating to V.C.'s communications with Stanley emerged during V.C.'s cross examination by defense counsel. In particular, defense counsel asked V.C. if on May 2, 2002, V.C. had told Stanley that "she never had sex or had a male touch [her] inappropriately." V.C. admitted that she initially told Stanley that on May 2, 2002. Defense counsel then asked V.C. to confirm whether on the next day, May 3, 2002, she told Stanley a contrary recollection, i.e., that defendant had abused her "between the ages of five and seven." V.C. acknowledged this contradiction in her two statements to Stanley, but explained that she "felt more comfortable talking to [Stanley] about it" in the later meeting. Defense counsel brought out these points in an effort to impeach V.C.'s credibility. The prosecutor did not delve into these details further on redirect examination of V.C., except to clarify V.C.'s understanding as a minor of what constituted "sex." The emergence of this substantive testimony during defense counsel's own examination has nothing to do with the fresh-complaint rule. If anything, defense counsel opened the door to the substance of V.C.'s communications with Stanley, and any error by the trial court in allowing this testimony was invited by the defense itself. See State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966).

Even if, for the sake of argument, we construed Stanley's testimony to qualify as fresh-complaint testimony, the absence of a limiting instruction here was not reversible error. The testimony of the other trial witnesses including the victim herself and the lack of any comment by the prosecutor in summation arguing that the jury should consider the testimony as corroborative, places this case outside of the ambit of cases where a limiting instruction is necessary. As in Tirone, supra, there is sufficient evidence, even if Stanley's testimony is disregarded, to support the jury's verdict. The failure to give a limiting instruction was not plain error, and does not require that defendant's conviction be reversed. See Tirone, supra, 64 N.J. at 227.

Likewise, Detective O'Neill did not provide fresh-complaint testimony. His testimony traced, in essence, the course of his investigation, and it included no corroborative details of V.C.'s complaints of abuse. Because the detective's testimony was not presented as fresh-complaint evidence, it likewise did not require a limiting instruction.

In sum, defendant's arguments relating to the fresh-complaint rule are without merit, and they do not warrant a new trial.

II.

The next issue before us is whether the Vineland police violated defendant's Miranda rights when they questioned him on two occasions during the course of their investigation. Defendant moved before trial under Miranda to suppress inculpatory statements he had made to the police officers. Following a hearing at which he heard testimony from the principal investigating officer, Detective O'Neill, the trial judge denied the motion to suppress, concluding that defendant's incriminating statements to the police were voluntary. We concur, and sustain the trial court's denial of relief under Miranda.

In Miranda, supra, the United States Supreme Court held that, in order to safeguard Fifth Amendment rights against self-incrimination, a person may not be subjected to custodial interrogation by the police unless he is apprised of certain rights. Those rights include the right to remain silent, the right to know that anything he says may be used against him in court, the right to have counsel present, and the right to have appointed counsel if he is indigent. Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The Court in Miranda also required that statements made to the police during a custodial interrogation be excluded at trial, unless it is shown that the defendant "knowingly and intelligently" waived his rights in responding to the officers' questions. Ibid.

In New Jersey, a prosecutor bears the burden of proving such a voluntary waiver beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, our courts must look at the "totality of circumstances" involved. Ibid.; see also State v. Nyhammer, 197 N.J. 383, 402, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The court should consider such factors as defendant's "'age, education and intelligence, advice [given] as to [his] constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature[,] and whether physical punishment or mental exhaustion was involved.'" Presha, supra, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)); see also Nyhammer, supra, 197 N.J. at 402; State v. Dispoto, 189 N.J. 108, 124-25 (2007) (noting that "fact-based assessments" are appropriate in considering the totality of circumstances and deciding whether a defendant voluntarily waived his rights).

Not all statements made to police after arrest are the product of interrogation. Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980). Interrogation occurs only when "a police officer's words or actions that the officer 'should know are reasonably likely to elicit an incriminating response from the suspect.'" State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div.) (quoting Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690-91, 64 L. Ed. 2d at 308), certif. denied, 126 N.J. 331 (1991). In Mallozzi, the actions of an FBI agent in advising a suspect of the charges against him was not considered interrogation for the purposes of invoking Miranda and instead was the type of "ministerial" action that was permissible prior to a Miranda warning being issued. Id. at 515-16.

Here, defendant claims that his Miranda rights were violated on two separate occasions. First, he claims that Detective O'Neill violated Miranda by reading the charges to him, and by telling him the identity of the complaining witness and the pre-set bail amount, prior to informing defendant of his rights. After these statements, defendant commented to O'Neill that the charges were "old," that his family "knew about them" and that he was "innocent."

At the suppression hearing, the trial judge found that these statements by defendant were not in any way inculpatory. Moreover, the judge noted that the statements were uttered when "no questioning [was] taking place." Consequently, this case resembles the ministerial questions asked in Mallozzi and defendant's Miranda rights were not violated when he blurted out his initial statements to Detective O'Neill.

The second alleged instance of a violation of his Miranda rights, according to defendant, came after he had been advised of his rights and signed a form verifying that fact. Detective O'Neill then proceeded to question defendant about the current charges, as well as any previous accusations of abuse that he could have been referring to in his initial statement.

When defendant declined to expound upon these old charges, Detective O'Neill requested that defendant subject himself to a polygraph examination. Defendant agreed and the examination was administered by a technician.

After being informed of the results of the polygraph, and without any intervening questioning by the police, defendant requested and was given a telephone and a telephone book so that he could call a lawyer. After that point, defendant was not asked another question by the police.

This procedure did not violate defendant's Miranda rights, as he did not clearly invoke his right to remain silent or his right to counsel until after the polygraph had been administered. See State v. Johnson, 120 N.J. 263, 285 (1990) (obligating the police to cease questioning only after a suspect's silence and refusal to answer continues "for a prolonged period and is characterized by statements conveying an unwillingness to respond to any questions").

In sum, we detect no Miranda violation here and affirm the trial judge's determination on this issue. As noted by the trial judge at the suppression hearing, defendant was not asked another question that could lead to usable evidence at any point after he had invoked his rights.

III.

Defendant alleges two instances of what he claims were misconduct by the prosecutor during the trial that allegedly prejudiced him with the jury and denied him a fair trial.

First, defendant claims that the prosecutor, on her direct examination of Andrew, violated the trial court's prior order limiting his testimony. Second, defendant claims that the prosecutor improperly vouched for the credibility of V.C. in her closing argument. Neither of these contentions has merit. As the trial court found when addressing these issues of alleged misconduct during and after the trial, it is clear that the prosecutor did not overstep her boundaries and create a harmful error that would require reversal of defendant's conviction.

To determine whether prosecutorial misconduct warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant claims that the prosecutor engaged in misconduct by disobeying the trial court's order limiting the trial testimony of Andrew under N.J.R.E. 404(b) to only his direct observations that involved the incidents charged in the indictment, i.e., those involving defendant and V.C. During the Rule 404(b) hearing, defendant's counsel objected to the admission of statements made by Andrew to investigators that he had witnessed defendant exposing himself when other children were present, sometimes including defendant's own daughter. The judge ruled that such statements were admissible as direct testimony, so long as there was no direct reference to the daughter. The objective of the court's pretrial ruling in this regard was to avoid the emergence of testimony involving alleged abuse by defendant committed upon his daughter, Andrew's sister.

The record of Andrew's direct testimony, which was not extensive, indicates that the prosecutor scrupulously avoided eliciting any testimony involving the abuse of Andrew's sister. In fact, the prosecutor specifically warned Andrew to not reference any person other than V.C. or himself. When attempting to adduce Andrew's prior inconsistent statement, the prosecutor previewed that statement at sidebar, out of caution that, as she phrased it when addressing the court, she might "overstep" the bounds of the pretrial order.

The trial court ruled on this issue three times, once during Andrew's examination, once during defendant's motion to set aside the verdict, and lastly during defendant's first motion for a new trial. Given the obvious care with which the prosecutor strived to avoid any reference to defendant's daughter, we are satisfied that the prosecutor did not commit any misconduct, and that defendant is not entitled to relief based upon such claims.

Defendant next complains that the prosecutor improperly vouched for V.C.'s credibility in her closing argument. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82 (citations omitted). "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 182 N.J. 148 (2004).

Our close review of the transcript reveals that the prosecutor never personally vouched for the credibility of V.C. in her closing argument. She only rhetorically asked if V.C. had a reason to lie and argued, using examples from V.C.'s testimony, that V.C. was not lying. This is good advocacy, not personal vouching. Additionally, the prosecutor's statements were a direct response to defendant's trial counsel, who, in his own closing argument, had accused V.C. of lying.

IV.

Defendant further argues that he is entitled to a new trial because of Andrew's post-trial recantations and that, at a minimum, the trial court should have held an evidentiary hearing on the subject. We are not so persuaded.

Under well-settled criminal law principles, a defendant is entitled to a new trial because of newly-discovered evidence only if the evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999) (citing State v. Carter, 85 N.J. 300, 314 (1981)), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Defendant's contentions of "newly-discovered evidence" respecting his son Andrew's testimony fails to satisfy these requirements.

Where an assertion of newly-discovered evidence is based upon a claim of post-trial witness recantation, "the question is whether the testimony given at the trial was probably false and that[,] on that account[,] there is a substantial possibility of miscarriage of justice." State v. Baldwin, 47 N.J. 379, 400, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966).

Here, the trial judge recited several compelling reasons why Andrew's trial testimony was not shown to be "probably false," and why there is no "substantial possibility of miscarriage of justice" present. The trial judge had sound reasons for being skeptical of Andrew's attempted post-trial recantations, not the least of which was the fact that his first post-trial statement did not even assert to the court that his trial testimony had been false. It was only after the court had denied defendant's initial post-trial motions that Andrew's assertions progressed to a point that he finally asserted that he had lied about his father in his trial testimony. Moreover, Andrew is defendant's son, which raises an inherent prospect of bias and post-verdict misgivings about his father's fate. In sum, the trial judge reasonably found that Andrew's recantations lacked credibility.

Given the trial judge's "feel for the case," gained from having observed Andrew and the other witnesses at trial, we defer to his overall assessment that Andrew's post-trial recantations were insincere and insufficient to warrant a new trial. There was no need, in our estimation, for a plenary hearing. Moreover, the State's proofs, independent of Andrew's testimony, were sufficiently powerful to carry the prosecution's burden of persuasion.

V.

Defendant next contends that the trial court erred when it denied his motion to set aside the verdict of the jury under Rule 3:20-1. He argues that the jury must have ignored the judge's instructions when it apparently found no sexual contact to sustain a charge of aggravated sexual assault or sexual assault, but did find the requisite sexual conduct in finding defendant guilty of the child endangerment charge.

Although we appreciate defendant's perception of a potential inconsistency in the jury's verdicts on these various counts of the indictment, "a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004).

Defendant misconceives that proof of endangerment in this case required the same predicate sexual conduct as the charges of sexual assault. However, the discrete offenses can stem from different predicate acts. The trial judge properly did not instruct the jury that the predicate act(s) for the sexual assault counts needed to be common with the predicate act(s) for the endangerment count.

The record is replete with proof that defendant engaged in multiple sexual wrongs of different degrees of severity on different dates, and it is entirely plausible that the jury was persuaded that some, but not all, of those acts occurred. Consequently, it is not necessarily illogical that defendant could be found not guilty of aggravated sexual assault or sexual assault while still finding him guilty of endangering. We therefore detect no clear and convincing showing of a miscarriage of justice that requires a new trial. See State v. LaBrutto, 114 N.J. 187, 207 (1989).

VI.

Defendant's final point on appeal is that his sentence is manifestly excessive. As our Supreme Court has recently reaffirmed, "'when [trial judges] exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384-85 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in the statute, N.J.S.A. 2C:44-1a and -1b, it "may impose a term within the permissible range for the offense." Id. at 608.

In arriving at the sentence, the judge found aggravating factors three, six and nine applied. See N.J.S.A. 2C:44-1a(3), -1a(6), and -1a(9). Addressing factor three, the risk of reoffense, N.J.S.A. 2C:44-1a(3), the judge found that defendant had seven prior adult arrests, two disorderly persons convictions, and an unsuccessful diversion from PTI. Under factor six, defendant's criminal history, N.J.S.A. 2C:44-1a(6), the judge found that in 2000, defendant was convicted of two aggravated assault charges, both of which were third-degree offenses. Finally, with regard to factor nine, the need for deterence, N.J.S.A. 2C:44-1a(9), the judge observed that "[t]here is a strong need to deter [defendant] and others from violating the law and I place great weight on those factors."

The judge found no mitigating factors to apply in this case. Furthermore, the judge appropriately considered the fact that defendant had been ordered to undergo an evaluation at Avenel prior to sentencing, but that he had refused to cooperate with that evaluation.

On the whole, we detect no reason to disturb the trial judge's sentencing analysis, and will not "second-guess" his discretionary assessments. See Bieniek, supra, 200 N.J. at 608. The sentence imposed, which was only a year above the seven-year midpoint for a second-degree offense, see N.J.S.A. 2C:43-6(2), was well supported by the record, the presentence report, and the other relevant considerations weighed by the trial judge.

VII.

We have fully considered the balance of the arguments raised by defendant, and are satisfied that those arguments lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed.

 

We use initials to protect the privacy of the victim, who is related by marriage to defendant.

As defendant and all three of his children have the same initials, we have used pseudonyms to protect the identity of the parties.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The State concedes that defendant was in custody throughout these relevant time periods, thus there is no need for us to address that decisional factor under Miranda.

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A-6105-07T4

July 14, 2010