STATE OF NEW JERSEY v. REGINALD ROACH

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1890-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD ROACH, a/k/a

REGINALD W. HOLMES,

Defendant-Appellant.

_________________________________

Telephonically argued November 17, 2010 - Decided August 1, 2011

 

Before Judges Lisa, Sabatino, and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-03-0342.

 

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

 

Robyn B. Mitchell, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Mitchell, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant Reginald Roach was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; second-degree burglary, N.J.S.A. 2C:18-2; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was acquitted by the jury of other offenses charged in the indictment.

The trial court sentenced defendant as a persistent offender on the aggravated sexual assault counts to two concurrent forty-year prison terms, subject to an eighty-five percent parole disqualifier under N.J.S.A. 2C:43-7.2. The court further imposed a ten-year concurrent sentence for the burglary and a five-year concurrent sentence on the weapons offense, plus other terms and conditions including registration as a sex offender pursuant to Megan's Law.

Defendant now appeals his conviction and sentence. He argues that expert testimony concerning the DNA analysis of material from the victim's body was improperly admitted at trial, in violation of his rights under the Confrontation Clause. He further contends that his sentence was excessive, and that several of his offenses should have merged for sentencing purposes.

For the reasons that follow, we reject defendant's claim of an unconstitutional denial of confrontation and therefore affirm his conviction. We also uphold his sentence in most respects, but remand it for certain necessary mergers.

I.

The indictment stemmed from a brutal sexual attack upon a sixty-four-year-old woman at her townhouse in North Brunswick. The attack occurred after the victim, who lived alone, went to bed on the evening of November 5, 2005. The male attacker climbed into the second floor window in the middle of the night. The victim awoke to find the attacker pointing a sharp object at her neck, demanding money. She led him downstairs to the kitchen, where she showed him a drawer containing cash. The attacker took the money and, still pointing the sharp object at the victim's neck, told her to go back up to her bedroom.

When the attacker and the victim returned to her bedroom, he forcibly penetrated her vagina with his penis. The attacker then fled.

Immediately after the assailant left her townhouse, the victim called 9-1-1. The police responded and she was examined with a rape kit. Various DNA samples were taken from her thighs and other parts of her body.

The victim described her attacker as an African-American male, who was taller than she, of slim build, and soft-spoken. She did not see his face, and she believed that he had been wearing a mask. She was unable to identify him. She also did not see the sharp object that he had held at her neck.

Within the next few weeks, defendant, an African-American male who lived in an adjoining development in North Brunswick, was identified as a suspect. Investigators obtained a court order authorizing them to obtain defendant's fingerprints and a buccal swab of his DNA. Pursuant to that court order, defendant was detained in the parking area of his building, where police obtained his fingerprints and a buccal swab. The police found in his possession a lighter, keys, a pair of black leather gloves, and a small sharp stick. The police also observed that a fence separating the victim's development from defendant's development had been cut or pushed through.

The DNA collected from the victim was initially analyzed by Lydia Schiffner, a forensic scientist in the State Police laboratory. Schiffner was able to create a full DNA profile of the person who had left his sperm on the victim. She wrote a report detailing her findings and the DNA profile. Thereafter, Schiffner relocated to Wisconsin. Another State Police analyst, Jennifer Banaag, took over responsibility for the case.

Banaag analyzed the DNA specimen taken from defendant and compared it with the DNA profile previously generated from the victim. Based on her expert analysis, Banaag concluded that the defendant's DNA matched the DNA taken from the victim. In particular, she found that the probabilities of such a "sperm-cell fraction" match were one in 1.3 quintillion African-Americans, and the probabilities for a "non-sperm cell fraction" match were one in 15.7 billion African-Americans. Banaag later acknowledged at trial that one of the sperm-cell fraction tests (sample "1-4"), excluded defendant as the DNA contributor, because it was the victim who had contributed the DNA on that particular sample.

Defendant was thereafter arrested and indicted. The case was tried over eight days in January 2007.

The pivotal issue at trial was identification. The victim was unable to identify defendant as her attacker. The State's key proof of identification was the DNA evidence linking defendant to the sperm found on the victim's thighs. Defendant's fingerprints could not be matched to the crime scene or the victim.

The State presented two expert witnesses at trial. It first presented another forensic scientist from the State Police, Charles Williams. Williams testified that the vaginal swabs taken from the victim were positive for sperm, and that swabs from her thighs were positive for sperm and blood. Williams did acknowledge on cross-examination that a single gray Caucasian head hair was found in the victim's underwear, and that the hair had been sent to the State Police laboratory along with the other samples.

Banaag was presented as the State's other expert. The defense did not object to Banaag's credentials, which include a Master's Degree in Forensic Science from George Washington University and extensive training in DNA analysis. She has been authorized, since 2004, to perform forensic analyses for the State Police at the DNA laboratory, which has been certified by the American Society of Crime Laboratory Directors. Banaag stated that she is usually assigned about ten forensic cases per month. She estimated that she has processed "over a thousand samples" with either the State Police or the Armed Forces DNA Laboratory.

Defense counsel did object to Banaag's testimony insofar as it referred to the analytic work performed earlier by Schiffner, who did not testify. Defense counsel argued that allowing Banaag to refer to Schiffner's work without having an opportunity to cross-examine Schiffner violated defendant's rights under the Confrontation Clause. The trial judge overruled the objection, discerning no constitutional deprivation.

The direct examination of Banaag then proceeded, which included her references to Schiffner's analysis. Defense counsel then cross-examined Banaag extensively, posing numerous questions that probed into possible flaws in the testing that had been performed by each of the analysts.

Defendant did not call any witnesses. In his closing argument, defense counsel focused upon the victim's inability to identify her attacker as well as the potential deficiencies in the State's DNA proofs. In particular, defense counsel stressed that Banaag had not personally tested the DNA extracted from the victim and, instead, had relied on Schiffner's work. Defense counsel further suggested that the samples could have been contaminated. Counsel also argued that defendant's physical characteristics did not match the victims' description and, in particular, that his build was not slim. He also emphasized the absence of fingerprint evidence identifying defendant as the attacker.

The prosecution, in turn, argued to the jury that the State had produced ample evidence to prove defendant's identity as the attacker beyond a reasonable doubt. Counsel stated that the expert testimony of Banaag sufficed to establish the DNA link between defendant and the victim. The prosecutor highlighted that there was no proof of any contamination of the DNA samples, or that the laboratory equipment used in analyzing the samples had malfunctioned. The prosecutor further noted that Banaag had reviewed Schiffner's results, and that there was no reason to doubt their accuracy. She asserted that the DNA analysis involved a well-established testing procedure "used worldwide," and that Banaag had not altered the DNA in any manner. As the prosecutor phrased it, "[t]he DNA solved this case."

Following the court's instructions, the jury rendered the verdict that we have previously described. Defendant was thereafter sentenced.

Defendant raises two points on appeal:

POINT I

 

DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN ONE OF THE STATE'S FORENSIC SCIENTISTS WAS PERMITTED, OVER OBJECTION, TO TESTIFY TO RESULTS OBTAINED BY ANOTHER FORENSIC SCIENTIST WHEN THAT OTHER SCIENTIST DID NOT TESTIFY AND, HENCE, WAS NOT SUBJECT TO CROSS-EXAMINATION.

 

POINT II

 

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

 

We address these points in turn.

II.

The first issue on appeal is whether defendant's rights under the Confrontation Clause were violated because the State's testifying DNA expert, Banaag, referred in her testimony to the DNA analysis of the specimens from the victim performed by Schiffner. Although the issue is not free from doubt and could be affected by the outcome of a case on which the United States Supreme Court recently granted certiorari, we conclude that defendant was not deprived of his right of confrontation.

As we approach this issue, we recognize that Confrontation Clause jurisprudence, as explicated by the United States Supreme Court, is in a state of flux. The Sixth Amendment of the United States Constitution provides an accused, among other things, with "the right . . . to be confronted with the witnesses against him." U.S. Const., amend. VI. After years of case law interpreting this provision in a more permissive fashion, in 2004 the Court held, in its seminal opinion in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004), that the intended meaning of the Confrontation Clause requires the exclusion of hearsay statements that are "testimonial" in nature.

The Court elaborated upon this evolving doctrine in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), a case involving the admission of forensic laboratory certificates stating that a substance found in the defendant's possession was cocaine. The Court held in Melendez-Diaz that the certificates could not be admitted at trial against the defendant unless he was given an opportunity to cross-examine the analyst, because the certificates were prepared for the primary purpose of aiding the prosecution of the criminal offense. Id. at ___, 129 S. Ct. at 2539-40, 174 L. Ed. 2d at 329-330.

In the course of its discussion in Melendez-Diaz, the Court acknowledged that the Sixth Amendment does not require an opportunity at trial to cross-examine "anyone whose testimony may be relevant in establishing [a forensic sample's] chain of custody, [the] authenticity of the sample, or [the] accuracy of the testing device[.]" Id. at ____ n.1, 129 S. Ct. at 2532 n.1, 174 L. Ed. 2d at 322 n.1. Instead, "[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." Ibid.

The Court further expounded upon this post-Crawford doctrine two months ago in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). By a five-to-four majority, the Court held that the Confrontation Clause was violated in a drunk driving case by the admission of forensic laboratory reports certifying that the defendant's blood-alcohol concentration was well above the legal limits. Id. at ___, 131 S. Ct. at ____, 180 L. Ed. 2d at 619-21. The majority declared the reports "testimonial" and thus inadmissible without affording the defendant a chance to cross-examine the laboratory analyst who had generated the reports, who was on an unspecified leave of absence at the time of trial. Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 618, 621. Instead, in lieu of that analyst, the prosecution had called as a trial witness another analyst who was familiar with the testing device used on the defendant's blood, but who had neither "observed nor reviewed" his colleague's analysis. Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 618. The majority found that the defendant's confrontation rights were not sufficiently protected by the opportunity to question this substitute witness. Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 621-23.

Notably, Justice Sotomayor issued a concurring opinion in Bullcoming that stressed the limited scope of the majority's holding. Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 626-30 (Sotomayor, J., concurring). In particular, she observed that the Court had not resolved several issues, including whether the defendant's right of confrontation would have been satisfied if: (1) the non-testifying analyst's report were created for an alternate primary purpose, such as medical treatment, or (2) the testifying analyst were the non-testifying analyst's "supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue," such as "a supervisor who observed an analyst conducting a test [who] testified about the results or a report about such results." Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 628-29 (Sotomayor, J., concurring).

Third, and most importantly for the present case, Justice Sotomayor made clear that the Court's holding in Bullcoming did not necessarily extend to a situation "in which an expert witness was asked for his [or her] independent opinion about underlying testimonial reports that were not themselves admitted into evidence." Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 629 (Sotomayor, J., concurring). In this regard, Justice Sotomayor's concurrence alluded to Federal Rule of Evidence 703, which permits the discussion of "facts or data" that are not admitted into evidence, on certain conditions, by a testifying expert witness. Id. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 629-30 (Sotomayor, J., concurring).

Shortly after its opinion in Bullcoming was released, the Court granted certiorari in Williams v. Illinois, 939 N.E.2d 268 (2010), cert. granted, ___ U.S. at ___, ___ S. Ct. at ___, ___ L. Ed.2d at ___ (2011). The question presented in the petition for certiorari in that case indicates that the expert opinion issue posed in Justice Sotomayor's concurrence is likely to be addressed by the Court:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

 

We now apply these Supreme Court precedents,1 as best we can under the evolving law, to the circumstances of this case and, in particular, to Banaag's expert testimony.

On direct examination, and over defense counsel's objection, Banaag described how her own expert analysis related to the prior DNA analysis performed by Schiffner:

Q. Prior to your report was another DNA report generated in this case?

 

A. Yes, there was another report.

 

Q. And who generated that report?

 

A. That report was generated by Lydia Schiffner who was another forensic scientist in our DNA Laboratory.

 

Q. Showing you S-89 for identification do you recognize that report?

 

A. Yes. This is the report dated December 7, 2005, that was generated by Miss Schiffner.

 

Q. What items did Miss Schiffner analyze in this case?

 

A. She analyzed six items, specimen number 1-10 was --

 

Q. I'm going to stop you there. Can you tell me what victim items she analyzed?

 

A. The items that were from the victim are 1-10 which was the victim's [b]uccal swabs, item number 1-2, which were vaginal swabs taken from the victim, 1- 4, anal swabs from the victim, 1-6-1 swabbings from the left thigh area and 1-6-2 swabbings from the right thigh area.

 

Q. In forming the conclusions that you reach in your report can you tell us whether you reviewed or relied upon the work generated by Miss Schiffner?

 

A. In generating my report what I did was determined a DNA profile from the [b]uccal swab that I received which was specimen number five.

 

Q. Is that the first thing you do?

 

A. Yes. I take that because that was the only sample that I had for that case. I took that sample through the entire four step process that I described previously.

 

Q. And then what did you do?

 

A. And then I take that information and the data that I generate from that [b]uccal swab, the DNA profile, and I compared it to any of the profiles that were generated by Miss Schiffner when she did her analysis of the specimens that were received for this case.

 

Q. And when you look at the prior work what exactly are you looking at?

 

A. Basically what I do is take the entire case file, so I would have taken Miss Schiffner's entire case file and gone through and reviewed every single page in that case. I look for anything from dating and initials and all the pages. I also make sure all of the data calls that she made are correct and that I agree with them and that all of the information that she reported out in her report are accurate. Once I do that I take the information and the DNA profile that I generated from the [b]uccal swab that I received and compared it to any of the individual samples that were reported out in Miss Schiffner's case and that goes into my supplemental report.

[Emphasis added.]

 

Banaag was then asked whether she had made her own "independent finding" as an expert in this case:

Q. Are you making your own independent finding?

 

A. Yes. I am reviewing her case. I made independent data analysis for the [b]uccal swab that I received, went back and reviewed Miss Schiffner's case and made my own independent conclusions and reported those in my February, 2006 report.

 

Q. And is this something standard or usual that you would rely upon someone else's data?

 

A. Yes. Any time we get any additional evidence for a particular case we'll have all of the previous case files pulled and look through those files and look at the data that was generated from those case files and again anything that we can use to compare in this instance the [b]uccal swab to we will then report out in a supplemental report.

 

[Emphasis added.]

 

Banaag then explained her findings that defendant's DNA matched the DNA taken from the victim:

Q. And what is this page of your report?

 

A. Page 3 of the report is an al[l]ele table. It basically has all the information pertinent to this case, the case number, submitting agency, the agency's number and the date of the report and here in the middle portion of that al[l]ele table the items or specimen numbers are listed in this left-hand column. The specimen descriptions are the next column. The human DNA column is an indication of our quantitation step. If there's a plus there it means we did detect human DNA from that particular sample. Along the top in this gray area here are the 13 different locations or loci that we are examining in our STR examination.

 

For this particular case the item that I received was a buccal swab which was specimen number five. The plus indicates that there was human DNA detected in that sample and the numbers here again these are the al[l]eles that are inherited from both of the parents of this particular individual. So at this locus D-3 the individual has an STR of 16, 17 a DWA 15, 17, FGA 21, 22. The [amelogenin] locus is basically an indication of whether the source of this sample is male or female. In this case an XY indicates a male. XX would indicate female. Again we're looking at all 13 of these locations and I was able to generate a full profile at all 13 locations for that sample.

 

Banaag reiterated that she had reviewed Schiffner's results, noting that she personally agreed with them:

Q. Can you tell us did you do the comparison hair between that [b]uccal swab sample item number five and the other samples submitted in this case from the victim?

 

A. Yes. In this case the al[l]ele table contains again the profile from the [b]uccal swab and underneath that are listed the items that were previously recorded in Miss Schiffner's report so here we have [b]uccal swabs from the victim, the vaginal swabs from the victim, anal swabs, the results from the left thigh area and the right thigh area. Again these were previously recorded and in the report generated by Miss Schiffner. Again these also contain the results that she obtained for all of those 13 locations.

 

Q. You've indicated that you reviewed her results?

 

A. Yes, that's correct.

 

Q. Do you agree with her results?

 

A. Yes, I do.

 

[Emphasis added.]

 

Banaag then offered the following conclusions, within a reasonable degree of scientific certainty:

Q. Concerning your comparison of the other non sperm cell fractions 1-6- 1 NSCF and 1-6-2 NSCF your conclusions?

 

A. My conclusions for those particular samples were that the DNA profile of Reginald Roach match the minor DNA profile obtained from specimens number 1-6-1 NSCF, 1-6- 1 NSCF here and 1-6-2 NSCF which is the sample here. If you look at the results that Miss Schiffner obtained for those two samples the statistical calculation was based on the 29, 31 being the minor profile in both of these samples, the suspect is a 29, 31, and this one the minor profile is 11, 16 which is consistent with the 11, 16 here. Here the minor profile is an 11, 14. And the suspect was an 11, 14. The minor profile here is an 8, 12. The suspect is an 8, 12. The minor here is an 8, 13 and the suspect is an 8, 13. Minor profile 7, 9 and the suspect is a 7, 9.

 

Q. You indicate minor. Is there a major DNA profile?

 

A. Yes. The two samples, the major DNA profile is the victim. You can see with these two locations she's a 17, 18. There's a 17, 18 here. Major. She's also a 17, 18. So the major profile in both of these are within scientific certainty the victim.

 

[Emphasis added.]

 

On cross-examination, Banaag clarified how she had made use of Schiffner's prior work in undertaking her own expert analysis:

Q. I was a little confused on your direct [examination]. What exactly did you do with the previous analyst's report? Did you rerun the tests or basically take her data and sort of compared that to what you had?

 

A. I basically went through the entire file and compared the data that was generated by Miss Schiffner and compared that to the data I generated from the [b]uccal swab that was submitted to us.

 

Several things are apparent from Banaag's testimony. First, she was qualified to offer opinions as an expert witness pursuant to N.J.R.E. 702. Under a companion provision, N.J.R.E. 703, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." (Emphasis added). Rule 703 adds that if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Ibid. (emphasis added);2 see, e.g., State v. Torres, 183 N.J. 554, 576 (2005); State v. Dishon, 297 N.J. Super. 254, 280-81 (App. Div.), certif. denied, 149 N.J. 144 (1997). Banaag established this requirement of reasonable reliance upon Schiffner's work, as a matter of customary practice.

It is also clear that although Banaag did not "rerun" the tests conducted by Schiffner, she carefully reviewed them and found no basis to question their reliability.

Banaag was not a mere "conduit" of Schiffner's analysis. Rather, as a qualified DNA expert, she reviewed that analysis and determined that it was appropriate to use the DNA profile created by Schiffner and compare it to the profile generated by defendant's buccal swab. Banaag was subjected to vigorous cross examination on these points, including her use of the prior analyst's DNA profile.

Even if, for the sake of argument, we construe the statements in Schiffner's report to be "testimonial," there was no unconstitutional denial of confrontation in the manner in which Banaag referred to Schiffner's work in her expert testimony. Unlike in Melendez-Diaz and Bullcoming, the non-testifying expert's report or sworn written statement was not moved into evidence by the prosecution. Cf. Melendez-Diaz, supra, 557 U.S. at ___, 129 S. Ct. at 2530-31, 174 L. Ed. 2d at 320; Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 616. The jury did not have Schiffner's report in deliberations. Instead, the report was only alluded to as part of Banaag's expert testimony, which was probed at length by defense counsel. As we recently noted in State v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011), we do not read the Supreme Court's post-Crawford case law to signify that the Confrontation Clause is violated in all instances where an expert other than the author of a laboratory report testifies at trial about the analysis that was performed. Another expert may be called instead of the original analyst, so long as the testifying witness "has made an independent determination as to the results offered." Rehmann, supra, 419 N.J. Super. at 457.

Five justices of the United States Supreme Court have yet to declare that the Confrontation Clause would disallow the manner in which Banaag's expert testimony referred to the work of another analyst who did not testify. Unless the Court's forthcoming opinion in Williams v. Illinois during the coming term dramatically expands the Crawford doctrine, there is nothing in the Court's present jurisprudence3 that compels a reversal in this case.

Defendant also argues that, even if Banaag's references to Schiffner's testing were admissible, the trial court failed to give the jurors an adequate limiting instruction, cautioning them about the proper use of such expert testimony that relies upon another person's hearsay statements. We reject this contention as well.

Here is the relevant portion of the final jury charge that the trial judge gave, concerning the jury's consideration of the expert testimony it had heard:

This is the law. As a general rule witnesses can testify only as to facts known by them. This rule ordinarily does not permit the opinion of a witness to be received in evidence. However, an exception to this rule exists in the case of an expert witness who may give his or her opinion as to any matter in which he or she is versed which is material to the case. In legal terminology, an expert witness is a witness who has some special knowledge, skill, experience or training that is not possessed by the ordinary juror and who thus may be able to provide assistance to the jury in understanding the evidence presented and determine the facts in this case.

 

In this case I believe you heard from Miss Banaag and Mr. Williams. You are not bound by such expert's opinion but you should consider each opinion and give it the weight to which you deem it is entitled, whether that be great or slight, or you may reject it. In examining each opinion you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert.

 

It is also within your special function to determine whether the facts on which the answer or testimony of an expert is based actually exist. The value or weight of the opinion of the expert is dependent upon, and is no stronger than, the facts on which it is based. In other words, the probative value of the opinion will depend upon whether from all of the evidence in the case you find those facts are true.

 

You may, in fact, determine from the evidence in the case that the facts that form the basis of the opinion are true, are not true, or are true in part only, and in light of such findings you should decide what effect such determination has upon the weight to be given to the opinion of the expert. Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your findings as to the truth of the facts relied upon. The ultimate determination of whether or not the State has proven Mr. Roach's guilt beyond a reasonable doubt is to be made by you only. . . . So those are the people to assist you in this case.

 

[Emphasis added.]

This instruction essentially tracks the Model Criminal Jury Charges. Model Jury Charges (Criminal), "Expert Testimony" (2003). Defendant did not request an additional special instruction, either when Banaag testified or in the charge conference. Although a more pointed charge specifically referring to Banaag's use of Schiffner's data may have been beneficial to the jury, we detect no plain error in the trial judge delivering the standard expert witness charge in these circumstances where nothing more was requested. See State v. Macon, 57 N.J. 325, 333 (1971).

In sum, we reject defendant's arguments under the Confrontation Clause.4 We therefore affirm his conviction.

III.

 

Defendant's arguments respecting his sentence do not require extensive comment. At the outset, we note that the State concedes that the sexual assault offense should have merged into the aggravated sexual assault convictions. It also concedes that it was improper to impose two discretionary extended terms, albeit on a concurrent basis.

Although the State does not concede it, we further agree with defendant that the two aggravated sexual assault counts should merge with each other. Defendant was charged under two subsections of the statute, one for sexually assaulting the victim during the course of a burglary, N.J.S.A. 2C:14-2a(3), and the other for sexually assaulting her while armed, N.J.S.A. 2C:14-2a(4). The two subsections essentially operate as alternate enhancing factors to elevate the same sexual offense to a first-degree crime, by making it "aggravated." See N.J.S.A. 2C:14-2a. We agree that they should merge.

We reject defendant's other sentencing arguments, including his contentions that that the trial judge improperly double-counted the same aggravating factors in finding defendant eligible for an extended term and in also determining the length of the sentence; that other so-called "secondary" convictions should have merged into the aggravated assaults; that the forty-year sentence was excessive; and that the monetary assessments and the restitution imposed were unjustified. These arguments all lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

While the forty-year term imposed is undoubtedly lengthy, it is fully justified within the trial court's sentencing discretion, given the depraved and brutal manner in which defendant sexually preyed upon an older woman alone in her own bedroom. See State v. Bieniek, 200 N.J. 601, 612 (2010) (noting that the sentencing discretion of trial judges "should be immune from second-guessing" on appeal); State v. Roth, 95 N.J. 334, 364 (1984) (instructing that a sentence should be modified only if it "shocks the judicial conscience").

Other than the necessary mergers that we have mentioned, defendant's sentence is affirmed.

Affirmed as to defendant's conviction; remanded for entry of an amended judgment of conviction after appropriate mergers.

 

 

1 We note that, at our request, the parties submitted supplemental briefs after the Court's opinion in Bullcoming was issued.

2 We note that N.J.R.E. 703 is less restrictive than its amended federal counterpart, Fed. R. Evid. 703, which requires that the proponent of the expert witness show that the probative value of otherwise inadmissible facts and data relied upon by the expert in rendering her opinion "substantially outweighs" their prejudicial effect.

3 We recognize the difficulty of predicting the Court's next decision in the Crawford line of cases. As Justice Kennedy noted in his dissent in Bullcoming, "[t]he persistent ambiguities in the Court's approach are symptomatic of a rule not amenable to sensible applications[,]" and that the Court's "prior decisions leave . . . judges to 'guess what future rules th[e] Court will distill from the sparse constitutional text[.]'" Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at ___, 180 L. Ed. 2d at 633 (Kennedy, J., dissenting) (internal citation omitted).

4 For the sake of completeness, we note that we agree with defendant that if, hypothetically, Banaag's references in her testimony to Schiffner's analysis did violate the Confrontation Clause, such an error would not be harmless. Identity was the crucial issue in this prosecution, and the DNA proofs were vital to the State's case.