STATE OF NEW JERSEY v. ROBERT KNUTSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2972-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT KNUTSEN,

Defendant-Appellant.

____________________________________

May 3, 2011

 

Argued September 29, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

08-02-272.

Robert A. Honecker, Jr., argued the cause for

appellant (Ansell Zaro Grimm & Aaron, attorneys;

Mr. Honecker, of counsel and on the brief;

Greg S. Gargulinski, on the brief).

Joie Piderit, Assistant Prosecutor, argued the

cause for respondent (Bruce J. Kaplan,

Middlesex County Prosecutor, attorney; Ms.

Piderit, of counsel and on the brief).

PER CURIAM

On April 28, 2006, a Middlesex Grand Jury indicted defendant Robert Knutsen on one count of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), in connection with the death of Nikolas Chavez, the three-year-old son of his former fiancée Nicole Rosol. The petit jury empanelled to try this case was unable to reach a unanimous decision, requiring the court to declare a mistrial.

In February 2008, defendant was again indicted in connection with the death of Nikolas Chavez. This time, in addition to the charge of first degree aggravated manslaughter reflected in count one, the State charged defendant with two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Count two alleged that defendant, having assumed responsibility for his care, caused Nikolas harm making him "an abused or neglected child" within the meaning of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 by willfully failing to provide him with medical care in a reasonably timely fashion. Count three alleged that defendant harmed Nikolas by inflicting physical injury upon him by other than accidental means.

The jury acquitted defendant of the charges in counts one and three and found him guilty as to count two. The court sentenced defendant to a term of seven years, without any period of parole ineligibility, and imposed the mandatory fines and penalties. Defendant now appeals. We affirm.

We gather the following facts from the evidence presented at trial.

 

I

A

In the fall of 2005, defendant shared a two-bedroom apartment in North Brunswick with Rosol and three-year-old Nikolas. Rosol and defendant had been romantically involved for over a year and were engaged to be married. According to Rosol, she had ended her relationship with Nikolas's father in May 2004. Although Nikolas's father did not have regular contact with his son immediately after the end of his relationship with Rosol, by the fall of 2005 he had resumed his parental involvement.

Around the same time Nikolas renewed contact with his father, the child began to express anxiety and a general unwillingness to be with defendant. Rosol thus decided not to permit defendant to baby-sit Nikolas during the times she was not able to care for him. She testified that Nikolas

started reacting to Rob [defendant] in a strange way. He started not wanting Rob in his life. He would cry and say 'No Rob' and he would cling to me so I felt uncomfortable with it.

 

Q. Did you discuss this with [defendant]?

 

A. Yes, I did.

 

Q. What was that discussion like?

 

A. Well, I basically told him I wasn't going to allow him to drop [Nikolas] off or pick him up from my grandmother's and when I had to work late I was going to let him stay at my grandmother's for Nikolas' benefit because . . . Nikolas was obviously uncomfortable the way he was reacting to [defendant.] [S]o when I spoke to him about it he told me that he did understand but it did hurt his feelings because he loved Nikolas.

 

Q. Before September, October, November of 2005, when you were working would the defendant watch Nikolas sometimes for you?

 

A. Yes, he would.

 

Q. So he stopped watching him when?

 

A. He pretty much stopped watching him probably early October [2005].

 

On cross-examination, Rosol acknowledged that by the time of Nikolas's death on November 30, 2005, the relationship between defendant and the child "had just started to get better." Rosol also answered affirmatively defense counsel's question whether, in her mind, there was never any question that defendant loved Nikolas.1

On Friday, November 25, 2005, Rosol took Nikolas to see Dr. Keith Meloff, a pediatric neurologist, after the child was diagnosed with developmental delays requiring speech and physical therapy. Up to that point, Nikolas's medical history had been largely unremarkable. Dr. Meloff examined Nikolas, noting that there were no injuries or bruises on his back. From a neurological perspective, Dr. Meloff observed signs of some blank staring and blinking by Nikolas, a possible indication that he may be experiencing psychomotor seizures. He recommended that Nikolas undergo an electroencephalography2 (EEG) test to rule out the possibility of seizure activity. Rosol emphasized, however, that Dr. Meloff was "very optimistic that [Nikolas] was not having seizures." He ordered the EEG only to rule out the possibility that he may be experiencing seizures. Based on her training and experience in dealing with autistic adults, Rosol testified that she was acutely aware of the signs associated with the seizures referred to by Dr. Meloff.

Rosol informed defendant that Nikolas might be experiencing seizures. She explained to defendant two types of seizures: a grand mal seizure involving more seizing behavior, and a psychomotor seizure, during which the person seems to space out and is non-responsive. According to Rosol, she instructed defendant:

Any type of seizure you don't touch a person while they're seizing. You watch them and make sure they become responsive and if they don't become responsive within a couple of minutes you would call 911. You should never touch them, never move them, clear the area and make sure they're safe.

 

On Saturday, November 26, 2005, Nikolas visited with his father and spent the night at his residence. Rosol testified that when the father returned Nikolas the following night, the child was in good condition. Rosol gave Nikolas a bath, then removed him from the tub, wrapped him in a towel, and turned and walked out of the room. At this point, she heard a thud, walked back to the tub, and saw Nikolas flat on his back. She immediately picked him up and, after he stopped crying, examined him to make sure he was not injured. She gave him Tylenol before putting him to bed.

The next morning, Monday, November 28, 2005, Nikolas awoke without any complaint of pain and climbed out of his bed without assistance. Rosol did not see any signs of trauma or bruising when she changed his diaper.3 She noticed, however, that he was walking somewhat "stiffly." After getting him dressed, Rosol took Nikolas to the home of her grandmother, Mary Snook, who regularly cared for Nikolas during Rosol's working hours. Rosol told Snook of Nikolas's fall the night before and asked her to observe whether he showed any problems with his back. Snook did not see Nikolas exhibit any discomfort, although he did take an unusually long nap.

Rosol picked up Nikolas that night and drove to her parents' home in Milltown. She spent the night with her younger brother and sister so that her mother could spend the evening with her father, who was in the hospital recovering from a heart attack.

While giving Nikolas a bath, Rosol noticed "a small lump on the bottom right-hand side of his back . . . a little above the buttock." Nikolas confirmed that the bump hurt when touched. He spent the remainder of the evening playing with Rosol and her siblings, although he was still walking "stiffly." Nikolas slept on an air mattress that night and Rosol slept beside him on a sofa. By the next morning, Tuesday, November 29, 2005, Nikolas no longer complained of pain from the lump. Despite this, Rosol made an appointment to bring Nikolas to pediatrician Dr. Vijay Radhakrishna that afternoon following his appointment with a speech therapist. According to the therapist, Nikolas did not show any signs of pain during the session, which included physical activities that required the child to sit and rise a number of times. While waiting to see Dr. Radhakrishna, Nikolas also ran around the doctor's waiting area without any apparent discomfort or difficulty.

Dr. Radhakrishna testified as a witness for the State. She did not see any signs of internal bleeding when she examined Nikolas on Tuesday, November 29, 2005.4 Other than "a very tiny swelling" in the mid scapula, lower thoracic area of the child's back, for which she prescribed ice and Motrin, Dr. Radhakrishna did not see anything out of the ordinary. Nikolas's vital signs, mobility, and blood work were normal, and his abdomen was neither distended nor hard to the touch.

On Wednesday, November 30, 2005, Rosol awoke, checked on Nikolas who was still sleeping, and began to get ready for work. She asked defendant if he could drop Nikolas off at Snook's home when Nikolas woke up. Defendant agreed, since he was planning to spend the morning at home trying to contact the Division of Unemployment Insurance about obtaining unemployment benefits. Before she left for work, Rosol verbally instructed defendant to "watch out" for Nikolas's back, and also left him a note telling him to "be careful with his back." According to defendant, Rosol left the apartment at approximately eight o'clock in the morning.5

B

The evidence describing the events that occurred from approximately 8:00 a.m. (the time Rosol left for work) to 10:41 a.m. (the time defendant called 911 for assistance) is central to the State's case against defendant. It is important to emphasize that defendant was the only adult who had access to Nikolas during this critical timeframe.

Defendant continued to sleep for approximately fifteen minutes after Rosol left for work. When defendant awoke, he walked out of his bedroom and walked into Nikolas's room to look in on him. The following account of what allegedly transpired from this point is taken verbatim from the statement defendant gave to the State's investigators:

[Nikolas was awake and said] hi. [I said] "hey buddy." [I] walked over . . . [and] checked to see if his diaper . . . was okay. It was wet. I placed him on the rug next to his crib; changed his diaper, and then, he said to me . . . I asked him, you want to get in your Batman car? You wanna' to go . . . you know, play with one of your trucks. He said, go back to bed and take a nap. So I put him back in his bed, and at the time I went back to my room and laid down. Close to, I guess, ten o'clock, I got a phone call . . . from unemployment office. I took the phone call, got outta' bed.

 

In response to the investigators' questions, defendant indicated that he received a telephone call from a representative of the Unemployment Office, to whom he spoke for an indeterminate period of time.6 Defendant then gave the following account of what happened after speaking with the representative of the State unemployment agency:

At that time, I got up. I remember I put my contacts in and, you know, I went to the bathroom. I was kind of just fiddling around the house. I hadn t checked on Nikolas. I went back in my room. I had a cigarette, watched some TV. I heard some gurgling noises from his room. Uh . . . he looked like, as if was having a seizure. I, like, tried to see if he would come to. I was just kinda' like, kind of processing in my head what to do. Kinda' came from his feet, picked him up and . . . went to try to um . . .7

 

Q. Did you rearrange your hands at that point?

 

A. At this point, after I picked him up, I rearranged my hands so that my hands were kind of around his waist.

 

Q. Okay.

 

A. I pulled him in like to shake him awake, and . . . uh . . . his back fell back.

 

Q. When you pulled him in, his back fell back?

 

A. Yeah.

 

Q. Okay. Did you push him out at any time?

 

A. No.

 

Q. And then back in?

 

A. His back fell back and as soon as it did, I kind of swooped him up and put him right back in bed.

 

As the interrogation continued, defendant indicated that Nikolas's head "snapped back violently" when he pulled the child toward him in an attempt to revive him or shake him to consciousness. It is thus clear from defendant's own words that, at this point, defendant knew that the child was unresponsive and not capable of supporting his head. Defendant estimated that this occurred approximately ten o'clock in the morning, or one and a half hours after Rosol left Nikolas in his care.

Defendant gave the following account of what occurred when he realized that the child was in serious distress and in need of emergency medical attention:

I realized he didn't have control. He couldn't [] hold himself up. I just kind of, kind of like up and down with him. Like, Nikolas, Nikolas, come on. Just tryin' to wake him up. But I don't think at that point I really realized it was uh . . . severity of a breathing situation. I wasn't . . . I was more focused on . . . I knew there's something, like his breathing wasn't right. But I was so focused on him getting conscious for some reason. I don't know. It was just instinct, like, tryin' to wake him up. I thought if he woke up, he would breathe better. And then I realized he wasn't breathing very well, and then I was like, oh my God. And I called 911.

 

Q. Okay. Now, the time frame . . . between you putting him down the second time and calling 911 can, can you give me the approximate time that that took place?

 

A. I can't, because . . . I ca . . . I, time was like . . .

 

Q. Was it right quick? Was it . . .

 

A. It was not long after that.

 

Q. Okay. There's no approximate time that you can give me. You have no idea.

 

A. No I don't. Time, time was just like . . . moving at, like, I don't . . . I wasn't paying attention to time. I was so focused on him and what was going on with him that I, like, it's, I can't say this was two minutes, this was three minutes.

 

Q. Did you receive any other phone calls in-between the time frame that you had the phone from the . . . unemployment in the timeframe that you . . . then saw . . . Nikolas, or from the time you saw Nikolas initially . . . his head went violently back and you laid him down . . . did you have any other phone conversation prior to calling 911?

 

A. Just 911. No.

 

When defendant dialed 911 at 10:41 a.m., he informed the operator that his fiancée's son had been having a seizure for ten to fifteen minutes, that the child was breathing erratically, and was not responsive. The 911 operator contacted the local police. At 10:46 a.m., North Brunswick Police Officer Mark Ventola responded to the scene. Ventola immediately determined that Nikolas was unresponsive, had no pulse, was not breathing, and was cold to the touch from the waist down. The officer administered the procedure known as cardiopulmonary resuscitation (CPR) while waiting for an ambulance to take the child to Robert Wood Johnson Hospital in New Brunswick. Paramedics continued to administer CPR while the ambulance was en route to the hospital.

Dr. Vicki Craig, a pediatric critical care specialist, examined Nikolas fifteen minutes after his arrival at the hospital. By this time, Nikolas had received CPR at home, in the ambulance, and in the emergency room, for a combined period of forty-five minutes. Although Dr. Craig detected a pulse, she characterized the child's condition as critical, or in Dr. Craig's own words: "He was dying." Despite having been given "high amounts of medications," his blood pressure was very low; his pupils were dilated and non-reactive; he was cold to the touch and pale; his body temperature upon arrival at the emergency room was 87 degrees; he was experiencing multiple organ dysfunction; and his belly was distended and firm. Nikolas died three hours after he arrived at the hospital.

C

On December 1, 2005, forensic pathologist Dr. Frederick DiCarlo performed an autopsy on Nikolas's body. He determined that the child died as a result of blunt trauma injuries of the lower back and abdomen with vertebral fracture and blood in the abdominal cavity. Specifically, Dr. DiCarlo found 550 milliliters of blood in the child's abdominal cavity, which is "slightly greater than one third of his total blood."

In response to the prosecutor's question, Dr. DiCarlo gave the following explanation of "[w]hat happens when you lose approximately 30 percent of your blood volume":

When you lose 30 percent of your blood volume you go into hemorrhagic shock which means that when you lose that amount of blood from your circulatory system there's not enough remaining blood circulating through your vessels to supply enough oxygen to the tissues for those tissues to maintain normal function. In other words, the blood is carrying the red blood cells and the red blood cells carry the oxygen to the tissues. Without oxygen the cells cannot carry out metabolic functions and they will die and most sensitive to a lack of oxygen is going to be the cardiorespiratory control centers in the brain. The brain needs this blood and oxygen to function. Cardio arrest control center stops functioning and you lose cardiac respiratory function and you're going to die.

 

. . . .

 

[O]nce you're in hemorrhagic shock you're going to be unconscious at that point so you won't be able to talk then but prior to losing one third of your blood volume as you're beginning to lose blood you'll be able to speak with 10 percent, 15 percent, or even 20 percent of your blood loss you should be able to speak. Once you go into hemorrhagic shock you're not going to be able to speak anymore.

Dr. DiCarlo opined that Nikolas had been either punched or struck in the abdomen with a force so severe that it caused two large areas of hemorrhage. The abdomen was distended and hard because nearly one-third of the blood in his body had pooled in his abdominal cavity. Nikolas had also sustained a fracture between his second and third lumbar vertebrae with associated ligament rupture. Dr. DiCarlo concluded that these injuries were not related to the fall on the bathroom floor.

The abdominal injury was fresh based upon its gross appearance. There was also an absence of white blood cells at the site and no signs of intestinal necrosis. The vertebral fracture was also recent because, due to nerve impingement by the unstable bone, the child would have been in excruciating pain had he attempted to move after having sustained such an injury.

Given this medical profile, Dr. DiCarlo opined that Nikolas was injured thirty to sixty minutes before Officer Ventola arrived in response to the 911 call. Thus, although Nikolas could have exhibited seizure-like activity due to pain, Dr. DiCarlo rejected the notion that the injuries the child sustained were caused by a seizure.

Dr. Craig also testified at trial as a witness for the State. She concurred with Dr. DiCarlo's opinion that Nikolas's injuries had to have occurred on the morning of November 30, 2005. She agreed that the child would not have been able to walk with the injuries he sustained to his spine. Dr. Craig also rejected the notion that the administration of CPR could have caused such a severe fracture, or that a seizure could have caused a hairline fracture to become a full fracture. On cross-examination, Dr. Craig acknowledged that, "depending on the original injury," it was "possible" to destabilize a hairline facture of the spine if a child is picked up around the back area.

With respect to the abdominal injuries, given defendant's statement that Nikolas was in good health shortly after 8:00 a.m., Dr. Craig ruled out the possibility that the child bled overnight from injuries he sustained the previous night. Dr. Meloff also testified for the State and likewise concurred with the opinions expressed by the other two physicians.

D

Although defendant exercised his constitutional right to remain silent, his defense counsel presented the testimony of several character witnesses, including his sister, uncle, and former employer. To rebut the State's theory of culpability, defense counsel called forensic pathologist Dr. Michael Baden, a medical examiner employed by the New York State Police, who appeared in this case as a private physician.

Defense counsel sought to have Dr. Baden admitted as an expert witness in the field of forensic pathology and as an expert in "battered child syndrome." The court conducted an N.J.R.E. 104 hearing to determine the witness's capacity to offer medical opinion testimony in the two areas identified by defense counsel.

Dr. Baden testified that he had performed over 20,000 autopsies and has been admitted as an expert witness in courts throughout New York, mostly on behalf of law enforcement agencies in that State. Dr. Baden also indicated that he has written a number of articles concerning child abuse and has performed a number of autopsies of children who have died of abuse or showed signs of physical abuse. The court admitted Dr. Baden as an expert in forensic pathology, but found insufficient evidence to permit the jury "to hear anything about child abuse syndrome."

Dr. Baden agreed with Dr. DiCarlo's assessment of the cause of death. He did not agree, however, with Dr. DiCarlo's conclusions regarding the timing of Nikolas's injuries. Dr. Baden opined that the child fractured his back when he fell in the bathroom on Sunday night or at some other point before the bump was discovered on Monday evening.

According to Dr. Baden, Nikolas sustained his abdominal injuries the night before his death because his fracture was situated below the end of the spinal cord, was stable, and was therefore unlikely to have caused him extreme pain or made it difficult for the child to move around. Dr. Baden believed that the autopsy was inconclusive as to whether the abdominal hemorrhaging began one or many hours before defendant discovered the child in distress. Dr. Baden maintained that the bleeding could have stopped and started over a period of time, and that the prolonged CPR may have caused more bleeding.

II

Against this record, defendant now appeals, raising the following arguments:

POINT I

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE FAILED TO RELEASE N.C.'S DYFS RECORDS AFTER AN IN CAMERA REVIEW.

 

POINT II

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE FAILED TO RELEASE R.R.'S JUVENILE AND RESIDENTIAL RECORDS AFTER AN IN CAMERA REVIEW.

 

POINT III

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE DISQUALIFIED DR. MICHAEL BADEN AS AN EXPERT IN THE FIELD OF CHILD ABUSE/BATTERED CHILD SYNDROME.

 

POINT IV

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT II OF INDICTMENT 08-02-252 AT THE CLOSE OF THE STATE'S CASE AND J.N.O.V.

 

A. THE EVIDENCE PRESENTED AT TRIAL DID NOT ESTABLISH THAT DEFENDANT WILLFULLY FAILED TO PROVIDE PROPER AND SUFFICIENT MEDICAL ATTENTION.

 

B. THE EVIDENCE PRESENTED AT TRIAL DID NOT ESTABLISH THAT DEFENDANT KNOWINGLY FAILED TO EXERCISE A MINIMUM DEGREE OF CARE.

 

 

 

POINT V

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE DENIED DEFENDANT'S MOTION FOR A NEW TRIAL/MISTRIAL PREMISED UPON A DISCOVERY VIOLATION.

 

POINT VI

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE DENIED DEFENDANT'S MOTION FOR A NEW TRIAL/MISTRIAL DUE TO THE STATE'S IMPROPER REMARKS DURING ITS SUMMATION.

 

POINT VII

 

JUDGE NIEVES COMMITTED HARMFUL ERROR WHEN HE EXCESSIVELY SENTENCED THE DEFENDANT TO A FLAT SEVEN (7) YEAR CUSTODIAL TERM.

 

The jury's verdict acquitting defendant of first degree aggravated manslaughter and second degree endangering the welfare of a child by inflicting physical injury upon Nikolas by other than accidental means renders the arguments expressed in Points I, II, and III moot. Any alleged error associated with the exclusion of evidence concerning whether Nikolas may have been physically abused by a person other than defendant is no longer relevant.

The principal question raised in this appeal concerns the sufficiency of the evidence presented by the State to sustain the jury's verdict as to count two, which charged defendant with making Nikolas "an abused or neglected child" within the meaning of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 by willfully failing to provide him with medical care in a reasonably timely fashion after having assumed responsibility for his care. Defendant argues that the trial court erred when it denied his motion for a judgment of acquittal at the close of the State's case, and again when it denied his motion for a judgment of acquittal notwithstanding the verdict. We disagree.

Rule 3:18-1 permits a defendant to move for a judgment of acquittal at the close of the State's case or after the evidence from all parties have been closed. The court shall grant the motion if the evidence is insufficient to warrant a conviction. The trial court must determine "'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). The same standard applies to a motion for a judgment of acquittal notwithstanding the verdict. State v. Palacio, 111 N.J. 543, 550 (1988).

N.J.S.A. 2C:24-4(a) defines the offense of second degree endangering the welfare of a child as follows:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c. 119, 1 (C. 9:6-8.21) is guilty of a crime of the second degree.

 

[(Emphasis added).]

 

The indictment alleged that defendant caused the child harm that would make him an abused or neglected child by

willfully failing to provide proper and sufficient medical attendance and/or did fail to exercise a minimum degree of care in supplying [the child] with adequate medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, thereby making [the child's] physical condition impaired.

 

This language is derived from N.J.S.A. 9:6-1, which defines neglect of a child to include, among other things: "willfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment. . . ." (Emphasis added). N.J.S.A. 9:6-8.21(c) also defines the abuse or neglect of a child to include the failure by a parent or guardian to provide the child with "medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so."

Defendant argues that the evidence produced at trial did not establish that he willfully failed to properly attend to Nikolas's medical crisis. He maintains that Nikolas's symptoms would not have necessarily alerted him, an individual without any medical training, that Nikolas was in need of immediate medical intervention. According to defendant, no rational jury could find that, under these circumstances, his delay of two to fifteen minutes before dialing 911 was unreasonable.

The record does not support defendant's argument. Dr. DiCarlo testified that Nikolas sustained a fracture of his spine between his second and third lumbar vertebrae with associated ligament rupture. This caused approximately thirty percent of the child's total blood supply to pool into his abdominal area, resulting in a clearly visible distention of his abdomen. Most importantly, Dr. DiCarlo concluded that these injuries were not related to the fall on the bathroom floor, but were the product of some kind of blunt force trauma that occurred thirty to sixty minutes before Officer Ventola arrived in response to defendant's 911 call. This evidence supports the jury's verdict that, having assumed responsibility for the care of this child, defendant's delay in seeking emergency medical attention amounted to child neglect as defined in N.J.S.A. 9:6-1.

The jury's verdict is also supported by the testimony of Dr. Craig, who not only agreed with Dr. DiCarlo's assessment of the mechanics of the injuries - that the child would have been in excruciating pain and unable to walk with the injuries he sustained to his spine - but also rejected the notion advanced by defense counsel that the administration of CPR could have caused such a severe fracture or that a seizure could have caused a hairline fracture to become a full fracture.

Finally, the jury also could have been persuaded that forty-five minutes or more passed between when defendant discovered Nikolas allegedly seizing in his crib and when defendant finally dialed 911, based upon: (1) the timing of the call from the Division of Unemployment; (2) the fact that it took forty-five minutes of CPR; and (3) the fact that Nikolas's body temperature had plummeted to 87 degrees by the time he reached the hospital.

We next address defendant's argument in Point V that the trial court committed reversible error when it denied his motion for a mistrial as a sanction for the State's discovery violation. The following are the salient facts with respect to this argument.

On the morning Nikolas died, Rosol wrote a note to defendant directing him to be careful with the child's back and to remember to bring certain articles of the child's clothes to Snook's house. Rosol did not locate this note before or during defendant's first trial.

Rosol later found the note among her son's possessions before the commencement of this trial and presented it to the trial prosecutor during a meeting at Snook's house. The State was unable to locate the note before the trial started. Rosol did, however, describe the contents of the note during defense counsel's re-cross-examination:

DEFENSE COUNSEL: And just going back to that Tuesday evening before your son passed away, you told the jury that you told Rob Knutsen that you were concerned about if he touched that spot that be careful.

 

ROSOL: Yes.

 

DEFENSE COUNSEL: But you went even further than that, didn't you?

 

ROSOL: I'm sorry?

 

DEFENSE COUNSEL: You went even further than that, didn't you?

 

ROSOL: What do you mean?

 

DEFENSE COUNSEL: Well, the next morning when you got up and you saw Nikolas sleeping you even went as far as to write a note?

 

ROSOL: Yes, I did.

 

DEFENSE COUNSEL: And you wrote a note to Rob specifically because you were concerned about the back of your child.

 

ROSOL: That was part of it. I also left a note to ask him to, you know, grab a few things for Nikolas to bring to my grandmother's but yes, I did tell him to be cautious of his back.

 

DEFENSE COUNSEL: The reason why you did that is because you wanted to reinforce with him that you were concerned about his back?

 

ROSOL: I was concerned that he would touch the lump and Nikolas was hurting when you touched it.

 

DEFENSE COUNSEL: And the lump was located on your son's back?

 

ROSOL: On the lower right-hand side, yes.

 

DEFENSE COUNSEL: Did you ever turn that note over to the police?

 

ROSOL: I'm sorry?

 

DEFENSE COUNSEL: Did you ever turn that note over to the police?

 

ROSOL: Yes.

 

DEFENSE COUNSEL: You did?

 

ROSOL: Yes.

 

Rosol subsequently explained that midway through the trial, and after the State had concluded its case, she and Snook found the note between the cushions of the sofa on which she and the prosecutor had been sitting during their pretrial meeting. According to Rosol, she immediately provided the note to the prosecutor, who furnished it to the defense. The prosecutor then moved to re-open the State's case so that the note could be admitted into evidence.

Defense counsel characterized Rosol's prior inconsistent testimony, that she had given the note to a representative of the State, as a "fabrication of evidence." Counsel viewed this as a last minute attempt by the prosecutor to get this evidence admitted despite the "potentially criminal" and "highly objectionable" testimony by Rosol as to how it had been turned over to the State. Counsel then moved for a mistrial, which the court took under advisement pending the outcome of a N.J.R.E. 104 hearing on the matter.

After hearing from Rosol (who reiterated the series of events pertaining to the note and confirmed she had believed that the note had been misplaced while in the State's custody), and Snook (who described finding the note between her sofa cushions), the court denied defendant's motion for a new trial and admitted the note. The court found that the note was merely cumulative evidence with respect to the question of whether Nikolas had a pre-existing back injury. On the question of prejudice to the defense, the court viewed the note as favorable to defendant because it supported the theory advanced by Dr. Baden that the child fractured his back when he fell in the bathroom on Sunday night or at some other point before the bump was discovered on Monday.

The court also offered defense counsel the opportunity to call any witness who could testify as to the mishandling of the note by the State. Accordingly, the defense subsequently elicited testimony from Rosol, Snook, and a State's investigator regarding how the note came to be discovered this late into the trial.

In deciding whether due process was violated as a result of the State's suppression, loss, or destruction of physical evidence in a criminal trial, a court should consider the following three factors: (1) whether there was bad faith on the part of the State; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced as a result of the loss or destruction of the evidence. State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (citations omitted).

Here, there was no evidence before the trial court that the State acted in bad faith. As correctly noted by the trial court, defendant was not prejudiced by the late production of the note because its contents had already been described by Rosol during her testimony, and the State's investigator had confirmed the existence of the note in his own testimony. Finally, the note was ultimately produced in sufficient time to be used effectively at trial to bolster defendant's case. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984) (no denial of due process occurs if material is disclosed in time for its effective use at trial).

Defendant argues in Point VI that the trial court erred in denying his motion for a mistrial based on the impropriety of certain remarks made by the prosecutor in the course of her summation. Specifically, the prosecutor made the following statement to the jury:

Dr. Baden testified in murder [cases] between people who know each other the police are usually right.8 Talk to rush in judgment [sic]! That was Dr. Baden's words [sic] in 1989 and that's what he said to you here yesterday. I submit to you, members of the jury, that the police were right in this case, and I submit to you that when you go back there and you look at that evidence you will be firmly convinced, firmly convinced, not any doubt.

 

[(Emphasis added).]

 

The prosecutor also noted as part of her summation that character witnesses called by the defense were "people who say nice things" about defendant. Finally, the prosecutor claimed that the "undisputed evidence" showed the injuries to the child's back were not accidental or caused by his fall in the bathroom, but were the result of "blunt force trauma to his abdomen." Defense counsel did not object contemporaneously to the uttering of the remarks, nor at the end of the prosecutor's summation. Counsel moved for a mistrial only after the judge had completed charging the jury. The judge denied the motion after the jury's verdict, noting that the remarks did not deprive defendant of his right to a fair trial.

A motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969). The decision to deny a motion for a mistrial is within the sound discretion of the trial judge and will only be reversed on appeal for abuse of this discretion. State v. Winter, 96 N.J. 640, 647 (1984) (citations omitted). A conviction may only be reversed based on prosecutorial misconduct where the misconduct is so egregious in the context of the trial as a whole as to deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

We discern no basis to conclude that the trial court erred in denying defendant's motion for a new trial based on the conduct of the prosecutor. Although the comment made by Dr. Baden and emphasized by the prosecutor during her summation was clearly improper and devoid of any probative value, this isolated and fleeting comment did not deprive defendant of a fair trial.

Finally, defendant argues in Point VII that the sentence imposed by the trial court was excessive. In sentencing defendant to a term of seven years without any period of parole ineligibility, the court found under N.J.S.A. 2C:44-1(a) aggravating factor: (1), the nature and circumstances of the offense, and the role of defendant therein, including whether or not the crime was committed in an especially heinous, cruel, or depraved manner; aggravating factor (2),9 the gravity and seriousness of the harm inflicted on the victim; and aggravating factor (9), the need for deterrence. Under N.J.S.A. 2C:44-1(b), the court found two mitigating factors in favor of defendant: mitigating factor (7), that defendant did not have a history of prior delinquency or criminal activity and had led a law-abiding life for a substantial period before the commission of the present offense, and, mitigating factor (8), that defendant's conduct was the result of circumstances unlikely to recur.

Our review of a sentence imposed by a trial court is limited to determining whether the court erred in the exercise of its discretionary authority and its finding of the relevant aggravating and mitigating factors in N.J.S.A. 2C:44-1. State v. Pierce, 188 N.J. 155, 166, 169-70 (2006). In discharging this responsibility, we must determine

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

 

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

 

Mindful of these principles, we discern no legal basis to interfere with the sentence imposed by the trial court.

Affirmed.

 

1 Defendant was also Nikolas's godfather.

2 A test to detect problems in the electrical activity of the brain. EEG: Medline Plus Medical Encyclopedia, nlm.nih.gov http://www.nlm.nih.gov/medlineplus/ency/article/003931.htm (last visited April 25, 2011).

3 Rosol gave the following description of how she changed her son's diaper: "Just laid him down, put his feet together by the ankles, pulled him up, wiped him clean, put the diaper underneath, put some cream on his butt, put his butt down and brought the diaper up and attached the Velcro." Through this process, any physical signs of injury to the child's lower body would have been clearly visible.

4 In response to the prosecutor's question, Dr. Radhakrishna explained that, depending on the amount of bleeding, a patient suffering from internal bleeding would be in shock, have low blood pressure, and look pale.

5 Although he did not testify at trial, defendant gave a statement to the State's investigators on December 1, 2005, the day after Nikolas's death.

6 Follow up investigations conducted by the police after this interrogation confirmed that on November 30, 2005, defendant telephoned the State Division of Unemployment at 9:03 a.m. and received a telephone call from a representative of this State agency at 9:42 a.m., which lasted two minutes.

7 In a statement to State investigators later in the evening on the day of the child's death, defendant indicated that he went to check on Nikolas in response to "gargling" and "moaning" noises. When defendant entered the child's room, Nikolas "appeared to be in the middle of a seizure." According to defendant, the child's arms were "tight and tense and his eyes were closed." The child's mouth and entire body were "very clenched."

8 This statement was based on Dr. Baden's testimony during the State's cross-examination in which the prosecutor questioned him concerning a statement he included in a book he authored in 1989 titled "Unnatural Death, Confessions of a Medical Examiner." Dr. Baden noted in the book that "in murders between people who know each other the police are usually right." Defense counsel did not object to the prosecutor's question.

9 In finding aggravating factor two, the court emphasized that Nikolas was particularly vulnerable due to his youth and that he ultimately died following defendant's failure to timely provide him with medical attention.