STATE OF NEW JERSEY v. J.L. III

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2280-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.L., III,

Defendant-Appellant.

_______________________________________

June 24, 2013

Submitted April 9, 2013 - Decided

Before Judges Messano and Mantineo.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-03-00659.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant J.L., III, appeals from the judgment of conviction and sentence imposed following a trial at which the jury found him guilty of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two).1 The crimes were alleged to have occurred on November 1, 2008, when defendant's son, J.L., IV (Jimmy) was three months old.2 After review of the evidence in light of applicable legal standards, we affirm.

I.

We discern the following facts and procedural history from the trial transcripts.

C.S., Jimmy's mother, testified that on November 1, 2008, she and defendant were living in the Neptune Motor Lodge in Neptune, with Jimmy, who was then three months old. Defendant would drive C.S. to work at Dunkin Donuts in Wall Township each day. On November 1, 2008, when C.S. left for work, Jimmy was in "perfect condition." Shortly after arriving at work, C.S. was informed her hours had been reduced so she subsequently made a number of calls to defendant to pick her up. During one of those calls C.S. heard Jimmy screaming in the background; she testified at trial that it sounded as if he had gas pains.

When defendant was late in arriving, C.S. asked why it took him so long. Defendant stated that he pulled over to check on Jimmy after a "near car accident" on the highway. Defendant told C.S. Jimmy was fine, so she did not check on him. Later that evening, when Jimmy did not wake up at his usual feeding time, C.S. became concerned and tried to rouse him. When Jimmy did not respond to her tickling, C.S. noticed his eye was bulged.

The three drove to Jersey Shore Medical Center. Jimmy scored low on the Glasgow scale, which measures mental status, causing the doctors to intubate the child. A CAT scan showed bleeding on top of Jimmy's brain. A lack of oxygen to Jimmy's brain demonstrated general trauma. There was also substantial bleeding behind Jimmy's left retina.

Later that evening into early the next morning, Detective Sean Murphy of the Monmouth County Prosecutor's Office Sex Crimes and Child Abuse Unit conducted interviews of C.S. and defendant to investigate the cause of Jimmy's injuries. According to defendant, after he dropped C.S. off at work, he returned to the motel. Later, on his way to pick up C.S., he was cut off by another vehicle causing him to slam on his breaks. Defendant claimed he saw Jimmy's head go forward then backward when he abruptly stopped.

On November 19, 2008, Dr. Steven Kairys, a pediatrician and director of Jersey Shore Medical Center's child protection center, submitted a full report to the police. The report outlined Jimmy's multiple injuries and diagnosed the injuries as consistent with shaken baby syndrome. Dr. Kairys opined that the injuries suffered by Jimmy were inconsistent with a minor vehicle mishap with no collision. Dr. Kairys noted the only time he has seen such extensive injuries were in major motor vehicle accidents or cases involving shaken baby syndrome. As a result of his injuries, it is unlikely that Jimmy will ever walk or sit up independently. His debilitating medical condition requires him to live in a long-term care facility and his life expectancy is approximately five years.

After Murphy received Kairys' forensic evaluation report, he interviewed C.S. and defendant again. Defendant was Mirandized3 prior to the interview, which was interviewed without defendant's knowledge. The video was played during trial.

At one point during the interview, Murphy left the room and defendant called his parents. During the phone call defendant admitted to "doing stupid shit because [Jimmy] was crying." When Murphy returned, defendant admitted that he became frustrated and, in an effort to get Jimmy to stop crying, he bounced Jimmy on the bed for about five minutes. When this failed, defendant picked Jimmy up and shook him for approximately five minutes. Defendant also admitted that the "hard-breaking" incident never occurred.

On April 7, 2010, after a jury had been impaneled and C.S., Detective Murphy and Dr. Kairys had testified, defense counsel requested an adjournment in order to retain a medical expert on the issue of shaken baby syndrome. The court expressed concern regarding the timing of the application and denied the request.

Following a N.J.R.E. 104 hearing, the State introduced a nine-minute video of Jimmy at the long-term care facility that was shown to the jury. The State contended that the video was relevant to prove that Jimmy suffered serious bodily injury, an element of the aggravated assault charge. Defendant did not object to admission of the video.

At the conclusion of the trial, the jury found defendant guilty of endangering the welfare of a child. The trial judge sentenced defendant to eight years imprisonment with a three-year period of parole ineligibility. This appeal follows.

Defendant raises the following issues for our consideration:

POINT I

THE TRIAL JUDGE'S REFUSAL TO GRANT AN ADJOURNMENT TO PERMIT THE DEFENSE TO OBTAIN THE SERVICES OF AN EXPERT, WHICH THE JUDGE BASED ON HIS OWN INCORRECT AND INAPPROPRIATE "FINDING," DENIED THE DEFENDANT HIS RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND THE PRESENTATION OF A COMPLETE DEFENSE. U.S.CONST. AMENDS. VI AND XIV; N.J. CONST. ART. 1, 1, 9, 10

POINT II

THE ADMISSION OF A GRAPHIC AND DISTURBING VIDEO OF THE BABY, WHICH ADDED NOTHING TO THE PROOFS THE STATE WAS REQUIRED TO MEET, WAS AN ABUSE OF DISCRETION THAT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, 1, 10 (Not raised below)

POINT III

IN LIGHT OF THE CIRCUMSTANCES OF THE CASE AND THE DEFENDANT'S CHARACTER, THE SENTENCE IMPOSED ON HIM WAS EXCESSIVE AND MUST BE REDUCED. IN ADDITION, THE PERIOD OF PAROLE INELIGIBILITY SHOULD BE ELIMINATED.

II.

Defendant contends that by denying an adjournment so he could obtain an expert, the court usurped the role of the jury in making a finding that Jimmy suffered from shaken baby syndrome denying the defendant his right to due process. We are not persuaded by defendant's argument.

"The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. D'Orsi, 113 N.J. Super. 527, 532 (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)); see State v. Gallo, 128 N.J.L. 172, 174 (Sup. Ct. 1942), aff'd o.b., 129 N.J.L. 52 (E. & A. 1942) ("[t]he matter of postponement of a trial is one that is singularly within the sound discretion of the court"). An abuse of discretion only occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citation and internal quotation marks omitted).

A review of the record illustrates the trial court properly denied defendant's request for an adjournment. Trial counsel was assigned to the matter in June 2009 and knew from at least that time that the State's case was premised upon shaken baby syndrome. Yet, over the course of two years, defense counsel failed to retain an expert. At the plea cut-off conference on November 30, 2009, the court's order provided, "defendant will produce doctor to testify regarding type of injury[,]" however, the court was never advised that defendant had retained an expert until defense counsel's request for an adjournment mid-trial. Defendant did not provide the name of the expert or produce a report of the expert prior to opening statement. At the time of defendant's application for a continuance, no report from the proposed expert was provided to the court. Rather, defendant merely proffered that his expert would counter the report of the State's expert. Further, no reasonable explanation was offered by defendant for his failure to obtain an expert and provide a report in a timely manner.

Defendant contends the court denied the request based on the judge's stray remark in his ruling that "the experts are unanimous that his was a result of shaken baby." However, defendant misconstrues the significance of this remark as the judge clearly articulated the reasons for the denial were based on other factors. The court appropriately denied the adjournment based on the length of time defense counsel was in the case, the length of time defendant had been in jail, and the fact the court did not have a report nor proffer as to what the expert was going to say. We find no abuse of discretion by the trial court as the reasons provided serve as an appropriate basis for denying the request.

We note a trial court retains the "power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant." State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985) (citation omitted). At the time of the adjournment request the jury has already been empanelled and heard testimony from several of the State's witnesses. To allow an adjournment mid-trial under these facts would amount to a manipulation of the court's calendar.

III.

Defendant argues, for the first time on appeal, the video was unduly prejudicial to defendant and, as such, deprived him of his right to a fair trial. Again, we are not persuaded.

As an initial matter, because defendant did not object at trial, the plain error standard applies. R. 2:10-2.4 "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). "[I]f the error does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence, the conviction should not be impugned." State v. Simon, 79 N.J. 191, 207 (1979); see also State v. Lair, 62 N.J. 388, 392 (1973) (holding failure to give limiting instruction was harmless error based "largely upon the overwhelming nature of the testimony pointing to defendant's guilt").

Here, the video was submitted by the State to demonstrate serious bodily injury, an element of aggravated assault, N.J.S.A. 2C:12-1(b)(1). Ultimately, the jury was unable to reach a verdict on that charge, so clearly the video was not so unduly prejudicial as to cause an "unjust result" warranting a reversal. In addition, a review of the record supports the conclusion that the verdict of guilty on the charge of endangering the welfare of a child, N.J.S.A. 2C:24-4a was "supported overwhelmingly by properly admitted evidence[.]" Simon, supra, 79 N.J. at 207.

Moreover, even if the plain error standard did not apply, defendant's argument is still without merit in light of the relevant standard of review and rules of evidence. With respect to evidential rulings, our standard of review is abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007).

Here, the video was submitted by the State, without objection, and was relevant to demonstrate an element of a charged offense. Defense counsel describes the video as "extremely disturbing and graphic" serving "no purpose other than to inflame the passions of the jury." We reject defendant's argument, and, after reviewing the video, find the submission did not amount to an abuse of discretion.

IV.

Finally, we address defendant's challenge to his sentence. He argues the trial judge "improperly evaluate[d], consider[ed] and weigh[ed] the applicable factors[,]" and misapplied the aggravating and mitigating factors.

"The '[p]ronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Roth, 95 N.J. 334, 365 (1984)). As such, sentencing "triggers limited appellate review." Ibid. "'[W]hen reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court.'" Ibid. (quoting State v. Evers, 175 N.J. 355, 386 (2003)). However, a reviewing court must make sure that sentencing guidelines are not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 363-64 (1984). Stated differently,

[a]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.

[Cassady, supra, 198 N.J. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]

We have reviewed the transcript of the sentencing proceeding and find no evidence that the trial court neglected its obligation to explain its choice of the selected aggravating factors and excluded mitigating factor. Here, the judge found aggravating factors based on the risk that defendant might reoffend based on his lack of personal responsibility as well as the need to deter the defendant from resorting to violence when frustrated with their child. In finding various mitigating factors inapplicable, the court pointed to defendant's demeanor and lack of remorse throughout trial.

The judge described the nature of the crime and the long-term effects on the victim, reviewed and commented upon the severity of the defendant's actions upon his son, and appropriately balanced the multiple aggravating factors against the absence of mitigating factors. We detect no manifest injustice to serve as a basis to warrant interfering with the trial judge's assessment. SeeState v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate judges to refrain from second-guessing the discretion of sentencing judges).

Affirmed.

1 The jury was unable to reach a verdict on the charge of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one).

2 We have fictionalized the first name of defendant's son.

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

4 R. 2:10-2 states "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court."