STATE OF NEW JERSEY v. J.P.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.P.G.,

Defendant-Appellant.

June 2, 2015

Submitted October 1, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-11-2712.

Joseph E. Krakora, Public Defender, attorney or appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant J.P.G. was convicted of seconddegree sexual assault, N.J.S.A. 2C:14-2(c)(1), and thirddegree criminal sexual contact, N.J.S.A. 2C:14-3(b).1 He was sentenced on March 26, 2012, after merger of the offenses, to nine years and six months imprisonment subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).2 Appropriate fines and penalties were imposed. He now appeals and we affirm.

The facts can be briefly summarized. On July 31, 2010, defendant's niece A.R. came home from a party at approximately 10:00 p.m. A.R. lived with defendant, his wife, and their three children. She and another family member sat on the living room couch and watched a movie; she fell asleep before the movie ended. At trial, she testified that during the early morning hours of August 1, she awakened to find defendant touching her back and asking why she was sleeping in the living room. He massaged A.R.'s shoulders, which she said was not unusual. He then put his hand underneath her shirt, unhooked her brassiere and rubbed her breasts. A.R. asked him to stop, but defendant continued. He then pulled down her pants and put his fingers in her vagina. The victim, who had repeatedly told her uncle to stop, was able to push him away when he put his penis in her face.

Defendant's only witness was his daughter V.G. She testified that she had attended a party with A.R. earlier that evening. She had observed the victim drinking over the course of the several hours.

After the defense rested, the judge released the jury and conducted a charge conference, during which the prosecutor commented "I didn't know if we put it on sidebar or already about the defendant's election not to testify?" The judge and defendant then engaged in the following colloquy

THE COURT: No, we need to . . . do that, actually. We didn't do that and the defendant closed. . . . [S]o let's do that now because we could still let him testify tomorrow.

[Defendant], do you understand you have a right to testify?

THE DEFENDANT: Yeah.

THE COURT: [A]nd you have discussed that with your attorney, [] what is included with that?

THE DEFENDANT: Uh-huh.

THE COURT: I'm sorry?

THE DEFENDANT: Yes.

THE COURT: Okay. And, [h]ave you had enough time to think about your decision about whether or not to testify?

THE DEFENDANT: Yeah, I wanna think about it.

THE COURT: I'm sorry?

THE DEFENDANT: Let me think about it.

THE COURT: I can't hear you.

THE DEFENDANT: I wanna think about it.

[PROSECUTOR]: He wants to think about it, I believe he said.

THE COURT: You wanna think about it?

THE DEFENDANT: Yeah, like don't

THE COURT: I'm sorry. You didn't have enough time to think about it?

THE DEFENDANT: Yeah, I had time.

[PROSECUTOR]: Oh, you had time.

THE COURT: You had time to think about it?

THE DEFENDANT: Yeah.

THE COURT: I'm sorry?

THE DEFENDANT: Yes.

THE COURT: Okay. I asked earlier whether an interpreter was necessary for this trial.

Do you feel like you need an interpreter?

THE DEFENDANT: No.

THE COURT: You understand everything I'm saying?

THE DEFENDANT: Yeah.

THE COURT: Okay. So did you discuss with [defense counsel] the issue of whether or not you should testify?

THE DEFENDANT: Yes.

THE COURT: Did you have enough time to talk to him about it?

THE DEFENDANT: Yes.

THE COURT: Did you have enough time to think about it?

THE DEFENDANT: Yeah.

THE COURT: And what was your decision?

THE DEFENDANT: No.

THE COURT: No what?

THE DEFENDANT: I no testify.

THE COURT: That you don't want to testify. Okay.

The judge in her final charge included the instruction regarding a defendant's election not to testify. Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009).

In sentencing defendant, the court noted that on the six prior occasions that defendant was arrested, he had been charged with sexual assaults and attempted luring. His two prior convictions were for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) and 2C:14-2(c)(1), and fourth-degree child abuse, N.J.S.A. 9:6-3. She also noted that the Avenel report, which found that defendant was not a compulsive offender, stated that he had attempted suicide after the charges were brought against him, and that he might have severe psychiatric problems. The court added, however, that it did not find his mental health issues to be a mitigating factor. The judge found aggravating factor two, because the victim's family relationship to defendant made her vulnerable; aggravating factor three, because there was a risk of re-offense; and aggravating factor nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(2), (3), (9). She found no mitigating factors.

On appeal, defendant raises the following points for our consideration

POINT I

THE COURT BELOW EFFECTIVELY DEPRIVED [DEFENDANT] OF HIS RIGHT TO TESTIFY WHEN IT IGNORED HIS REQUESTS FOR ADDITIONAL TIME TO MAKE HIS ELECTION AS TO WHETHER HE WOULD TESTIFY ON HIS OWN BEHALF. (U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. []) ART. I, PARS. 1, 10). (Not Raised Below).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

The decision whether or not to testify is "essential to our state-based concept of due process of law." State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005) (quoting State v. Savage, 120 N.J. 594, 628 (1990)). That fundamental principle is not in dispute. Nor is it disputed that "when a defendant is represented by counsel, the court need not engage in a voir dire on the record to establish defendant's waiver." Ibid. The court's responsibility is merely to confirm with counsel whether he or she has advised the defendant regarding the right to testify. Ibid. This is in part because a defendant's exercise of his right to testify is also a waiver of his right to avoid self-incrimination. Savage, supra, 120 N.J. at 629-30.

We do not consider defendant's description of the colloquy with the trial judge regarding his right to testify to be a fair characterization. He claims that she ignored his request for additional time in which to ponder his decision whether to testify. On the contrary, when the court asked defendant point blank if he wanted to think about his right to remain silent, defendant reversed course, acknowledged he had been given sufficient time to consider the decision, and discussed it with his attorney. He restated his initial decision not to testify.

The substance of defendant's appeal is that the trial judge "badger[ed] [] defendant" into waiving his right to testify on the spot when his language skills were limited. We simply do not agree that the trial court did more than attempt to extract from defendant a definite position with regard to his right to testify.

We also note that the court mentioned, when defendant appeared to be having some difficulty in responding to her questions, that she had "asked earlier whether an interpreter was necessary for this trial," and asked again whether defendant "need[ed] an interpreter." Defendant then responded that he did not believe he needed an interpreter, that he had had enough time to talk to his attorney regarding his decision not to testify, and that he had had enough time to think about the decision.

The trial court fulfilled its responsibility in this case. The court confirmed that counsel had discussed the right to testify with defendant, defendant confirmed that he had had sufficient time to consider his decision after discussing it with his attorney, and he reiterated that he did not believe he needed an interpreter. Accordingly, we find this point to be lacking in merit because it is not supported by the record. See R. 2:11-3(e)(2).

Defendant's remaining point is that his sentence is manifestly excessive because the court erroneously found aggravating factor two when the victim was neither elderly, in ill health, nor extremely young. As the judge explained it, she found that factor because the familial relationship made A.R. particularly vulnerable or incapable of resisting defendant's unwanted advances. The victim, as the court characterized it, was in an "almost foster[-]father relationship," living in "her aunt's family as one of the children." Thus the record supports the finding of aggravating factor two, which includes whether the victim "was for any [] reason substantially incapable of exercising normal physical or mental power of resistance." N.J.S.A. 2C:44-1(a)(2). See State v. O'Donnell, 117 N.J. 210, 218-19 (1989).

Defendant also contends that the court should have found mitigating factor four based on his mental health issues. It is undisputed that defendant attempted to commit suicide while incarcerated. It is also undisputed that the Avenel report references his mental health issues and the fact that he appeared to be suffering from some form of psychosis. The record does not, however, include reference to any prior mental health difficulties on the part of the defendant. Even though "the trial court should view a defendant as he or she stands before the court on the day of sentencing," State v. Jaffe, 220 N.J. 114, 124 (2014), the evidence before the trial court in this case did not compel the conclusion that defendant's mental health issues were serious enough to require a finding of mitigating factors. Even had the court found mitigating factor four based on defendant's mental health history, we are not convinced that would have affected the ultimate sentence imposed, as the judge gave great weight to aggravating factor three because of defendant's prior criminal history, and concluded "that the aggravating factors overwhelming[ly] outbalance the mitigating factors." Although there were no mitigating factors found, it was clear from her statement that the judge considered the aggravating factors to carry very substantial weight that warranted imposition of a sentence at the higher end of the range.

We review sentencing decisions, not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the sentence does not shock our conscience, the result will be upheld. Ibid. We conclude that the aggravating and mitigating factors found by the judge are supported by the record, the sentence complies with the Code, and the term imposed does not shock our conscience in light of defendant's past history.

Affirmed.

1 Prior to trial, the State dismissed count three of the indictment, which charged defendant with third-degree attempted sexual assault, N.J.S.A. 2C:14-2(c)(1) and 2C:5-1.

2 Despite the fact the prosecutor mentioned it in his statement to the court at sentencing, defendant's term of imprisonment was not made subject to NERA. At a second proceeding on February 22, 2013, the sentence was corrected and made subject to NERA as required by law.