STATE OF NEW JERSEY v. I.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

I.S.,

Defendant-Appellant.

December 20, 2016

Submitted October 13, 2016 Decided

Before Judges Alvarez and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-02-0315.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erica M. Bertuzzi, Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant I.S. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree child endangering, N.J.S.A. 2C:24-4(a) (count two); and fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count three).1 On May 8, 2015, the trial judge merged counts two and three into count one and sentenced defendant to seventeen years imprisonment subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition to mandatory assessments and penalties, the judge imposed a $10,000 fine. Defendant appeals. We affirm the conviction, but remand for resentencing.

The charges stem from defendant's sexual intercourse with J.U., his then-girlfriend's fourteen-year-old daughter. At the time, J.U., her mother, and her younger brother lived with defendant. J.U.'s mother had lived with defendant for two or three years before the children came from Mexico to join her, months prior to the first sexual assault.

J.U., who was twenty-five years old when she testified, said that defendant sexually assaulted her once in the family home, and the second time at his job. On the second occasion, defendant walked her to a nearby factory where he worked, and assaulted her on the floor. During this incident, defendant hit J.U. repeatedly with a ringed hand and told her he was going to use the ring to leave a mark on her face. She did not report the incidents at the time because she was afraid of defendant.

J.U. discovered she was pregnant a few months after the second assault, after defendant was no longer living with the family. J.U. identified a friend from school as the baby's father because she continued to fear defendant. The child was born when she was fifteen. Eventually, J.U. dropped out of high school in order to support him, and had a second child. She never spoke to defendant about the boy as she did not want him to have contact with her son. In 2008, defendant unsuccessfully attempted to see the child while he was at daycare.

J.U. finally reported the sexual assaults on December 7, 2012, because she lost her job and grew frustrated about the difficulty of supporting her children on her own. DNA testing established that defendant was the father of the child J.U. conceived at age fourteen.

In addition to J.U.'s testimony, the State also introduced defendant's sworn statement regarding the charges. The officer who drove defendant, while handcuffed, to the interview testified that he could not answer defendant's questions during the trip because he knew nothing about the investigation.

Once at the station, the interviewing officer, Hudson County Prosecutor's Office Detective Carla Espinel, introduced herself after defendant had been sitting alone, left arm cuffed to a chair, in an interview room for some twenty minutes. She told defendant that the Prosecutor's Office "investigate[d] sexual abuse cases of minors and adults and also child abuse." Espinel advised defendant that he was about to be interviewed about J.U. The recorded interview continued

Q: Ok. She was your daughter you had a relationship with her mother [M.]? It's been years. I know it's been many years.

A: [J.U.] I don't even remember. Oh I think she lived on [] right?

Q: Yes, you lived with them several years.

A: Yes, I lived there yes. Tell me what happened?

Q: Ok, well before I am to tell you something obviously you are under arrest but I would like to speak with you so you can tell me your side of the story. . . .

A: Yes, yes but then I would like to know who is she accusing me of that?

Q: But that's why before I say anything what I need to do is read you your rights ok.

A: Uhmn ok

Q: And these rights which I am going to read right there it reads that at any moment you can stop answering anything. But I can't talk about that before I tell you your rights.

A: No I'll answer everything that is necessary. Yes

Q: Okay. Perfect before that I'm going to ask for your general information your name and address I am going to introduce myself. I am going to tell you where you are and read your rights.

Next, the officer elicited contact and other basic information, and read defendant his Miranda2 rights. He waived his right to remain silent and was placed under oath. Defendant was then asked questions regarding his relationship to J.U.

Defendant told Espinel the children arrived from Mexico when J.U. "was around 17 and 16." He claimed that upon turning eighteen, J.U. lived with him for about two years, but the child did not. He also said that J.U. had denied the child was his son. Defendant did not know her true age, although he admitted knowing she was not eighteen when they had relations.

After jury selection, but outside the presence of the jury, the judge conducted a hearing on defendant's motion to suppress the recorded interview. Although the judge did not directly respond to defendant's argument that he spoke with the detective solely to learn the nature of the charges, the judge did find that defendant knew he was under arrest from the moment he left his home. The judge held, based on the testimony and watching the videotaped interview, that the State proved beyond a reasonable doubt that defendant's waiver of his Miranda rights was knowing, intelligent, and voluntary.

At sentencing, the judge found aggravating factors three and nine, and mitigating factor seven. N.J.S.A. 2C:44-1(a)(3), (9), (b)(7). The judge opined that aggravating factor three applied because defendant did "not understand a grown man cannot engage in sexual relations with a child." For that reason, "until he understands and appreciates what is acceptable, there is a risk of another offense." He based his finding that aggravating factor nine applied on the need to deter defendant and others from this type of conduct. The judge observed that even after the trial, defendant continued to be oblivious to the wrongful nature of his conduct or the effect the assaults had on the victim.

Defendant's record consisted of six dismissed charges in municipal court, including simple assault and harassment, and charges of contempt of restraining orders that were disposed of in family court. Nonetheless, the judge found mitigating factor seven, that defendant had no criminal record per se. He concluded the aggravating factors substantially outweighed the single mitigating factor and imposed a seventeen-year sentence.

Other than stating that the aggravating factors substantially outweighed the mitigating factor, the judge did not explain the reason he imposed a term of imprisonment in the high end of the range. He also gave no reason for his imposition of a $10,000 fine.

On appeal, defendant raises the following issues

POINT I

BECAUSE DEFENDANT'S STATEMENT WAS NOT VOLUNTARILY MADE, THE COURT ERRED IN FINDING THE STATEMENT ADMISSIBLE. ITS ADMISSION INTO EVIDENCE AT DEFENDANT'S TRIAL DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. [], ART. I, [ ] 1).

POINT II

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON HOW TO CONSIDER J.U.'S APPROXIMATE EIGHT-YEAR DELAYED DISCLOSURE CONSTITUTED REVERSIBLE ERROR AND DENIED DEFENDANT THE RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. [], ART. I, [ ] 1). (Not Raised Below).

POINT III

THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

A. The Excessive Custodial Term.

B. The Excessive Fine.

I.

We first address defendant's claim that his statement should have been suppressed as involuntary because he waived his Miranda rights only in order to learn the reason for his arrest. Defendant does not suggest that he was misled, but that the interviewing officer's failure to explicitly advise him of the allegations in the complaint violated Miranda. See e.g. State v. A.G.D., 178 N.J. 56, 68 (2003).

In A.G.D., the Court explained that until a suspect is advised of his true status, "the State cannot sustain its burden . . . that the suspect has exercised an informed waiver of rights[.]" Ibid. In A.G.D., although the defendant was escorted to the station and interrogated by officers, he was not informed that the officers had earlier obtained a warrant for his arrest. Id. at 59. Nor was the defendant placed under arrest. Ibid. Although the officers told defendant they wanted to interview him about allegations that he had committed sexual assault against a child, they did not specify the charges. Ibid. The rationale behind A.G.D.'s holding is that if when interviewed a defendant is ignorant of his true status, he cannot intelligently assess the perils of his situation or make a fully informed decision regarding his right to remain silent. Id. at 68.

Unlike A.G.D., however, this defendant knew he was under arrest from the moment he left his home. He was handcuffed from that point until his interview. Although the officer who drove him there knew nothing about the charges, that was a function of the officer's unfamiliarity with the case, not a deliberate withholding of information intended to trap the unwary. See State v. O'Neill, 193 N.J. 148, 180 (2007) ("The two-step, 'question-first, warn-later' interrogation is a technique devised to undermine both the efficacy of Miranda and our state law privilege . . . . we must set clear standards that will discourage law enforcement agencies from engaging in conduct that will deny a defendant subject to a custodial interrogation a true opportunity to assert his right against self-incrimination.").

Espinel told him at the outset of the interview that the Prosecutor's Office "investigate[d] sexual abuse cases of minors and adults and also child abuse." The detective then told him he was about to be interviewed about J.U. Espinel reiterated that defendant was under arrest and immediately transitioned into administering the Miranda warnings. Although the officer did not explicitly say "you are charged with the sexual assault of J.U.," defendant knew the essential information required to make an informed choice that he had been arrested, was in an office that investigated cases of child abuse, and was about to be interviewed regarding J.U.

The Court has explicitly rejected the notion that this or similar scenarios require application of a per se rule. Instead, we are instructed to apply the totality of the circumstances test. State v. Nyhammer, 197 N.J. 383, 405, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

In Nyhammer, the defendant initially believed he was being interviewed about another's complicity in a child abuse case, although the investigators knew the child had made claims against the defendant as well. Id. at 389-90. At the beginning of the interview, the defendant waived his Miranda warnings. Id. at 390. When the investigator began to ask questions regarding the child's allegations against him, he was not re-Mirandized.

The Court nevertheless affirmed the admission of the defendant's statements, employing the traditional totality-of-the circumstances test. Id. at 409-10. The Court relied upon the trial court's findings, like in this case, that defendant fully understood the nature of his rights and that no coercive tactics were employed. Ibid.

In this case, although it would have been preferable for the judge to explain his rejection of defendant's argument, he clearly stated that after watching the interview and reviewing the transcript of the statement, he was convinced defendant had made a knowing, intelligent, and voluntary waiver. We agree.

Our review of the statement establishes that defendant knew he was under arrest. He knew he was being interviewed regarding allegations of child sexual abuse involving J.U. It appears to us that the detective carefully avoided asking defendant questions until after Mirandizing him, not to trick him, but to make sure any answers of consequence would come post-Miranda. Thus, the State met its burden of proving beyond a reasonable doubt that defendant intelligently waived his Miranda rights.

II.

We turn to defendant's next point. Defendant did not request that the Model Jury Charge (Criminal), "Fresh Complaint: Silence or Failure to Complain" (2013) be given. He made no objection to the judge's charge. Thus we review this contention under the plain error rule. See R. 2:10-2.

Because defendant did not object to the trial court's jury instruction, we will disregard any error "'unless it is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). The error "must be sufficient to raise 'a reasonable doubt . . . as to whether [it] led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361 (2002)). A finding of plain error in jury instructions "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

In this case, the DNA evidence established, along with defendant's own statements, that he fathered J.U.'s child when she was fourteen years old. Thus it is not surprising that no one requested the instruction or that the judge did not give it sua sponte. The charge addresses the factors a juror can consider in deciding the credibility of the alleged victim about the sexual assaults.

This was a case in which the proof of sexual intercourse was not refuted. Because of the State's overwhelming DNA evidence, J.U.'s credibility was not an issue. To have given the charge in light of the proofs would not have aided the jury in their deliberations. Omission of the charge was not error.

III.

Finally, at sentencing, the judge observed that defendant neither appreciated the wrongfulness of his conduct or the effect the assault had on the victim. He found aggravating factor three in part because defendant did "not understand a grown man cannot engage in sexual relations with a child." As he put it, "until [defendant] understands and appreciates what is acceptable, there is a risk of another offense." He also found aggravating factor nine, the need to deter defendant and others from this type of conduct. Additionally, the judge found mitigating factor seven because defendant had no actual prior convictions. Finding that the aggravating factors substantially outweighed the single mitigating factor, without additional explanation he imposed a NERA seventeen-year term of imprisonment. Without any explanation, he also imposed a $10,000 fine.

Defendant contends that his risk of reoffense is low, if not non-existent, because of the eight-year time lag between the events at issue and his conviction. Thus, he argues, the judge erred in giving any weight to aggravating factor three.

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 judge 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 individual sentence does not shock our conscience, the result will be upheld. Ibid.

We agree with the judge that it is likely defendant does not appreciate the wrongfulness of his conduct. Nonetheless, lack of remorse for the commission of a crime is not a consideration in deciding whether aggravating factor three applies. State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985) (stating that "a defendant's refusal to acknowledge guilty following a conviction is generally not a germane factor in the sentencing decision."). That defendant was charge-free in the last eight years was not mentioned in the judge's sentencing analysis.

The judge presumably gave great weight to the need for deterrence, but general versus individual deterrence is not to be given great weight. See State v. Gardner, 113 N.J. 510, 520 (1989). The judge gave mitigating factor seven slight weight because of defendant's arrests in years past, which was within his discretion. See State v. Rice, 425 N.J. Super. 375, 382-83 (App. Div.), certif. denied, 212 N.J. 431 (2012).

Overall, however, the judge's lack of explanation for the sentence compels us to order a new sentence hearing. The judge must fully explain his reasons. Even if our review is highly deferential, more analysis of the statutory factors was required to justify the seventeen-year term.

N.J.S.A. 2C:44-2 authorizes the imposition of a fine, as the judge noted. But none of the statutory elements were discussed. Defendant did not obtain a pecuniary gain from his sexual relationship with the victim, nor was there any connection between the fine and the conduct. See N.J.S.A. 2C:44-2(a)(1). Defendant was about to be incarcerated for a seventeen-year NERA term, and therefore has a limited ability to pay. See N.J.S.A. 2C:442(a)(2). We therefore vacate the fine as well. Should the sentencing judge wish to reimpose this penalty, he must explain his reasons for doing so, tracking the statute.

Affirm, except we remand for resentencing.

1 Defendant was acquitted of count four, which charged him with third-degree terroristic threats, N.J.S.A. 2C:12-3(a).

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