STATE OF NEW JERSEY v. W.B

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5269-07T45269-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.B.,

Defendant-Appellant.

_______________________________________

 

Submitted November 16, 2009 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0721.

Timothy R. Smith & Associates, L.L.C., attorney for appellant (Steven J. Kaflowitz, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged by a Passaic County grand jury with aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(c) (count one); sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4) (count two); endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count three); and aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(2)(c) (count four). Defendant was tried before a jury and found guilty on all charges.

At sentencing, the trial court merged counts two and four with count one and imposed a ten-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a consecutive, five-year sentence on count three.

Defendant appeals from the judgment of conviction entered by the trial court on June 17, 2008. For the reasons that follow, we affirm defendant's convictions and the sentence imposed on count one, but remand for re-sentencing on count three and for further review of the award of jail credits.

I.

We briefly summarize the relevant facts. On January 1, 2005, at approximately 4:00 a.m., J.C. spoke with D.L., his former girlfriend. She told him that defendant, who is her stepfather, had sexually abused her. According to J.C., D.L. was "hysterical" and "crying a lot." On January 12, 2005, Passaic County Prosecutor's Office (PCPO) received a referral from the Division of Youth and Family Services (DYFS), which indicated that D.L. was being sexually abused by her stepfather.

Donna Gade (Gade), the supervisor of the PCPO's Special Victims Unit, immediately commenced an investigation. Later that evening, Gade and other detectives from her unit went to defendant's home. Gade was met by G.R., who is D.L.'s mother and defendant's wife. Gade informed G.R. that the PCPO had received information regarding a "family problem." G.R. told Gade that defendant was not at home.

G.R. contacted defendant and he returned home about fifteen or twenty minutes later. Gade met defendant outside of the house and said that she was interested in speaking with him regarding a "family problem[.]" Gade asked defendant if he would accompany the detectives to the prosecutor's office. Defendant agreed. G.R. also agreed to go with D.L. to the prosecutor's office. Gade transported G.R. and D.L. Defendant rode with other detectives in another car. They arrived at the prosecutor's office around 11:00 p.m.

At the PCPO, defendant was placed in the polygraph room. D.L. and G.R. were placed in separate rooms. Gade interviewed D.L. She said that on two separate occasions, defendant had penetrated her vagina with his fingers and his penis. D.L. said that, after these two incidents, defendant stopped touching her in a sexual manner.

Sometime between 12:27 a.m. and 1:40 a.m., D.L.'s statement was typed. D.L. reviewed the statement and placed her initials on the top and bottom of each page. D.L. then signed and swore to the truthfulness of her statement before Detective Matthew Gallup (Gallup). At approximately 2:10 a.m., after D.L. signed her written statement, Gade took defendant to an interview room for questioning. Defendant was not handcuffed and Gade was not armed.

Gade provided defendant with Miranda warnings, using the PCPO's Miranda rights and waiver form. Gade read each right to defendant and asked defendant if he understood what she said. Defendant replied that he understood and placed his initials after each right listed on the form, indicating his understanding of his rights. He also signed the "waiver of rights" portion of the form.

Gade then interviewed defendant. Defendant answered Gade's preliminary questions and she said that he was "very comfortable." Gade then informed defendant that she had learned that defendant had engaged in inappropriate conduct with D.L. According to Gade, defendant was "very shocked" and denied that anything inappropriate had occurred. Defendant said that he would never do anything to hurt D.L. and she was like his "own child."

Gade told defendant that D.L. said that defendant had sex with her. Gade testified that, at first, defendant "was shocked." After sitting for a while and thinking, defendant told Gade that "yeah, you know, I do remember a time when I did have sex with her." Defendant stated that he had been drunk, came home, went to D.L.'s room, crawled into D.L.'s bed and had sex with D.L.

Defendant agreed to provide Gade with a written statement. Gade left the room and returned with an individual who typed defendant's responses to her questions. Gade also videotaped defendant's statement. In his statement, defendant acknowledged that he had sexual relations with D.L. twice.

Defendant stated that, on both occasions, he placed his fingers and penis in D.L.'s vagina. Gade asked defendant how she treated him that evening and he said Gade treated him "with kindness and care." After defendant's statement was taken, it was printed and given to defendant for review. Defendant placed his initials on the top of bottom of each page and signed at the end. Gade and Gallup signed the statement as witnesses.

At the trial, D.L. testified that the statement she gave to the investigators was false. She said that she was in love with J.C. at the time and defendant and G.R. did not approve of the relationship. D.L. stated that if she could not be with J.C., she would claim that defendant sexually abused her so that defendant and her mother could not "be together."

Defendant also testified at trial. He said that on January 12, 2005, he left work at around 5:00 or 5:30 p.m. and went to a "social club." Defendant drank two beers and two "shots" of gin. Defendant left the club about thirty to forty-five minutes later, went to his home and returned to the club to play with a band. Defendant said that he drank four more drinks and a "couple of shots[.]"

Defendant left the club around 10:00 or 10:15 p.m. As defendant was leaving, he received a phone call from G.R., who said that someone was at their house looking for him. Defendant returned home at approximately 10:15 or 10:30 p.m. A police car was in the driveway. He said that one of the police officers grabbed him and told him to put his hands against the wall. The officers patted him down and put him into the police vehicle. Defendant asserted that he did not have an opportunity to refuse to get into the car.

Defendant further testified that he was taken to the prosecutor's office, placed in a room and told to wait there. The door to the room was locked, but he was allowed to leave the room to go to the bathroom. Defendant said that he was kept in the room for about two or two-and-a-half hours and then taken to another room.

Defendant also said that he was "tired" and "tipsy" and tried to "keep [his] cool[.]" According to defendant, Gade entered the room and told him to sign a paper. Defendant believed the paper was the Miranda form. Defendant stated that he did not remember if he understood his rights because he had never seen a form like that before.

Defendant additionally testified that Gade told him that D.L. had provided a statement indicating that defendant had sex with her. Defendant denied the allegations but Gade kept repeating the details "over and over again[.]" He said that Gade told him that he had to tell her what she wanted to hear "because that's the only way we can all go home." Defendant testified that he was "tired" and "just wanted to go home." He stated that he eventually told Gade "what she wanted to hear[.]"

As stated previously, defendant was convicted of aggravated sexual assault, sexual assault, endangering the welfare of a child and aggravated criminal sexual contact. Defendant thereafter filed a motion for a new trial, arguing that the jury's verdict was against the weight of the evidence. On June 17, 2008, the trial court denied the motion and defendant was sentenced.

On appeal, defendant raises the following issues for our consideration:

POINT I

DEFENDANT'S CONFESSION WAS THE PRODUCT OF AN ILLEGAL ARREST AND WAS NOT VOLUNTARY.

A. Defendant Was Unlawfully Arrested At His Home.

B. Defendant's Arrest Was Not Supported by Probable Cause.

C. Defendant's Confession Was Not Sufficiently Attenuated To Purge the Taint Of The Illegal Arrest.

D. Defendant's Confession Was Not Voluntarily, Knowingly and Intelligently Given.

POINT II

THE CHARGE REGARDING CHILD SEXUAL ABUSE ACCOMODATION SYNDROME WAS ERRONEOUS (NOT RAISED BELOW).

POINT III

THE STATE ELICITED TESTIMONY FROM ITS CSAAS EXPERT BEYOND PERMISSIBLE LIMITS.

POINT IV

THE COURT SHOULD HAVE ISSUED AN ADVERSE-INFERENCE INSTRUCTION REGARDING DETECTIVE GADE'S FAILURE TO PRESERVE HER INITIAL NOTES (NOT RAISED BELOW).

POINT V

THE FRESH COMPLAINT TESTIMONY FROM D.L.'S EX-BOYFRIEND SHOULD NOT HAVE BEEN ADMITTED.

POINT VI

THE PROSECUTOR'S SUMMATION DENIED DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).

POINT VII

THE COURT ERRED IN REPLAYING DEFENDANT'S VIDEOTAPED CONFESSION FOR THE JURY DURING DELIBERATIONS.

POINT VIII

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IX

THE COURT SHOULD REVIEW THE RECORDS NOT DISCLOSED TO DEFENSE COUNSEL.

POINT X

THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES (NOT RAISED BELOW).

II.

Defendant first argues that his statement to the police was the result of an illegal arrest and was not given voluntarily, knowingly or intelligently. We disagree.

A person is seized within the meaning of the Fourth Amendment to the United States Constitution when "'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Stovall, 170 N.J. 346, 355 (2002) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)). In deciding whether a "seizure" has occurred, the court must determine whether it is objectively reasonable to infer, based on the totality of circumstances, that the individual is free to leave. State v. Davis, 104 N.J. 490, 498 (1986).

Here, defendant maintains that he was forced to accompany the detectives to the PCPO. He asserts that he was patted down and placed in the rear seat of the detectives' vehicle. However, Gade testified that that she told defendant that the detectives wanted to discuss a "family matter" with him and defendant voluntarily agreed to go with them to the PCPO. In its written opinion addressing defendant's suppression motion, the trial court found that Gade's testimony was credible and defendant was not "coerced, forced or otherwise influenced to accompany" the detectives to the PCPO.

We must defer to the trial court's findings of fact where, as here, the findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). Deference to the trial court's factual findings is warranted in this case because the findings were "'substantially influenced by [its] opportunity to hear and see the witnesses and to have the "feel" of the case[.]'" Ibid. (quoting Johnson, supra, 42 N.J. at 161).

Although the trial court found that defendant voluntarily agreed to go with the detectives to the prosecutor's office, the court nevertheless found that defendant had been "seized" within the meaning of the Fourth Amendment after he entered the detectives' vehicle. Indeed, Gade had testified that, once defendant was in the vehicle, he was in police custody and "not free to leave."

It is clear that, when defendant got into the detectives' vehicle, the investigators did not have probable cause to take him into custody. At that time, the investigators did not have a "'well-grounded suspicion that a crime [had] been or [was] being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).

Nevertheless, defendant's seizure became lawful after D.L. gave her sworn statement to the police because the law enforcement officers then had probable cause to believe that defendant sexually assaulted D.L. Furthermore, defendant was not questioned and did not give his statement until after the detectives had probable cause to hold him in custody. Thus, defendant's confession was not the result of an illegal arrest.

Defendant additionally contends that his confession was not given voluntarily, knowingly and intelligently. The State bears the burden of proving, beyond a reasonable doubt, that a defendant's waiver of Miranda rights was knowing, intelligent and voluntary. State v. Presha, 163 N.J. 304, 313 (2000).

In determining whether the State has met its burden, the court must consider "the totality of the circumstances[.]" State v. Nyhammer, 197 N.J. 383, 402 (2009). In making this determination, the court may consider such factors as "the defendant's 'age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Ibid. (quoting Presha, supra, 163 N.J. at 313).

In its written opinion on defendant's motion to suppress, the trial court stated that:

[w]hen [defendant] was escorted at around 11:00 p.m. to the PCPO headquarters, he was not under arrest, not restrained and in no manner under duress. He enjoyed pleasant conversation with the officers in the vehicle and was placed in an office upon arrival at headquarters. The office . . . is a standard six feet by six feet, windowless room containing a table and chairs. There were no trappings of restraint or police-work such as handcuffs, bars or other weapons. While [defendant] was waiting in the room, he was able to use the restroom, if he so chose, he was able to walk freely within the room and he even read an entire People Magazine. Granted, the [d]efendant had to wait over three hours to be interviewed and he did not eat or drink at all during that time, that length of time does not pose a problem for the [c]ourt. The officers were conducting multiple interviews with the victim, the victim's mother and others to determine what role, if any, the [d]efendant had in the DYFS referral.

The [d]efendant was not questioned in any way until he was moved to an interrogation room with a video camera to record the proceedings. At that point, he was read his Miranda rights by . . . Gade, which [defendant] subsequently waived, and the interrogation leading to his confession began. This [c]ourt reviewed the videotaped confession and found no improprieties by the officers. There was no coercion, force or threats made toward the [d]efendant for him to confess.

Defendant argues, however, that he was intoxicated and in a "sleep-deprived state" when he was taken into custody. He contends that interrogation room was "intimidating" and he was held there for five hours. Defendant notes that he was not provided with anything to eat or drink and he was not able to communicate with anyone other than the police. He maintains that, during the interrogation, he repeatedly denied that he sexually abused D.L. and Gade "continually press[ed] the issue until" he gave in and "told the detective what she wanted to hear."

The trial court rejected these contentions and after considering the totality of circumstances, found that defendant's confession was the result of a voluntary, knowing and intelligent waiver of his Miranda rights. The court's findings of fact and conclusion of law are supported by sufficient credible evidence in the record. Locurto, supra, 157 N.J. at 471. We have reviewed the videotape of defendant's confession and it supports the court's finding that defendant was not threatened or coerced into confessing to the sexual assaults.

Defendant additionally argues that the law enforcement officers should have provided new Miranda warnings before videotaping his confession. Defendant notes that he was informed of his Miranda rights at the start of his interrogation but more than an hour-and-a-half passed before his statements were videotaped.

However, once a defendant has been provided with his Miranda rights, they need not be repeated, in the absence of some intervening event. Nyhammer, supra, 197 N.J. at 401. Here, there was no intervening event of any significance between the initial interview and the taping of defendant's statement that required a repetition of the Miranda warnings.

We therefore conclude that defendant's statement was not the result of an unlawful arrest and the record fully supports the trial court's determination that defendant gave his statement after voluntarily, intelligently and knowingly waiving his Miranda rights.

III.

Defendant next argues that the trial court erred by permitting the State's expert on Child Sexual Abuse Accommodation Syndrome (CSAAS), Dr. Richard Frank Coco (Coco), to offer testimony that "amounted to an expert opinion that D.L.'s initial allegations against defendant were nearly certainly true."

In State v. J.Q., 130 N.J. 554 (1993), the Court explained that CSAAS does not "'detect sexual abuse'" but assumes the presence of sexual abuse and "'explains the child's reactions to it.'" Id. at 579 (quoting John E.B. Meyers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 67-68 (1989)). The syndrome provides an explanation for why some sexually abused children delay reporting abuse, recant allegations of abuse and assert that nothing improper occurred. Ibid. (citing Myers, supra, Neb.L.Rev. at 67-68).

In J.Q. the Court held that CSAAS testimony must be "limited to explaining why 'the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.'" Id. at 580 (quoting People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886, 890-92 (1988)). The trial court must instruct the jury "that the expert's testimony is not intended to address the ultimate question of whether the victim's molestation claims are true and must admonish the jury not to use the testimony for that purpose." Ibid. (citing Bowker, supra, 203 Cal. App. 3d at 388, 249 Cal. Rptr. at 887.

In this case, Coco testified that he never interviewed D.L. nor reviewed her statements to the police. Coco said that he did not know anything about the facts of this case and he was testifying only about CSAAS. He stated that he did not have any opinion "one way or the other" as to whether CSAAS applied to D.L.

Coco further testified that his clinical research revealed that very few children lie about sexual abuse "and sometimes we're not even sure whether it was an actual lie or just something that was stopping them from telling us everything that was there." On cross-examination, Coco testified as follows:

Q. And you would concede, as you sit here today, that there are people even children who do falsely report sexual abuse, correct?

A. Yes, people do that, children do that, but the great majority of them do not.

On re-direct examination, the prosecutor asked Coco about the frequency with which children falsely report sexual abuse. Defendant's attorney objected to the question but his objection was overruled. The trial court stated that defense counsel had opened the door to that line of inquiry. Coco then testified that:

the research is pretty clear that the great majority of children do not lie about [sexual abuse]. Of course the research is going to differ in what the actual percentage is of that. So you know, you might be anywhere from five percent of children are found to lie to [ten] percent, but it's hard to get a real number on that. But the great majority of children do not lie about the sexual abuse.

In J.Q., supra, 130 N.J. at 554, the State's expert offered an opinion as to whether the victims in that case were victims of sexual abuse. Id. at 578. The Court held that such testimony was improper because "CSAAS is not relied on in the scientific community to detect abuse." Ibid. The Court stated that the State's expert had improperly offered opinions with regard "basic factual issues, including truth-telling" that "transgressed the purpose for which CSAAS testimony is admissible." Id. at 582.

We are convinced that the trial court erred by permitting Coco to testify on direct examination that few children falsely report sexual abuse and by permitting Coco to state on re-direct that five to ten percent of children lie about sexual abuse. In our view, such testimony went beyond that permitted by J.Q. Although the trial court ruled that Coco had "opened the door" to the re-direct testimony by cross-examining Coco on this issue, the fact remains that the State first elicited this improper testimony from Coco.

Nevertheless, we are satisfied that the error was harmless. As we have pointed out, Coco testified that he had never interviewed D.L. or reviewed her statements. He stated that he had no opinion on whether CSAAS applied to her. Coco's assertion that "the great majority of children" tell the truth when reporting sexual abuse was not an opinion on D.L.'s veracity.

We are therefore convinced that it is unlikely Coco's assertion had a significant impact upon on the jury's assessment of D.L.'s trial testimony, in which she denied that defendant sexually assaulted her. Here, the State presented extensive evidence which supported a finding by the jury that D.L. was telling the truth when she previously stated that she had been sexually assaulted by defendant.

As we have explained, D.L. told J.S. that defendant sexually assaulted her twice. She repeated those allegations in her statement to the police. In addition, defendant admitted having sexual relations with D.L. on two occasions. Viewing the record as a whole, the admission of Coco's testimony that a "great majority" of children tell the truth about sexual abuse was not an error that was "clearly capable of producing an unjust result." R. 2:10-2.

Our decision in State v. Abronski, 281 N.J. Super. 390 (App. Div. 1995), aff'd, 145 N.J. 265 (1996), is instructive. There, the expert offered "generalized statements regarding behavior often found in sexually abused children and did not render an opinion regarding [the victim's] credibility or truthfulness." Id. at 403. We rejected defendant's argument that the State's expert "improperly bolstered" the victim's credibility by opining as to credibility and trustworthiness of children's statements regarding sexual abuse. Ibid. As in Abronski, Coco did not "improperly" bolster the victim's allegations.

We therefore conclude that the trial court erred by permitting Coco to testify that children infrequently lie about sexual abuse but the error was harmless.

IV.

Defendant additionally argues that the trial court's instruction on CSAAS was erroneous. This issue was not raised at trial. Therefore, we must determine whether the charge was erroneous and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2. See also R. 1:7-2 (which states that, except as otherwise provided in R. 1:7-5 and R. 2:10-2, party may not argue that jury instructions are erroneous unless an objection is raised before the jury retires to consider its verdict).

As defendant concedes, the charge used in this case was based upon the model jury instruction. See Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation Syndrome" (2004). Defendant argues that charge was flawed because the court told the jury that it "may not automatically conclude" that D.L.'s testimony was untruthful based on her "delayed disclosure." Defendant contends that this statement is inconsistent with the jury's unquestioned role in assessing witness credibility. We do not agree.

We note initially that this portion of the charge is derived from State v. P.H., 178 N.J. 378, 400 (2004). We also note that in its general instructions to the jury, the trial court specifically instructed the jurors that they were the "judges of the facts" and had responsibility for determining the credibility of all of the witnesses. Viewing the jury instructions in their entirety, we are satisfied that the jury was correctly informed that it had the authority to weigh the credibility of all of the witnesses, including D.L., and determine what weight, if any, to give to their testimony.

Defendant also argues that the CSAAS charge was flawed because the court instructed the jury that its deliberations "should be informed" by the CSAAS testimony. Defendant says that this was a "directive" that the jury must accept the CSAAS testimony and "filter its view of the case through that testimony." Again, we disagree. This portion of the charge is also derived from P.H., supra, 178 N.J. at 400. Defendant's objection to this portion of the charge is without merit because it merely instructs the jury to consider the CSAAS testimony. It is not a directive requiring the jury to accept the testimony.

Defendant further contends that, by stating that the jury may not automatically conclude that D.L.'s testimony was untruthful based on her "delayed disclosure," the charge "reinforced for the jury the notion that D.L.'s initial allegations were the truth." This contention fails because this part of the charge did not in any way suggest that D.L.'s initial allegations of sexual abuse were true.

Indeed, in its other instructions, the court told the jury that it should consider D.L.'s trial testimony in light of her prior inconsistent statement. The court stated, among other things, that D.L.'s prior statement, which had been given under police interrogation:

must be carefully examined and assessed in light of all the surrounding circumstances, including her interest in giving the statement at that time. If you decide that the statement is reliable then you may consider it for its truth and . . . weigh it along with all the other evidence in the case. However, if you decide that the statement is not reliable then you may not consider it for any purpose.

We therefore reject defendant's contention that the trial court's instruction to the jury on CSAAS was erroneous.

V.

We turn to defendant's argument that the trial court erred by admitting to the testimony of D.L.'s former boyfriend that D.L. told him on January 1, 2005, that defendant had sexually abused her. Defendant argues that, because D.L.'s statement related to sexual assaults that began three-and-a-half months earlier, they cannot be considered "fresh complaint" evidence.

The "fresh complaint rule" has been applied to sexual abuse cases. State v. Hill, 121 N.J. 150, 163 (1990). It allows the introduction into evidence of a victim's statement that she has been sexually abused if it is: made to someone the victim "would ordinarily turn to for support[,]" made "within a reasonable time after the alleged assault[,]" and is "spontaneous and voluntary." The determination as to whether a victim's statement meets these criteria for admissibility is committed to the sound discretion of the trial court. Id. at 167-68.

Defendant concedes that J.C. is a person to whom D.L. would ordinarily turn for support and he does not dispute that D.L.'s statement to J.C. was spontaneous. Defendant argues, however, that D.L. failed to inform J.C. of the sexual abuse within a reasonable time. The requirement that the victim report an alleged sexual assault within a reasonable time must be "applied more flexibly in cases involving children than in [cases] involving adults." State v. L.P., 352 N.J. Super. 369, 382 (2002). "In deference to children's special vulnerability to being cajoled and coerced into remaining silent by their abusers, courts allow children additional time to make a fresh complaint." State v. Bethune, 121 N.J. 137, 143 (1990).

At the time of the sexual assaults, D.L. was about fourteen years old. She was living with her mother and defendant, who was her stepfather. Thus, D.L. was under defendant's care and control when she was assaulted and for the period of time she delayed in reporting the abuse. D.L. told J.C. that she did not tell anyone about the sexual assaults because she was frightened.

We are satisfied that, based on these facts, D.L. informed J.C. of the sexual assaults within a reasonable time. Therefore, we conclude that the trial court did not abuse its discretion by admitting J.C. testimony as to what D.L. said to him as "fresh complaint" evidence.

VI.

Defendant further argues that the trial court erred by denying his motion for a new trial. Defendant contends that the jury's verdict was against the weight of the evidence. Defendant notes that D.L. recanted her initial statement to the State's investigators and testified at trial that he was innocent. Defendant maintains that D.L.'s trial testimony was credible and demonstrates that "this crime did not happen[.]"

A trial judge in a criminal case "may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. However, the trial judge may not:

set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

[Ibid.]

A trial court's order denying a new trial as against the weight of the evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

We reject defendant's contention that the verdict in this case represents "a manifest denial of justice under the law." R. 3:20-1. Although D.L. testified that her initial statement to the State's investigators was false, the jury was not bound to accept that testimony. In our view, the State presented sufficient evidence, from which a rational jury could find beyond a reasonable doubt that defendant committed the charged offenses. That evidence included D.L.'s initial statement to the investigators, J.C.'s testimony as to what D.L. told him and defendant's confession.

VII.

Defendant raises several other issues in challenging his conviction. He argues that: the trial court erred by failing to issue an "adverse-inference instruction" regarding Gade's failure to maintain her initial notes; certain statements made by the prosecutor in his summation denied defendant a fair trial; the court erred by re-playing defendant's videotaped confession for the jury during its deliberations; and the court erred by failing to order the disclosure of D.L.'s DYFS records and the prosecutor's files pertaining to D.L.'s "dismissed accusation" that she had been sexually abused by her cousin. In our judgment, these arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

VIII.

Defendant further maintains that the trial court abused its sentencing discretion by imposing a consecutive sentence for the conviction of engendering the welfare of a child. Defendant notes that the factors to be considered in imposing consecutive sentences are spelled out in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308, (1986). Defendant argues that all of the Yarbough factors "point to a concurrent sentence." He also argues that the trial court erred by failing to provide reasons for imposing a consecutive sentence.

We recognize that when a defendant is convicted of sexual assault and endangering the welfare of a child, the trial court has the discretion to impose a consecutive sentence for the endangering conviction. See State v. Miller, 108 N.J. 112, 118 (1987). However, in this case, the trial court failed to specifically address the Yarbough factors in deciding whether to impose a consecutive sentence. We therefore remand the matter to the trial court for re-sentencing on count three.

Defendant additionally points out that when the trial court sentenced defendant, it stated on the record that defendant was entitled to 241 days of jail credits. The judgment of conviction entered on June 17, 2008, awards defendant 236 days of jail credits. We remand the matter to the trial court for further review of the number of jail credits to which defendant is entitled.

Accordingly, we affirm defendant's convictions and the sentence imposed on count one for aggravated sexual assault. We remand the matter to the trial court for re-sentencing on count three and for further review of the award of jail credits.

 
Affirmed in part, remanded in part. We do not retain jurisdiction.

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

(continued)

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A-5269-07T4

RECORD IMPOUNDED

December 28, 2009