STATE OF NEW JERSEY v. J.S

RECORD IMPOUNDED
                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1603-07T4



STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

J.S.,

     Defendant-Appellant.
________________________________

         Submitted September 30, 2009 - Decided April 15, 2010

         Before Judges Wefing and Grall.

         On appeal from Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 06-10-1466.

         Yvonne Smith Segars, Public Defender,
         attorney for appellant (William Welaj,
         Designated Counsel, on the brief).

         Bruce J. Kaplan, Middlesex County
         Prosecutor, attorney for respondent (Joie
         Piderit, Assistant Prosecutor, of counsel
         and on the brief).

PER CURIAM

     A jury found defendant J.S. guilty on eleven counts of an

indictment charging sexual offenses committed against his

daughters, E.S. and V.O., between Spring 2004 and July 17, 2006.

During that time, E.S. was under the age of sixteen and V.O. was

under the age of thirteen.   Defendant's convictions for crimes

against the children include: two counts of first-degree

aggravated sexual assault by penetration, one upon each child,

N.J.S.A. 2C:14-2a; four counts of second-degree sexual assault,

two against each child, N.J.S.A. 2C:14-2b, N.J.S.A. 2C:14-2c(1)

and N.J.S.A. 2C:14-2c(4); two counts of second-degree

endangering the welfare of a child by engaging in sexual

conduct, one for each child, N.J.S.A. 2C:24-4a; one count of

third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-

3a; and two counts of fourth-degree criminal sexual contact, one

for each child, N.J.S.A. 2C:14-3b.   Defendant was also convicted

of contempt of an order restraining him from the home the

children shared with their mother, N.O.   N.J.S.A. 2C:29-9.

    The judge merged defendant's convictions for sexual assault

and sexual contact against each child with his convictions for

first-degree aggravated sexual assault against each child.     He

was sentenced to two consecutive twelve-year terms of

incarceration for first-degree aggravated sexual assault, both

subject to periods of parole ineligibility and parole

supervision required by the No Early Release Act, N.J.S.A.

2C:43-7.2; two concurrent seven-year terms for second-degree

endangering the welfare of a child; and a consecutive three-




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month term for contempt.    Appropriate fines, penalties and

assessments were also imposed.

    Defendant and N.O. have four children.      When they met, N.O.

was fifteen.   Their first child was born when N.O. was eighteen.

E.S. was born in June 1991 and V.O. was born in October 1993.

    The testimony presented at trial, viewed in the light most

favorable to the State and with the benefit of all favorable

inferences, was adequate to permit the jurors to find defendant

guilty of the charges.

    Defendant was a strict parent who wanted his children to do

well in school and help at home.      As punishment, he required his

daughters to stay in their room, read rather than watch T.V. and

not use the telephone.     At times, the punishment was terminated

before the period initially stated by defendant expired.

    When his eldest daughter, E.S. was about thirteen,

defendant came to her room and told her that if she wanted to

return to her normal activities she would have to do what he

told her.   For that reason, she submitted to sexual conduct.

Between that first incident and the last, she was subjected to

digital penetration, touching of her vaginal area and breasts,

and she performed fellatio on defendant.      Although her mother

and brothers were often at home when these things happened, the

incidents were brief.




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    V.O. was ten when defendant had her engage in sexual

conduct to commute her punishment.     Thereafter, he abused her

almost every time she saw him.   The incidents involved touching

of her breasts and vagina and digital penetration.    On one

occasion defendant had V.O. touch his penis and on another he

attempted intercourse, which she resisted.     When she refused,

defendant told her he would marry her when she was eighteen.

    Although the children discussed defendant's conduct, they

kept it secret from everyone else for about two years.     Finally,

when V.O. asked her older sister to help her, E.S. told their

mother.   N.O. called the police.    Physical examinations of E.S.

and V.O. did not permit the examiner to substantiate or rule out

the sexual conduct defendant's daughters alleged.

    N.O. had obtained a restraining order against defendant in

2005.   Although she soon resolved to seek dismissal of the

order, she never did and despite its existence allowed defendant

to come to her home.

    Defendant testified and denied his daughters allegations.

He acknowledged that his children's education was very important

to him and that he probably was "a little too hard on them," but

he explained that he was pushing them "to do their best" and had

some success; both of his daughters "made the honor roll," one

with straight "A"s.    He explained that he punished them by not




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allowing them to go outside, use the phone or watch TV and

requiring them to stay in their room and read books.      He said he

usually told them the punishment would last a month, but "it

would only last like a week, two weeks."    When asked about the

early termination, defendant said it was "[b]ecause they would

be, they would be good, listening to their mother, doing the

chores in the house like they are supposed to . . . ."

    Defendant raises the following issues on appeal:

         I.     THE PROSECUTOR'S SUMMATION EXCEEDED THE
                BOUNDS OF PROPRIETY. (PARTIALLY RAISED
                BELOW).

         II.    THE TRIAL COURT ERRED IN DENYING
                DEFENSE COUNSEL'S MOTION FOR A MISTRIAL
                ARISING OUT OF TESTIMONY ELICITED BY
                THE PROSECUTOR CONNECTING THE DEFENDANT
                WITH PRIOR CRIMINAL CONDUCT.

         III. THE TRIAL COURT ERRED BY FAILING TO
              QUESTION A JUROR EXCUSED FOR CAUSE
              WHETHER SHE HAD CONVEYED HER STRONG
              PERSONAL BELIEF REGARDING THE
              DEFENDANT'S GUILT TO OTHER MEMBERS OF
              THE JURY PANEL.

         IV.    THE SENTENCE IMPOSED WAS MANIFESTLY
                EXCESSIVE.

         V.     PAGE ONE OF THE JUDGMENT OF CONVICTION
                MUST BE CORRECTED TO ACCURATELY REFLECT
                THE 12 YEAR TERM IMPOSED ON COUNT II
                RATHER THAN THE 15 YEAR TERM SET FORTH
                THEREIN.

    We have reviewed the record in light of the arguments

presented.    For the reasons stated below, no relief other than




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correction of the judgment of conviction to reflect the sentence

actually imposed is warranted.

     Reversal of a conviction on the basis of prosecutorial

error is appropriate when the prosecutor's improper argument was

"'clearly and unmistakably improper,' and . . . substantially

prejudiced defendant's fundamental right to have a jury fairly

                                        State v. Timmendequas, 161
evaluate the merits of his defense."

N.J. 515, 575 (1999) (quoting State v. Roach, 
146 N.J. 208, 219,

cert. denied, 
519 U.S. 1021 (1996)).    In assessing prejudice, we

must consider the judge's response to any objection raised and

assume that the jury followed curative instructions given by the

judge.    State v. Atwater, 
400 N.J. Super. 319, 335, 337 (App.

Div. 2008).   The ultimate question is whether the defendant was

deprived of a fair trial.    State v. Ramseur, 
106 N.J. 123, 322

(1987).

      Defendant's argument is based on several passages included

in the State's summation.    With respect to the argument on the

credibility of E.S. and V.O., defendant contends that in

suggesting reasons for the jurors to discount the importance of

the two-year period during which the children tolerated the

abuse without turning to their mother, the prosecutor relied on

a theory about which there was no evidence -- Child Sexual Abuse

Accommodation Syndrome.




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                                 6

         Things that you do not want to think about,
         that Dad sexually abused me. You want to
         bury that. You do not want to talk about
         it. You do not want to think about it. And
         here you have all these strangers coming at
         you, saying, What happened? What did he do
         next? Where did he do it? What happened?
         You do not want to think about it so you
         bury it.

              And delayed disclosure is a very common
         element in this kind of thing, especially
         young kids. They might tell you a little
         bit and then they might tell you a little
         bit more, and then they might tell you a
         little bit more. So it's not unusual.

    In response to defense counsel's immediate objection, the

judge sustained, reminded the prosecutor that there had been no

expert testimony and directed the jurors to disregard the

argument about delayed disclosure.

    Defendant also argues that the prosecutor vouched for the

children's credibility.   He points to the prosecutor's

observation that E.S. was "very candid, very credible as to when

she answered the questions."   In addition, he relies on a

portion of the summation addressing V.O.'s testimony:

              If [V.O.] was going to lie about
         something, I mean if she's going to make
         something up, she's asked did anything ever
         happen at the aunt's house, and she said no,
         nothing happened there. She, if she wanted
         her story to get better, wouldn't she have
         said yes, yeah, it happened there? And she
         didn't do that because she was telling the
         truth.




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       On defense counsel's prompt objection to that argument, the

judge directed counsel and the jury:

                All right, both of you have the right
           to argue to the jury what evidence they
           should consider and how they should consider
           it, just as normally you feel what's true.
           The jury will make their own evaluation as
           to what they heard and what is true, but you
           may argue what they should accept or not
           accept. That's within your right.

       There is no clear and unmistakable impropriety that could

have prejudiced defendant in light of the measures the judge

took to address the problems posed.    Although it was improper

for the State to suggest reasons for the children's delayed

report to their mother that were not supported by evidence

adduced at trial, the judge promptly directed the jurors to

disregard the argument.    With that exception, there is no clear

impropriety.    Most important, any danger of the jurors inferring

guilt based on facts not in evidence or the prosecutor's

argument on credibility was addressed by the judge's clear

instructions to the jurors.

       In short, there is no basis to conclude that the summation

deprived defendant of a fair trial.    Ramseur, supra, 
106 N.J. at
 322.

       Defendant's claim that the judge erred in denying his

application for a mistrial is based upon the prosecutor

eliciting N.O.'s testimony about her age at the time of the


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                                 8

birth of her first child.   The argument is that the testimony

was evidence of prior bad acts that should have been excluded

pursuant to N.J.R.E. 403 and N.J.R.E. 404.

    Recognizing the irrelevance of the testimony, the judge

denied a mistrial and in clear terms directed the jury to

disregard the evidence.

              Members of the jury, you've heard some
         testimony as to the age, when this witness
         got pregnant with one of her children. It
         is not relevant to the evidence in this case
         or to the issues that are before you in this
         case.

              I'm going to ask you to disregard that
         response. I'm going to ask the prosecutor
         to ask the next question.

    "Generally, 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).    When a

curative instruction will adequately address the prejudice, that

is the appropriate course of action.   See id. at 384.    Given the

nature of the testimony and the judge's decision to strike it,

there is no support for a conclusion that the course of action

the judge chose was an abuse of her discretion or that her

determination harmed defendant in any way.   State v. LaBrutto,


114 N.J. 187, 207 (1989).

    Defendant's final challenge to his conviction is based upon

an incident during the second day of jury selection.     A juror


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asked to address the judge at sidebar, expressed her concern

about value that she would lose on her bus pass if required to

serve on the jury and added that she would "definitely not be

impartial."     The judge asked why and the juror said "because I

am prejudiced."     The judge inquired about the source of the

prejudice.    This exchange followed:

         Just the fact that he looks like a white
         trash piece of garbage and walks in here
         with sneakers on I think he would absolutely
         do it and you just don't get charges against
         you like this for no reason and I totally
         would --

         [Defense Counsel]: Maybe she should be
         excused now before everybody hear's [sic]
         what she says, Judge. She is talking loud.

    The judge excused the juror.       Defense counsel asked the

judge to make additional inquiry as to whether the excused juror

had shared her opinion with other prospective jurors during the

lunch recess.    He made that request three times, but the judge

did not grant it.

    In response to the final request, the judge reiterated and

summarized her reasons:

         [Counsel], I said to you yesterday that it's
         not an uncommon experience that this court
         has when I refuse somebody on one count that
         they start to tell me how prejudiced they
         are. And whoever my defendant is, they turn
         around to look at the man or woman sitting
         at the table and say I look at them, and
         they've got guilty eyes. It is so very
         common. This woman was very explicit in her


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            statements, but it was no different than
            I've heard over and over again in dealing
            with jury selections.

                 I instructed this jury panel the first
            time they came in, the second time they came
            in, the third time they came in not to talk
            to each other about this case and not to
            talk with others. I assume that they
            listened to my instructions. I have no
            reason to doubt it. I have no reason to
            doubt this woman spoke to anyone else about
            her feelings. If they were that strong, I
            think she would have issued them first
            before telling me about her bus pass.

    A defendant has a right to be tried to a jury untainted by

prejudice, and the judge has an obligation to take appropriate

measures to protect that right in impaneling a jury.       State v.

Tyler, 
176 N.J. 171, 181 (2003).       Like other determinations

relevant to voir dire, the decision to grant or deny defense

counsel's request was one requiring an exercise of discretion by

the judge who had an opportunity to observe the events and the

                        State v. Papasavvas, 
163 N.J. 565, 595
prospective jurors.

(2000).

    There is no reason to disturb the course of action taken

here.     The judge had twice directed the prospective jurors not

to discuss the case, and there is no reason to assume that they

disregarded that mandate.     Moreover, after defense counsel and

the prosecutor acknowledged their satisfaction with the panel,

the judge again asked the members if they could be impartial.




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That additional effort to detect any juror who was not impartial

evoked no response.   Under the circumstances, we cannot conclude

that the judge abused her discretion in declining to inquire

further.

    As there is no reason to disturb defendant's conviction, we

consider his claim that his sentence is excessive.    Our

obligation is to determine whether the sentence is based upon

findings supported by competent and reasonably credible evidence

and whether the judge applied the sentencing laws and considered

the criteria for consecutive sentences established in State v.

Yarbough, 
100 N.J. 627, 643-44, cert. denied, 
475 U.S. 1014

(1986).    See State v. Bieniek, 
200 N.J. 601, 608-09 (2010);

State v. Cassady, 
198 N.J. 165, 180-83 (2009).

    This sentence comports with the sentencing laws and

Yarbough.    The presumption of incarceration applied because

defendant was convicted of two first-degree crimes.   N.J.S.A.

2C:44-1d.    The twelve-year sentences are at the lower end of the

range for crimes of the first degree, N.J.S.A. 2C:43-6a, and the

duration is based upon findings relevant to the statutory

aggravating and mitigating factors that are supported by the

record, N.J.S.A. 2C:44-1a-b.   The judge's decisions to have

defendant serve the sentences for first-degree crimes against

two victims consecutive to one another and a third consecutive




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                                 12

sentence for an unrelated crime of the fourth degree are not

inconsistent with the principles enunciated in Yarbough, supra,


100 N.J. at 643-44.   Accordingly, without principled basis for

concluding that the sentence is shocking to the judicial

conscience, we must affirm.   Bieniek, supra, 
200 N.J. at 612.

    Defendant's specific arguments about the judge's findings

on aggravating and mitigating factors lack sufficient merit to

warrant discussion.   R. 2:11-3(e)(2).

    The judgment of conviction includes a typographical error

that must be corrected.   The sentence for one of the two

aggravated sexual assaults is erroneously recorded as "15"

years.

    Affirmed and remanded for correction of the judgment.




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