STATE OF NEW JERSEY v. R.E.B

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2329-08T42329-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.E.B.,

Defendant-Appellant.

_______________________________________________

 

Submitted February 24, 2010 - Decided

Before Judges Graves, J. N. Harris and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-00140.

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

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, of counsel and on the brief).

PER CURIAM

On a retrial following a reversal by this court, State v. R.E.B., 385 N.J. Super. 72 (App. Div. 2006), the jury found defendant R.E.B. guilty of first-degree aggravated sexual assault of his biological daughter, J.B., and second-degree endangering her welfare. The trial court sentenced defendant to a ten-year prison term on the sexual assault charge and a consecutive five-year term on the endangering conviction. Defendant appeals. We affirm the conviction and sentence.

I.

The relevant facts developed at trial may be summarized as follows. J.B. was born in 1985 to M.O., her mother, and defendant. In 1987, R.B., J.B.'s younger brother, was born to M.O. and defendant. M.O. and defendant separated in 1990 and later divorced. After the separation, J.B. regularly visited the home of defendant, her paternal grandmother, K.S., her paternal step-grandfather, B.B., and her step-great-aunt, L.B. Defendant later married L.B., who was B.B.'s sister and defendant's step-aunt through his mother's marriage to B.B.

On November 30, 1993, B.B. was arrested for sexually assaulting J.B., pled guilty, and served a five-year sentence at the Adult Diagnostic and Treatment Center in Avenel, New Jersey. Following B.B.'s guilty plea to the charge of sexually assaulting defendant's daughter, defendant continued to live with B.B. Because defendant continued to associate with B.B. after he pled guilty to the sexual assault of J.B., M.O. prohibited J.B. from visiting defendant.

J.B. resumed visiting defendant at his new residence shortly after B.B. was incarcerated. M.O. would take J.B. to visit defendant for the weekend. J.B. typically spent Friday through Sunday with her father. J.B. testified defendant began having sex with her when she was "eight, nine, ten, maybe older" until she was "[b]etween thirteen and fifteen." She later testified the sexual assaults stopped occurring approximately in 1999 or 2000.

J.B. claimed defendant had sexual intercourse with her multiple times, generally when they were alone in defendant's new home together, although she could not remember how many times it happened. Defendant told J.B. not to tell anyone about their encounters, and gave her money, alcohol, cigarettes, and candy in an attempt to keep others from learning about the abuse.

Unlike the first trial, J.B. recalled three specific instances where her father sexually assaulted her, although she could not recall the dates or their chronological order.

One of the instances was when J.B. was in her room with no one else in the house. She was not wearing underwear nor pants. According to her, defendant "penetrated me and he got off on my stomach," after which he got a towel and "wiped it off" before leaving the room. She was on her back on the bottom bunk with her legs on the floor and her father was between her legs.

A second occurrence took place in defendant's bedroom which he shared with L.B. On that occasion, defendant was laying on his back on the waterbed and she was on top and "riding him" with his penis inside her. She did not recall if he ejaculated.

She described a third occasion involving a similar type of assault while she was lying on her back as the bunk beds were separated. Defendant ejaculated on her stomach, and she subsequently cleaned it off with a towel.

J.B. stated that the instances would last "until he got off." Once her father finished doing what he was doing, he "went about his day."

Before J.B. stopped visiting her father, she decreased the amount of time she would be alone at his residence. She asked one of her cousins to accompany her for the weekend in order to avoid being alone with him. She began working at Burger King which affected the amount of time she had to spend in his company. She did not tell anyone because she did not want to put her mother and brother through the same experience they had been through before involving B.B.

J.B.'s cousin, H.O., testified that on January 18, 2002, J.B. told H.O. about defendant's sexual assaults against her. At that time, H.O. and J.B. were living and working together, shared a room, and had a "very close" relationship. When revealing her father's sexual assaults, J.B. became "really upset" and "kind of shut down," then "curled up into a ball

. . . . she was just crying and crying . . . . [H.O.] just kept asking her what happened . . . she wouldn't say anything more than that." H.O. claimed J.B. "said that she had never told anybody" and "wanted [H.O.] to keep it a secret." However, H.O. testified that she repeated to M.O. what J.B. had told her and later the police came to investigate.

H.O. testified J.B. was "very upset" and "a little bit" angry with her for failing to keep J.B.'s secret, but "forgave" H.O. and "understood why [H.O.] did it." J.B. testified she made H.O. promise not to tell anyone, and now wished she had never trusted H.O. with the information. J.B. also testified she was afraid for her mother's health after learning about the sexual assaults and that the news would destroy her family. J.B. claimed her father's sexual abuse "was something [she] had every intention of going to the grave with. Nobody would have ever known."

After H.O. revealed to M.O. what J.B. had told her, M.O. confronted J.B., and J.B. admitted defendant had sexually assaulted her. M.O. testified that J.B. was "frantic," "devastated," and "didn't want anybody to ever know. She didn't want her father to be in trouble. She didn't want me to be upset. She had the weight of the world on her." In response to hearing that defendant had sexually assaulted their daughter, M.O. "started shaking uncontrollably and couldn't breathe and passed out on the floor." J.B.'s maternal grandmother called an ambulance, which soon arrived along with the police. J.B. provided a statement to the Lower Township Police the same day, January 19, 2002, indicating that defendant had repeatedly sexually assaulted her. J.B. was sixteen years old at that time.

On January 25, 2002, the Lower Township Police arrested defendant and transported him to police headquarters, where he signed a waiver of rights form and provided a ninety-minute statement during which he was questioned by two detectives. The detectives' interrogation tactics included providing false information to defendant that J.B. had passed a polygraph test as to her allegations and that she was suicidal and might harm herself if defendant did not confess.

While speaking with Detective Keywood of the Lower Township Police Department, defendant stated, "If it happened it must have been while I was drunk or something otherwise I don't remember. I really wish I could." In response to a detective's direct question regarding J.B.'s accusation, defendant answered, "Probably when I was drunk, if it did happen." Although defendant claimed, "Honestly inside . . . . No, I don't think nothing happened[,]" when the detectives stated, "so we're not doubting that your daughter is telling the truth here," defendant responded, "No, I'm not doubting my daughter."

Defendant later stated, "If it gets figured out and I do realize yeah I did touch my daughter, it's just, I don't know how I'm going to deal with it. How's she going to deal with it . . . . She'll probably never speak to me again." He also told Detective Keywood he could not think of any reason that J.B. would falsely accuse him of sexual assault, and claimed he would "get some counseling . . . . to get to the bottom of this."

M.O. and J.B. subsequently contacted defendant and spoke with him together by telephone. M.O. and J.B. confronted defendant with J.B.'s allegations. Defendant initially denied ever having done anything sexual with J.B., but during the conversation, he asked J.B. if he was drunk when the sexual assaults occurred.

At trial, defendant denied that he ever sexually assaulted J.B., but acknowledged that when he provided a statement to the Lower Township Police, he believed he had done something sexually inappropriate with J.B. and he apologized to J.B. for that reason. Defendant testified his written statement accurately reflected the information he had provided to the police, but claimed he only stated it was possible the sexual assaults occurred "before [he] knew the severity of the charges."

Following defendant's arrest, J.B.'s paternal grandmother, K.S., and paternal aunt, S.B., allegedly pressured J.B. and her younger brother, R.B., to conceal defendant's sexual assaults against J.B. R.B. testified that his family asked him whether he had seen anything suspicious happening between defendant and J.B., and he "lied" because he "felt pressured" and did not want to "have to deal with animosity" from his father's side of the family.

At trial, R.B. testified to an incident he witnessed when he was about ten years old, in which he observed his sister "standing crying" and naked in the bathroom while her father was also in the bathroom. He claimed he heard his father's voice, and "didn't think anything of it" at the moment, but acknowledged that he later became "suspicious of what [he] saw" once he grew older.

Defendant's family members also pressured J.B. to retract her allegations against defendant. K.S. and S.B. scheduled an appointment for J.B. with Dr. William Hankin, a psychiatrist, and purportedly coerced J.B. into telling Dr. Hankin defendant was innocent and she had lied about the sexual assaults. J.B. testified her statement to Dr. Hankin that defendant never sexually abused her was a lie that she told in an attempt to gain acceptance from her family and protect her father.

Based on his interactions with J.B. and her aunt, S.B., during their meeting, Dr. Hankin subsequently wrote a letter to defendant's first trial attorney indicating that J.B. had formally recanted her allegations against her father and was now claiming defendant was innocent. Dr. Hankin testified he showed J.B. a copy of that letter on March 30, 2004, and she approved its contents.

Pursuant to the remand from this court, defendant sought to introduce evidence challenging the victim witness's credibility by introducing (1) evidence that J.B. made a prior false criminal accusation, and (2) evidence of J.B.'s virginity and lack of sexual knowledge after the onset of the alleged abuse. R.E.B., supra, 385 N.J. Super. at 82, 86. The trial court held a N.J.R.E. 104 hearing prior to the retrial to address these issues and ruled the testimony inadmissible. These arguments will be discussed in connection with defendant's Points I and II infra.

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

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ELICIT TESTIMONY THAT THE VICTIM HAD FALSELY ACCUSED ANOTHER OF SEXUAL MISCONDUCT PURSUANT TO STATE V. GUENTHER.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ELICIT TESTIMONY RELATING TO THE VICTIM'S LACK OF SEXUAL EXPERIENCE.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

POINT IV

THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION AS WELL AS THE HOLDING IN STATE V. PINDALE BY IMPOSING A 10 YEAR TERM ON COUNT I AND A CONSECUTIVE 5 YEAR TERM ON COUNT II, DESPITE THE DEFENDANT RECEIVING A 10 YEAR TERM ON COUNT I AND A CONCURRENT 5 YEAR TERM ON COUNT II FOLLOWING HIS FIRST TRIAL AND IN THE ABSENCE OF ANY NEW OBJECTIVE INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE DEFENDANT'S BEHALF OCCURRING SINCE THE ORIGINAL SENTENCING.

We address the arguments in the order raised in defendant's brief.

II.

Defendant contends in Point I that the trial court erred by ruling inadmissible the evidence that J.B. allegedly lied about having accused a former co-worker of sexual harassment and/or assault sometime in 1999 or 2000. In our remand, we directed that the trial court conduct a N.J.R.E. 104 hearing "to determine whether the false statement was made and if so whether it would be admissible . . . ." R.E.B., supra, 385 N.J. Super. at 86. We further ordered that the trial judge apply the factors in State v. Guenther, 181 N.J. 129 (2004), in deciding whether a specific instance of conduct, such as the prior false accusation alleged here, could be employed to challenge J.B.'s credibility. R.E.B., supra, 385 N.J. Super. at 86. Following a N.J.R.E. 104 hearing to determine whether the false statement was made and, if so, whether it was admissible to impeach J.B.'s character for truthfulness, the court concluded that defendant failed to satisfy the threshold showing required by Guenther, supra.

In determining whether the trial court erred in denying defendant's motion to present evidence of an alleged false accusation made by J.B., the factors set forth by the Supreme Court in Guenther, supra, 181 N.J. at 157, must be considered. The first factor is "whether the credibility of the victim-witness is the central issue in the case." Ibid. J.B.'s testimony was essentially the only evidence against defendant; there was no physical evidence of the sexual assaults or eyewitnesses. The first factor was satisfied.

The second factor involves "the similarity of the prior false criminal accusation to the crime charged." Ibid. The conduct that J.B. purportedly attributed to one of her former co-workers was considerably less severe and dissimilar to her allegations of sexual assault against defendant. Whereas J.B.'s grandmother, K.S., claimed J.B. previously accused a co-worker of sexually harassing her and touching her inappropriately, J.B.'s father statutorily raped her on multiple occasions over a number of years. The second Guenther factor weighs against admissibility of J.B.'s alleged false accusation.

The third factor requires consideration of "the proximity of the prior false accusation to the allegation that is the basis of the crime charged." Ibid. According to K.S., when J.B. was fourteen or fifteen, J.B. lied about sexual harassment by a former co-worker at Burger King, and about having filed a harassment complaint based on that incident. K.S. could not recall when J.B. made this false statement to K.S., testifying, "it had been in the spring, I think . . . . Oh, let me see

. . . . It had to be in '96, something like that, or '95. I can't be -- you know."

K.S. also testified that J.B. never provided the name of the person who harassed her at her workplace. K.S. could not remember the year in which J.B. allegedly lied to her about the sexual harassment incident at work, nor could she provide the name of any other person who could confirm that J.B. had ever made such a false statement. However, K.S. testified that J.B. lied about the harassment by a co-worker when she was either fourteen or fifteen, which would have been in either 1999 or 2000. J.B. first accused her father of sexually assaulting her in January 2002, when she was sixteen. This two-to-three-year time differential is not in close proximity to her accusation against defendant. Under these circumstances, the third factor of the test militated against admissibility.

Fourth, consideration must be given to "the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial." Ibid. Here, there was only one witness, K.S., who testified that J.B. had previously made a false criminal accusation. While testimony from only one witness would not likely have required an extended period of time at trial, the trial court likely determined that the lack of additional corroboration beyond K.S.'s testimony demonstrated that the evidence may have been unreliable. When questioned on cross-examination, K.S. struggled to provide a specific date, month, or even a year in which J.B. allegedly made a false accusation against a nameless co-worker at Burger King.

Additionally, there was no extrinsic evidence that J.B. had actually made the false allegation; in fact, she completely denied ever having made the alleged statement to K.S. The Public Defender investigator found no record of a harassment complaint against a co-worker filed by J.B. at the Burger King restaurant where she worked at the time. Accordingly, the fourth factor supports the trial court's decision to deny defendant's motion to admit evidence of J.B.'s alleged false accusation against a former co-worker.

Lastly, the fifth factor to be considered for the admissibility of a prior false criminal accusation is "whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time." Ibid. This factor weighed in favor of the trial court's decision to deny admission of J.B.'s prior false accusation. The trial court reasonably found that allowing the jury to hear evidence of a false criminal allegation that J.B. made against a former co-worker would lead to a confusion of the issues and waste the court's time and resources.

We are satisfied that the trial court's denial of defendant's attempt to introduce evidence of J.B.'s alleged prior false allegation of sexual assault or harassment was correct and complied with the standards set forth in State v. Guenther.

III.

In Point II, defendant argues the trial court erred by denying under the Rape Shield Law, N.J.S.A. 2C:14-7, the proffered testimony regarding J.B.'s alleged disclosure to her paternal aunt, S.B., that she had recently had her first sexual experience. According to defendant, the court misinterpreted the statute and that misapplication of the law led to reversible error.

On our remand, we made it clear that "the evidence that the victim claimed to be a virgin after the alleged attacks by her father began in 1998 does not implicate the Rape Shield Law, because it is not evidence of prior sexual conduct but is evidence of the lack of any prior sexual conduct." R.E.B., supra, 385 N.J. Super. at 87-88. We recognized that the alleged disclosure to J.B.'s aunt was probative of her credibility because it contradicted J.B.'s testimony of when the charge she had been raped commenced in 1998. Id. at 88. We left it to the trial judge to determine "its precise nature and whether the probative value of the evidence would be substantially outweighed by any countervailing factors." Ibid.

In addressing this issue following an evidentiary hearing and recognizing that the Rape Shield Law was not implicated, the trial court summarized S.B.'s proffered testimony as follows:

". . . at some point in 2000 she had a conversation with [J.B.,] at [J.B.'s] request[,] and [J.B.] revealed that she had been a virgin up to a point, not capable of ascertainment or even generality beyond the year and not even the year, prior to that conversation." The court continued by stating that it was "left wondering how any reasonable jury could without more find that [a] sanitized version could possibly establish chastity on the part of [J.B.] subsequent to the time of the alleged events or offenses here."

Based on the above factfinding, the trial court concluded that "submission of even the most sanitized version [of S.B.'s testimony] to the jury would be unduly prejudicial to the [S]tate, would be confusing necessarily [sic] to the jury and also would be invasive of the victim's privacy." Accordingly, the trial court, which expressed substantial misgivings with S.B.'s testimony, was unable to reach the requisite determination that S.B.'s proffered testimony was both highly material and had such significant probative value so as to "outweigh[] its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim." State v. Garron, 177 N.J. 147, 166 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004) (quoting N.J.S.A. 2C:14-7(a)).

Under our standard of review of an abuse of discretion, we are persuaded that the trial court's discretion was properly exercised. We find no error in denying admission of S.B.'s testimony regarding J.B.'s purported initial sexual activity with someone other than defendant subsequent to when defendant began to rape her.

IV.

In Point III, defendant argues the prosecutor's improper comments during summation deprived him of his right to a fair trial. The prosecutor's specific remarks that defendant asserts violated his right to a fair trial include the following: the prosecutor "impermissibly vouched for the credibility of J.B."; "improperly commented upon the conduct of trial [defense] counsel upon receiving the alleged recantation"; "improperly equated the jurors' oath with a conviction"; and referred "to the defendant's 'street education' [which] implied prior criminality on his behalf."

Regarding defendant's claim that the prosecutor vouched for J.B.'s credibility in his closing statement to the jury, the comments merely attempted to demonstrate that J.B. had no reason to lie about her father sexually assaulting her on multiple occasions, and reminded the jury that J.B. testified she remembered specific incidents of her father's sexual abuse very clearly. The prosecutor also argued that because J.B. and defendant could not both be telling the truth, the jury could draw an inference based on J.B.'s "crystal clear" testimony and find that J.B. was more credible than defendant, who acknowledged that even he could not think of a reason for J.B. to fabricate her allegations against him. To be sure, a prosecutor should not personally vouch for a witness's credibility. However, the prosecutor did not do so. The comments were fair inferences from the facts and remained within the appropriate range of prosecutorial advocacy. State v. Perry, 65 N.J. 45, 48 (1974).

Defendant contends the prosecutor in his summation improperly referred to "the conduct of trial [defense] counsel when he received information J.B. had allegedly recanted." This reference was to the trial attorney who represented defendant at the first trial. The prosecutor claimed that "[d]eep down," defendant's trial attorney "didn't think [J.B.] was going to" actually recant her allegations against her father, and therefore the letter from Dr. Hankin stating that J.B. was recanting was "worthless."

While a prosecutor's unfair attack on defense counsel may support reversal, State v. Sherman, 230 N.J. Super. 10, 15-19 (App. Div. 1988), that is not what occurred here. The prosecutor attempted to cast doubt on J.B.'s recantation and to explain the inconsistency between the letter from Dr. Hankin and J.B.'s trial testimony at the retrial. The prosecutor never attacked defense counsel's trial strategy or decisions and only made a brief and somewhat ambiguous reference to the letter in arguing that J.B.'s recantation should be disregarded because it was coerced by her family members. The prosecutor's vague references to defense counsel's reaction to J.B.'s recantation did not constitute an unfair attack.

Next, defendant argues that the prosecutor "improperly equated the jurors' oath with a conviction." The prosecutor concluded his summation on the following note:

But you can show everyone here that you take your oath seriously, that you believe J.B. You can demonstrate your sense of justice by coming back and showing her that you believe the Defendant sexually penetrated his daughter. You can redeem that one fact and I ask that you uphold your oath and you do that by finding that man guilty of these awful crimes.

Shortly after the prosecutor's remarks and at the very beginning of the court's instructions to the jury, the trial judge made reference to the juror's oath:

In that regard, the Prosecutor in his Closing Comments to you invoked your oath as jurors and the result that he believes the evidence suggests. To the extent that my instructions are inconsistent with anything that either he said in that regard or any other regard or that defense Counsel said in any other regard, you are to disregard those arguments.

Contrary to defendant's assertion, the prosecutor did not equate a guilty verdict with the oath the jury took to uphold the law. Notwithstanding, the trial judge gave the jury a curative instruction, advising them to disregard the prosecutor's specific reference to their oath as jurors. The trial judge's prompt reaction to the prosecutor's comment dispelled any potential prejudice to defendant. We do not consider that his right to a fair trial has been abridged.

Defendant next asserts that the prosecutor's brief reference to defendant's "street education" somehow attributed prior criminal activity to defendant. The reference made no specific implication that defendant had ever committed a crime in the past besides the charges for which he was on trial. The prosecutor's comment was an effort to refute defendant's contention that the police had misled him or tricked him into providing a statement. The intent of the remarks were intended to show that the police did not manipulate defendant because although he had little formal education, he nevertheless understood the charges against him due to, as he himself testified, his informal "street education." Defendant reads far more into the "street education" reference than the trial context contains. We discern no error in the prosecutor's reference.

V.

Following defendant's first trial, the trial judge sentenced defendant to a ten-year prison term with a concurrent five-year term of imprisonment. After the second trial, a different trial judge imposed the same terms of imprisonment, but made them run consecutively. Defendant argues that under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed 2d 656 (1969), the court was prohibited from increasing his sentence because it would be unconstitutionally penalizing defendant for exercising his right to appeal. Defendant also contends that there was no new objective information concerning identifiable conduct occurring since the first sentencing to justify an increase in the sentence.

As the court in North Carolina v. Pearce held, a sentencing judge

is not constitutionally precluded . . . from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's "life, health, habits, conduct, and mental and moral propensities."

Williams v. New York, 337 U.S. 241, 245, 69 S. Ct. 1079, 1082, 93 L. Ed. 1337, 1341 (1949). Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime." Id. at 247, 69 S. Ct. at 1083, 93 L. Ed. at 1342.

[State v. Pindale, 279 N.J. Super. 123, 129 (App. Div.), certif. denied, 142 N.J. 449 (1995) (quoting Pearce, supra, 395 U.S. at 723-24, 89 S. Ct. at 2080-81, 23 L. Ed. 2d 656, 668).]

Due process "'requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial . . . . [and] that a defendant be freed of apprehension of such a retaliatory motivation[.]'" Ibid. (quoting Pearce, supra, 395 U.S. at 725, 89 S. Ct. at 2080, 23 L. Ed. 2d at 669).

Consequently, "whenever a judge imposes a more severe sentence . . . after a new trial," he or she must provide reasons for doing so, which "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Ibid. (quoting Pearce, supra, 395 U.S. at 726, 89 S. Ct. at 2081, 23 L. Ed. 2d at 670). Therefore, "if the original sentence is increased, the sentencing authority must affirmatively identify the relevant conduct or events that occurred after the original sentencing proceeding in order to overcome any presumption of vindictiveness." State v. Rodriguez, 97 N.J. 263, 276 (1984). Where, as here, the judge who sentenced defendant after the second trial is not the same judge who sentenced him following the first trial, any presumption of vindictiveness is virtually eliminated. See Texas v. McCullough, 475 U.S. 134, 139, 106 S. Ct. 976, 979, 89 L. Ed. 2d 104, 108 (1986) ("'[Unlike] the judge who has been reversed,' the trial judge here had 'no motivation to engage in self-vindication.'") (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27, 93 S. Ct. 1977, 1983, 36 L. Ed. 2d 714, 724 (1973)).

In Pindale, supra, 279 N.J. Super. at 129, this court remanded for resentencing because "the judge gave no reasons for imposing a greater sentence than after the first trial." Id. at 128. As we put it: "We might have no difficulty sustaining the sentence imposed but for the fact that the specific term exceeded the sentence imposed after defendant's first trial." Ibid.

In this case, the trial court addressed and ultimately rejected defendant's argument at sentencing, stating, "On this record alone, were this [c]ourt to impose an initial sentence and not have the obligation to consider the holding in Pindale[,] [t]he starting point of this [c]ourt would be the midterm on each of these counts, 15 years on Count I, 7 1/2 years on Count II." The court noted that an appropriate total sentence could exceed twenty-two years if the mid-range terms of imprisonment on each count were applied and the terms were to run consecutively.

The trial judge determined that Pindale did not preclude a greater total term of imprisonment from the sentence defendant received after his first trial because there were several examples of "relevant conduct or events that occurred after the original sentencing proceeding" that negated "any presumption of vindictiveness." State v. Rodriguez, 97 N.J. 263, 276 (1984). The judge stated that certain relevant events had occurred following defendant's first sentencing proceeding that justified a greater sentence, including: defendant's buying alcohol, cigarettes and candy for J.B. to encourage her to keep quiet about the sexual assaults; at trial, J.B. testified as to at least three specific incidents of sexual abuse against her by defendant; J.B.'s cousin H.O.'s testimony regarding J.B.'s disclosure of defendant's repeated sexual assaults against J.B.; defendant's failure to ever fully and consistently deny that he had committed sexual assault against his daughter J.B.; and finally, Dr. Hankin's testimony regarding J.B.'s thoughts of hurting herself as a result of her depression and confusion, and her specified reason for seeing Dr. Hankin was that "she felt sorry" for defendant and "wanted her brother [R.B.] to know her father" as well. Under North Carolina v. Pearce, supra, 395 U.S. at 723, 89 S. Ct. at 2079, 23 L. Ed. 2d at 668, "evidence adduced at the second trial itself" could be the source of new information to justify an increase in sentence. As the trial court properly determined, there were several examples of new information or new developments that had not been introduced or considered at defendant's first trial, but which were brought out at the retrial, which reasonably justified the increase in the sentence imposed on remand.

Moreover, the judge who imposed defendant's greater sentence on remand was not the same judge who originally sentenced defendant after his first trial. No presumption that a different trial judge would have any inclination toward vindictiveness nor any motive to unduly or excessively punish defendant in determining an appropriate sentence because he was not the judge who was reversed on appeal. There was no error in imposing consecutive sentences under the circumstances.

 
The judgment of conviction and sentence is affirmed.

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A-2329-08T4

RECORD IMPOUNDED

April 26, 2010