STATE OF NEW JERSEY v. SILAS QUIXAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5879-07T45879-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SILAS QUIXAL,

Defendant-Appellant.

________________________________

 

Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. 06-11-2010.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on

the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of aggravated sexual assault upon a victim less than thirteen years of age, a crime of the first degree, N.J.S.A. 2C:14-2a(1); endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24-4a; and sexual assault upon a victim less than thirteen years of age, a crime of the second degree, N.J.S.A. 2C:14-2b. The trial court sentenced defendant to nineteen years in prison, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act ("NERA"), for aggravated sexual assault; four years in prison for endangerment, to be served concurrently; and nine years in prison, subject to NERA, for sexual assault, to be served consecutively. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand the matter to the trial court for resentencing.

Defendant's victim was S.B., who was six years old at the time of the incident. S.B.'s mother had some plants she wished to have repotted so she drove to a local nursery, taking S.B. and her sixteen-month-old daughter with her. While they were waiting for the plants to be repotted, S.B. became separated from her mother. Her mother went through the store, calling for S.B. and found her at the end of one the aisles. Defendant was nearby, and S.B. had a strange expression on her face. Her mother asked if S.B. had not heard her calling for her, but S.B. did not answer. Her mother asked what she had been doing, but S.B. said she could not tell her. Her mother asked if defendant had told her not to say anything, and S.B. nodded affirmatively. S.B.'s mother assured her she would not be angry with S.B. and that defendant would not either. S.B. then told her mother that defendant had kissed her and licked her; she pointed to her vaginal area. S.B.'s mother went immediately to store personnel to report what her daughter had told her and they summoned the police.

Police Officer Michael Boccher of the Paramus Police Department responded to the scene. He spoke with S.B., who repeated what she had told her mother. Officer Boccher asked S.B. if she could show him, where in the store the incident occurred. She agreed and led him toward the rear. On the way, defendant happened to pass by. S.B. spontaneously identified defendant to Officer Boccher as the man who had assaulted her.

The police spoke to defendant, who appeared nervous and upset. When he asked what would happen to him if he told them the truth, he was placed under arrest and verbally advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

S.B. was interviewed by Detective Barbara Stio of the prosecutor's Sex Crimes and Child Abuse Unit at the Audrey Hepburn Children's House. Detective Stio has been trained in conducting forensic interviews of children in connection with claims of sexual abuse. She repeated what she had told her mother. She also said that defendant had taken out his penis and asked her to touch it, but she refused. Following that interview, S.B. was examined by a physician and her clothing was taken for examination. Subsequent testing at the State Police laboratory disclosed the presence of defendant's DNA on S.B.'s underpants.

After defendant was arrested, he was transported to the prosecutor's office, where he was again advised of his Miranda rights and executed a written waiver. He was questioned by Sergeant Cilento of the prosecutor's sex crimes and child abuse squad. Confronted with S.B.'s allegations, defendant confessed. Following a pretrial hearing, defendant's confession was ruled admissible at his trial.

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

POINT I THE DETECTIVES WHO QUESTIONED DEFENDANT AND THE COMPLAINANT MADE IMPROPER ASSESSMENTS AS TO THEIR CREDIBILITY -- THAT DEFENDANT WAS NOT TELLING THE TRUTH, WHILE THE COMPLAINANT WAS (Partially raised below)

POINT II DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS COUNSEL FAILED TO ARGUE THAT BASED UPON DEFENDANT'S VIDEOTAPED STATEMENT HE WAS NOT GUILTY OF AGGRAVATED SEXUAL ASSAULT BECAUSE HE KISSED S.B. "ABOVE" AND NOT "ON" THE VAGINA

POINT III THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES AND IN IMPOSING SENTENCES IN EXCESS OF THE MID-POINT IN THE SENTENCING RANGE, AS DEFENDANT'S CRIMES, WHILE REPREHENSIBLE, WERE LESS SERIOUS THAN THE TYPICAL SEXUAL ASSAULT

A. The Court Erred in Imposing Consecutive

Sentences and the Matter Must Be Remanded Because the Court Failed to

Conduct a Yarbough Analysis and Failed

to Provide a Statement of Reasons for

Imposing Consecutive Sentences

B. The Court Erred in Imposing Sentences in Excess of the Midpoint of the

Sentencing Range and in Applying

Aggravating Factors N.J.S.A. 2C:44-

1a(1) and (2)

During defendant's trial, the prosecution presented a number of witnesses, including Detective Stio, who testified with respect to her interview of S.B. and Sergeant Cilento, who testified with respect to his interrogation of defendant. Defendant complains on appeal that these witnesses improperly commented with respect to credibility, Detective Stio expressing the view that S.B. was being truthful, Sergeant Cilento the view that defendant was, at the outset of the interrogation, being deceptive.

We agree with defendant that it is generally inappropriate for one witness to comment upon the credibility of another witness. State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). Having reviewed the trial record, however, we are satisfied that a reversal is not called for. We note first that there was no objection at trial to these comments. R. 2:10-2. In addition, the comments of Detective Stio to which defendant now objects were elicited during defendant's cross-examination, not during questioning by the prosecutor. Further, the trial court clearly instructed the jury in its charge that determining the credibility of the witnesses was their exclusive responsibility. We presume that the jury followed the court's instructions. See State v. Manley, 54 N.J. 259, 271 (1969).

We decline to address defendant's second argument, for it raises issues more properly addressed in a petition for post-conviction relief.

We are satisfied, however, that the matter has to be remanded for resentencing. The trial court sanctioned defendant at the higher end of the range for the aggravated sexual assault and sexual assault convictions but imposed a mid-range sentence for endangerment. Perhaps more significant than this apparent inconsistency is the fact that the trial court gave no reasons for imposing consecutive sentences. A remand is thus required to permit the trial court to determine anew whether consecutive sentences are appropriate and, if it is satisfied they are, to place its reasons upon the record. State v. Cook, 330 N.J. Super. 395, 423 (App. Div.), certif. denied, 165 N.J. 486 (2000); State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996)).

 
Defendant's convictions are affirmed. The matter is remanded for resentencing.

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A-5879-07T4

RECORD IMPOUNDED

April 19, 2010