STATE OF NEW JERSEY v. BILAL MUHAMMAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4981-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BILAL MUHAMMAD, a/k/a

RAJOHN KING, a/k/a

BILAL GREEN,

Defendant-Appellant.

________________________________________________________________

June 17, 2011

 

 

Submitted May 24, 2011 - Decided

 

Before Judges Payne, Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1194.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Following a trial by jury, defendant Bilal Muhammad appeals from his February 9, 2009 conviction on five counts of second-degree sexual assault involving the same victim, N.J.S.A. 2C:14-2(a)(4) (counts three to seven); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count nine); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count ten).1 On February 9, 2009, the judge sentenced defendant on the sexual assault convictions to concurrent ten-year terms of imprisonment, on the aggravated assault conviction to a concurrent eighteen-month term with an eighteen-month parole ineligibility period, and on the unlawful possession of a weapon conviction to a concurrent five-year term. On February 20, 2009, the judge issued an amended judgment of conviction (JOC), specifying that the concurrent sentences on counts three through seven were subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which meant that defendant was required to serve eighty-five percent of the sentence without parole eligibility.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE EVIDENCE CONCERNING PHONE CALLS PURPORTEDLY MADE BY THE COMPLAINING WITNESS AS THE STATE FAILED TO TURN OVER PHONE RECORDS THAT WERE DISCOVERABLE PURSUANT TO R. 3:13-3.

 

II. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE TESTIMONY UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE IN EXCESSIVE DETAIL (Not Raised Below).

III. THE TRIAL COURT ERRONEOUSLY PERMITTED TESTIMONY CONCERNING THE RESULTS OF FORENSIC TESTS PERFORMED ON SPECIMENS PURPORTEDLY COLLECTED FROM THE COMPLAINING WITNESS DESPITE THE FACT THAT THE SPECIMENS HAD NOT BEEN AUTHENTICATED AND NO CHAIN OF CUSTODY HAD BEEN ESTABLISHED.

 

IV. THE TRIAL COURT ERRED IN IMPEDING THE DEFENDANT'S ABILITY TO CROSS-EXAMINE THE STATE'S EXPERT WITNESS (Not Raised Below).

 

V. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO REPEATEDLY REFER TO THE EVIDENCE COLLECTION KIT UTILIZED TO OBTAIN SPECIMENS FROM THE COMPLAINING WITNESS AS A "RAPE KIT," AND IN FAILING TO GRANT A MISTRIAL BASED ON THE STATE'S USE OF THE TERM IN SUMMATION DESPITE THE COURT'S ORDER NOT TO DO SO.

 

VI. THE GUILTY VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE.

 

VII. THE TRIAL COURT ERRED IN FAILING TO GRANT MR. MUHAMMAD'S MOTION FOR A NEW TRIAL BASED ON THE INTEREST OF JUSTICE.

 

VIII. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (Not Raised Below).

 

IX. THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BY FINDING UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (Not Raised Below).

 

We reject the claims defendant advances in Points I through VIII. As to Point IX, we disagree with defendant's contention that the sentence was excessive. We do, however, remand for resentencing so that the judge may impose the mandatory registration and reporting requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19.

I.

Y.F. invited several friends to a party on October 13, 2006, at a bar in Linden, to celebrate her twenty-first birthday and her upcoming move to Florida. Among the people she invited were Eddie Kenol and defendant. At the end of the party, when Y.F. expressed a desire to go to an after-hours club so she could see a former boyfriend, Julio Torres, for whom she still had feelings, defendant agreed to accompany her in her car to give her directions. When they were unable to find Torres, Y.F. agreed to drive defendant home.

While Y.F. was driving, she felt something strike her, after which her vision went dark, and she felt something dripping down her face. When she wiped her face with her hand, she noticed blood. She yelled at defendant, asking "what the hell" was wrong with him and demanding to know what he was doing. Defendant responded by saying that she had "played him out," and he proceeded to point a gun at her head.

Defendant told Y.F. to pull over so he could drive. He also said her head was "dirty," and took off his white tee-shirt and told her to use it to wipe the blood off her head, which she did.

While they were en route to defendant's home, with Y.F. in the passenger seat, defendant inserted his fingers in Y.F.'s vagina and forced her to perform oral sex on him. Although defendant had the gun on his lap earlier, Y.F. did not know where he had put the gun after he forced her to perform oral sex.

When they arrived at defendant's house, and defendant exited the car, Y.F. tried to jump back into the driver's seat in an effort to escape, but defendant grabbed her neck, smirked at her, and said she was not going anywhere "until he was done." Defendant pulled her out of the car, punched her in the arm, and ordered her to walk into the house ahead of him. When they entered the house, Y.F. noticed defendant's mother in the kitchen. Although Y.F. believed her bleeding scalp wound was evident, defendant's mother said nothing, and "just looked at [her]."

Defendant forced her into a bedroom where he ordered her to undress. After throwing the gun to the floor, defendant pushed Y.F. onto the bed, where he performed oral sex on her. Next, he penetrated her vagina and her rectum with his penis. He ignored her pleas to stop and her cries that he was hurting her.

Afterward, defendant told Y.F. the sex was "going to be our little secret," and allowed her to get dressed. When she reached for her pants, Y.F. realized the gun was lying in the tangled heap of her clothing. She grabbed the gun and put it in her pocket. Defendant was lying on the bed and unable to see that Y.F. had taken control of the gun. He walked her to the door, warning her that he would kill Torres if she told anyone "their secret." He also told her not to worry, because he "was going to take [her] to a very nice place to eat before [she] left [for Florida]."

When she got outside, Y.F. ran to her car, locked the doors, and threw the gun on the passenger's seat. Not knowing how to get home, she pressed "talk" on her cell phone, which dialed Kenol because he had been the last person Y.F. had telephoned. Y.F. told Kenol "the guy in the club" raped her and that she was lost. Kenol told her to ask someone her location so he could direct her back to Elizabeth, and he remained on the phone while she drove to his house. Kenol was waiting outside when Y.F. arrived. He noticed that she was bleeding, and that her shirt was ripped. He also saw a gun on the seat. He put Y.F., who was sobbing, in the back seat and drove her to the Elizabeth Police Department, where an officer arranged for her to be transported by ambulance to Newark-Beth Israel Hospital.

Dr. David Feingold, who was the supervising physician in the emergency room on October 14, 2006, conducted a physical examination of Y.F. He testified that she had dried blood in her hair from a scalp wound. With the assistance of a nurse, Feingold performed a forensic sexual assault examination using a prepackaged "evidence collection kit," which Feingold described as "a standardized kit that contains material to collect evidence in sexual assaults."

Detective Carmen Rivera of the Newark Police Department retrieved the handgun that he found on the front passenger seat of Y.F.'s car. He later transported the sexual assault evidence collection kit to the New Jersey State Police Lab for testing, along with a drinking glass that Y.F. said defendant had taken from the club and left in her car. Police obtained a buccal swab from defendant, and after comparing defendant's DNA from the buccal swab to the DNA collected from the evidence collection kit, determined that defendant was the source of the DNA found in the sexual assault evidence collection kit. Police also tested the handgun, and found it to be operable.

Defendant presented several witnesses at trial, two of whom disputed Y.F.'s account of where the gun was located in the car. Defendant also presented the testimony of his mother, who maintained that when defendant and Y.F. entered her house in the "wee hours of the morning," she noticed nothing unusual about the young woman's demeanor or behavior. She said that her son and the woman went directly to her son's room, and that the young woman left the house about thirty to forty-five minutes later without incident.

Defendant also testified. He claimed the sex between himself and Y.F. was entirely consensual. He denied hitting her in the head with a gun, grabbing her neck, punching her or pulling her out of her car. He also denied possessing or owning the gun, or sexually assaulting Y.F.

II.

In Point I, defendant contends the judge erred by permitting the State to introduce testimony concerning Y.F.'s call to Kenol after the sexual assault, even though the State had violated Rule 3:13-3 by failing to produce Kenol's cell phone records during discovery. Defendant maintains that the State's failure to produce these records prevented him from properly confronting and cross-examining Kenol, and the judge's refusal to strike Kenol's testimony, and to instruct the jury to disregard it, warranted a new trial.

Some background is in order. On the fourth day of trial, defense counsel advised the judge that defendant "would like to address the court on an issue. . . . I would seek to have him say what he wishes to say." Defendant advised the judge that he had requested telephone records more than a year ago, that the prosecutor had never produced them, and that he could not properly defend himself without those records. Rule 3:9-1(a) requires the State to provide pretrial discovery to a defendant within fourteen days of the return or unsealing of the indictment. If not provided by the State as part of the original discovery package, Rule 3:13-3(c)(5) permits a defendant to inspect and copy any other "papers" or "documents" that are in the possession, custody or control of the prosecutor; however, the prosecutor's duty to provide discovery under subsection (c) exists only to the extent that any such discovery materials are relevant. State v. Long, 119 N.J. 439, 490 (1990).

"If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with [a discovery request] . . ., it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed[.]" R. 3:13-3(g).

Notably, the record on appeal does not contain copies of any requests from defendant for production of the telephone records of Y.F. or Kenol, nor does the record include copies of any motions by defendant to compel discovery. Additionally, the record is devoid of any evidence, other than defendant's comment to the judge on the fourth day of trial, that he had ever requested the phone records.

Even if we assume that such records were requested by defendant, and that the State had failed to provide them, defendant fails to explain how he was prejudiced, and why he needed the phone records to confront the witnesses. During the pendency of the appeal, defendant has not secured copies of either Y.F.'s or Kenol's phone records, and we are thus unable to determine whether the admission of the phone records would have changed the outcome of the trial. Moreover, it is just as likely that the records would have confirmed the telephone call between Y.F. and Kenol. For all of these reasons, we reject the claim defendant advances in Point I.

III.

We turn to Point II, in which defendant maintains that the judge erred by permitting the State to introduce Kenol's testimony under the fresh complaint exception to the hearsay rule. In particular, he maintains that Kenol's testimony "clearly violated the narrow requirements established by the fresh complaint exception to the hearsay rule because [Kenol's testimony] went far beyond what was minimally necessary to establish that a complaint was made."

The fresh complaint exception to the hearsay rule permits the State to introduce evidence of a victim's statement to a third party such as a friend or family member to whom the victim might be expected to turn for sympathy, solace, protection, advice or guidance. State v. W.B., ___ N.J. ___, ___ (2011) (slip op. at 30-31). Testimony from the third party describing such a conversation is not offered as proof of the matter contained within the conversation. Id. at 31-32. Instead, the content of the conversation is admissible to ensure that the jury is not left with the erroneous impression that because the alleged victim apparently confided in no one to whom she might have been expected to complain, nothing had happened. State v. R.E.B., 385 N.J. Super. 72, 88-89 (App. Div. 2006).

Such testimony has its limits. The State is permitted to elicit testimony describing the general nature of the complaint, but no unnecessary details of what transpired are permitted. State v. Hill, 121 N.J. 150, 163 (1990). Thus, the only details that are properly admitted under the fresh complaint rule are those minimally necessary to identify the subject matter of the complaint. State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 588 (1988).

Our review of the record convinces us that the judge did not err when she permitted the State to offer Kenol as a fresh complaint witness. We are also satisfied that Kenol's testimony stayed well within the boundaries established by J.S. In particular, Kenol testified that he had been friendly with Y.F. for three years, and that they spoke to each other every other day. The record also demonstrates that Y.F.'s telephone call to Kenol was made very shortly after the alleged incident occurred. Such testimony satisfies the criteria for eligibility established by W.B., supra, ___ N.J. at ___ (slip op. at 30-32).

Additionally, we are satisfied that Kenol provided no extraneous detail. He merely testified that Y.F. told him "she was forced to do some things sexually" in a car and that she was later taken by her assailant to a "home," where additional acts occurred. After Kenol provided her with directions and Y.F. arrived at his home some forty minutes later, Kenol described what he observed, namely, that Y.F. had a cut on the top of her head. Kenol also described the gun that he observed lying on the passenger's seat in her car.

Kenol's testimony provided no details about what had actually occurred, in that he did not describe any report by Y.F. concerning digital, vaginal or anal penetration. We thus reject defendant's contention that Kenol's testimony exceeded the boundaries of fresh complaint testimony and denied him a fair trial. In reaching that conclusion, we also note that in her charge to the jury, the judge instructed the panel that Kenol's testimony was admissible under the "fresh complaint rule" only to negate any negative inference that might arise from Y.F.'s assumed silence. The judge also instructed the jury that a "fresh complaint is not evidence that the sexual offense actually occurred or that Ms. [F.] is credible." We reject the claim advanced in Point II.

IV.

In Point III, defendant maintains that the judge committed reversible error when she permitted Dr. Feingold to testify about the results of the forensic tests performed on the specimens purportedly collected from Y.F. because the specimens "had not been authenticated and no chain of custody had been established." Defendant interposed an objection during Feingold's testimony, and after the jury reached a verdict, he moved for a new trial based in part on the chain of custody issue concerning the DNA evidence.

"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. This rule "does not require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). "The proponent of the evidence is only required to make a prima facie showing of authenticity." Ibid. After such a showing is made, the evidence is admissible and the jury decides the ultimate question of authenticity. Ibid.

"A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). The foundation should include a showing of an uninterrupted chain of custody. Ibid. "When the custodian is a State agency, the State is not obligated to negate every possibility of substitution or change in condition of the evidence." Ibid. The evidence is generally admissible "if the trial court 'finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed.'" Id. at 393-94 (quoting State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968)). When there is a defect in the chain of custody, it goes to the weight of the evidence, not its admissibility. State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009). A trial court has discretion to determine whether the State sufficiently established the chain of custody. Ibid.

Here, Dr. Feingold testified that forensic sexual assault examinations are routinely performed in a separate room to maintain the patient's privacy. He explained that after the exam is concluded, "everything is sealed and signed and locked up until the police collect the kit, and they sign off that they've taken the kit, and it's noted in the chart which officer collects and signs for the kit." He also noted that each evidence collection kit is marked with the patient's name, the medical record number, the date it was used, who performed the exam, and the name of the person in the emergency department who sealed it. The person who seals the kit writes his or her initials across it so that if the seal is broken, any such tampering would be immediately obvious. Whoever picks up the kit must also sign for it.

Continuing the chain of custody, the State produced the testimony of Officer Rivera who testified that he picked up the kit from the hospital and transported it to the Newark Police Department, where the kit was entered into a system linked to the State Police, and was secured in a refrigerator to which only a police lieutenant has access. The kit was later signed out and transported to the State Police lab for testing.

Last, the State presented the testimony of Allison Lane, an expert in the field of biochemical stain analysis, who testified that she received the sealed kit from the Newark Police Department in October 2006, that she unsealed it and inventoried its contents, that she examined the evidence, and the kit remained under her care and supervision until she returned it to the vault.

Our review of the record satisfies us that the State properly established a foundation for the admission of the DNA evidence. Defendant fails to point to a specific gap in the chain of custody, or show how the judge abused her discretion in admitting the evidence. Defendant's argument that a chain of custody for the DNA evidence was not established lacks merit, as the evidence fully satisfied the standards established by N.J.R.E. 901 and Mays, supra, 321 N.J. Super. at 628. We thus reject the claim defendant advances in Point III.

V.

We turn to Point IV, in which defendant maintains that the judge committed reversible error by limiting his cross-examination of Lane. Lane testified on behalf of the State that in her capacity as a State Police Lab chemist, she is responsible for testing swabs and smears obtained from victims of sexual assault. She explained that she found semen on the vaginal, cervical, anal and rectal smears obtained from Y.F. and, as a result, she submitted those swabs for DNA testing. She testified that no other items were tested.

On cross-examination, defense counsel established that Lane had tested only five of the eighteen items she had been given. Also, he established that Lane did not analyze the gun, a swab of the rim of the drinking glass taken from Y.F.'s car, or the tee-shirt that the victim testified defendant had given her to wipe the blood from her head. Lane testified that she did not receive the gun, the glass swab, nor the tee-shirt for analysis, but, had they been given to her, she would have tested them.

On redirect, Lane explained why she had only tested five items, noting that because this was an alleged sexual assault by only one person, she was looking for the presence of semen, and, once she found it, the basis upon which the testing was requested had been completed. When, during his recross-examination, defense counsel attempted to ask Lane a hypothetical question concerning "who was drinking out of a particular glass, and there's a swab taken of the rim of the glass," the prosecutor objected on the ground that the testimony would be speculative. The judge sustained the objection, finding that the question called for speculation, and that Lane had already testified that she would not be able to test swabs from the drinking glass because they would have been sent elsewhere. The judge sustained the State's objection to defense counsel's attempt to ask a similar hypothetical question about the tee-shirt.

A criminal defendant has a constitutional right to confront witnesses against him. State v. Harvey, 151 N.J. 117, 187-88 (1997). Nonetheless, "trial courts retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." State v. Budis, 125 N.J. 519, 532 (1991) (internal quotation marks and citation omitted). Indeed, the scope of cross-examination rests within the sound discretion of the trial judge, Harvey, supra, 151 N.J. at 188, and we will not disturb such a ruling absent a showing of clear error and prejudice, State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 185 N.J. 297 (2005).

We are satisfied that the judge did not abuse her discretion by limiting defendant's cross-examination of Lane. The questions were repetitive and only marginally relevant. Lane's prior testimony established that she did not test all of the items submitted to her lab, that she never received the gun, t-shirt, or swab from the drinking glass, and that she would have tested other evidence if deemed necessary. Given that Lane did not receive these items, the questions posed by defense counsel were speculative. We therefore reject the claim defendant advances in Point IV.

VI.

We turn to Point V, in which defendant maintains that the judge "erred in permitting the State to repeatedly refer to the evidence collection kit . . . as a 'Rape Kit,' and in failing to grant a mistrial based on the State's use of the term in summation despite the court's order not to do so."

The prosecutor first used the term "rape kit" during Rivera's direct examination. She repeated the term five times, asking Rivera: whether the hospital "performed" a rape kit, who transported the rape kit to the Newark PD, what happened to the rape kit after it came into the possession of the police, whether he prepared a report to accompany the rape kit, and where the police kept the rape kit. Defense counsel raised no objection. Rivera too referred twice to the "rape kit" without objection.

When Dr. Feinberg took the stand, the prosecutor asked him to describe a "rape kit." Feingold said it was a prepackaged evidence collection kit. At that point, defense counsel objected to the use of the term "rape kit" as highly prejudicial. The judge overruled the objection at sidebar, but asked the prosecutor to use the word "kit." The prosecutor generally complied, but several more times referred, seemingly inadvertently, to the "rape kit" when questioning Feingold. For example, she asked: "what happens to that, to that rape kit--what happens to that kit?"; "which nursing personnel under your direction packaged the rape--the kit?"; and "with respect to the rape kit that was performed." Defense counsel renewed his objection, which the judge overruled. The judge found that the prosecutor's conduct was not intentional, explaining: "She was not attempting to thwart my cautionary instruction. However, the Doctor had the best term, 'evidence collection kit.' That's what I want you to use." The prosecutor did not refer to the "rape kit" again during Feingold's testimony.

The next witness, Lane, twice used the phrase "sexual assault kit" without objection, until the judge asked her to use the term "kit." The judge later permitted Lane to refer to the "sexual assault kit" in the context of testimony that she received it in connection with an alleged sexual assault. The judge added that she would "not give a stamp of approval on anything." The prosecutor used the phrase "sex collection kits" once, and then corrected herself to say "[i]n these kits."

During summation, in responding to defense counsel's assertion that Y.F. had contrived the whole incident and falsely accused defendant of sexually assaulting her, the prosecutor commented, "then she submitted to the rape kit for a story -- ." Defense counsel objected, and moved for a mistrial. The judge denied the application, after reminding the prosecutor at sidebar that she was to refrain from using that term. The judge then instructed the jury as follows:

That last statement by the prosecutor will be struck. The jury is to disregard that statement.

 

After the verdict, defendant moved for a new trial based in part on the prosecutor's use of the term "rape kit." The judge denied the motion, finding the use of the term was an oversight on the prosecutor's part, inadvertent, and unintentional, and reiterated that it was not grounds for a mistrial.

The decision whether to grant a mistrial is committed to the trial judge's sound discretion, and will only be reversed on appeal if there is a clear showing that the court abused its discretion or the defendant suffered actual harm. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. L.P., 352 N.J. Super. 369, 379 (App. Div.), certif. denied, 174 N.J. 546 (2002). A mistrial based on misconduct "should be granted only where manifest injustice would otherwise result." State v. LaBrutto, 114 N.J. 187, 207 (1989). The judge's choice between granting the motion and issuing a curative instruction is entitled to substantial deference, in light of the trial judge's feel of the case and ability to assess the effect on the jury of a prejudicial comment. State v. Winter, 96 N.J. 640, 646-47 (1984); L.P., supra, 352 N.J. Super. at 379.

We begin our analysis by stating the obvious: defendant interposed no objection to the use of the term "rape kit" on any of the five occasions that the prosecutor used that term during her direct examination of Rivera. Nor did defendant object when Rivera used that term on two occasions in his answers to the prosecutor's questions. It was not until the prosecutor asked Dr. Feingold to describe a "rape kit" that defendant interposed an objection. As the Supreme Court has observed, a defendant's failure to object to testimony, or here, failure to object to the use of a particular term in the prosecutor's questioning, suggests that the defense did not consider the term to be particularly objectionable. See State v. Frost, 158 N.J. 76, 84 (1999). Although the judge cautioned the prosecutor against using the term, we defer to the judge's feel of the case and her conclusion that the prosecutor's repeated use of the term, after the judge's admonition, was inadvertent given the prosecutor's attempts to correct herself and the fact that she primarily referred to the evidence as the "kit."

Additionally, we disagree with defendant's contention that the references to a "rape kit" denied him a fair trial. The jurors were aware that Y.F. was alleging sexual assault. See State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985) (finding prosecutor's fleeting and inadvertent reference to the fact that a defendant was in custody had "no real chance of prejudice," because in view of the totality of the circumstances the jury already knew she had been stopped on the road, taken to a police station, and searched), certif. denied, 104 N.J. 430 (1986). Moreover, as we have already noted, the term had previously been used seven times during Rivera's testimony, without objection.

Although the judge did not issue a curative instruction during Rivera's testimony, none was sought. See id. at 652 (observing that a defendant cannot complain about the failure to issue a curative instruction if none was sought). Thus, the references to a rape kit during the prosecutor's questioning of Rivera were not significant in light of the totality of the circumstances.

As we have noted, defendant did not move for a mistrial until the term "rape kit" was used by the prosecutor in her summation. The judge immediately advised the jury to disregard the prosecutor's remark. It is presumed that the jury understood and followed these instructions, State v. Loftin, 146 N.J. 295, 390 (1996), and there is nothing in the record to suggest otherwise. Thus, in light of the judge's immediate and effective curative instruction, we perceive no abuse of discretion in the judge's refusal to grant defendant's motion for a mistrial. We thus reject the claim defendant advances in Point V.

VII.

In Point VI, defendant argues that the guilty verdicts were against the weight of the evidence; and the judge therefore erred when she refused to grant his motion for a new trial. Specifically, he argues that the testimony of Y.F. was neither credible nor consistent, and should have been "completely disregarded by the jury." A jury verdict is against the weight of the evidence if "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. If a jury "could rationally have found beyond a reasonable doubt that the essential elements of the crime were present," the motion for a new trial must be denied. State v. Carter, 91 N.J. 86, 96 (1982). Moreover, where the jury verdict "was grounded on its assessment of witness credibility, . . . absent clear evidence on the face of the record that the jury was mistaken or prejudiced," a reviewing court may not intercede. Smith, supra, 252 N.J. Super. at 512.

We are satisfied that whatever minor inconsistencies there may have been between, for example, Y.F.'s testimony that she used defendant's tee-shirt to clean her face, and her statement to the police describing, with no mention of the tee-shirt, what defendant wore that night, or Y.F.'s testimony that defendant penetrated her anus, and her statement to Dr. Feingold that rectal penetration was incomplete, the fact remains that the jury's verdict was amply supported by credible evidence in the record. The jury heard Y.F.'s testimony which graphically and in great detail described her ordeal. Except for the minor inconsistencies we have noted, Y.F.'s trial testimony matched her account of that ordeal as told to Dr. Feingold. Moreover, her bloody scalp was observed by Dr. Feingold, by Kenol and by Officer Rivera. Last, and perhaps most important, a gun was found in the front seat of her car. Because there was sufficient evidence in the record to support the jury's verdict, and no evidence that the verdict was the result of passion or prejudice, there was no miscarriage of justice. We therefore affirm the judge's denial of the motion for a new trial and reject the argument defendant advances in Point VI.

 

VIII.

In Point VII, defendant contends the judge erred by failing to grant his motion for a new trial as a result of a ruling the judge made during summation. Specifically, the judge sustained the State's objection to defendant's argument that Freeman's head injury was inconsistent with being hit with the "butt" of a gun or "pistol-whipped."

The State objected on the ground that defense counsel misstated the evidence. The judge sustained the objection, noting Y.F. never said she was hit in the head with a "specific part" of the gun.

In his motion for a new trial, defendant argued that the State's objection was improper because the prosecutor told reporters after the verdict that Y.F.'s injury occurred as a result of a pistol whipping. The prosecutor denied using that term. The judge found there was no reason to grant a new trial, explaining the alleged comment was not relevant because it was made after the trial and had no effect on the jury's deliberations.

Although defense attorneys are afforded broad latitude in summation, counsel must not misstate the evidence or distort the factual record. Loftin, supra, 146 N.J. at 386-87.

Notably, defendant makes his argument without any supporting legal authority. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Instead, he simply argues that the judge's decision to sustain the objection unfairly hindered him from properly characterizing the incident and suggesting that Y.F.'s testimony was not credible. The judge, however, correctly found that defense counsel's comments about the "butt" of the gun and pistol-whipping were not supported by the evidence. Moreover, there is no basis for defendant's claim that the judge's ruling affected the jury's deliberations concerning Y.F.'s credibility. To the contrary, the judge instructed the jurors in the final charge that their recollection of the evidence should guide them, and that "[a]rguments, statements, remarks, openings, and summations of counsel are not evidence and must not be treated as evidence."

We therefore reject defendant's contention in Point VII that he was entitled to a new trial based on the judge's failure to overrule the State's objection at summation to his explanation of the victim's head injury.

IX.

In Point VIII, defendant argues that cumulative errors denied him the right to a fair trial. As we have found little error in the trial, we reject defendant's argument that the cumulative effect of the errors denied him a fair trial. His argument warrants no further discussion. R. 2:11-3(e)(2).

X.

Last, we turn to Point IX, in which defendant maintains that the judge "misapplied [her] discretion by imposing manifestly excessive sentences by finding unsupported aggravating factors and by failing to consider applicable mitigating factors." When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:

The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . . , they need fear no second-guessing.'" State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).

 

[Ibid.]

 

If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608.

The judge found aggravating factors one (nature and circumstances of the offense), two (gravity and seriousness of harm inflicted on the victim), three (risk that defendant would commit another offense), six (extent of defendant's prior criminal record and seriousness of the offenses), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(1), (2), (3), (6) and (9). The judge determined that aggravating factor one applied because the evidence showed defendant committed the acts in a "heinous and depraved manner"; that aggravating factor two applied because "the emotional trauma that was inflicted on the victim, seems to be permanent"; and that aggravating factor three applied given defendant's prior record. The judge did not explain her reasons for finding aggravating factors six and nine.

Turning to the aggravating factors, we are satisfied that all five are well-supported by the record, and we have been presented with no meritorious basis to disturb the judge's findings on that subject. We add only that with respect to aggravating factor six, the extent of defendant's prior record, his pre-sentence report demonstrates that defendant was adjudicated delinquent in 1994 on a charge of drug distribution, and in 1995, on a charge of theft by receiving stolen property. As an adult, he was convicted on August 20, 1999 of drug distribution within 1000 feet of a school. Thus, we are satisfied that defendant's prior record justifies the finding of aggravating factor six. In sum, we are satisfied that each of the aggravating factors found by the judge was proper.

Defendant also maintains, for the first time on appeal, that the judge erred by failing to find three mitigating factors: that defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period; his character and attitude indicate he is unlikely to commit another offense; and excessive hardship, based on the fact that he has four children, N.J.S.A. 2C:44-1(b)(7), (9) and (11). This contention lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We note only that defendant has a considerable prior record; his character and attitude, as demonstrated by the present offense, belie his contention that he is unlikely to commit another offense; and any excessive hardship to his four children is addressed by evidence in the record demonstrating that all four children reside either with their mothers or, in one case, with defendant's mother. Thus, we are satisfied that the judge's findings on the aggravating and mitigating factors were appropriate and we will not disturb them.

We do, however, remand for resentencing for a reason not advanced by either side. In particular, defendant's conviction on a charge of sexual assault subjects him to the registration and re-registration requirements of Megan's Law, N.J.S.A. 2C:7-2(a)(2) and (c). Yet, for a reason not explained by the record, the judge failed to specify on the record defendant's obligations under that statute, nor did she include defendant's obligation to register and re-register under Megan's Law in either the original JOC or the amended JOC signed on February 20, 2009.

Additionally, as we have noted, the judge included the NERA requirements in the amended JOC, but she never orally imposed the NERA sentence. Thus, we remand for resentencing so that the judge may impose the Megan's Law requirements and may orally state on the record that the sentence on counts three through seven is subject to NERA. We emphasize that the remand is limited to those two issues, and shall not serve as an occasion for defendant to reargue the sentencing contentions he has advanced unsuccessfully on appeal.

Defendant's conviction is affirmed. We remand for a limited resentencing as described above.

1 The jury acquitted defendant of carjacking (count one), kidnapping (count two), terroristic threats (count eight), and possession of a handgun for an unlawful purpose (count eleven).