STATE OF NEW JERSEY v. V.E.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.E.A.,

Defendant-Appellant.

_______________________________

September 22, 2014

 

Submitted: September 16, 2014 Decided:

 

Before Judges Reisner and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-02-00138.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).

 

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the briefs).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried before a jury on a two-count indictment, defendant V.E.A. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b (count one), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). The judge sentenced defendant to seven years in prison on count one, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent seven-year term on count two. Appropriate fines and penalties were assessed.

On appeal, defendant raises the following contentions:

 

POINT I

 

THE INTRODUCTION OF [TINA'S] PURPORTED OUT-OF-COURT STATEMENTS TO [TAYLOR, ANN] AND R.V. DEPRIVED [DEFENDANT] OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL. (Raised Below, in Part).

 

A. [Tina's] Alleged Disclosure to [Taylor, Ann,] and R.V. Should Have Been Excluded From Evidence Because These Statements Did Not Fall Within the Purview of the Fresh Complaint Doctrine and Unduly Prejudiced the Defense.

 

B. Even If This Court Finds That [Tina's] Purported Out-of-Court Statements Were Admissible Under the Fresh Complaint Doctrine, [Defendant] is Entitled to Reversal Because the Trial Court Failed to Instruct the Jury That [Tina's] Alleged Disclosure to R.V. Could Not Be Considered for Substantive Purposes.

 

POINT II

 

THE OMISSION OF AN INTOXICATION INSTRUCTION AND THE STATE'S FALSE STATEMENT OF LAW REGARDING THE DEFENSE OF INTOXICATION DENIED [DEFENDANT] HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below).

 

A. Trial Counsel Rendered Ineffective Assistance By Neglecting to Request an Intoxication Instruction.

 

B. The Trial Court Erred in Failing to Provide the Jury with an Intoxication Instruction.

 

C. The Assistant Prosecutor's False Assertion That the Law Does Not Recognize Intoxication as a Defense Usurped [Defendant's] Right to Due Process.

 

D. The Cumulative Effect of the Omission of an Intoxication Instruction and the State's False Statement That Intoxication Is Not a Legal Defense Constitutes Plain Error Warranting Reversal.

 

POINT III

 

THE STATE'S PRESENTATION OF HIGHLY PREJUDICIAL PROPENSITY EVIDENCE AND THE TRIAL COURT'S ISSUANCE OF A CONFUSING INSTRUCTION REGARDING THE PERMISSIBLE USE OF SUCH EVIDENCE REQUIRES REVERSAL. (Raised Below, in Part).

 

A. The Introduction of [Defendant's] Alleged Prior Bad Act Violated State v. Cofield.

 

B. Even If the Bad Act Evidence Had Been Admissible, the Trial Court Committed Reversible Error When Providing the Jury With an Erroneous, Contradictory, and Confusing N.J.R.E. 404(b) Instruction.

 

POINT IV

 

[DEFENDANT] WAS UNDULY PREJUDICED BY DETECTIVE HEMPHILL'S TESTIMONY REGARDING THE ROLE THE DIVISION OF YOUTH AND FAMILY SERVICES (DYFS) SERVED IN THIS CASE. (Not Raised Below).

 

POINT V

 

IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED BY THE LOWER COURT IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

 

A. The Sentencing Court Erred in Finding Aggravating Factors Three, Six, and Nine.

 

B. The Sentencing Court Failed to Consider the Appropriate Mitigating Circumstances.

 

C. [Defendant's] Sentence Should Be Reduced Given NERA's Real-Time Consequences.

 

Defendant raises the following argument in his pro se supplemental brief:

Point I

 

Defendant Was Deprived Of His Right To Testify.

 

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions, but we remand for resentencing.

I.

The State developed the following proofs at trial. Defendant had primary residential custody of his three daughters. The oldest, Tina,1 was twelve years old at the time of the incident involved in this case. The family lived in a two-bedroom apartment.

At approximately 11:00 p.m. on July 9, 2010, defendant told the children to go to bed. Because their bedroom did not have air conditioning, the children decided to sleep in the living room on couches. Tina told defendant she did not feel well due to her menstrual cycle and went into defendant's bedroom. The child "was wearing basketball shorts and a T-shirt" and panties. Defendant and the child lay on his bed watching "The A-Team" movie on the computer, and Tina fell asleep.

At some time during the early morning hours, Tina woke up and defendant's hand was on her buttocks under her shorts and underwear. Tina's back was to defendant and Tina felt "his hands rising towards my stomach . . . towards my upper part of my body, like my breast." Defendant touched her stomach. Tina then asked, "'Dad, can I go to the bathroom?'" Tina testified that defendant's response "was quick, like five seconds" and he took his hand off her and permitted her to leave the room.

Instead of going into the bathroom, Tina immediately went to the living room, where she woke up her youngest sister, Ann. Tina testified she was "upset and confused[.]" Tina asked Ann, "'If you had a choice to live with Mommy or Daddy, would you want to live with Mommy?' And she said[,] 'Yes.' And then I told her. I told her what happened."

By this time, defendant had gone into the bathroom and then to the living room. He told Tina "he wanted to talk to me, and then we went to his room." Tina testified that defendant "kept saying, he was like[,] 'I love you.' He was like[,] 'Do you love me?'" Defendant told the child, "'You can't tell nobody, because if not,' he was like[,] 'I won't be able to see you again and things would be over,' and things like that." Defendant also told the Tina "he was dreaming."

Later that morning, Tina told her other sister, Taylor, what happened. Tina then called her mother, R.V., told her "that something bad happened[,]" and asked R.V. to come "as fast as she can and she came." R.V. called the police after she arrived at the apartment. After the police arrived, the entire family went to the police station and then to the prosecutor's office to be interviewed.

Detective Hemphill and another officer spoke with defendant. After being advised of his Miranda2 rights, defendant gave a voluntary, video-taped statement that was played for the jury at trial. In his statement, defendant admitted he touched Tina's buttocks and stomach, under her clothes, while she was sleeping in his bed. He told the detective he was having "a sexual dream" about "a female that [he] was thinking about." He woke up when he heard Tina say "daddy" and, after "a minute or so[,]" realized "what was going on[.]" After Tina left the bedroom, defendant told the detective, "I went to go get her and I talked to her. I said well, you know, wow, sorry daddy was, you know I was still asleep, you know." Defendant maintained he had been drinking earlier in the evening,3 and he did not think of his daughters in a sexual or otherwise inappropriate manner.

Both Ann and Taylor testified that Tina told each of them separately that defendant touched her. Taylor testified that, approximately two years before the July 2010 incident, she "woke up one night" and found defendant in her bed "kissing on my stomach, on my lower -- on the lower left side of my stomach." He was also "tugging" on her pajama pants, but she "held them up." Defendant "said that he was dreaming and to not tell anybody[.]" During his interview with Detective Hemphill, defendant stated that, although he had not kissed Taylor as she claimed, he did "touch[] her, her butt" and then "I woke myself and was like hold on, what the fuck, you know like no that's, that's not right, you know, and phew."

Defendant did not testify at trial and he presented no witnesses.

II.

In Point I, defendant argues that the trial judge incorrectly permitted the State to introduce fresh complaint evidence through the testimony of the three children. Tina testified she told Ann about the incident right after it occurred and she told Taylor about it later that morning. Ann and Taylor testified that Tina told them defendant had touched her. We conclude the judge did not err by permitting this testimony.

A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div.), certif. denied, 174 N.J. 546 (2002). This standard governs review of the admissibility of fresh complaint evidence. State v. Hill, 121 N.J. 150, 169 (1990).

"The 'fresh complaint' exception [to the hearsay rule] is based on common law and has never been codified in the Rules of Evidence although it is related to the exception enacted as N.J.R.E. 803(c)(2)." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2014). The rule arose from the expectation that a victim would alert others if she had been sexually assaulted. Hill, supra, 121 N.J. at 157. Properly considered, fresh complaint evidence may serve to negate any inference that the victim was not sexually assaulted because she did not immediately complain. Id. at 163-66. "The present rule in New Jersey is that to qualify as fresh complaint, the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." Ibid. The determination whether the fresh complaint rule's conditions of admissibility have been satisfied is committed to the discretion of the trial court. Id. at 167-68.

At a pre-trial hearing on the State's motion to introduce Tina's statements to Taylor and Ann, defendant's only argument was that the State had not demonstrated that the three children, who shared the same bedroom, would "necessarily confide in each other with this type of information." The judge rejected this contention, and the record developed at trial fully supports the judge's finding that (1) the children were close and would regularly confide in each other; (2) the statements were made almost immediately after the incident; and (3) the statements were spontaneous and not the product of interrogation. Hill, supra, 121 N.J. at 163. Therefore, we conclude that the fresh complaint testimony was properly admitted.

On appeal, defendant argues for the first time that, because defendant did not dispute that the incident occurred in his statement to the police, there was no need for "cumulative" fresh complaint testimony from the children. He also asserts the testimony was too detailed because all three children provided essentially the same account of Tina's complaint. We generally decline to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). However, even if these arguments are considered, they lack merit.

The fact that defendant told the police he touched Tina undermines his claim that he was prejudiced by the children's testimony on this point. Moreover, the children's testimony concerning Tina's complaint was brief and not overly detailed. Defendant's failure to object to this testimony also indicates he believed it was not prejudicial. In addition to stating that Tina told her sisters about the incident, each child testified that Tina did so in the context of asking them whether they wanted to live with their mother or defendant. The children's testimony also included defendant's exculpatory explanation for the incident. Thus, far from prejudicing defendant, the details provided in this testimony could have been used, as a matter of trial strategy, to support his contention that Tina exaggerated what happened because the children wanted to live with their mother.

Defendant also argues that the judge erred by not giving a separate fresh complaint instruction to the jury concerning Tina's telephone call to her mother the morning after the incident. Defendant raised no objection to any of the judge's instructions at trial. We review arguments raised for the first time on appeal under a "plain error standard." Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).

The judge gave a detailed cautionary instruction as to the use to which the jury might put the fresh complaint evidence, if found credible, that was consistent with State v. Bethune, 121 N.J. 137, 148 (1990) ("[T]he trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent."). At the beginning of the instruction, the judge stated:

Now, in this case, you heard the testimony that sometime after the alleged sexual offense, [Tina] complained to [Ann] and [Taylor] about what had taken place. More particularly, there was testimony that she complained to [Ann] right after the incident and to [Taylor] the next morning.

 

The judge did not mention Tina's mother, R.V., in the charge.

We perceive no plain error in this omission. As discussed above, when the State moved prior to the trial to admit fresh complaint evidence, it only referred to the testimony to be presented by the children. Neither the parties nor the judge considered Tina's statement to her mother, that "something bad happened" and R.V. should come "as fast as she can," to be a fresh complaint of a sexual assault. In addition, R.V. did not testify at the trial. Under these circumstances, the judge did not err in failing to include R.V. in the limiting instruction. In any event, the judge thoroughly charged the jury on the purpose of the fresh complaint evidence that was submitted and that Tina's complaints about the incident, to whomever she may have made them, were neither substantive proof of the offenses charged nor proof that Tina was being truthful. Therefore, we reject defendant's contention.

III.

In Point II, defendant asserts that his trial counsel was ineffective because he failed to request that the jury be instructed on intoxication. See Model Jury Charges (Criminal), "Intoxication Negating An Element Of The Offense" (2005). We decline to address this argument on direct appeal. The decision not to request this instruction may have been dictated by trial strategy. Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). An appellate court may review the claim on direct appeal where the allegedly deficient conduct is a matter wholly within the trial record. State v. Castagna, 187 N.J. 293, 313 (2006). However, where the claim involves evidence outside of the record, as is the case here, it is best raised in a petition for post-conviction relief. Ibid. Thus, defendant's claim of ineffective assistance of counsel may abide a properly filed petition for post-conviction relief (PCR).

Defendant next argues that the judge should have given the jury a sua sponte instruction on intoxication. We disagree.

Jury instructions must give "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). If, as here, defense counsel did not object to the jury charge at trial, the plain error standard applies. State v. Singleton, 211 N.J. 157, 182-83 (2012). Applying these standards, we conclude that there was no error, let alone plain error.

Voluntary intoxication is only a defense if it negates an element of the offense charged. N.J.S.A. 2C:2-8a. "In order to negate an element of the offense, the intoxication must be of an extremely high level." State v. Bauman, 298 N.J. Super. 176, 194 (App. Div.), (internal quotation marks omitted), certif. denied, 150 N.J. 25 (1997); see also State v. Cameron, 104 N.J. 42, 54 (1986) ("firmly fixed in our case law is the requirement of 'prostration of faculties' as the minimum requirement for an intoxication defense"). "A jury charge on voluntary intoxication is required only if there exists a 'rational basis for the conclusion that defendant's "faculties" were so "prostrated" that he or she was incapable of forming' the requisite intent." Bauman, supra, 298 N.J. Super. at 194 (quoting State v. Mauricio, 117 N.J. 402, 418-19 (1990)). "Among the factors pertinent to this issue are included the quantity of intoxicant consumed, the period of time involved, the defendant's ability to recall significant events and his conduct as perceived by others." State v. Johnson, 309 N.J. Super. 237, 266 (App. Div.), certif. denied, 156 N.J. 387 (1998).

Here, there was insufficient evidence in the record to support an intoxication charge. The three children had no recollection of defendant being intoxicated on the night of the incident. While defendant told the police he had been "drinking" that night, he did not quantify the amount of alcohol he consumed or specify the period of time over which he had been drinking. See State v. R.T., 411 N.J. Super. 35, 59 (App. Div. 2009), aff d, 205 N.J. 493 (2011). In addition, defendant's account of the events leading up to the incident was coherent and detailed. He remembered why his daughter came into his bedroom, what movie they watched, and when he went to sleep. He also clearly remembered the incident and what transpired thereafter. Johnson, supra, 309 N.J. Super. at 266.

In short, there was no rational basis on which a jury could conclude that defendant suffered a "prostration of faculties" rendering him incapable of forming the requisite intent to commit the offenses charged in the indictment. Thus, the judge did not err in failing to provide a sua sponte intoxication instruction.

Defendant also argues that, during her summation, the prosecutor improperly asserted "that the law does not recognize intoxication as a defense." This argument also lacks merit.

In her closing statement, the prosecutor stated:

In the bed was a man, who she should be able to trust 24/7. This is her father. There should be no exceptions. There are no exceptions. There's nothing in the law that says well, if you drink a little, things happen.

 

That doesn't exist. You're not going to hear a discussion from [the judge], who's going to give you that exception.

She later stated:

. . . He's violating the trust of a 12 year old little girl, his daughter, and he's doing it for sexual gratification. It doesn't matter if he's drinking at all. Let's say he was. He still can't do it.

 

It's not an excuse. He has no permission and there's no proof that he was drinking. He said he was drinking but the girl says he drinks. There's alcohol in the house.

 

Notably, defendant did not object to these comments at the time they were made.

With regard to their summations, prosecutors "are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).

"To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, "an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Frost, supra, 158 N.J. at 83 (internal quotation marks omitted). This assessment requires the court to consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. If opposing counsel fails to object to the improper remarks, "the remarks will not be deemed prejudicial[,]" because "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 83-84. Moreover, "[t]he failure to object also deprives the court of an opportunity to take curative action." Id. at 84.

Applying these standards, we discern no impropriety in the prosecutor's comments. Nothing in the prosecutor's summation was outside of the evidence presented. As discussed above, there was no evidence that defendant was "intoxicated." Therefore, the prosecutor's statements that mere "drinking" did not constitute a defense to the offenses charged is an accurate description of the law. The prosecutor was also permitted to address defendant's contention that he had been "drinking" by pointing out that the record did not support this contention. Moreover, defendant did not object to these comments at the time they were made, which suggests he did not believe the remarks were prejudicial. Frost, supra, 158 N.J. at 83-84. Therefore, we reject defendant's argument.

IV.

In Point III, defendant contends the judge erred by permitting Taylor to testify that defendant inappropriately touched and kissed her two years prior to the incident involved in this case, and that he did so because he was "dreaming." This argument lacks merit.

As previously noted, a trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This standard governs review of the admissibility of prior bad acts under N.J.R.E. 404(b), which is left to the discretion of the trial court, "'because of its intimate knowledge of the case[.]'" State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987).

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

Evidence of other crimes, wrongs or acts, is inadmissible "to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Stevens, 115 N.J. 289, 293 (1989). However, "[t]he Rule expressly permits such evidence to be admitted to prove other facts in issue," including motive and absence of mistake or accident. Ibid.

In State v. Cofield, the Supreme Court enunciated a four-part test for admission of evidence of other crimes or bad acts under N.J.R.E. 404(b):

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

 

Here, the judge held a pre-trial hearing to consider the admissibility of Taylor's testimony on the prior incident and she made detailed findings supporting her decision to allow the statements in evidence:

I do find that the incident involving [Taylor] was not too remote in time to consider. It was two years prior. The children were of that pre-puberty age[.]

 

That it does tend to prove or disprove, depending on how the jury would see, whether there was an absence of mistake or accident or whether it could have possibly been by mistake or accident.

 

The [State] argues that the probative value outweighs the prejudicial effect. I am convinced, by clear and convincing evidence, that it should be admissible to show the motive and intent.

 

That it is almost classic, according to Cofield requirements, that the prior incident, if it tends to show motive and intent, [an] absence of mistake or accident, should be admissible. So I do find that the evidence would be admissible under [N.J.R.E. 404(b)].

 

The judge continued:

And I think the key to my finding here is in the [d]efendant's statement when he said - - when he implicated that it could have been [by] mistake or by accident, or his intention in touching [Taylor].

 

I think that that evidence that it happened on another occasion may tend to prove or disprove that it was a mistake or accident on the case in this particular instance.

 

And that's what makes it admissible and that is what gives the probative value more weight than any prejudicial effect that may result from it.

 

We perceive no basis for disturbing the judge's ruling. Taylor's testimony concerning the prior incident was highly relevant to rebut defendant's claim of mistake or accident. Although defendant contends the State failed to prove the prior bad act by clear and convincing evidence, the record fully supports the judge's contrary determination.

At the time Taylor testified, and again at the conclusion of the trial, the judge instructed the jury on the limited purpose for which Taylor's statements were admitted:

[T]he State has introduced evidence that the [d]efendant may have touched or had contact with [Taylor], by kissing her on her stomach and tugging at her PJ's.

 

Normally, such evidence is not permitted under the rules of evidence. Our rules specifically exclude evidence that a [d]efendant has committed other crimes, wrongs or acts, when it is offered only to show that he had a disposition or a tendency to do wrongs and, therefore, must be guilty of the charged offenses.

 

Before you can give any weight to this evidence, you must be satisfied that the [d]efendant committed the other act. If you're not so satisfied, you may not consider it for any purpose.

 

However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific, narrow purposes.

 

In this case, the limited purpose, relevant to a genuine, disputed issue for which the evidence has been introduced is the absence of mistake [or] accident in the act, in that he was dreaming.

 

Here, the evidence has been offered to attempt to convince you that the prior act and the charged crime are so similar and so unique that you may infer that the same person committed both of them.

 

You may not draw this inference unless you conclude that the prior criminal - - the prior activity with which the [d]efendant is identified is so nearly identical in method as to earmark it as the [d]efendant's handiwork.

 

The conduct in question must be unusual and distinctive, so as to be like a signature, and there must be proof of the sufficient facts to establish a[n] unusual pattern.

 

Whether the evidence does, in fact, demonstrate a lack of mistake or accident is for you to decide. You may decide that the evidence does not demonstrate a lack of mistake or accident because he was dreaming and that it was not helpful to you at all. In that case, you must disregard the evidence.

 

On the other hand, you may decide that the evidence does demonstrate a lack of mistake or accident because he was [not] dreaming and use it for that specific purpose.

 

However, you may not use this evidence to decide that the [d]efendant has a tendency to commit the crime or that he is a bad person.

 

That is, you may not decide that just because the [d]efendant had committed the alleged act of touching [Taylor], he must be guilty of the present crime of the case that is before you.

 

I have admitted the evidence only to help you decide the specific question and the question of kissing [Taylor] on her stomach and touching her PJ's shows absence of mistake or accident because he was dreaming.

 

That is the limited purpose that you are to consider that prior act involving [Taylor]. You may not consider it for any other purpose and you must not find the [d]efendant guilty now simply because the State has offered evidence that he allegedly touched [Taylor].

 

[(Emphasis added).]

 

The three sentences we have emphasized above appear in Model Jury Charges (Criminal), "Proof Of Other Crimes, Wrongs, Or Act (N.J.R.E. 404(b))" (2007). The Model Charge states that this portion of the instruction should be provided to the jury "[w]here the limited purpose for which the evidence is offered is to prove identity[.]" Ibid.

Although defendant did not object at trial, he now contends that the portion of the charge emphasized above should not have been given because defendant's identity was not at issue. We discern no plain error in the inclusion of this language in the instructions.

The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008). Read in context, we conclude the inclusion of the disputed three sentences had neither the capacity to confuse the jury nor prejudice defendant. The judge repeatedly instructed the jury throughout the charge that Taylor's statement was only admitted to address the issue of the absence of mistake or accident in the incident involving Tina. In that context, the judge's brief reference to identity and modus operandi in the disputed three sentences clearly constituted harmless error.

V.

At trial, Detective Hemphill testified that, when the family arrived at police headquarters for questioning, he met with "[a] DYFS [Division of Youth and Family Services] caseworker and also Investigator Gary Crone and the family, the entire family was there." Defendant raised no objection to this testimony. In Point IV, however, defendant argues he "was unduly prejudiced" by the detective's statement that a DYFS representative met him at the police station. We disagree.

Defendant does not explain how this testimony was prejudicial to him. The reference to the caseworker's presence was fleeting and not repeated during the trial or the prosecutor's summation. The detective also did not testify concerning anything the DYFS representative said or did concerning the incident. Under these circumstances, we perceive no error, much less plain error, in the admission of this innocuous testimony.

VI.

In his supplemental pro se brief, defendant argues that he was "deprived of his right to testify" because the judge "never even asked me if I wanted to testify." Defendant states, "I've never been to trial before and my public defender did not prepare me for it. I did not know when I was supposed to ask to testify on my behalf."4 This argument lacks merit.

After the children testified, the judge carefully explained to defendant that he had three options in terms of his testimony at trial:

The first option is to exercise your absolute constitutional right to remain silent and not take the stand, and then ask the Court to refrain from commenting to the jury in any way concerning your decision not to testify.

 

The second option is to exercise your right to remain silent and to have the Court instruct the jury that they may not hold it against you in any way. If you choose this option, I would instruct the jury as follows in my final instructions to them.

 

[Court reads jury instruction to defendant].

 

The third option is to give up your right to remain silent and to testify. You would then be subject to cross-examination. Do you understand that, sir?

 

Defendant stated that he understood these options and the judge advised him to consult with his attorney concerning them.

After the State's final witness, Detective Hemphill, testified, the judge again advised defendant of these options. Although the judge stated she would ask defendant for his decision the next day "after the State has rested[,]" this did not occur. The defense rested immediately after the State did, and defendant's attorney did not ask that the jury be instructed that it could not draw an adverse inference from defendant's election not to testify.

On this direct appeal, we discern no error in the judge's failure to ask defendant on the record whether he wished to testify. Our Supreme Court has consistently held that, where a defendant is represented by counsel, the trial court has "no obligation to address a defendant and inquire whether he or she waives the right to testify." State v. Savage, 120 N.J. 594, 630 (1990); see also State v. Buonadonna, 122 N.J. 22, 35 (1991).5 In addition, and contrary to defendant's contention, the no-adverse-inference charge should only be provided with defendant's consent. State v. Gray, 101 N.J. Super. 490, 493 (App. Div. 1968); see also Model Jury Charges (Criminal), "Defendant's Election Not To Testify" (2009).

However, defendant may raise his claim of ineffective assistance of counsel concerning his decision whether to testify and the failure to request a no-adverse-inference charge in a properly filed petition for PCR. As previously noted, claims of ineffective assistance of counsel are best suited for PCR proceedings because they often involve matters for which there is not a complete record. State v. Rambo, 401 N.J. Super. 506, 525 (App. Div. 2008) (citing Preciose, supra, 129 N.J. at 460). Such is the case here. We therefore reject defendant's contentions on this point.

VII.

Finally, in Point V, defendant argues that his sentence should be remanded for reconsideration. We agree.

In imposing concurrent seven-year terms on each count,6 the trial judge found aggravating factors three, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" N.J.S.A. 2C:44-1a(6); and nine, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9). The judge stated that she found no mitigating factors. In determining the length of the sentence, the judge stated that the "[a]ggravating factors substantially outweigh any mitigating factors and unless there is substantial change in attitude, there is a high likelihood of re-offending."

However, in the Judgment of Conviction, and in a later Amended Judgment of Conviction that granted defendant additional jail credits, the judge stated she had found and considered mitigating factor ten, "[t]he defendant is particularly likely to respond affirmatively to probationary treatment[,]" N.J.S.A. 2C:44-1b(10), and had given that factor "substantial weight" in determining defendant's sentence.

Thus, as the State concedes in its brief, the judge's finding at the time of sentencing that no mitigating factors applied is inconsistent with the subsequent Judgments of Conviction, which state that the judge found mitigating factor ten and accorded it substantial weight. Under these circumstances, the record is not clear as to the basis for the judge's decision to impose seven-year terms and we are unable to determine whether the judge properly applied and balanced all the applicable aggravating and mitigating factors. Therefore, we remand for resentencing. On resentencing, the Law Division shall review the aggravating and mitigating factors that are applicable, and determine anew the length of the sentence for defendant.

We affirm defendant's convictions, and remand for resentencing in accordance with this opinion. We do not retain jurisdiction.

 

 

1 Fictitious names are used to protect the privacy of the children and for ease of reference.

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

3 Tina testified that defendant "wasn't drinking" on the night of the incident. Ann testified that, although defendant drank "a lot of the nights," she did not recall him drinking on the night of the incident. Taylor testified she did not think her father was drinking that night.

4 At our request, the parties filed supplemental briefs addressing this issue.

5 However, the Court did indicate that "it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant . . . of his or her right to testify." Savage, supra, 120 N.J. at 631.

6 As previously noted, the sentence on count one was subject to NERA.