STATE OF NEW JERSEY v. D.D.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-4236-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.D.,

Defendant-Appellant.

__________________________________

December 14, 2015

 

Submitted March 23, 2015 Decided

Before Judges Lihotz, Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-02-0218.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Deepa S.Y. Jacobs, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant D.D.1appeals from his convictions, after a jury trial, of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He also challenges his aggregate prison sentence of twenty-eight years. Defendant's convictions arose from a jury's determination that he sexually abused his daughter N.D., as she originally disclosed at about the time she turned four years old.

Defendant argues the trial court's admission into evidence of two separate interviews of the child was cumulative and, therefore, prejudicial because N.D. and other adult witnesses testified regarding the child's disclosures made during the interviews. He also contends the prosecutor's remarks in her summation, which effectively represented the child's testimony should not be considered against the same standard governing an adult's testimony, warrant reversal. In addition, defendant asserts the admission of a doctor's statement concerning the child's disclosures, obtained during an examination conducted in contemplation of the trial, amounted to reversible error. Finally, he claims the court's reliance on certain aggravating factors constituted impermissible double-counting, and that no basis for the imposition of consecutive sentences existed.

Specifically, defendant raises the following arguments

POINT I

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ADMITTING THE VIDEOTAPED FORENSIC INTERVIEWS OF N.D. INTO EVIDENCE BECAUSE THE PROBATIVE VALUE OF THE EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICE.

POINT II

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR MISREPRESENTED THAT A LESSER STANDARD OF "PROOF BEYOND A REASONABLE DOUBT" SHOULD BE APPLIED BY THE JURY SINCE N.D. WAS A "YOUNG LITTLE GIRL." (Not Raised Below).

POINT III

ADMISSION OF N.D.'S HEARSAY STATEMENT TO DR. DEBELLIS AS A STATEMENT MADE FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT UNDER N.J.R.E. 803(c)(4) WAS HARMFUL ERROR.

POINT IV

THE [TWENTY-EIGHT] YEAR BASE AGGREGATE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.

A. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT AGGRAVATING FACTORS N.J.S.A. 2C:44-1(a)(1) AND N.J.S.A. 2C:44-1(a)(2) WERE APPLICABLE.

B. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON COUNTS ONE AND TWO.

C. THE MATTER SHOULD BE REMANDED FOR A SEX CRIME TREATMENT FUND PENALTY HEARING.

We have considered these contentions in light of our review of the record and applicable legal principles. We affirm defendant's conviction and sentence, except we remand to the trial court for reconsideration of the imposition of the Sex Crime Victim Treatment Fund (SCVTF) penalties mandated by N.J.S.A. 2C:14-10.

I.

The following salient facts are derived from the record developed before the trial court.

On February 8, 2010, a Bergen County Grand Jury issued superseding Indictment No. 10-02-0218, charging defendant with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one and two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). In June 2011, the trial court conducted pre-trial hearings regarding the admissibility of the victim's videotaped forensic interviews and subsequently held a six-day jury trial in July 2011.

At trial, N.D.'s babysitter testified to the facts surrounding the child's initial disclosures of her abuse. The sitter cared for N.D. for nearly four years from the time N.D. was only a few months old. On one occasion in 2005 shortly before N.D.'s fourth birthday, as the sitter attempted to help N.D. clean herself after the child used the bathroom, N.D. resisted, stating, "no, no, it hurts me. Daddy[,] hard, hard, hard." While saying this, she pointed her finger towards her vagina. The sitter observed N.D.'s vagina "was kind of red," the cause of which she attributed to a rash. However, she informed N.D.'s mother about the incident, advising her to notify the police. The sitter did not report directly to law enforcement because she believed the mother would do so, feared defendant, and wanted to avoid involvement.

One week later, the babysitter's services were terminated as N.D. began attending daycare. Afterwards, she called the mother a few times to inquire about the child's welfare, and had questioned whether the mother "called the police based on [their] previous conversation." The mother responded she did not contact law enforcement because no sexual abuse had occurred since.

The babysitter next saw N.D. one day in August 2007 upon agreeing to care for the child, who was then nearly six years old. That day, when N.D. finished using the bathroom and the sitter tried to assist cleaning her, N.D. refused help, closing her legs and saying, "no, no, -- no, no, it hurts. No, no." N.D. covered her vagina with one hand, pointed to it with her other hand, and added, "Daddy." She continued by stating, "please don't tell my mom, because my mom told me not to tell you." The sitter contacted N.D.'s mother to pick up the child and cautioned she would call the police if the mother did not do so.

On January 14, 2008, the babysitter spoke with law enforcement. According to Claudia Cubillos, a detective sergeant with the Juvenile Bureau of the Englewood Police Department, the sitter provided her with information alleging N.D. was sexually abused. Cubillos referred the claim to the then Division of Youth and Family Service (DYFS),2 which assigned a caseworker. Together with the caseworker, Cubillos visited N.D.'s elementary school. After the caseworker questioned N.D., Cubillos phoned the Sex Crimes Unit of the Bergen County Prosecutor's Office (BCPO) and coordinated a forensic interview to be conducted at the Audrey Hepburn Children's House (AHCH).

Melissa Pera, a detective assigned to the Sex Crimes and Child Abuse Squad of the BCPO, conducted the interview of six-year-old N.D. at the AHCH. Pera was extensively trained in child sex abuse and certified to forensically interview children. Her interview of N.D. employed the technique typically used to conduct child forensic interviews. Pera explained, depending on the child's age and capacity to comprehend information, different techniques were utilized.

The recorded interview was played for the jury. The recording showed N.D. explaining that, on one occasion, defendant licked his finger and proceeded to penetrate her anus and vagina, which she referred to as her "florcita." Through the use of anatomically correct dolls provided at the interview, N.D. demonstrated her description of how defendant touched her.

Over two years later, Pera conducted a second videotaped forensic interview of N.D. when the child was eight years old. The interview was arranged because N.D. had disclosed additional information during a pretrial interview. The videotape depicts N.D. reiterating defendant touched her vagina and anus. She detailed defendant had done so approximately five times while living at the "white house" in Bogota.

Dr. Julia DeBellis, AHCH's medical director, testified as an expert in pediatrics, child abuse, and neglect. On July 30, 2010, she performed an examination and evaluation of N.D. for the purposes of medical diagnosis and treatment. When the prosecutor questioned DeBellis regarding N.D.'s statements made during the examination, the judge initially sustained defense counsel's objection. After discussion at side bar, the judge reversed his ruling and found the statements admissible because they were made in good faith to attain a medical diagnosis and treatment. DeBellis continued that N.D. told her defendant had "touched her genitalia and anus . . . with his finger" while pointing to her genitalia and anus. DeBellis performed an examination that neither confirmed nor denied "the possibility that digital penetration took place." She explained her findings were not surprising in light of the nature of female anatomy and the time frame of the alleged abuse.3

At the conclusion of DeBellis' testimony, defendant moved for a mistrial, arguing N.D.'s statement to DeBellis was inadmissible. The court denied the application.

N.D. also testified. She stated defendant touched her "butt" and "florcita" with his finger, as she demonstrated by making a twisting motion with her finger. She could not recall how many times the touching occurred, but maintained defendant touched her when they lived in the "white house," not the "red house."

Defendant testified in his own defense, denying ever sexually assaulting N.D. According to defendant, he was intoxicated during an initial interview with police, when he stated he may have touched his daughter inappropriately "at one time or another," and never meant it "sexually." He explained he may have grabbed "her crotch area" while "play[ing] superman," but did not do so in a sexual manner. Defendant also indicated N.D.'s accusations may have arisen from either a time he helped clean her after she defecated in her pants or an occasion when he yelled at her for coloring on the television and scratching herself with a crayon. He further suggested N.D. was "kind of mildly retarded" and was likely confused by law enforcement's questions.

After considering the evidence, the jury convicted defendant of all three counts. This appeal followed.

II.

We first address defendant's assertion that the trial court improperly admitted N.D.'s videotaped interviews because her "accusations were repeated during the testimony of four other witnesses." He argues the interviews should not have been admitted because they were cumulative, in light of the repetition of N.D.'s allegations during the testimony of Pera, Cubillos, DeBellis, and the babysitter. Defendant maintains the statements' probative value was substantially outweighed by their prejudicial effect. We disagree.

The trial court conducted a two-day N.J.R.E. 104 hearing, pursuant to N.J.R.E. 803(c)(27)4 and State v. Michaels, 136 N.J. 299 (1994), to determine whether to admit at trial N.D.'s out-of-court videotaped statements. At the hearing, defendant did not contest the trustworthiness of those statements. Rather, he challenged their admissibility on the grounds that they unduly prejudiced him by presenting repetitive and cumulative evidence, stressing N.D.'s anticipated trial testimony. The court disagreed, determining the interviews were trustworthy and admissible pursuant to N.J.R.E. 803(c)(27). The judge then addressed defense counsel's argument that the evidence was cumulative, finding the two interviews underscored the reliability of N.D.'S statements by demonstrating the consistency of her allegations over the span of two years. The court further held admitting the two interviews provided defense counsel the opportunity to cross-examine N.D. as to any inconsistencies between the interviews. The judge noted the interviews had probative value as they were closer in time to the alleged sexual assault and "concern[ed] aspects of what occurred."

Our review of a trial court's evidentiary ruling "'is limited to examining the decision for abuse of discretion.'" State v. Kuropchak, 221 N.J.368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). We afford considerable latitude to a trial court in determining the admissibility of evidence, and that determination will be disturbed only if it "'was so wide of the mark that a manifest denial of justice resulted.'" Id. at 385-86 (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). A trial court's improper admission of evidence warrants reversal only if it is "'clearly capable of producing an unjust result.'" State v. Maltese, 222 N.J. 525, 543 (2015) (quoting R. 2:10-2). "The possibility of an unjust result must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Stubbs, 433 N.J. Super. 273, 287 (App. Div. 2013) (citation and quotation marks omitted), certif. denied, 217 N.J. 293 (2014).

Challenges to the admission of out-of-court statements made by young children in sex abuse cases are governed by N.J.R.E. 803(c)(27), and are subject to the limitation imposed by N.J.R.E. 403 ("[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."). "Our Supreme Court has noted that, when considering the admissibility of repetitive corroborative statements under the tender years exception to the hearsay rule, the trial court 'should be cognizant of its right under N.J.R.E. 403 to exclude evidence, if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value.'" State v. Burr, 392 N.J. Super. 538, 572 (App. Div. 2007) (quoting State v. D.G., 157 N.J. 112, 128 (1999)), aff'd as modified, 195 N.J. 119 (2008); see also State v. Smith, 158 N.J. 376, 391 (1999), ("[T]rial courts in a proper case must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to [N.J.R.E.] 803(c)(27).").

We have previously held the admission of taped interviews in conjunction with the testimony of a child and mother concerning the abuse and disclosure did not constitute an abuse of a trial court's discretion. See Burr, supra, 392 N.J. Super. at 572-73. In Burr, a nine-year-old child disclosed to her mother allegations of sexual abuse committed by the child's piano teacher. Id. at 543-44. We affirmed the trial court's admission of the videotaped interviews even though the child and her mother testified about the allegations of abuse, explaining

Here, the interview had probative value, as it occurred closer in time to the alleged sexual assault than the trial, and was conducted by an investigator who gave [the child] a neutral opportunity to explain what happened outside of anyone else's presence. In addition, as the trial court noted, the tape was probative in showing that shortly after [the child] disclosed the events, the family referred the matter to the Prosecutor's Office, where [the child] made allegations that were largely consistent with those made to her mother and those recounted at trial.

 
[Id. at 573.]

We noted, citing Smith, supra, 158 N.J. at 389-91, there was nothing "unique" about the circumstances of the case so as to render the videotaped interviews particularly prejudicial to the defense. Ibid.

Here, we reach the same conclusion and reject defendant's claim the recorded interviews were cumulative. Like the child's mother in Burr, N.D.'s babysitter testified as to N.D.'s initial disclosure of the abuse, and the child likewise testified. The interviews were admitted through Pera, whose testimony was limited to what the jury had seen on the videotapes. Furthermore, Cubillos did not repeat N.D.'s allegations. Rather, she testified she called the BCPO to "let them know what the allegations [were] and the disclosure." DeBellis' testimony included only a one-line summary of what N.D. stated while giving her medical history. The judge instructed the jury this testimony could neither be used to strengthen N.D.'s credibility nor be considered as substantive proof of the assault's occurrence.

Under these circumstances, we conclude the trial court did not abuse its discretion in admitting the videotaped interviews.

III.

Defendant next argues, for the first time, that "comments made by the prosecutor in her opening statement and . . . summation constitute plain error because they misrepresented the State's burden of proof by suggesting that a lesser standard . . . [applied to] a child." We disagree.

"Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). However, comments made in an opening statement should be limited to the facts the prosecutor, in good faith, intends to adduce at trial through the presentation of competent evidence. Id. at 360. During summations, prosecutors "must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001).

While prosecutors are prohibited from "personally vouch[ing] for the credibility of a State witness," they may nevertheless comment on a witness's credibility so long as they limit their comments to the evidence presented at trial. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997). Moreover, a prosecutor may respond to arguments defense counsel raises in his or her summation. See State v. Morton, 155 N.J. 383, 418 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Where a prosecutor exceeds permissible limits, "we evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial," and will only reverse where "the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (alteration in original) (citation and quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Such misconduct "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citation and quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

We also "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Ibid. "'Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.'" Echols, supra, 199 N.J. at 360 (quoting Timmendequas, supra, 161 N.J. at 576).

Here, in her opening statement, the prosecutor stated

Now you're also going to hear from [N.D.] directly. She's going to be here, she's going to testify -- . And she's going to tell you to the best of her 9-year-old ability what she remembers happened to her. And she will tell you what her father did to her.

I want you to keep in mind during her testimony, members of the [j]ury, that a significant period of time has passed since these events occurred and so that her memory, just like the other witnesses, are [sic] not going to be perfect. It's your job, obviously, to judge . . . the credibility of her and all the witnesses.

But as you judge [N.D.], I'm going to ask you to keep in mind that you should be judging her not by the standards of an adult, but by the standards of what she is, a little girl. You should keep in mind that children aren't like adults. They don't live by the clock, calendars, schedules, organizers, I-pads -- and that children are not -- to talk about -- in respect to sex.

Now you also should keep in mind this -- it's on you that something that most -- and that she's not going to be talking about not just anybody, but her own dad. [N.D.], obviously, is going to be using the words of a child. That's what she is. So judge her credibility -- credibility as that. Assess her truthfulness, but don't judge her by the standards of an adult. Judge her by and for what she is, a young little girl.

That's what this case requires you to do. It's going to require you to understand that children simply communicate differently. To help you understand how children communicate sexual abuse differently, you will also hear from . . . an expert in the field of child sexual abuse.

In her closing statement, the prosecutor again discussed assessing N.D.'s credibility, providing

You have a little kid that you're dealing with, members of the jury. She's telling you about things that happened a long some time ago, I should say.

You know what? I don't know about you, but I have a difficult time telling what I did two weeks ago or three weeks ago or four weeks ago or a car accident that I had six years ago. It's hard to remember. And, again, you remember I told you at the beginning of this case that you needed to judge this child by what she was, a child and not an adult? You saw her, members of the jury. You can't judge her by the standards of an adult, members of the jury. That's the reality of it.

Here, the prosecutor asked the jury to consider N.D.'s youth when assessing her credibility. The comments addressed the testimony of D'Urso and Pera as to the different ways by which a child will recall and report incidents of sexual abuse. Notably, during defense counsel's summation, he pointed to inconsistencies in N.D.'s statements. Accordingly, the prosecutor was entitled to explain the significance of N.D.'s age as it related to her recollection of the abuse.

Moreover, the comments lacked the capacity to deprive defendant of a fair trial. See Wakefield, supra, 190 N.J. at 437. The judge told the jury that he alone would instruct them on the applicable legal standard, the comments by counsel were not evidence, and the State was required to prove each element of the offense beyond a reasonable doubt. When proper instructions are given, we "act on the belief and expectation that jurors will follow the instructions given them by the court." State v. T.J.M., 220 N.J. 220, 237 (2015). Confusion created by the prosecutor's comments, if any, was clarified by the judge's repeated instructions on the consideration of evidence and burden of proof. See, e.g., State v. Rambo, 401 N.J. Super. 506, 526 (App. Div.) ("The jury was repeatedly told that the instructions of the court on the legal issues were binding, not any comments the attorneys might have made in summation. The court's instructions on self-defense were accurate and corrected any misimpression that may have been conveyed by the summation."), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009).

IV.

Defendant additionally contends the trial court erred in permitting DeBellis to testify she was told by N.D. that the child's "father had touched her genitalia and anus . . . with his finger." He argues the hearsay statement was inadmissible under N.J.R.E. 803(c)(4), as the medical examination was conducted by DeBellis for the purpose of gathering evidence and N.D. was unaware her veracity during the exam was essential to proper diagnosis and treatment. We agree, but find the error was harmless.

Pursuant to N.J.R.E. 803(c)(4), a court may admit

[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.

"[T]o be admissible the patient must have believed that the statement would enable the doctor to treat. Reliability is based on the declarant's belief that a doctor will properly treat him if the doctor is told the truth concerning the ailment." State ex rel. C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985). "The New Jersey cases that have applied [N.J.R.E. 803(c)(4)] demonstrate an unwavering adherence to that rationale." R.S. v. Knighton, 125 N.J. 79, 87 (1991). Thus, statements made during an exam arranged for the collection of evidence are inadmissible, as are statements made when the declarant has no awareness of a diagnosis and treatment purpose to the exam. See ibid.; C.A., supra, 201 N.J. Super. at 33-34 (finding statement inadmissible where no evidence existed showing either that the doctor was consulted for treatment purposes as opposed to evidence-gathering or that the victim believed she was questioned so she could be treated); see also State v. Pillar, 359 N.J. Super. 249, 289 (App. Div.) (holding a victim's statement during a medical examination was inadmissible because the purpose of the exam was unclear from the record), certif. denied, 177 N.J. 572 (2003).

Here, the exam took place years after the abuse was first reported and six months after N.D. had a "pre-trial interview" with prosecutors. Nonetheless, DeBellis testified her examination and evaluation of N.D. was conducted for the purposes of "medical diagnosis and treatment to establish whether or not she had any chronic injury." However, she noted N.D. presented no complaints, current symptoms, questions, or concerns at the time of the exam. Moreover, there was no indication N.D. had any awareness she was being questioned for the purposes of diagnosis and treatment. Thus, the statement should not have been admitted under this exception.5

Nonetheless, the admission of this statement was harmless. The statement did not provide the jury with new information it would have otherwise not been able to consider. See State v. Cotto, 182 N.J. 316, 331 (2005) (holding an improper admission of an out-of-court statement was harmless error where declarant testified and was subject to cross-examination, and the statement "only echoed the earlier identification testimony and did not introduce new information to the jury that the jury would have been unable to consider otherwise"). N.D. testified at trial and was cross-examined. There was no question as to her identification of defendant as the assailant. Thus, the error does not warrant reversal of defendant's conviction.

V.

Finally, defendant argues the trial court abused its discretion in sentencing him to a term in excess of the statutory minimum, and its findings as to two aggravating factors were not supported by the record. He also argues the judge abused his discretion in imposing consecutive sentences. We disagree.

The trial court sentenced defendant to an aggregate term of twenty-eight years in State prison, subject to an eighty-five percent period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At sentencing, the court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); two, N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to . . . extreme youth"); three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant s prior criminal record and the seriousness of the offenses of which he has been convicted"), and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law[.]"). The judge found no mitigating factors.

The court applied aggravating factor one because of defendant's role "and the manner in which [he committed] the offense against the young child victim." In finding aggravating factor two, the judge explained "both emotional and physical [harm were] inflicted on the child victim," and defendant knew N.D. "was incapable of resistance" because of "her extreme youth and [their] relationship." The court found aggravating factors three, six, and nine applied, citing defendant's prior record, risk of reoffending, and the need to deter future similar conduct.6

Defendant asserts the trial court erred in finding aggravating factors one and two, resulting in a sentence above the statutory minimum. He maintains absent such findings, "the remaining aggravating factors[, three, six and nine,] . . . cannot support imposition of a base custodial sentence in excess of the statutorily [sic] minimum sentence." Defendant also claims a sentencing court "must place its reasons on the record why the statutorily authorized minimum sentence was not imposed." We conclude these arguments are without merit.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65, (1984). Appellate review of criminal sentences is governed by the "clear abuse of discretion" standard. Id. at 363. We will not disturb a sentence that is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220, (1989). When sentencing a defendant, the trial court must consider the relevant aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b), "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid.

Defendant alleges the court engaged in impermissible "double-counting" when it found aggravating factors one and two. Specifically, defendant asserts the victim's age establishes an element of first-degree aggravated sexual assault and therefore cannot be considered as an aggravating factor. This argument has no merit.

Impermissible double-counting occurs when "established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353-54 (2000). "The sentencing court must not only ensure that facts necessary to establish the elements of the defendant's offense are not double-counted for purposes of sentencing, but that its assessment of the nature and circumstances of the offense fairly reflects the record before it." State v. Fuentes, 217 N.J. 57, 76 (2014) (citation and quotation marks omitted). However, a court may consider such facts where the defendant does more than the minimum a statute requires the State to prove in order to satisfy an element of an offense. See id. at 75 ("In appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense."); State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) ("[W]hen one injury alone is life threatening, the fact that several other injuries were also life threatening permits a judge to consider those additional injuries as an aggravating factor without double-counting.").

While N.J.S.A. 2C:14-2(a)(1) requires the victim of penetration be less than thirteen years old,7 the impact of the crime on a victim of "extreme youth" is properly considered when determining the applicability of aggravating factor two if the defendant has a familial relationship with the victim. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (finding where the victim was defendant's niece, her "extreme youth . . . was a proper aggravating factor to have been considered by the court"); see also State v. Yarbough, 100 N.J. 627, 646 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) ("[I]t is . . . appropriate to consider the relationship between the parties as an aggravating factor in determining whether to impose a maximum sentence for a first-degree crime.").

Applying these standards, we conclude the court properly exercised its discretion in finding aggravating factors one and two. The judge did not "double-count," as he appropriately considered the nature of the crime defendant committed against his daughter in determining a suitable sentence.

Defendant further argues the trial court was obligated to place specific reasons on the record explaining its decision not to impose the minimum custodial term, citing State v. Brown, 384 N.J. Super. 191 (App. Div. 2006). However, defendant's reliance on Brown is misguided, as it provides no support for defendant's position. While Rule 3:21-4(g) necessitates a court state its reasons for imposing sentence and finding certain aggravating and mitigating factors, the rule does not require the court explain why it did not impose a minimum term.

Defendant also claims certain aggravating factors cannot support a trial court's decision to sentence a defendant above the statutory minimum. Defendant rests this argument on the misconception that the minimum term is a presumptive term. To the contrary, all presumptive terms have been eliminated from the Code; therefore, judges are not required to commence their sentencing analysis from any "fixed point" in the statutorily authorized range. State v. Natale, 184 N.J. 458, 487-88 (2005)8.

Since the judge's findings of aggravating and mitigating factors were "based upon competent credible evidence in the record," and the sentence imposed falls within the permissible range for the convicted offense, we will not interfere. Roth, supra, 95 N.J. at 364.

Defendant further asserts the trial court abused its discretion in imposing consecutive sentences because the crimes were not independent of each other and did not involve "two independent periods of aberrant behavior." He maintains the trial court failed to conduct a "comprehensive" analysis of the Yarbough factors. We disagree.

While there are no statutorily set rules for imposing consecutive sentences,9 the Court in Yarbough, provided the following guidelines

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions . . . are numerous . . . .

[Yarbough, supra, 100 N.J. at 643-44.]

A sentencing court applies these factors qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see, e.g., State v. Molina, 168 N.J. 436, 442 (2001) (finding consecutive sentences were warranted despite the presence of only one Yarbough factor); State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose, . . . were somewhat interdependent of one another, and were committed within a short period of time of one another") (quotation marks omitted), certif. denied, 165 N.J. 492 (2000).

Even though the decision lies within the sound discretion of the trial court, it must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). However, "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed," and where "there is no showing that the sentence is clearly mistaken," the appellate court may affirm. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (affirming the trial court's sentence even though the judge did not "carefully articulate" the Yarbough factors), certif. denied, 177 N.J. 492 (2003); see also Molina, supra, 168 N.J. at 442-43 (upholding consecutive sentences in a case involving multiple victims, despite the trial court's failure to provide any reasons).

Here, the court explained its consideration of the Yarbough factors, specifically commenting on defense counsel's arguments as to their applicability. The judge stated he imposed consecutive sentences because of what defendant "did to this young girl, who was [his] daughter, on multiple occasions, in multiple ways." Although the court's analysis implicated only two of the Yarbough factors, the court's findings were sufficient as the evaluation is qualitative in nature, not quantitative. See Carey, supra, 168 N.J. at 427. Accordingly, since the two Yarbough factors were amply supported by the record, the court did not abuse its discretion in sentencing defendant to consecutive terms.

Defendant finally argues the trial court failed to determine his ability to pay the maximum SCVTF penalties imposed, pursuant to the Court's directive in State v. Bolvito, 217 N.J. 221, 233-34 (2014) (identifying two factors that should be considered in a sentencing court's application of N.J.S.A. 2C:14-10 as (1) a defendant's ability to pay and (2) the nature of the offense committed), requires a remand to reconsider that issue. The State concedes, in light of the holding in Bolvito, we should remand for such a reconsideration. We agree.

The record reveals the trial court imposed SCVTF penalties totaling $5000 without first evaluating defendant's ability to pay the penalties,10 or "provid[ing] a statement of reasons when it set[] . . . defendant's SCVTF penalty within the statutory parameters." Id.at 235. We are constrained, therefore, to vacate defendant's SCVTF penalties, and remand for imposition of those penalties in accordance with Bolvito, supra, 217 N.J. at 233-35 and N.J.S.A. 2C:14-10.

Defendant's convictions are affirmed. The matter is remanded for limited resentencing consistent with this opinion. We do not retain jurisdiction.


1 We use initials to protect the victim's identity.

2 The agency is now known as the New Jersey Division of Child Protection and Permanency.

3 Dr. Anthony D'Urso, AHCH's supervising psychologist, testified as an expert in child sexual abuse accommodation syndrome (CSAAS). D'Urso had not interviewed N.D. and was unfamiliar with the facts of her case, and testified solely to educate the jury about CSAAS.

4 N.J.R.E. 803(c)(27) provides in pertinent part

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . the child testifies at the proceeding . . . .

5 The State urges us to reject the awareness requirement and follow those jurisdictions that have found a child's statement to a physician is admissible if the physician relied upon it for treatment and diagnosis. See Knighton, supra, 125 N.J. at 89 (noting some out-of-state decisions "recogniz[e] that a young child may lack the capacity to appreciate the essence of a physician patient relationship, [and thus] focus on alternative indicia of reliability surrounding the child-declarant's statement to his or her physician"). The State argues we have already adopted a similar application of N.J.R.E. 803(c)(27), relying on two unpublished decisions. However, the State's argument ignores the limits of Rule 1:36-3, and that those unpublished cases are readily distinguishable from the instant facts. Namely, one case involves the victim testifying she knew her examination was conducted to ensure her health and treatability, and the other case concerned an examination to test the victim for sexually transmitted diseases, prior to the authorities' involvement.

6 Defendant does not challenge the applicability of these three aggravating factors on appeal.

7 The statute provides in pertinent part

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances

(1) The victim is less than 13 years old . . . .

[N.J.S.A. 2C:14-2(a)(1).]

8 Even if presumptive terms were still valid, a minimum term was not the presumptive term. Id. at 483.

9 Pursuant to N.J.S.A. 2C:44 5(a), "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence."

10 Because defendant was sentenced before the decision in Bolvito, the court did not have the benefit of the Court's analysis of the recently enacted statute governing the SCVTF.


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