STATE OF NEW JERSEY v. JOHN GONZALEZ

RECORD IMPOUNDED

                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0066-16T2

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JOHN GONZALEZ,

     Defendant-Appellant.
_____________________________

                Argued September 12, 2018 – Decided October 19, 2018

                Before Judges Yannotti, Gilson, and Natali.

                On appeal from Superior Court of New Jersey, Law
                Division, Camden County, Indictment No. 13-02-0503.

                Stephen P. Hunter, Assistant Deputy Public Defender,
                argued the cause for appellant (Joseph E. Krakora,
                Public Defender, attorney; Stephen P. Hunter, of
                counsel and on the briefs).

                Adam D. Klein, Deputy Attorney General, argued the
                cause for respondent (Gurbir S. Grewal, Attorney
                General, attorney; Adam D. Klein, of counsel and on
                the brief).

                Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant John Gonzalez and co-defendant Steven Alicea were charged

with numerous crimes related to two incidents that took place on the same day.

The first incident involved a robbery and murder, and the second involved a

home invasion, robbery, and aggravated sexual assaults. Defendant and Alicea

were tried separately. 1

      A jury found defendant not guilty of murder, but guilty of numerous other

crimes, including first-degree armed robbery,  N.J.S.A. 2C:15-1, and first-degree

aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(3). Defendant was sentenced to

an aggregate prison term of forty-one years with just over thirty-two years of

parole ineligibility. He appeals his convictions and sentence. We affirm.

                                       I.

      The two incidents that gave rise to defendant's convictions occurred on

September 30, 2011, when defendant was sixteen years old. There were three

victims: L.B. was robbed and murdered; G.T. was robbed; and B.C. was robbed




1
  Co-defendant Alicea has filed a separate appeal, which we have addressed in
a separate opinion. See State v. Alicea, No. A-1363-16 (App. Div. Oct. 19,
2018).


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                                       2
and sexually assaulted. 2 At trial, G.T., B.C., and other witnesses testified.

Defendant also testified.

        On September 30, 2011, C.B., a friend of L.B., had made arrangements to

meet her at his home. Anticipating her arrival, C.B. was looking out a window

on the second floor of his house. In the evening, he saw L.B. arrive in a white

van. C.B. then saw three Hispanic men in hooded sweatshirts approach the van.

He noted that one of the men's sweatshirts had a cartoon character's face on the

front. One of the men went to the driver's side of the van and the other two men

went to the passenger's side.

        L.B. exited the van and began walking towards C.B.'s door. C.B. left the

window and walked downstairs to open the door for L.B. Before he opened the

door, he heard L.B. say: "I don't have anything," and "stay away from me[.]"

He then heard gunshots. C.B. went back upstairs, looked out the window, and

saw L.B. sitting on his front steps. A few minutes later, he saw another woman

he knew as "Cookie" come around the street corner, approach L.B., and he heard

L.B. tell Cookie "they shot me." Cookie called 911.




2
    We use initials to protect the privacy of the victims and witnesses.
                                                                           A-0066-16T2
                                          3
      That same night, G.T. was at his home, which was located less than two

blocks from where L.B. was shot. G.T. was over eighty years old at the time,

and B.C., his former caretaker and friend, was living with him.

      Just after 11 p.m., G.T. and B.C. heard bangs on their door. G.T. opened

the door and observed three men on the sidewalk. G.T. asked the men if they

had been banging on his door. The men said no and G.T. returned inside the

house. Immediately thereafter, G.T. and B.C. heard more banging on the door.

G.T. opened the door for a second time, and the three men then entered the home,

two of whom had guns and one of whom was pointing a gun at G.T. The men

demanded money from G.T. The men then told B.C. to take her clothes off and

forced her to perform oral sex on G.T. Thereafter, B.C. was forced to perform

oral sex on the three men and each of the men raped her vaginally and anally.

When B.C. tried to resist the assaults, she was punched and hit with a gun.

      While at the home, the men searched for and took various items, including

watches, keys, a cell phone, a camera kit, coins, and a chain. The men also

threatened G.T. and B.C. throughout the time that they were at the home.

Eventually, the men left the home. G.T. then called the police.

      The police arrived shortly thereafter and began to search the area for the

suspects. Police officers saw three men who began to run when the officers


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                                       4
stopped to question them. The officers pursued and eventually apprehended

defendant and Alicea. The third suspect, escaped and apparently has not been

located.

       While pursuing defendant, an officer saw defendant discard a blue

sweatshirt that was later recovered. Inside the sweatshirt, the police found a

handgun. When defendant was searched incident to his arrest, the police found

two watches and a chain belonging to B.C. and G.T. After being arrested,

defendant was taken to G.T.'s home and G.T. identified defendant as one of the

men involved in the robbery and sexual assaults.

       In the meantime, B.C. was taken to the hospital and evaluated by a sexual

assault nurse examiner (SANE nurse). During the examination, B.C. described

the sequence of events leading up to the sexual assaults and what the suspects

looked like. After her examination, B.C. was taken to the police station where

she identified defendant in a photo array.

       Following defendant's arrest, he was read his Miranda3 rights and agreed

to give a statement. Thereafter, he admitted to being at the scenes of the murder

and home invasion. He also acknowledged that he had been wearing a blue




3
    Miranda v. Arizona,  384 U.S. 436 (1966).
                                                                          A-0066-16T2
                                        5
hooded sweatshirt and that he had been carrying a gun. Prior to trial, defendant

moved to suppress his statement, but the court denied that motion.

      Although a juvenile when the crimes were committed, defendant was tried

as an adult. The trial was conducted during six days in January 2016. As noted,

G.T., B.C., and numerous other witnesses testified at trial. Defendant also

testified. Defendant told the jury that he was selling drugs in Camden on

September 30, 2011.       He acknowledged wearing a blue "Cookie Monster"

sweatshirt and having a gun when he met up with Alicea and the third suspect,

who he referred to as "D.J." He also acknowledged walking up to a white van

to sell drugs. During the sale, he heard yelling and then gunshots from the other

side of the van. He started to run and followed Alicea and D.J. Alicea told

defendant: "I shot that bitch, because she didn't want to give me nothing."

Defendant claimed, however, that he did not know that Alicea and D.J. were

planning to rob anyone.

      Defendant then related that he and his two companions ran until they

reached G.T.'s home. Alicea told defendant that the woman who lived there

owed him money. Defendant explained that when he went into the home, he

was frightened about what had happened down the street and he wanted "a little

hideaway" from the police. Defendant denied having anything to do with the


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                                       6
crimes committed at the home. He acknowledged, however, that he saw Alicea

put a gun in G.T.'s mouth and he saw Alicea and D.J. sexually assault B.C.

      After hearing the evidence, the jury convicted defendant of eleven crimes:

second-degree burglary,  N.J.S.A. 2C:18-2; first-degree armed robbery,  N.J.S.A.

2C:15-1; first-degree aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(3); second-

degree conspiracy to commit burglary,  N.J.S.A. 2C:5-2 and  N.J.S.A. 2C:18-2;

second-degree conspiracy to commit robbery,  N.J.S.A. 2C:5-2 and  N.J.S.A.

2C:15-1; second-degree conspiracy to commit sexual assault,  N.J.S.A. 2C:5-2

and  N.J.S.A. 2C:14-2(a)(3); various weapon offenses; and felony murder. The

trial court, however, vacated the conviction for felony murder.

      At sentencing, a number of defendant's convictions were merged and, as

noted earlier, he was sentenced to an aggregate prison term of forty-one years

with just over thirty-two years of parole ineligibility. Specifically, defendant

was sentenced to fifteen years in prison subject to the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2, for first-degree robbery; eighteen years in prison

subject to NERA for first-degree aggravated sexual assault; and eight years in

prison with four years of parole ineligibility for second-degree unlawful

possession of a weapon. Those sentences were to be served consecutively, and

his remaining sentences were to run concurrent to those sentences. Defendant


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                                       7
was also sentenced to parole supervision, including parole supervision for life,

restrictions under Megan's Law,  N.J.S.A. 2C:7-1 to -23, and restrictions under

Nicole's Law,  N.J.S.A. 2C:14-12 and  N.J.S.A. 2C:44-8.

                                      II.

      On appeal, defendant makes five arguments. His counsel makes four

arguments, which counsel articulates as follows:

            POINT I – THE TRIAL COURT'S FAILURE TO
            CHARGE TRESPASS AS A LESSER-INCLUDED
            OFFENSE OF BURGLARY WAS PLAIN ERROR
            BECAUSE THE DEFENDANT'S TESTIMONY
            CLEARLY INDICATED A NON-CRIMINAL
            PURPOSE FOR ENTERING [G.T.'s] HOME.

            POINT II – THE TRIAL COURT'S FAILURE TO
            INSTRUCT THE JURY THAT DEFENDANT
            COULD BE FOUND GUILTY OF A LESSER
            OFFENSE AS AN ACCOMPLICE, ON THE BASIS
            OF HIS OWN MENTAL STATE, EVEN IF THE
            CODEFENDANT, THE GUNMAN, HAD THE
            MENTAL STATE FOR ARMED ROBBERY,
            DEPRIVED DEFENDANT OF THE RIGHT TO DUE
            PROCESS OF LAW AND A FAIR TRIAL.

            POINT III – THE TRIAL COURT COMMITTED
            PLAIN ERROR IN ALLOWING THE SEXUAL
            ASSAULT NURSE EXAMINER TO PRESENT
            DETAILED TESTIMONY REGARDING THE
            ALLEGED ASSAULT, WHICH WAS HEARSAY
            UNDER THE MEDICAL EXCEPTION RULE, AND
            IMPROPERLY BOLSTERED [B.C.'s] CREDIBILITY.



                                                                         A-0066-16T2
                                       8
            POINT IV – DEFENDANT'S SENTENCE OF
            FORTY- [ONE] YEARS IN PRISON WITH MORE
            THAN THIRTY-TWO YEARS OF PAROLE
            DISQUALIFICATION, IMPOSED UPON HIM FOR
            CRIMES COMMITTED WHILE A JUVENILE,
            VIOLATED THE EIGHTH AMENDMENT AND
            ARTICLE ONE, PARAGRAPH TWELVE OF THE
            NEW JERSEY CONSTITUTION BECAUSE THE
            SENTENCE     WAS      IMPOSED        WITHOUT
            CONSIDERATION OF HIS AGE AT THE TIME OF
            THE CRIME. THEREFORE, THE SENTENCE IS
            ILLEGAL, REQUIRING RESENTENCING UNDER
            STATE V. ZUBER,  227 N.J. 422 (2017).

      Defendant also filed a pro se letter brief, where he makes a fifth argument,

which he articulates as follows:

            POINT I – TRIAL COURT ERRED WHEN IT HELD
            THAT DEFENDANT'S WAIVER OF HIS RIGHT TO
            REMAIN SILENT      WAS    KNOWING    AND
            VOLUNTARY WITHOUT HIS PARENT AND/OR
            ATTORNEY BEING PRESENT WHICH VIOLATED
            DEFENDANT'S FIFTH AMENDMENT RIGHT
            AGAINST SELF-INCRIMINATION.

      We are not persuaded by any of these arguments. We first address the

motion to suppress. Next, we analyze the contentions concerning the two lesser-

included charges. Thereafter, we examine the testimony by the SANE nurse.

Finally, we evaluate the sentencing argument.




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                                        9
      1.     The Motion to Suppress

      Defendant contends that the trial court erred in denying his motion to

suppress a statement that he gave to law enforcement officers. Specifically, he

focuses on the fact that he was sixteen years old at the time that he gave the

statement and that neither his attorney nor his mother were present when he was

interviewed.

      During an interrogation of a juvenile, "a parent or legal guardian should

be present in the interrogation room, whenever possible." State v. Presha,  163 N.J. 304, 315 (2000) (citing State ex rel. S.H.,  61 N.J. 108, 114-15 (1972)). As

such, police need to use their "best efforts" to locate a parent or legal guardian

before questioning a juvenile. Id. at 316 (citing State ex rel. J.F.,  286 N.J. Super.
 89, 98 (App. Div. 1995)). Nonetheless, once located, a parent or guardian may

decline to be present at the interrogation. Id. at 317; State ex rel. Q.N.,  179 N.J.
 165, 173 (2004).

      The absence of a parent or legal guardian will not automatically render a

statement inadmissible, particularly when the juvenile providing the statement

is over the age of fourteen. See Presha,  163 N.J. at 308, 317; see also State ex

rel. A.S.,  203 N.J. 131, 148-49 (2010). Instead, an interrogation may still be

conducted so long as the officers act with "the utmost fairness and in accordance


                                                                              A-0066-16T2
                                        10
with the highest standards of due process and fundamental fairness." Presha,

 163 N.J. at 317 (first quoting S.H.,  61 N.J. at 115; then citing State v. R.W.,  115 N.J. Super. 286, 296 (App. Div. 1971)).

      To evaluate the voluntariness of a statement, the court considers the "the

totality of circumstances" surrounding the interrogation. Id. at 308, 317. A

statement is admissible if it is "made knowingly, intelligently, and voluntarily."

A.S.,  203 N.J. at 146 (citing Presha,  163 N.J. at 313). In reviewing the "totality

of circumstances," the court considers the following factors: a suspect's age,

education, intelligence, prior contacts with the criminal justice system, length

of detention, advisement of constitutional rights, the nature of the questioning,

and whether physical punishment or mental exhaustion were involved in the

interrogation process. Ibid. (quoting State v. Miller,  76 N.J. 392, 402 (1978)).

Nonetheless, in situations involving a juvenile defendant, the absence of a parent

or legal guardian is a "highly significant factor" affecting the totality of the

circumstances. Id. at 147 (quoting Presha,  163 N.J. at 315).

      The trial court here conducted a multi-day evidentiary hearing to evaluate

defendant's motion to suppress his statement. The court heard testi mony from

five law enforcement officials, defendant's attorney, and defendant's mother.

After hearing that testimony, the court made findings of facts. In that regard,


                                                                            A-0066-16T2
                                       11
the court found that in October 2011, defendant asked to give a statement to law

enforcement officials. Members of the prosecutor's office then spoke with

defendant's attorney. After conferring with defendant's mother, defense counsel

authorized the prosecutor to speak with defendant. Defense counsel was invited

to be present while defendant gave his statement, but counsel stated that he had

to be in municipal court and, therefore, could not attend the interview. Thus,

the trial court found that the prosecutor's office believed it had been given

permission to interview defendant by defense counsel and, through defense

counsel, by defendant's mother.

      The trial court also found that there was no dispute that defendant was

read his Miranda rights, understood those rights, and waived those rights.

Accordingly, the trial court concluded that the State had used its best efforts to

have defendant's attorney or parent present for the interview and, under the

totality of the circumstances, the interview was lawful. Thus, the trial court

denied defendant's motion to suppress his statement.

      When reviewing the trial court's decision on a motion to suppress a

statement, we generally defer to the factual findings of the trial court when

supported by credible evidence in the record. See State v. Nyhammer,  197 N.J.
 383, 409 (2009). Moreover, we defer to the trial judge's findings that are


                                                                           A-0066-16T2
                                       12
"substantially influenced by [the judge's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy[.]" State v. Davila,  203 N.J. 97, 109-10 (2010) (quoting State v. Johnson,

 42 N.J. 146, 161-62 (1964)).        We review de novo the trial court's legal

conclusions that flow from established facts. State v. Mann,  203 N.J. 328, 337

(2010).

      Here, the record supports the trial judge's findings that defendant

voluntarily, knowingly, and intelligently waived his Miranda rights. The record

also supports the trial judge's finding that the law enforcement officers involved

in interviewing defendant had received permission to conduct the interview from

defense counsel and defense counsel had informed them that defendant's mother

had also authorized the interview. Indeed, when defendant was interviewed,

defendant himself acknowledged that his mother had spoken to his attorney, his

attorney had spoken with him, and his attorney knew that he was being

interviewed. Thus, there was a showing that the relevant law enforcement

officials had used their best efforts to inform and obtain permission from

defendant's lawyer and mother before questioning defendant. Therefore, under

the totality of these circumstances, we discern no error in the trial court's denial

of defendant's motion to suppress his statement.


                                                                             A-0066-16T2
                                        13
      2.      The Lesser-Included Charges

      Jury charges are critical in guiding deliberations in criminal trials. State

v. Jenkins,  178 N.J. 347, 361 (2004) (citing State v. Jordan,  147 N.J. 409, 421-

22 (1997)).        Consequently, improper instructions on material issues are

presumed to constitute reversible error even when a defendant fails to object at

trial. Ibid. Moreover, "a defendant is entitled to a charge on all lesser included

offenses supported by the evidence." State v. Short,  131 N.J. 47, 53 (1993).

Accordingly, the trial court "has an independent obligation to instruct on lesser-

included charges when the facts adduced at trial clearly indicate that a jury could

convict on the lesser while acquitting on the greater offense." Jenkins,  178 N.J.

at 361. The key consideration is whether the evidence clearly indicates the need

for the instruction. A trial court is not obligated to "meticulously . . . sift through

the entire record in every . . . trial to see if some combination of facts and

inferences might rationally sustain a [lesser-included] charge."             State v.

Funderburg,  225 N.J. 66, 70 (2016) (quoting State v. Choice,  98 N.J. 295, 299

(1985)).

              a.     The lesser-included offense of trespass.

      Defendant argues that the trial court erred by failing to charge trespass as

a lesser-included offense of burglary. Defendant did not request that charge at


                                                                               A-0066-16T2
                                         14
trial and, therefore, we review this argument for plain error. R. 2:10-2. Under

that standard, the error must be "clearly capable of producing an unjust result[.]"

Ibid. A conviction will only be reversed if the error at trial is sufficient to raise

"a reasonable doubt . . . as to whether the error led the jury to a result it otherwise

might not have reached." Funderburg,  225 N.J. at 79 (quoting Jenkins,  178 N.J.

at 361). Furthermore, when there is no objection to the charge, we "presum[e]

that the charge was not error and was unlikely to prejudice the defendant's

case[.]" State v. Young,  448 N.J. Super. 206, 224 (App. Div. 2017) (alteration

in original) (quoting State v. Singleton,  211 N.J. 157, 182 (2012)).

      A defendant is guilty of burglary if he or she: (1) enters a structure that

is not open to the public or that the person is not licensed or privileged to enter,

or surreptitiously remains in a structure knowing that he or she is not licensed

or privileged to do so; and (2) has the purpose to commit an offense therein.

 N.J.S.A. 2C:18-2(a). A defendant is guilty of criminal trespass if he or she: (1)

enters or surreptitiously remains in a structure and (2) knows that he or she is

not licensed or privileged to do so.  N.J.S.A. 2C:18-3(a).

      Here, defendant contends that the failure to charge trespass as a lesser-

included offense of burglary requires reversal of his convictions for burglary,

aggravated sexual assault, conspiracy to commit burglary, and conspiracy to


                                                                                A-0066-16T2
                                         15
commit aggravated sexual assault. The aggravated sexual assault offenses are

implicated because an actor is guilty of aggravated assault if the act is committed

during the commission of certain offenses, including burglary.  N.J.S.A. 2C:14-

2(a)(3). Having reviewed the record, we discern no reversible error in the trial

court's failure to sua sponte instruct the jury on the charge of trespass.

      The jury found defendant guilty of multiple crimes during the home

invasion, including robbery of G.T. and aggravated sexual assault of B.C.

Defendant, however, claims he entered G.T.'s home because he was afraid of

being arrested following L.B.'s murder. He claims that he had no intent to

commit a robbery or sexual assault while in the home. The evidence, however,

did not clearly indicate that the jury should be instructed on trespass. Defendant

himself testified that he had a gun when he entered G.T.'s home and he also

testified that he saw that Alicea had a gun. Defendant also acknowledged that

he saw Alicea and D.J. acting aggressively towards G.T. and repeatedly sexually

assaulting B.C. Finally, defendant was found to be in possession of property

stolen from G.T. and B.C. Accordingly, to accept defendant's argument, we

would have to assume that if charged on trespass, the jury would have found

defendant not guilty of the robbery and the sexual assault that occurred at the




                                                                             A-0066-16T2
                                        16
home. The testimony and evidence at trial simply does not support such a

conclusion.

              b.   Accomplice liability for lesser-included offenses.

      Defendant next argues that the trial court erred in failing to charge the jury

on accomplice liability for lesser-included offenses. Here again, defendant did

not ask for the charges at trial and, therefore, we review for plain error.

      The jury was properly instructed on first- and second-degree robbery, theft

as a lesser-included offense, and accomplice liability. If the court provides the

accomplice charge, "the court is obligated to provide the jury with accurate and

understandable jury instructions regarding accomplice liability even without a

request by defense counsel." State v. Bielkiewicz,  267 N.J. Super. 520, 527

(App. Div. 1993) (quoting State v. Weeks,  107 N.J. 396, 410 (1987)). In that

regard, a "jury must be instructed that [the] defendant 'shared in the intent which

is the crime's basic element, and at least indirectly participated in the

commission of the criminal act.'" State v. Oliver,  316 N.J. Super. 592, 596 (App.

Div. 1998) (quoting Bielkiewicz,  267 N.J. Super. at 528). Moreover, "[a]n

accomplice is only guilty of the same crime committed by the principal if he [or

she] shares the same criminal state of mind as the principal." State v. Whitaker,

 200 N.J. 444, 458 (2009) (citing State v. White,  98 N.J. 122, 129 (1984)).


                                                                              A-0066-16T2
                                       17
      Here, defendant argues that Alicea could have intended to commit armed

robbery, while he only intended to commit unarmed robbery or theft. The court

gave the jury the option of finding defendant guilty of first-degree or second-

degree robbery, as well as theft from a person. The court also charged the jury

on accomplice liability, explaining that the State had to prove that defendant

possessed the same criminal state of mind as the person who actually committed

the offense.

      Defendant, nevertheless, contends that the jury should have been

instructed that he could have been found guilty as an accomplice of a lesser-

included offense, even though the principal is found guilty of a more serious

offense. The absence of such a charge at defendant's trial was not plain error.

There was strong evidence that defendant committed armed robbery as a

principal. In that regard, defendant himself testified that he entered G.T.'s home

armed with a loaded handgun.

      Failure to give a Bielkiewicz charge to the jury is not always reversible

error. See State v. Ingram,  196 N.J. 23, 40 (2008). In Ingram, our Supreme

Court explained:

               [I]t was not reversible error when the trial court
               instructed the jury on the elements of the offenses of
               robbery and theft, together with the elements required
               for accomplice liability, without also specifically

                                                                           A-0066-16T2
                                        18
            charging that "[o]ur law recognizes that two or more
            persons may participate in the commission of an
            offense but each may participate therein with a different
            state of mind" and that "[t]he liability or responsibility
            of each participant for any ensuing offense is dependent
            on his/her own state of mind and not on anyone else's."

            [Ibid. (alterations in original) (quoting Model Jury
            Charges (Criminal), "Liability for Another's Conduct
            (N.J.S.A. 2C:2-6)" (May 22, 1995)).]

      During defendant's trial, the court repeatedly instructed the jury that

defendant could not be found guilty of a crime if he did not possess the requisite

criminal state of mind. In that regard, the court explained that to be found guilty

of robbery, burglary, or aggravated sexual assault as an accomplice, defendant

needed to "posses[s] [the] criminal state of mind that is required to be prove[n]

against the person who actually committed the criminal act." Consequently,

having evaluated the jury charge in its entirety, the jury was clearly instructed

that defendant could not be convicted of any crime as an accomplice unless he

had the criminal intent for that crime.

      3.    The Testimony by the SANE Nurse

      Defendant contends that it was plain error for the trial court to admit

hearsay testimony by the SANE nurse who examined B.C.                 Specifically,

defendant argues that the nurse's testimony was hearsay and did not fall within



                                                                            A-0066-16T2
                                          19
the ambit of the medical diagnosis or treatment exception rule and also

improperly bolstered B.C.'s credibility.

      We review trial court evidentiary rulings for an abuse of discretion. State

v. Gorthy,  226 N.J. 516, 539 (2016). Moreover, here there was no objection

made at trial and, therefore, we review this issue for plain error. R. 2:10-2.

      Hearsay "is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." N.J.R.E. 801(c). Statements made for the purpose of medical

diagnosis or treatment are exceptions to the hearsay rule. N.J.R.E. 803(c)(4).

The medical diagnosis or treatment exception is based on the assumption that

the declarant is focused on obtaining a diagnosis and treatment culminating in

medical recovery. State ex rel. C.A.,  201 N.J. Super. 28, 33-34 (App. Div.

1985).

      At trial, the SANE nurse testified that she went to the hospital to find out

what had happened to B.C., who she viewed as a "patient" and explained that

her "primary goal [wa]s the patient's emotional and physical well-being." The

SANE nurse also explained that part of her job was to make sure that the patient

did not have injuries, or if she was injured, to have those injuries treated.




                                                                            A-0066-16T2
                                       20
      The SANE nurse then testified as to what B.C. recounted to her concerning

the sexual assaults. In that regard, the SANE nurse explained that B.C. had told

her that three men, two of whom were armed, forced their way into her home,

directed her to strip off her clothes, and forced her to perform oral sex. B.C.

also explained that she was raped anally and vaginally by all three assailants.

B.C. did not provide the SANE nurse with a specific identification of any of the

assailants; rather, she described them as "Spanish."

      Having reviewed the SANE nurse's testimony, we find no plain error in

the admission of that testimony. The majority of the testimony fell within the

medical diagnosis and treatment exception to the hearsay rule. The SANE nurse

did not testify concerning B.C.'s identification of defendant. Instead, B.C.

herself testified at trial and identified defendant as one of the men who had

robbed and sexually assaulted her. In short, the testimony by the SANE nurse

was not clearly capable of leading a jury to an unjust result. R. 2:10-2.

      4.    The Sentence

      Defendant contends that his sentence, which aggregated to forty-one years

in prison with just over thirty-two years of parole ineligibility, violates the

constitutional prohibitions against cruel and unusual punishment because his




                                                                            A-0066-16T2
                                      21
youthful age was not appropriately considered by the sentencing judge. We

disagree.

      In sentencing juveniles, special considerations must be evaluated when

the juvenile is sentenced to life in prison or lengthy overall terms of

imprisonment. Miller v. Alabama,  567 U.S. 460, 473-74, 476-80 (2012); State

v. Zuber,  227 N.J. 422, 429 (2017). The United States Supreme Court has held

that "the Eighth Amendment [of the Constitution] forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile offenders."

Miller,  567 U.S.  at 479. In Miller, the Supreme Court did not "foreclose" life

without parole for juveniles convicted of murder, but it did require sentencing

judges "to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison."

Id. at 480. Thus, the Supreme Court in Miller identified five factors (the Miller

factors) that sentencing judges should consider in sentencing juveniles to life in

prison without the possibility of parole. Id. at 477-78.

      Our Supreme Court has adopted the Miller factors and held that those

factors must be considered in sentencing juveniles to sentences "that are the

practical equivalent of life without parole[.]" Zuber,  227 N.J. at 429. In Zuber,

our Supreme Court also held that the Miller factors must be considered when "a


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judge imposes consecutive terms that would result in a lengthy overall term of

imprisonment for a juvenile[.]" Ibid.

      Accordingly, when a juvenile is sentenced to a lengthy overall term of

imprisonment, a sentencing court must consider two sets of factors. First, if the

court is imposing consecutive sentences, it must consider the traditional factors

set forth in State v. Yarbough,  100 N.J. 627, 643-44 (1985). Zuber,  227 N.J. at
 429. Second, the sentencing court must also consider the Miller factors. Ibid.

      Here, defendant was sentenced on his convictions for ten offenses related

to the robbery and sexual assaults that occurred on September 30, 2011, and

involved multiple victims.    Defendant was sentenced to three consecutive

sentences for first-degree robbery, first-degree aggravated sexual assault, and

second-degree unlawful possession of a weapon. The court also imposed thirty-

two years and eighteen days of parole ineligibility.

      In imposing that sentence, the court found four aggravating factors and

considered, but rejected, mitigating factors.     Specifically, the court found

aggravating factors three, "[t]he risk that the defendant will commit another

offense[,]"  N.J.S.A. 2C:44-1(a)(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:44-1(a)(6); nine, "[t]he need for deterring the


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defendant and others from violating the law[,]"  N.J.S.A. 2C:44-1(a)(9); and

twelve, "[t]he defendant committed [an] offense against a person who he knew

or should have known was 60 years of age or older,"  N.J.S.A. 2C:44-1(a)(12).

      The sentencing court rejected defense counsel's argument for mitigating

factor thirteen, that the conduct of defendant, who was sixteen at the time of the

offenses, was substantially influenced by another more mature defendant. See

 N.J.S.A. 2C:44-1(b)(13). In discussing mitigating factor thirteen, the sentencing

court considered defendant's youth at the time the crimes were committed. The

court also considered the heinous nature of the crimes.

      In summary, the sentencing judge analyzed applicable aggravating and

mitigating factors and explained the basis for those factors.        In imposing

consecutive sentences, the sentencing judge also discussed the Yarbough factors

and explained the reason for imposing consecutive sentences. As part of both

of those analyses, the sentencing judge considered defendant's age, but

ultimately found that his youth was not a mitigating factor given the nature of

the crimes.

      Read in full context, we are satisfied that the court sufficiently considered

defendant's youth in imposing the consecutive sentences. In that regard, we note

that the sentence, while lengthy, is not the equivalent of a life sentence.


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Defendant was twenty years of age when he was sentenced and, thus, accounting

for jail credits, he will be eligible for parole when he is still in his forties.

Accordingly, we discern no abuse of discretion, State v. Blackmon,  202 N.J.
 283, 297 (2010), nor an illegal sentence requiring a remand for a new sentence,

Zuber,  227 N.J. at 447-48.

      Affirmed.




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