STATE OF NEW JERSEY v. G.T.C.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2723-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

G.T.C.,

Defendant-Appellant.
_____________________________

Argued October 2, 2017 – Decided March 13, 2018

Before Judges Messano and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
14-05-0052.

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

Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Sarah
Lichter, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
Defendant G.T.C.1 appeals his conviction and sentence for

conspiracy, two counts of aggravated sexual assault and multiple

counts of endangering the welfare of a child. Having reviewed the

record in light of the applicable law, we affirm defendant's

convictions, vacate his sentence and remand for resentencing.

The charges in this matter arise from allegations defendant

and his codefendant R.B. conspired to sexually assault and endanger

the welfare of R.B.'s thirteen-year-old nephew, Scott, and eight-

year old niece, Alice. The State alleged defendant and R.B.

conspired to sexually assault the children and have the children

perform sex acts upon each other. Defendant did not physically

participate in the sexual assaults and sexual activity between the

children, but he encouraged and planned the assaults and activity,

listened to the assaults and activity over the phone, and requested

and obtained photographs of the assaults and activity from R.B.

Defendant and R.B. were charged in an indictment with

committing offenses occurring during two overlapping timeframes.

The indictment charged defendant and R.B. with the following eleven

offenses "between on or about November 28, 2010, and on or about

January 22, 2011": second-degree conspiracy to commit aggravated

1
We employ initials and pseudonyms to protect the victims'
privacy. See
N.J.S.A. 2A:82-46(a).

2 A-2723-14T3
sexual assault and endangering the welfare of a child,
N.J.S.A.

2C:5-2,
N.J.S.A. 2C:14-2 and
N.J.S.A. 2C:24-4 (count one); two

counts of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-

2(a)(1) and
N.J.S.A. 2C:14-2(a)(2)(a) (counts two and three

respectively); six counts of second-degree endangering the welfare

of a child,
N.J.S.A. 2C:24-4 (count four, five, seven, nine, ten

and twelve); and two counts of third-degree endangering the welfare

of a child,
N.J.S.A. 2C:24-4 (counts six and eleven). The

indictment alleged the following two offenses were committed

"between on or about November 28, 2010, and on or about February

16, 2011:" two counts of fourth-degree endangering the welfare of

a child,
N.J.S.A. 2C:24-4(b)(5)(b) (counts eight and thirteen).

R.B. pleaded guilty to some of the charges pursuant to a

negotiated plea agreement. Defendant's trial was scheduled for

May 2014. On May 13, 2014, a grand jury returned a superseding

indictment charging defendant with the identical thirteen criminal

offenses alleged in the original indictment. The superseding

indictment, however, modified the timeframe during which the

crimes were allegedly committed to also include the period between

August 5, 2010, and November 27, 2010.

At a May 13, 2014 pretrial conference, the court addressed

the superseding indictment. The State asserted defendant was not

prejudiced by the expansion of the indictment's timeframe because

3 A-2723-14T3
it provided defendant with all of the discovery pertinent to the

modified timeframe with the discovery materials related to the

original indictment. Defense counsel acknowledged defendant had

been previously provided with the discovery materials relating to

the events occurring during the modified timeframe, but observed

the superseding indictment expanded the allegations beyond those

he anticipated would be at issue at trial. The court was not

asked to decide any issues regarding the superseding indictment,

and scheduled a hearing on pretrial issues, including the State's

request to admit evidence under N.J.R.E. 404(b).

At the hearing three days later, the court considered whether

to proceed to trial on the superseding indictment.2 The State

explained it intended to introduce evidence showing that during

the expanded timeframe, August 5, 2010, to November 27, 2010,

defendant: communicated with R.B. about her participation in sex

acts with the children; obtained a photograph in August 2010 from

R.B. showing her engaged in oral sex with Scott; and spoke with

Scott on the phone in September 2010, persuaded Scott to have

sexual intercourse with R.B., and listened on the phone as R.B.

and Scott had sexual intercourse.

2
At the hearing, the court also determined the admissibility of
certain evidence under N.J.R.E. 404(b). The court's determination
on the admission of the evidence is not an issue on appeal.

4 A-2723-14T3
The court found, and defense counsel acknowledged, that the

discovery materials concerning the events were provided to

defendant in connection with the original indictment. The court

further found counsel should have reasonably anticipated the State

would seek to introduce the evidence concerning the events under

N.J.R.E. 404(b) in the trial on the original indictment. The

court determined that permitting the trial to proceed under the

revised timeframe did not violate defendant's due process rights

"because all of the acts and the parties and the evidence and the

images . . . that are utilized to prove the State's case in the

superseding indictment are the same as in the original indictment."

The court concluded the matter would proceed to trial on the

superseding indictment. Defendant did not request an adjournment.

The trial evidence showed defendant and R.B. met on an online

dating service in August 2010, and began an intimate relationship.

At the time, R.B. lived with her mother, and brother and sister-

in-law and their children, Scott and Alice.3 Defendant visited

their home on occasions when R.B., Scott and Alice were present.

During an August 2010 sexual encounter between defendant and

R.B., he asked R.B. if she would let Scott join them. R.B. told

defendant she would let Scott join them, but never did. She

3
Scott and Alice are step-brother and sister.

5 A-2723-14T3
perceived the discussion as "role-playing," but later defendant

asked R.B. if she would have sex with Scott while defendant

watched. R.B. told defendant she would not have sex with Scott,

and explained she only said Scott could join their sexual

encounters for defendant's entertainment. Defendant responded

that R.B. made him feel guilty. Defendant sent R.B. a picture of

his penis and asked her to compare it to Scott's penis.

The following day, on August 20 or 21, 2010, R.B. exchanged

text messages with defendant. Defendant told R.B. to "have some

fun" with Scott. She understood the message directed her "to do

something sexual with Scott." She took a picture of Scott's penis

and took a photograph of herself performing oral sex on Scott.

She sent the photo to defendant, and he responded by stating it

was "hot" and "he was turned on by it."

In September 2010, R.B. spoke to defendant over the telephone

and said she was home alone with Scott. Defendant told her "it

was a perfect time to do it, because nobody was home." She said

Scott was nervous, and she gave the phone to him. Scott testified

defendant bribed him into having sex with R.B. R.B. explained

Scott gave the phone back to her and he appeared "more comfortable

with doing what [they] were gonna do." R.B. and Scott then had

sex while defendant listened over the telephone. After R.B. had

6 A-2723-14T3
sex with Scott, defendant texted her a picture of his penis and

said what she and Scott had done was "hot."

The following month, defendant planned to sleep over at R.B.'s

brother's home. Defendant said he wanted to give Alice Benadryl4

and have her lay in bed with them. On the evening defendant slept

over, he asked R.B. to bring Alice to the bed, but R.B. made

excuses. R.B. testified defendant became aggravated because she

said she "was gonna do stuff and . . . never did it." During the

following few weeks, R.B. and defendant stopped talking. R.B.,

however, continued to send daily text messages to defendant saying

she loved him.

R.B. and defendant rekindled their relationship on

Thanksgiving. By early December 2010, at defendant's request R.B.

began sending defendant pictures showing Alice with her leg behind

her head wearing no underwear, masturbating, and playing dress-up

naked in stockings. R.B. testified defendant "liked them," and

"would say that's hot, or he would be like – like can I have some

more," and asked R.B to take sexual photos of Alice.

4
Benadryl is a brand name for diphenhydramine, an antihistamine,
used to treat symptoms of allergies, hay fever or the common cold.
See Diphenhydramine, MEDLINEPLUS.GOV, https://medlineplus.gov/
druginfo/meds/a682539.html (last visited Feb. 20, 2018).
"Diphenhydramine should not be used to cause sleepiness in
children." Ibid.

7 A-2723-14T3
On January 22, 2011, R.B. photographed eight-year old Alice

engaging in oral sex with thirteen year-old Scott, and sent it to

defendant. Defendant responded in a text message asking if they

"were having fun." The following day, R.B. and defendant were

arrested. R.B. testified that during the course of her six-month

relationship with defendant, she sent defendant "like 40" sexually

explicit pictures of Scott and Alice.

During the police investigation, data was retrieved from

defendant's phone showing 1123 text messages sent by defendant.

The compact disc containing the messages was introduced into

evidence without objection as exhibit P-2. The State also

introduced without objection a compact disc, exhibit P-3, that

included outgoing text messages from defendant's phone to R.B.'s

phone.

Some of defendant's text messages to R.B. were read to the

jury during the testimony of the police officer who recovered the

messages from defendant's phone. For example, the officer

testified that during the period from November 10 to November 28,

2010, defendant asked R.B. if she "mess[ed] with little man

anymore?," if "he love[d] [her] sucking him?," and defendant

"want[ed] to see."

The officer testified that on November 28, 2010, defendant

sent R.B. messages stating, "Play with Scott or Alice and let me

8 A-2723-14T3
see," "Think Alice will let you lick her," and "I want to show

them love. I'll eat [Alice] and suck [Scott]." The officer

explained defendant also asked R.B. if her brother "would let the

kids stay with us in [Atlantic City]" and stated, "[t]hey will

drink with us that night. I'll get a room, and they can sleep

with us. I can watch Scott cum in you. We can take turns," and

he and Scott could have sexual intercourse with Alice. The officer

testified that on November 28, 2010, defendant also sent messages

asking R.B. to "do [him] a favor" when she got home by taking

pictures of Alice while she was "half asleep and [] won't

remember," describing the performance of sex acts on the children,

and asking if R.B. liked touching Alice's genitalia while taking

pictures for him.

Another officer testified about a text message exchange

between defendant and R.B. during which R.B. recalled defendant

saying that he permitted a dog to have anal intercourse with him.

The officer testified about text messages in which R.B. repeatedly

asked defendant if he would let "him," referring to Scott, do the

same to defendant. In messages exchanged a few days later, R.B.

tells defendant, "[T]hat whole [Scott] thing we were talking about

the other day, he said he would do it as long as I was watching.

He asked if I would like it."

9 A-2723-14T3
Defendant did not present any witnesses at trial. The jury

found defendant guilty of all of the charges in the indictment.

The court imposed an aggregate fifty-five-year sentence, with

forty-five years subject to the requirements of the No Early

Release Act (N.E.R.A.),
N.J.S.A. 2C:43-7.2. Defendant was ordered

to comply with the requirements of Megan's Law,
N.J.S.A. 2C:7-1

to -23, and to serve the special sentence of parole supervision

for life,
N.J.S.A. 2C:43-6.4. This appeal followed.

On appeal, defendant's counsel makes the following arguments:

POINT I

THE COURT'S FAILURE TO EITHER DISMISS THE
STATE'S SURPRISE SUPERSEDING INDICTMENT OR
ADJOURN THE CASE TO PERMIT DEFENSE COUNSEL AN
OPPORTUNITY TO PREPARE A COMPLETE DEFENSE
DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S.
Const. Amends. V, VI and XIV; N.J. Const.
(1947), art. I, ¶¶ 1, 9 and 10.

POINT II

THE EXTENDED-TERM SENTENCE OF FIFTY-FIVE YEARS
IN PRISON, FORTY-FIVE YEARS WITH AN 85% PAROLE
DISQUALIFIER, WAS MANIFESTLY EXCESSIVE.

POINT III

THE UNITED STATES SUPREME COURT SHOULD HOLD
THAT DEFENDANT'S SENTENCE HERE TO EXTENDED
TERMS AND PAROLE DISQUALIFIERS BASED ON
FINDINGS OF FACT OF PRIOR CONVICTIONS MADE BY
A JUDGE VIOLATE APPRENDI [v.] NEW JERSEY, 530 U.S. 466 (2000). U.S. Const. Amend. VI, XIV.

10 A-2723-14T3
In his pro se supplement brief, defendant makes the following

argument:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
REGARDING THE PERMITTED AND PROHIBITED USES
OF OTHER-CRIME EVIDENCE REQUIRES THE REVERSAL
OF DEFENDANT'S CONVICTIONS.

II.

Defendant argues the court erred by permitting the matter to

proceed to trial on the superseding indictment. He contends the

return of the indictment two weeks prior to the commencement of

trial deprived his counsel of an opportunity to investigate the

events alleged during the modified timeframe and violated his

right to compulsory process. Defendant asserts the court's

decision permitting the matter to proceed to trial effectively

denied his right to an adjournment to prepare for the additional

allegations contained in the superseding indictment.

Defendant never requested a trial adjournment. Instead, he

objected to the superseding indictment claiming its modified

timeframe required him to defend allegations outside of the time-

periods alleged in the original indictment. Counsel argued that

although defendant received the discovery concerning all of the

events encompassed by the modified timeframe at the outset of the

11 A-2723-14T3
case, counsel did not anticipate he would have to address the

events at the trial on the original indictment.

The court rejected defendant's objection, finding defense

counsel "had [the] information the whole time" and the "only

difference" was the State would have used the information in a

trial on the original indictment to show "the development of the

plan and the motive and the intent." The court determined that

proceeding to trial on the superseding indictment did not violate

defendant's due process rights because all of the evidence the

State would "utilize[] to prove [its] case in the superseding

indictment are the same as in the original indictment." The court

also expressed concern that delaying the trial would extend

defendant's already lengthy pretrial incarceration. The court,

however, barred admission of any evidence concerning events

occurring during the modified timeframe that had not been revealed

in the discovery materials provided in connection with the original

indictment.

On appeal, defendant does not challenge the State's right to

have obtained the superseding indictment. See State v. Zembreski,

445 N.J. Super. 412, 425, 426 (App. Div. 2016) (finding the State

has an "unfettered" discretionary right to obtain a superseding

indictment "until a jury is empaneled" where there is "probable

cause to believe the accused has committed an offense"). He

12 A-2723-14T3
contends, however, that the court's rejection of his objection to

proceeding to trial on the superseding indictment constituted a

denial of his right to an adjournment to permit his counsel to

adequately prepare to defend the allegations included in the

modified timeframe.

A trial court's decision denying a request for an adjournment

does not constitute "reversible error absent a showing of an abuse

of discretion which caused defendant a 'manifest wrong or injury.'"

State v. Hayes,
205 N.J. 522, 537 (2011) (quoting State v.

McLaughlin,
310 N.J. Super. 242, 259 (App. Div. 1998) (citation

omitted)). A court abuses its discretion when its "decision [is]

made without a rational explanation, inexplicably depart[s] from

established policies, or rest[s] on an impermissible basis." U.S.

v. Scurry,
193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cty.

Prosecutor,
171 N.J. 561, 571 (2002)).

To the extent defendant's objection to proceeding to trial

on the superseding indictment constituted a request for an

adjournment, we discern no abuse of the court's discretion and

find no evidence the court's decision resulted in a manifest wrong

or injustice. The allegations concerning defendant's actions

during the modified timeframe, and all of the evidence about them,

were not a surprise to defendant. As the trial judge aptly noted,

defendant had the discovery materials related to the events from

13 A-2723-14T3
the outset of the case, and defendant reasonably should have

anticipated the State would otherwise attempt to introduce the

evidence under N.J.R.E. 404(b). Although "an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay" may result in a violation of a

defendant's rights, State v. Martinez,
440 N.J. Super. 537, 544

(App. Div. 2015) (citation omitted), defendant makes no showing

that occurred here.

At no time during the trial did defendant assert that late

notice of the modified timeframe hampered his ability to confront

the witnesses against him or present witnesses or evidence on his

own behalf. Moreover, on appeal, defendant makes no showing that

proceeding to trial on the superseding indictment resulted in any

prejudice or interfered with his ability to present a defense.

Due process "guarantees criminal defendants 'a meaningful

opportunity to present a complete defense.'" State v. Garron,
177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky,
476 U.S. 683, 690

(1986)). Defendant fails to demonstrate any denial of that right

here.

Defendant also argues the court's rejection of his objection

to proceeding to trial on the superseding indictment violated his

right to compulsory process. To be sure, defendant had "the right

'to have compulsory process for obtaining witnesses in his favor.'

14 A-2723-14T3
That guarantee provides a criminal defendant with nothing less

than 'a meaningful opportunity to present a complete defense.'"

State v. Garcia,
195 N.J. 192, 201-02 (2008) (citation omitted).

Defendant's right to present "witnesses in his own defense 'is a

fundamental element of due process of law.'" Id. at 202 (citation

omitted).

Defendant's argument finds no support in the record.

Defendant did not present any witnesses at trial, and the court

never denied a request to call a witness or compel a witness to

testify at trial. No such requests were made. Moreover, defendant

fails to demonstrate the court's rejection of his objection to

proceeding to trial on the superseding indictment precluded him

from calling a witness, compelling a witness to testify, or

presenting any evidence supporting his defense.

The trial court was appropriately "troubled" by the late

return of the superseding indictment. Under other circumstances,

the return of a superseding indictment two weeks prior to a long-

awaited trial might require an adjournment or other remedy to

protect a defendant's due process and compulsory process rights.

Not so here. The record does not support a reversal of defendant's

convictions because although defense counsel may have been

inconvenienced, there is no showing defendant suffered any

prejudice, his due process and compulsory process rights were

15 A-2723-14T3
violated, or the late return of the superseding indictment resulted

in any manifest injury.

We next consider defendant's pro se argument the court erred

by failing to instruct the jury on the proper and prohibited uses

of other-crimes evidence under N.J.R.E. 404(b). More

particularly, defendant contends he was charged only with the

commission of an offense on January 22, 2011, and the evidence

showing his communications with R.B. prior to that date, and his

actions preceding that date, constitute evidence of prior bad acts

under N.J.R.E. 404(b). In his pro se brief, defendant does not

challenge the admissibility of the evidence concerning his

communications with R.B. and actions prior to January 22, 2011.5

Defendant argues only that the court failed to properly instruct

the jury on the permissible and prohibited uses of the evidence.

See State v. Garrison,
228 N.J. 182, 200 (2017) (citation omitted)

(finding that where N.J.R.E. 404(b) evidence is presented the

court must provide a limiting instructing when the evidence is

presented and in the final charge concerning the purposes for

5
An argument not briefed is deemed waived. Jefferson Loan Co.
v. Session,
397 N.J. Super. 520, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven,
340 N.J. Super. 94, 103 (App. Div. 2001).

16 A-2723-14T3
which the evidence "may, and . . . may not be used"); accord State

v. Rose,
206 N.J. 141, 180 (2011).

We find no merit in defendant's argument in part because it

is based on the false premise that he was charged only with an

offense occurring on January 22, 2011. In fact, defendant was

charged in the superseding indictment with committing eleven

offenses between August 5, 2010 and January 23, 2011, and two

offenses between August 5, 2010 and February 16, 2011.6 N.J.R.E.

404(b) applies to uncharged crimes, wrongs or acts. See Rose,
206 N.J. at 179-80. "The threshold determination under [N.J.R.E.

404(b)] is whether the evidence relates to 'other crimes' and thus

is subject to continued analysis under the [Rule], or whether it

is evidence intrinsic to the charged crime[s]" at trial. Id. at

179. "[E]vidence that is intrinsic to the charged crime[s] is

exempt from the strictures of [N.J.R.E. 404(b)] even if it

constitutes evidence of uncharged misconduct that would normally

fall under [N.J.R.E. 404(b)] because it is not 'evidence of other

crimes, wrongs, or acts.'" Id. at 177 (fourth alteration in

original). Evidence is intrinsic if it "'directly proves' the

6
Similarly, and as noted, the original indictment charged
defendant with offenses occurring on dates including, but not
limited to, January 22, 2011.

17 A-2723-14T3
charged offense[s]." Id. at 180 (quoting United States v. Green,

617 F.3d 233, 248 (3d Cir. 2010)).

Defendant argues that an instruction on proper and

permissible uses of other crimes evidence was required concerning:

R.B.'s and Scott's testimony about defendant encouraging Scott to

have sexual intercourse with R.B.; R.B.'s testimony that during

an August 2010 sexual encounter, defendant expressed an interest

in having Scott "join in;" evidence showing text message

communications between defendant and R.B. sent during the months

prior to January 22, 2011; and evidence showing text messages from

defendant discussing bestiality.7 Defendant's contention lacks

merit because the evidence directly proved defendant's commission

7
The only evidence of a communication between R.B. and defendant
about bestiality was the officer's testimony about text messages
between defendant and R.B. during which R.B. asked defendant if
he wanted to have anal intercourse with Scott in the same manner
as defendant indicated he had intercourse with a dog. The text
messages related to this discussion constituted direct evidence
of defendant and R.B.'s ongoing conspiracy prior to January 22,
2011, to engage in sex acts with thirteen-year-old Scott.
Defendant also argues in his pro se brief the court permitted the
introduction of testimony concerning text messages between
defendant and another woman, S.B., about S.B.'s performance of
oral sex upon her child. Prior to trial, however, the court ruled
the text messages were not admissible. No testimony concerning
the messages was presented at trial. We reject defendant's
contention that his text messages with S.B. were published to the
jury because they were included on the CD, exhibit P-2, that was
admitted in evidence. The record shows that other than the text
messages read during the trial testimony, none of the other
messages on the CD were disclosed to, or accessed by, the jury.

18 A-2723-14T3
of the offenses charged in the superseding indictment, including

his ongoing conspiracy with R.B. to commit the crimes of sexual

assault and endangering the welfare of the children. The evidence

did not constitute "other crimes" evidence under N.J.R.E. 404(b),

and therefore the court did not err by not providing a jury

instruction concerning the uses of the evidence. Id. at 179.

In defense counsel's reply brief, it is argued for the first

time that the court erred by failing to provide N.J.R.E. 404(b)

instructions concerning text messages sent by defendant to R.B.,

that may not have directly related to Scott or Alice. It is

improper to raise an issue for the first time in a reply brief.

State v. Lenihan,
219 N.J. 251, 265 (2014). We choose to address

defendant's belated argument, however, because of "the importance

of the issue . . . [and] the absence of objection by the

State . . . ." State v. Federico,
414 N.J. Super. 321, 328 n.5

(App. Div. 2010).

Defendant challenges the court's failure to instruct the

jury under N.J.R.E. 404(b) concerning the proper and prohibited

uses of testimony that defendant texted the following six messages

to R.B.: "Hell, yeah. I made my boy's daughter lick it. Jealous,"

"long story for both," "She's a real thick Spanish eight-year

old," "No, For Real, Babe," "She did. And the best part was she

asked why daddy doesn't do it anymore. I was like, oh, shit," and

19 A-2723-14T3
"I can try next time. I have to babysit his three daughters next

week."

The testimony was limited to a recitation of the messages

unaccompanied by any explanation of the context within which each

was separately made. Defendant did not object to the testimony

about the messages, and never requested a N.J.R.E. 404(b)

instruction concerning them. We are satisfied that two of the

messages, "Long story for both" and "No, For Real, Babe," do not

refer to any prior wrongs, bad acts or crimes requiring

instructions under N.J.R.E. 404(b). Fairly read, however, the

remaining four messages appear to indirectly show defendant's

sexual interest in, and interactions with, children other than

Scott and Alice, and thus vaguely suggest he engaged in other bad

acts.

The record lacks sufficient evidence permitting a de novo

determination of the admissibility of the testimony concerning the

text messages under N.J.R.E. 404(b). See generally State v.

Cofield,
127 N.J. 328, 338 (1992) (describing the standard for

admission of N.J.R.E. 404(b) evidence); see also Garrison,
228 N.J. at 194 (finding appellate courts may conduct a de novo

determination on the admissibility of evidence under N.J.R.E.

404(b) where the trial court does not conduct the requisite

analysis). However, even assuming the text messages were otherwise

20 A-2723-14T3
inadmissible under N.J.R.E. 404(b), we are not convinced the

fleeting testimony concerning the messages, or the court's failure

to provide limiting instructions, were clearly capable of

producing an unjust result. R. 2:10-2.

Defendant's failure to object to the testimony at trial

supports the conclusion that the evidence was not perceived as

prejudicial. See State v. Macon,
57 N.J. 325, 333 (1971) (finding

that failure to object constituted recognition by counsel that the

alleged error was of "no moment" or was a tactical decision); cf.

State v. Wilson,
57 N.J. 39, 50-51 (1970) (finding that a timely

and proper objection by trial counsel signifies that the defense

believes it has been prejudiced). Similarly, defendant's failure

to request a limiting instruction concerning the testimony or

object to the court's final instruction that did not include such

an instruction "signifies that the error belatedly claimed was

actually of no moment." State v. Krivacska,
341 N.J. Super. 1,

43 (App. Div. 2001). "If defense counsel believed that the jury

had been exposed to . . . other-crimes evidence in violation of

N.J.R.E. 404(b), he could have asked for a curative or limiting

instruction. The failure to do so suggests that defense counsel

believed that . . . any possible error 'was actually of no

moment.'" State v. Yough,
208 N.J. 385, 400-01 (2011) (citation

omitted).

21 A-2723-14T3
Our independent review of the record reveals no support for

defendant's contention that admission of the testimony and the

lack of any limiting instructions constituted plain error. The

testimony concerned vague messages that did not directly describe

any bad acts or crimes committed by defendant. We reject

defendant's assertion that the prosecutor relied on the testimony

during his summation to support his argument defendant committed

the crimes to "satisfy his . . . addiction to child pornography."

The prosecutor never referred to the testimony concerning the four

text messages and none of the messages refer to child pornography.

The prosecutor's argument was based solely and properly on the

interactions between defendant and R.B., the evidence showing

defendant repeatedly asked R.B. to provide sexually explicit

photographs of Alice and of the children engaged in sex acts, and

R.B.'s testimony that she provided about forty such photographs

to defendant at his request.

Beyond the single and fleeting recitation of the four text

messages, there were no further references to them during the

trial. To the extent the four text messages vaguely suggested

defendant had a sexual interest in children, they were incapable

of producing an unjust result because of the overwhelming and

direct evidence of defendant's sexual interest in the two children

against whom he committed the crimes charged in the indictment.

22 A-2723-14T3
In addition to R.B.'s and Scott's testimony describing defendant's

involvement in the crimes for which he was convicted, the evidence

included numerous text messages in which defendant directly and

explicitly expressed his sexual interest in Scott and Alice, and

otherwise established his involvement in the crimes he and R.B.

conspired to commit against them. We are satisfied that when

viewed in the context of the totality of the evidence, neither the

admission of the testimony concerning the four text messages or

the court's failure to sua sponte charge the jury under N.J.R.E.

404(b), presents a possibility "sufficient to raise a reasonable

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

might not have reached." Macon,
57 N.J. at 336.

Defendant argues his fifty-five year aggregate sentence is

excessive. He contends the court erred by failing to consider the

real-time consequences of the sentence, forty-five years of which

is subject to the eighty-five percent period of parole

ineligibility under N.E.R.A.8 He further asserts the court erred

8
Defendant's convictions for first-degree aggravated sexual
assault under counts two and three, for which he received an
aggregate term of forty-five years, are subject to N.E.R.A.'s
requirements. See
N.J.S.A. 2C:43-7.2(d)(7). The balance of
defendant's aggregate fifty-five year sentence was imposed for
defendant's convictions for second-degree endangering the welfare
of a child, which are not subject to N.E.R.A.'s requirements and
for which the court did not impose periods of parole ineligibility.

23 A-2723-14T3
by finding aggravating factor six, the extent of defendant's prior

record and the seriousness of the crimes of which he has been

convicted,
N.J.S.A. 2C:44-1(a)(6), and incorrectly based its

sentencing decision on a factual finding that was exclusively

within the province of the jury - that defendant manipulated R.B.

Defendant also claims the court imposed four consecutive sentences

without making the findings required for imposition of consecutive

sentences under State v. Yarbough,
100 N.J. 627, 643-44 (1985).

Defendant last argues the court's imposition of the extended term

sentence was improperly based on the court's finding of fact as

to his prior convictions.

We review a "trial court's 'sentencing determination under a

deferential standard of review.'" State v. Grate,
220 N.J. 317,

337 (2015) (quoting State v. Lawless,
214 N.J. 594, 606 (2013)).

We may "not substitute [our] judgment for the judgment of the

sentencing court." Lawless,
214 N.J. at 606. We must affirm a

sentence if: (1) the trial court followed the sentencing

guidelines; (2) its findings of fact and application of aggravating

and mitigating factors were based on competent, credible evidence

in the record; and (3) the application of the law to the facts

does not "shock[] the judicial conscience." State v. Bolvito,
217 N.J. 221, 228 (2014) (quoting State v. Roth,
95 N.J. 334, 364-65

(1984)); see also State v. Case,
220 N.J. 49, 65 (2014).

24 A-2723-14T3
We first address defendant's claim the court's imposition of

the extended term sentence and parole ineligibility periods was

impermissibly based on judicial fact-finding in violation of his

rights under the Sixth Amendment to the United States Constitution,

as interpreted by the United States Supreme Court in Apprendi v.

New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington,
542 U.S. 296 (2004). More particularly, defendant argues the court's

imposition of the extended term and periods of parole ineligibility

are founded on its finding that he has prior convictions. He

contends the court's findings concerning the convictions

impermissibly increased the penal consequences of his conviction

and therefore violated his Sixth Amendment rights.9

Apprendi requires "[a]ny fact (other than a prior

conviction), which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or proved to

a jury beyond a reasonable doubt." United States v. Booker, 543

9
Defendant raises his constitutional challenge for the first
time on appeal. Generally, we will not consider an argument that
was not presented at trial unless it concerns the trial court's
jurisdiction or matters of substantial public interest. State v.
Robinson,
200 N.J. 1, 20 (2009). This limitation on appellate
review "is not limitless." Id. at 19. Because defendant raises
a constitutional issue, we exercise our discretion to address the
merits of his argument.

25 A-2723-14T
3 U.S. 220, 244 (2005). "In deciding the question of what facts

must be subject to a jury finding, 'the relevant inquiry is one

not of form, but of effect - does the required finding expose the

defendant to a greater punishment than that authorized by the

jury's guilty verdict?'" State v. Natale,
184 N.J. 458, 473 (2005)

(quoting Apprendi,
530 U.S. at 494).

As explained by our Supreme Court, Blakely defined "the

'statutory maximum' for Apprendi purposes [as] the maximum

sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant." Id.

at 476 (emphasis in original) (quoting Blakely,
542 U.S. at 303).

Under Blakely, "the relevant 'statutory maximum' is not the maximum

sentence a judge may impose after finding additional facts, but

the maximum he may impose without any additional findings."

Blakely,
542 U.S. at 303-04.

In State v. Pierce,
188 N.J. 155 (2006), the Court addressed

the issue presented by defendant here – whether a court may rely

on a defendant's prior convictions to support imposition of a

discretionary extended term sentence under
N.J.S.A. 2C:44-3(a).

The Court determined that imposition of an extended term under the

standard that had been established in State v. Dunbar,
108 N.J.
80 (1987), was no longer constitutionally viable under the

principles in Apprendi. Pierce,
188 N.J. at 168-69. Under Dunbar,

26 A-2723-14T3
the imposition of a sentence within the extended term range was

dependent upon a court finding there was a need to protect the

public. Dunbar,
108 N.J. at 91. The Pierce Court determined such

fact-finding went beyond the mere finding of a defendant's prior

conviction and therefore violated the Sixth Amendment. Pierce,

188 N.J. at 167-68.

To remedy the constitutional infirmities inherent in the

Dunbar paradigm, the Court established a different standard for

the imposition of a discretionary extended term sentence. Id. at

169-70. The Court found that where a defendant's prior convictions

permit the imposition of a discretionary extended term sentence

under
N.J.S.A. 2C:44-3(a), the convictions alone expose the

defendant to the maximum sentence within the extended term range.

Id. at 168. The Court concluded that because there is no finding

of fact required to expose defendant to the maximum sentence within

the extended term sentencing range, the discretionary extended

term statute was constitutional under Apprendi and Blakely. Id.

at 169.

Here, defendant does not dispute that the court properly

determined he was qualified for an extended term sentence under

N.J.S.A. 2C:44-3(a), and we are satisfied the record supports the

court's determination defendant was eligible for imposition of an

extended term sentence based solely on his prior convictions.

27 A-2723-14T3
We also discern no error in the court's finding of aggravating

factor six, the extent and seriousness of defendant's prior record

- three prior third-degree convictions for endangering the welfare

of a child. We are not persuaded by defendant's contention that

the court erred by finding defendant's conduct inflicted harm on

the two young victims or that he cajoled, encouraged and persuaded

R.B. to commit the crimes against the children. The court's

findings were supported by R.B.'s trial testimony and made in

response to defense counsel's assertion that defendant did not

cause harm to the children because he did not directly physically

sexually assault them.

Defendant's contention that the court neither considered the

base term for its imposition of the extended term sentence nor the

real-time consequences of the sentence on defendant's conviction

for first-degree sexual assault under count three is undermined

by the record. The court considered and weighed the statutory

sentencing factors, recognized that the extended term range was

between ten years and life imprisonment, and sentenced defendant

to a mid-range extended term sentence of thirty years subject to

N.E.R.A. The sentence is supported by the court's determination

that the aggravating factors substantially outweighed the non-

existent mitigating factors. We discern no abuse of discretion

28 A-2723-14T3
in the court's imposition of the extended term sentence on count

three.

We similarly are satisfied the sentences imposed on each of

the remaining counts are supported by the court's findings and

weighing of the aggravating and mitigating factors. The judge

imposed a mid-range fifteen-year sentence for defendant's other

first-degree sexual assault conviction, and minimum five-year

terms on defendant's convictions for second-degree endangering.

The court followed the sentencing guidelines, its findings are

supported by the record, and the sentences do not shock the

judicial conscience. See Bolvito,
217 N.J. at 228.

We agree, however, with defendant's claim the court failed

to conduct the analysis and make the findings required for the

imposition of consecutive sentences under Yarbough,
100 N.J. at
643-44. In Yarbough, the Court adopted the following "criteria

as general sentencing guidelines for concurrent or consecutive-

sentencing decisions (including any parole ineligibility

features)":

(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;

29 A-2723-14T3
(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 for which the
sentences are to be imposed are numerous;

(4) there should be no double counting of
aggravating factors;

(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and

(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
multiple offenses not to exceed the sum of the
longest terms (including an extended term, if
eligible) that could be imposed for the two
most serious offenses.

[Ibid. (footnotes omitted).]

"The Court also specifically directed that 'the reasons for

imposing either a consecutive or concurrent sentence should be

separately stated in the sentencing decision.'" State v. Miller,

205 N.J. 109, 129 (2011) (quoting Yarbough,
100 N.J. at 643).

30 A-2723-14T3
Where a court does not explain its reasoning for imposition of

consecutive sentences, "a remand is ordinarily needed for the

judge to place reasons on the record." Ibid.

Although a remand for the trial court to make findings

concerning the Yarbough factors may be unnecessary where the

sentencing transcript "makes it possible to 'readily deduce' the

judge's reasoning[,]" such "cases are the exception and not the

rule." Id. at 129-30 (quoting State v. Bieniek,
200 N.J. 601, 609

(2010)). Here, the court did not address any of the Yarbough

factors, make any findings supporting the imposition of the

consecutive sentences, or explain the basis for its imposition of

consecutive sentences. We therefore vacate the court's imposition

of the consecutive sentences and remand for resentencing in

accordance with the Yarbough standard.10

We affirm defendant's conviction, vacate the sentence imposed

and remand for resentencing. We do not retain jurisdiction.

10
Our disposition should not be interpreted as expressing an
opinion on the appropriateness of consecutive sentences under the
circumstances presented. We decide only that the court on remand
must decide whether to impose consecutive sentences under the
applicable legal standards and make the necessary findings
supporting its decision.

31 A-2723-14T3

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