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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1216-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.E.,
Defendant-Appellant. ________________________
Argued April 29, 2024 – Decided May 8, 2024
Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 21-03-0277.
Michael James Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael James Confusione, of counsel and on the briefs).
Sarah D. Brigham, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Sarah D. Brigham, of counsel and on the brief).
PER CURIAM Defendant E.E.1 appeals from his convictions for: first-degree aggravated
sexual assault of his daughter Delilah, N.J.S.A. 2C:14-2(a)(1), (count one);
second-degree sexual assault of his niece Natalie, N.J.S.A. 2C:14-2(b), (count
two); and two counts for each child of second-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a)(1), (counts three, four, five, and six). Defendant
also challenges his sentence. We affirm.
Defendant's offenses occurred between 2011 and 2014, beginning when
Delilah and Natalie were five years old. Delilah was living with her mother,
older half-sister, and defendant at the time. Natalie lived nearby and frequently
visited. The girls' mothers are sisters.
Delilah recalled that in 2011, defendant brought her and Natalie into his
bedroom during a party at the home, pulled down their undergarments, and
touched them. This was not the first time he assaulted both girls; Delilah
testified she and Natalie "already knew what was going on." Delilah said
defendant took turns penetrating their vaginas with his penis, keeping his hands
on the other girl while he did so.
1 We use initials and pseudonyms to protect the identities of the victims. N.J.S.A. 2A:82-46. A-1216-22 2 Although there were other people in the house, the bedroom door was only
partially open and neither Delilah nor Natalie spoke during the assault. Delilah
described the layout of the home in detail. It was a two-bedroom apartment,
with one bathroom connected to the kitchen and a living room between the
kitchen and bedroom. Delilah's bedroom was a walk-in-closet attached to the
parents' bedroom, which was located farthest from the kitchen and towards the
back of living room.
Delilah's mother testified guests would normally be in the kitchen during
large gatherings because it was "the largest area of the home." Delilah explained
the door to the parents' bedroom could "[n]ot necessarily" be seen from the
kitchen. Given the way the bedroom was located, one could only see some
drawers looking in from the living room. Defendant testified neither the parents'
bed nor Delilah's room could be seen from the kitchen.
After the assault, defendant told Delilah and Natalie to clean up, and the
girls complied by heading to a bathroom located next to the kitchen. This
required them to walk by other adults at the party, but the adults did not notice
what the girls were doing.
Natalie recalled a time when defendant sexually assaulted her at a birthday
party for Delilah. She and Delilah were playing with toys in Delilah's room
A-1216-22 3 when defendant came in and started to rub her back and touch her butt ocks, and
then left.
Delilah testified about another incident involving defendant and her on
the couch watching a baseball game. Defendant used a blanket to cover them ,
he pulled Delilah on top of him, and "pulled [her] undergarments . . . to the side,
and then he started penetrating [her] vaginal area." Delilah stated he penetrated
her with "[h]is penis" and it lasted "[f]or like a split minute." When her mother
and older sister walked through the front door, defendant stopped moving and
they did not realize what was happening because of the blanket.
Delilah's earliest memory of defendant sexually assaulting her was when
she was playing with "Play-Doh of some sort" and he asked her if "[she could]
do something for him." Delilah went to her parents' bed, and he laid her down
on her back. Defendant pushed down her shorts and undergarments and
penetrated her vagina with his penis, causing her pain.
Natalie was unsure when defendant first sexually assaulted her, but
recalled a time when she was in Delilah's room. Natalie was watching TV in
the living room and defendant took her by the hand and walked her into Delilah's
room. Defendant then alternated calling each girl into his bedroom. Natalie
testified defendant took her to the "left side of the bed[,] . . . picked [her] up and
A-1216-22 4 put [her] on the bed," then "took off [her] clothes." Defendant kissed her "on
[the] mouth," and "touch[ed her] . . . legs," and "laid her down on her back." He
then "put his penis on top of [her] private area," which she clarified was her
vagina, but he did not penetrate her or ejaculate. Defendant was also touching
her "nipples" and it went on "[f]or like [five] minutes." Afterwards, he dressed
Natalie and took her back to Delilah's room and told Delilah to come into his
bedroom. Natalie reported she felt physical discomfort during the assault and,
when she returned to Delilah's room, Delilah was crying.
Delilah testified defendant would sexually assault her "every few weeks."
Delilah testified the pain from the penetration hurt "medium" or "minimal" at
times. She explained there were "[a] number of feelings happening." She also
recalled, on the way home from the park once, defendant exposed his penis,
showed Delilah and Natalie how to rub it, and then had both girls touch it.
Natalie remembered an incident at the park as well, but the details she
provided differed. She testified the girls were riding bikes under defendant's
supervision and defendant called Natalie over and told her he planned on
"tak[ing her] clothes off and . . . kiss[ing her]." Natalie recalled it being "just
[them]" when defendant made the statement. She responded by making a "weird
face" and returned to riding her bicycle.
A-1216-22 5 Natalie also recalled an incident when she was on the living-room couch
with defendant and he unbuttoned and unzipped her pants, and then pulled down
his pants to his thighs, exposing his erect penis. At the time, only Delilah's
mother and Delilah were home, and they were in the bedroom. Natalie testified
defendant "put [her] hand over" his penis. Defendant then "started pushing [her]
head" but she "put it back up." When asked how hard he pushed the back of her
head, Natalie said: "[H]ard enough for me to try to . . . go down. But then . . .
I got back up." Natalie testified he then pulled her pants back up and the incident
ended. Not long afterwards, Natalie's mother returned, but Natalie did not say
anything to her.
In or around 2016, the Division of Child Protection and Permanency
(Division) initiated an investigation because Delilah took sleeping pills in an
apparent suicide attempt. That investigation did not involve any allegations
against defendant and resolved without reference to any sexual abuse of Delilah.
The Division ultimately referred Delilah to therapy.
Around 2016 or 2017, Delilah's parents separated, and she no longer lived
with defendant. Afterwards, Delilah would rarely see or communicate with
defendant. She testified she did not see him at all in the first year, then "once
[she] got into third grade, [she] started seeing him . . . on a weekly basis." She
A-1216-22 6 recalled seeing him sometime in 2020 but could not remember when. "He would
call [her] sometimes or . . . try to text [her], but [she] wouldn't really respond."
Natalie testified she did not report the abuse because she did not know
"what [defendant] would do if he found out." She explained the abuse would
occur "almost every time [she] saw [defendant]. . . . [E]very time [she] went to
[Delilah's] house."
Delilah testified she did not discuss the assaults with Natalie or anyone
else. On October 16, 2020, Delilah's half-sister found a ripped up note in
Delilah's room that stated Delilah "wanted to commit suicide" and had been
having suicidal thoughts since the fifth grade. The note did not mention
defendant's sexual abuse. Delilah's sister asked her what was wrong and wanted
to get her help.
Delilah told her sister and mother about the sexual abuse but did not tell
them everything or provide details. She testified she did not tell anyone before
that date partly because she "was in denial." When her mother asked if it was
"just touching," Delilah said yes, but she later divulged to her mother, the
Division, and the police, that defendant had also penetrated her. A Division
caseworker interviewed Delilah on October 21, 2020. She was then interviewed
by a Hudson County Prosecutor's Office detective on October 23, 2020.
A-1216-22 7 By October 2020, Natalie and her mother moved to Pennsylvania. On
October 27, 2020, they drove to Hudson County to give a statement to police.
When Natalie's mother asked her about the abuse during the police interview,
she said defendant did not penetrate her.
Defendant testified at trial and denied touching either of the children in a
sexual manner. He claimed he was never alone with them at the park and was
never alone with Natalie in his home. He denied being home alone with Delilah
as well and denied watching baseball alone with her. However, on cross-
examination he conceded there had been times when was alone with her, but it
was not the norm.
Delilah's mother testified she did not have a babysitter and she would try
to coordinate her work schedule with defendant so that one of them was
available to care for Delilah "[m]ost of the time." Natalie's mother testified it
was not unusual for her to leave Natalie alone with defendant because "everyone
was trusting him." Delilah's half-sister also testified she never suspected there
was abuse happening.
Defendant testified he, Delilah, and Delilah's mother visited Natalie and
her mother at their home in Pennsylvania in September 2020. He claimed he
argued with both women during this trip because they planned to enter sham
A-1216-22 8 marriages in exchange for money. He alleged Delilah's mother had already
previously entered a sham marriage and he threatened he would file a criminal
complaint if she and her sister did so again. He was upset because he did not
want Delilah to be alone if her mother got arrested. Defendant claimed the
sexual abuse allegations were in retaliation for his interference with the sham
marriage scheme.
Delilah's mother testified there was no argument between her and
defendant during the Pennsylvania trip. Defendant conceded Delilah's mother
never entered a sham marriage after Delilah and Natalie disclosed the abuse.
The jury convicted defendant on all counts. Defendant received an
aggregate term of forty-one years in prison subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. On count one, the judge imposed a thirty-five-
year sentence subject to NERA. This sentence was below the midpoint of the
sentencing range. On count two, the judge imposed a consecutive term of six
years in prison subject to NERA, which was also below the mid-point of the
sentencing range. The four remaining counts for child endangerment ran
concurrent to counts one and two.
Defendant raises the following points on appeal:
POINT [I.] THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S RIGHT TO
A-1216-22 9 CONFRONTATION, COMPULSORY PROCESS, AND A FAIR TRIAL IN DENYING HIS MOTION TO COMPEL THE COUNSELING AND TREATMENT RECORDS FOR COMPLAINING VICTIM, [DELILAH].
POINT [II.] DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I.
In January 2021, prior to trial, the defense received Delilah's
psychological evaluation, which noted the Division investigation regarding the
sleeping pill incident. Defendant moved to compel the release of the Division's
records and Delilah's private therapy records related to the sleeping pill incident.
He also sought the Division's records relating to its investigation of his abuse as
disclosed by Delilah in October 2020. The defense argued this information was
discoverable under Brady v. Maryland, 373 U.S. 83 (1963), because Delilah did
not disclose the abuse during the Division's investigation of her sleeping pill
usage. The defense asserted it could use the information as a prior inconsistent
statement to impeach her credibility about why her subsequent disclosure was
delayed.
The motion judge conducted a hearing and ordered the Division's records
relating to its investigation of Delilah's sexual abuse be turned over for in camera
review so the judge could determine whether their disclosure was necessary.
A-1216-22 10 Following her in camera review of these records, the judge ordered redacted
copies be turned over to the defense.
However, the judge denied defendant's request for Delilah's private
therapy records. She found the prejudice by intruding upon the psychologist-
patient privilege outweighed the limited probative value to the defense of using
these records to show she did not report the abuse earlier, because the defense
could already point out the delayed disclosure through cross-examination
without resort to these sensitive records. She also denied defendant's request
for the Division's records related to the sleeping pill incident, again noting the
defense did not need these records to show lack of disclosure of sexual abuse.
As the judge predicted, the defense cross-examined Delilah at length
during the trial regarding the fact she never disclosed the sexual abuse to anyone
prior to her October 2020 disclosure. The defense also cross-examined Delilah
about the fact that she never sought medical treatment or complained about pain
from the penetration. In summations, defense counsel reminded the jury that
each child "had numerous opportunities to report [the abuse when they were
younger] and never did."
In Point I, defendant argues access to the records related to the Division
investigation were necessary to "raise a reasonable doubt on the molestation
A-1216-22 11 charges" because Delilah "attended therapy following the [suicide attempt]" and
"[Delilah] would have told . . . [the Division's] interviewers" about the sexual
assaults during these interviews. He adds, if Delilah had not disclosed the
assaults during these interviews, the lack of report would also be "highly
relevant to the believability of [her] claim." Defendant points out the
investigation into the suicide attempt was relevant because it occurred during
the time defendant was allegedly abusing her. He notes that as a matter of
course, Division personnel would have to inquire whether her suicide attempt
was due to abuse from her parents or family. Therefore, if she answered "no"
to such questions, those answers would be valuable impeachment material and
constituted discoverable material under Brady. He asserts the motion judge's
decision to deny even in camera review of these records violated his
constitutional rights to confrontation, compulsory process, and a fair trial.
A defendant has the constitutional right to a fair trial, to confront
witnesses against them, and compulsory process. U.S. Const. amends. V, VI;
N.J. Const. art. I, ¶ 10. This includes the right to "a meaningful opportunity to
present a complete defense." State v. Budis, 125 N.J. 519, 531 (1991) (quoting
Crane v. Kentucky, 476 U.S. 683, 690 (1986)). "That opportunity includes
seeking discovery that is relevant and material to a victim's ability to perceive,
A-1216-22 12 recall, or recount an alleged sexual assault, or a proclivity to imagine or fabricate
it." State v. Chambers, 252 N.J. 561, 582 (2023).
In Chambers, the Court established the "procedural and analytical
framework . . . for harmonizing the constitutional rights guaranteed to criminal
defendants with the rights accorded to sexual assault victims in recognition of
the potential trauma, embarrassment, and anxiety that might be caused by
granting access to an alleged victim's mental health records." Id. at 589. The
court adopted a two-stage approach, first establishing the threshold for obtaining
in camera review of confidential records and then "a more stringent standard for
granting disclosure of what was found in the records to the defense." Id. at 588.
Although the threshold for obtaining in camera review is lower than the
standard for ultimate disclosure to the defense, it is not nominal. On a motion
for discovery of mental health records, "a defendant must make three showings:
(1) that there is a substantial, particularized need for such access; (2) that the
information sought is relevant and material; and (3) that the information is not
available through less intrusive means." Id. at 590.
The State has a strong interest in protecting the confidentiality of mental
health records so as not to create a chilling effect on reporting. See N.J.S.A.
9:6-8.10a; N.J.S.A. 45:14B-28; N.J.R.E. 505. N.J.S.A. 9:6-8.10a "is designed
A-1216-22 13 as a 'procedural safeguard to protect victim children from unnecessary
disclosure . . . which may cause the child further guilt, vulnerability [,] or
humiliation.'" N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J. Super. 593,
636 (App. Div. 2010) (quoting N.J. Div. of Youth & Fam. Servs. v. J.C., 399
N.J. Super. 444, 447 (Ch. Div. 2006)). Division records "often contain very
sensitive information, including psychologist evaluations and diagnoses. Many
individuals performing the evaluations [and] treatments . . . are acting with the
knowledge that their treatments or evaluations will be used for risk assessment
and for therapeutic purposes only." Ibid. (alteration in original) (quoting J.C.,
399 N.J. Super. at 449-50).
Pursuant to N.J.S.A. 9:6-8.10a(a), all records of child abuse shall be kept
confidential and may be disclosed only under the circumstances expressly
authorized by N.J.S.A. 9:6-8.10a(b)-(g). A prerequisite for disclosure requires
the court to find "access to such records may be necessary for determination of
an issue before it . . . ." N.J.S.A. 9:6-8.10a(b)(6). There is a "presumption of
confidentiality and limitations on disclosure of [Division] records as set forth in
N.J.S.A. 9:6-8.10a(a)." In re Z.W., 408 N.J. Super. 535, 540 (App. Div. 2009).
We review a motion judge's discovery rulings for an abuse of discretion
standard. State v. Brown, 236 N.J. 497, 521 (2019). "[A]ppellate courts
A-1216-22 14 'generally defer to a trial court's disposition of discovery matters unless the court
has abused its discretion or its determination is based on a mistaken
understanding of the applicable law.'" Ibid. (quoting Pomerantz Paper Corp. v.
New Cmty. Corp., 207 N.J. 344, 371 (2011)).
Pursuant to these principles, we conclude the motion judge neither abused
her discretion nor misapplied the law. There is no dispute Delilah did not
disclose the abuse to the Division when it was investigating the attempted
suicide. If she had, defendant would have become the target of the Division's
investigation. Moreover, although defendant argues the suicide attempt
occurred during the period of his alleged abuse and, therefore, Delilah's failure
to report the abuse would be probative to impeaching her credibility, this
argument does not convince us defendant met the "substantial, particularized
need" standard for these records, or that his right to confrontation was violated.
Indeed, "the Confrontation Clause only guarantees 'an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.'" Pennsylvania v. Ritchie,
480 U.S. 39, 53 (1987) (emphasis omitted) (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985)). Moreover, defendant's assertion he could not have obtained
the information about the Division investigation from another source is belied
A-1216-22 15 by the fact he had a redacted psychological evaluation of Delilah, which
referenced the investigation. The defense was able to cross-examine Delilah
regarding the lack of reporting without the Division's investigation records. We
are unconvinced that even if defendant had these records there was a "reasonable
probability . . . the result of the proceeding would have been different." Id. at
57 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
The same is the case with defendant's claim the court should have ordered
the disclosure of Delilah's private counseling records. At the outset, we note the
State did not have possession of Delilah's therapeutic records. "Our criminal
discovery rules do not oblige the State to produce reports of mental examinations
or experiments unless they are within its 'possession, custody, or control.'" State
v. Kane, 449 N.J. Super. 119, 132-33 (App. Div. 2017) (quoting R. 3:13-
3(b)(1)(C)). "[E]vidence in the control of a crime victim—notwithstanding the
victim's close cooperation with the prosecution—is not within the prosecutor's
'possession, custody or control.'" State v. Robertson, 438 N.J. Super. 47, 69
(App. Div. 2014) (quoting State ex rel. A.B., 219 N.J. 542, 556 (2014)).
"Likewise, the State's disclosure obligations under [Brady], do not extend to
documents in a private third-party's possession." Kane, 449 N.J. Super. at 133
(citing Robertson, 438 N.J. Super. at 69).
A-1216-22 16 The motion judge correctly denied defendant's requests for the therapeutic
records because the State did not have them. Moreover, they were privileged.
See N.J.S.A. 45:14B-28, N.J.R.E. 505, N.J.S.A. 45:8B-49, and N.J.R.E.
534(a)(3).
II.
In Point II, defendant argues that although there were two victims who
alleged multiple instances of sexual abuse, the crimes arose from a single period
of aberrant behavior and similar conduct, and should have warranted concurrent,
rather than consecutive terms. Furthermore, at sentencing the trial judge only
found aggravating factors: three, the risk of re-offense, N.J.S.A. 2C:44-1(a)(3);
and nine, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9); and
mitigating factor seven, that defendant lacked a criminal history or led a law-
abiding life, N.J.S.A. 2C:44-1(b)(7). Therefore, he should not have concluded
the aggravating factors outweighed the mitigating factors and failed to
qualitatively assess the factors as required by law.
Defendant asserts the judge should have found mitigating factors nine,
defendant's character and attitude indicate he is unlikely to commit another
offense, N.J.S.A. 2C:44-1(b)(9), and eleven, defendant's imprisonment would
entail an excessive hardship on him and his dependents, N.J.S.A. 2C:44-
A-1216-22 17 1(b)(11). He argues he supported several of his children as a breadwinner. He
asserts the aggregate sentence is excessive given his age (fifty-five) and the fact
that he will be deported if he lives until his release.
We review a sentencing decision for an abuse of discretion. State v.
Miller, 237 N.J. 15, 28 (2019). We must "consider whether the trial court has
made findings of fact that are grounded in competent, reasonably credible
evidence and whether 'the factfinder [has] appl[ied] correct legal principles in
exercising its discretion.'" State v. Blackmon, 202 N.J. 283, 297 (2010)
(alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). We
may not substitute our judgment for that of the sentencing court. State v.
Fuentes, 217 N.J. 57, 70 (2014). A sentence will be affirmed unless a trial court
violated the sentencing guidelines, found aggravating or mitigating factors not
based on competent and credible evidence in the record, or applied the
guidelines in such a manner as to "make[] the sentence clearly unreasonable so
as to shock the judicial conscience." Miller, 237 N.J. at 28 (quoting Fuentes,
217 N.J. at 70).
At sentencing, a court must identify and balance the aggravating and
mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b) and explain the
factual basis supporting its findings. Fuentes, 217 N.J. at 73, 81. "It is sufficient
A-1216-22 18 that the trial court provides reasons for imposing its sentence that reveal the
court's consideration of all applicable mitigating factors in reaching its
sentencing decision." State v. Bieniek, 200 N.J. 601, 609 (2010). "After
balancing the factors, the trial court may impose a term within the permissible
range for the offense." Id. at 608. "[I]f the trial court fails to identify relevant
aggravating and mitigating factors, or merely enumerates them, or forgoes a
qualitative analysis, or provides little 'insight into the sentencing decision,' then
the deferential standard will not apply." State v. Case, 220 N.J. 49, 65 (2014)
(quoting State v. Kruse, 105 N.J. 354, 363 (1987)).
"[T]rial judges have discretion to decide if sentences should run
concurrently or consecutively." State v. Miller, 205 N.J. 109, 128 (2011); see
N.J.S.A. 2C:44-5(a). The judge may impose consecutive sentences after
considering the factors outlined in State v. Yarbough, 100 N.J. 627, 643-44
(1985). Those factors focus on "the nature and number of offenses for which
the defendant is being sentenced, whether the offenses occurred at different
times or places, and whether they involve numerous or separate victims." State
v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180
(1989)). The factors should be applied qualitatively, not quantitatively. Id. at
427. A court may impose consecutive sentences even though a majority of the
A-1216-22 19 Yarbough factors support concurrent sentences. Id. at 427-28. An essential
principle is that "there can be no free crimes in a system for which the
punishment shall fit the crime." Yarbough, 100 N.J. at 643.
Pursuant to these principles, we discern no error in the trial judge's
decision to impose consecutive sentences. Indeed, the judge noted there were
two victims who endured separate sexual assaults over time. However, in
recognition of the fact that when defendant assaulted Delilah and Natalie, he
also endangered their welfare, the judge concluded the sentences on the
endangerment crimes would run concurrent to the sexual assault sentences.
"When a sentencing court properly evaluates the Yarbough factors in light
of the record, the court's decision will not normally be disturbed on appeal."
Miller, 205 N.J. at 129. The trial judge neither deviated from Yarbough, nor
failed to qualitatively assess its factors.
We reject defendant's argument there should have been concurrent
sentences because there was "a single period of aberrant behavior." His conduct
impacted two lives over the course of three years. "[T]otal impact of singular
offenses against different victims will generally exceed the total impact on a
single individual who is victimized multiple times." State v. Molina, 168 N.J.
436, 442 (2001) (quoting Carey, 168 N.J. at 428); see also State v. J.G., 261 N.J.
A-1216-22 20 Super. 409, 426-27 (App. Div. 1993) (finding imposition of consecutive
sentences was not an abuse of discretion where sexual offenses committed by
defendant took place at different times and involved multiple victims).
The trial judge did not ignore defendant's age. Rather, he noted age was
a factor in choosing a sentence below the midpoint of the sentencing range on
counts one and two. "[T]he middle of the sentencing range [i]s a logical starting
point for . . . balancing" the sentencing factors. Fuentes, 217 N.J. at 73 (quoting
State v. Natale, 184 N.J. 458, 488 (2005)). Where "the aggravating and
mitigating factors are in equipoise, the midpoint will be an appropriate
sentence." Ibid. But where "the aggravating factors preponderate, [a] sentence[]
will tend toward the higher end of the range." Ibid.
We are unconvinced the trial judge erred because the mitigating factors
outweighed the aggravating factors. The trial judge's finding that mitigating
factor seven applied but had little weight, due to the fact defendant had a prior
criminal history, was amply supported by the record. Moreover, the judge had
no reason to find mitigating factor nine because even at the allocution, defendant
failed to express responsibility or remorse for his actions. And mitigating factor
eleven was inapplicable because defendant's other children were all adults, and
A-1216-22 21 he did not demonstrate any one of them was dependent upon him as a primary
caregiver.
Aggravating factor three was also supported by the record. Although the
judge acknowledged defendant was evaluated and "found not to be repetitive or
compulsive," he "need[ed] to have some sort of counseling to recognize
that . . . this sort of behavior is completely unacceptable." Likewise, the judge
correctly found aggravating factor nine and gave it great weight because
defendant committed these crimes over several years. The need for general
deterrence was also evident, considering the victims were children in an adult's
custody and care.
The trial court neither abused its discretion nor misapplied the law at
sentencing. Defendant's sentence does not shock the judicial conscience.
III.
Finally, to the extent we have not addressed an argument raised on the
appeal it is because it lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-1216-22 22