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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3690-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.M.,
Defendant-Appellant. ________________________________
Argued January 18, 2017 – Decided August 16, 2017
Before Judges Espinosa, Guadagno, and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-01-0091.
Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel; Ms. Personette, on the brief).
Suzanne E. Cevasco, Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Bergen County Prosecutor, attorney; Ms. Cevasco, of counsel and on the brief).
PER CURIAM
Defendant J.M. appeals his convictions and sentence. We
affirm. I.
Defendant is the uncle and godfather of Kimberly.1 In 2006,
when Kimberly was ten, she would stay overnight at her aunt and
defendant's house to play with her cousin Jimmy. She slept in
Jimmy's room when she stayed over, and he slept with his parents.
Kimberly stopped staying overnight after 2006.
In 2013 when Kimberly was seventeen, she revealed to her
boyfriend that when she was ten years old, defendant twice touched
her inappropriately when she stayed at his house. She also told
her mother, who contacted the local police.
Following investigation, defendant was indicted on two counts
of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts one
and two), and one count of second-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a) (count three). He waived trial
by jury, and following a bench trial, was convicted on all counts.
Defendant was sentenced to consecutive terms of six years each for
the sexual assault charges subject to parole ineligibility under
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a
concurrent term of six years on the endangerment charge. Defendant
also was sentenced to parole supervision for life, to comply with
1 We use pseudonyms throughout this opinion to maintain the confidentiality of the minors involved in the case. 2 A-3690-13T3 Megan's Law requirements,2 to adhere to a restraining order under
Nicole's Law,3 and to a no-contact order.
At trial, Kimberly testified that when she was in fifth grade
and staying at defendant's home for the weekend, she was in bed
around midnight but watching television. She heard the door open
and closed her eyes to pretend to be asleep as defendant entered
the room. He stood over her, breathing heavily, and began touching
her breasts and vagina over her clothing. His hands were rough.
After he began to touch her, Kimberly rolled over to let defendant
know she was awake, and he left. Nothing was said about the
incident.
A few weeks later when Kimberly was staying over, she
testified defendant again entered her room around midnight,
touched her breasts and continued touching her, moving down toward
her vagina. She said she wet the bed prior to being touched by
defendant and again rolled over to signal to defendant she was
awake. After defendant left, she went out to the bathroom and saw
defendant walking back to his room. Nothing was said about the
Kimberly did not disclose any of this to her family members
at the time. She continued to go places with her aunt and
2 N.J.S.A. 2C:7-1 to -23. 3 N.J.S.A. 2C:14-12. 3 A-3690-13T3 defendant, and to visit with Jimmy after this, but did not stay
overnight. At her sixteenth birthday party, Kimberly told family
and friends in a speech she had written that defendant was "very
special" to her and she was "lucky to have him."
When Kimberly was seventeen and she and her boyfriend were
"opening up to each other," she texted him about defendant's
inappropriate touching. The next day, Kimberly texted her mother
about defendant's "touching," "begging" her not to tell anyone,
but her mother contacted the police.
Kimberly gave a statement to Detective Linda McNulty of the
Bergen County Prosecutor's Office. In her statement, Kimberly
alleged defendant touched her under her clothing and that his hand
was rough. Detective McNulty looked at and videotaped the text
message that Kimberly identified on her phone as pertaining to the
allegations against defendant, but did not look at any of her
other messages. Kimberly acknowledged the text message to her
boyfriend was part of a longer series of texts.
Defendant was questioned by detectives from the Prosecutor's
Office. The interview was recorded.4 The detectives conducted
the interview by representing to defendant their belief in the
quality and believability of Kimberly's accusations against him.
4 We were not provided the video of the interview, but were provided with the transcript. The video was admitted into evidence at the trial. 4 A-3690-13T3 During the course of the interview, defendant acknowledged he
entered Kimberly's room but only to check on her, and said he did
not remember touching her, but that it was "possible." Defendant
was shaking his foot throughout the interview, his pulse was
visible in his neck and his stomach was growling. At the end,
defendant asked to speak with an attorney, the interview
terminated, and defendant was arrested.
Defendant was not successful in suppressing the videotape nor
reference to his demeanor or body language during the interview.
His interview with the detectives was played in its entirety at
the bench trial. Kimberly also testified, and her statement to
the detectives and the text messages from her to her boyfriend and
mother were admitted in evidence at the trial. Dr. Anthony D'Urso,
the State's expert, testified at trial about Child Sexual Abuse
Accommodation Syndrome (CSAAS) in general, but he was not familiar
with the specific facts of this case.
Defendant's witnesses testified about his character for
honesty and trustworthiness. Defendant's wife offered testimony
that Kimberly might be retaliating for her and defendant's
expression to Kimberly that she was too young for a boyfriend.
Defendant testified he did not touch Kimberly inappropriately when
she slept, responding "[n]o. Absolutely, not" when asked.
5 A-3690-13T3 On October 13, 2013, the trial judge issued a written "verdict
of the court" (verdict). The judge found the State had proven
beyond a reasonable doubt that defendant sexually assaulted
Kimberly. The "primary issue" was whether the "conduct alleged .
. . actually occurred." In that regard, the court found Kimberly's
testimony credible based on "several factors," including her
demeanor. Her testimony "echoed with the ring of truth." She had
no motive to "make false allegations" against defendant. Further,
the court found Dr. D'Urso's testimony "persuasive to explain
[Kimberly's] failure to confront defendant or address the
incidents in a timely fashion." However, the court did not
consider this expert testimony as proving one way or the other
whether sexual abuse had occurred. The judge "completely
discount[ed the detective's] opinion statements regarding
[Kimberly's] credibility."
The court gave little weight to defendant's character
witnesses. He rejected defendant's wife's testimony that Kimberly
continued to sleep over at their house after 2006, finding her
testimony "inherently biased." The court found inconsistencies
between defendant's trial testimony and his statement to the
detectives:
Defendant's statements at the . . . interview that it was possible he could have put his hands on [Kimberly's] chest by accident, or that the incidents could have happened when
6 A-3690-13T3 he was drinking, or that he did not recall or remember touching [Kimberly] when he entered the bedroom, are diametrically opposed to his testimony at trial when he unequivocally denied that he touched [Kimberly]. Defendant did not have a clear memory in October 2012, albeit, six years after the alleged incidents. Yet, he definitely testified in October 2013 that he never touched [Kimberly].
The court noted defendant's demeanor at trial and his
statement. During the interview he was not "excited, agitated,
angry or upset." The court found defendant was "untruthful" when
he did not disclose to the detectives that he had other children
who lived out of state.
The court concluded "after analyzing all the testimony,
considering the credibility of the witnesses and reviewing the
evidence" that defendant "touched [Kimberly's] breast/breasts and
vagina on two occasions in the fall of 2006." The court found
defendant's purpose and intent "was sexually motivated." Also,
defendant had "assumed responsibility for [Kimberly's] care when
she was in his presence," which supported a finding of second-
degree endangering the welfare of a child.
On appeal, defendant raises the following claims:
POINT I
THE COURT BELOW ERRED IN FAILING TO SUPPRESS THE STATEMENT TAKEN FROM DEFENDANT.
POINT II
7 A-3690-13T3 DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE, IN RENDERING ITS VERDICT, THE TRIAL COURT IMPERMISSIBLY USED DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL AGAINST HIM.
POINT III
DEFENDANT'S CONVICTION MUST BE REVERSED BASED UPON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
a. Trial counsel's failure to confront the alleged victim with a material inconsistency between her trial testimony and an earlier statement constituted ineffective assistance of counsel.
b. Trial [c]ounsel's failure to conduct a meaningful cross-examination of the State's expert witness, Dr. Anthony D'Urso, constitutes ineffective assistance of counsel.
c. Trial counsel's failure to conduct a thorough cross-examination of Det. Linda McNulty with respect to her interrogation techniques and the impact upon [d]efendant's demeanor during the police interrogation constitute ineffective assistance of counsel. POINT IV
SPOLIATION OF EVIDENCE REQUIRES THAT DEFENDANT'S CONVICTION BE REVERSED.
POINT V
CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
POINT VI
THE SENTENCE IMPOSED BY THE COURT BELOW IS EXCESSIVE.
8 A-3690-13T3 a. The [c]ourt below erred in its analysis of aggravating and mitigating factors.
b. Concurrent sentences should have been imposed.
c. The [c]ourt below erred in failing to sentence [d]efendant as if convicted of offenses one degree lower. (not argued below)
II.
A.
Defendant contends the trial court erred in denying his motion
to suppress the statement he gave when he was interviewed by the
detectives. On appeal, he contends that the "aggressive
interrogation" and references by the detectives to Kimberly's
veracity and defendant's guilt "so permeated and tainted the
interview process that the questions cannot be separated from the
responses, verbal and non-verbal."
In admitting the statement in its entirely, the trial court
found the statement was "knowingly and voluntarily taken." We
agree with the trial court. Defendant was read his Miranda5 rights
and he initialed the Miranda card. He never asked that questioning
cease and when he did ask for a lawyer, the interview stopped.
Defendant takes issue with the "aggressive interrogation."
However, "[u]se of psychological tactics is not prohibited." State
5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 9 A-3690-13T3 v. Faucette, 439 N.J. Super. 241, 260 (App. Div. 2015) (citation
omitted). "Unlike the use of physical coercion, . . . use of a
psychologically-oriented technique during questioning is not
inherently coercive." Ibid. (alteration in original) (quoting
State v. Galloway, 133 N.J. 631, 654 (1993)).
There was nothing coercive about the interview. It was short
in duration; there were no threats; defendant was provided with
some food; there was no physical force; and the interview was
terminated when he requested an attorney. "A voluntary intelligent
statement by a defendant fully informed of his rights is
admissible." Id. at 264.
Defendant also challenges the denial of his suppression
motion because during the interview the detectives expressed their
views about Kimberly's veracity and defendant's guilt.
It is improper for a police officer to testify to a jury
regarding his opinion of a defendant's guilt or credibility. See
State v. Frisby, 174 N.J. 583, 593-94 (2002); see also State v.
Landeros, 20 N.J. 69, 74-75 (1955) (finding that a police captain's
testimony to a jury about defendant's guilt warranted reversal of
the conviction). In denying the suppression motion, the trial
court found there was "prejudice in the way the questions [were]
phrased." However, the court stated that it made no "inference
against the defendant because of the tactics and the opinions used
10 A-3690-13T3 by the detective," and indicated the detective's tactics were
"ripe for cross-examination."
Moreover, the court expressed "I have no doubt I can ignore
the opinions given by the detectives . . . as to guilt or
innocence," and that whether defendant's nervous demeanor was
because "he's really nervous, or because he's prevaricating" was
for the court to decide as the trier of fact at the bench trial.
Defendant cites no authority to suppress the statement based
on his unsupported concern the judge would be compromised in
deciding the case because of the detectives' expressions in the
interview. The judge made a conscious decision here to disregard
the opinions of the detectives. The record reflects no waver in
this resolve.
B.
The court's verdict contrasted defendant's demeanor at trial,
where he testified he was "shocked" and "floored" by the
allegations, with his demeanor in the interview, where he "made
no protestations or expressions of 'shock,' nor did he make any
statements indicative of disbelief." When defendant was asked by
the detectives in the interview if Kimberly were lying, the court
observed "defendant did not respond 'Yes, she is lying,' but
instead replied: 'I need to see a lawyer.'" Defendant seeks a
reversal of his conviction claiming the trial court
11 A-3690-13T3 "impermissibly" used his exercise of the right to counsel and the
right to remain silent against him.
"[T]he right of . . . a suspect to remain silent when in
police custody or under interrogation has always been a fundamental
aspect of the privilege [against self-incrimination] in this
state." State v. Muhammad, 182 N.J. 551, 567 (2005) (alterations
in original) (quoting State v. Deatore, 70 N.J. 100, 114 (1976)).
"Making reference at trial to what a defendant did not say to the
police is commenting on his silence." Id. at 565 (citations
omitted). Also, "a suspect who initially responds to police
questioning may later assert his right to remain silent without
fear that his silence will be used to incriminate him at trial."
Id. at 567-68.
The right to counsel is "an adjunct of the privilege against
self-incrimination." State v. Reed, 133 N.J. 237, 253 (1993). In
the "pre-indictment stage of a prosecution . . . the 'essential
purpose' of the right to counsel in the context of custodial
interrogation 'is to prevent compelled self-incrimination.'" Id.
at 252 (quoting State v. Sanchez, 129 N.J. 261, 266 (1992)). The
right requires that interrogation cease upon the suspect's
invocation of the right. Id. at 253.
Here, defendant waived his right to remain silent when,
following the administration of his Miranda rights, he voluntarily
12 A-3690-13T3 spoke with the detectives in a video-recorded interview. "When a
defendant agrees to give a statement, he or she has not remained
silent, but has spoken." State v. Tucker, 190 N.J. 183, 189
(2007). "[I]t is not an infringement of a defendant's right to
remain silent for the State to point out differences in the
defendant's testimony at trial and his or her statements that were
freely given." Ibid. (citations omitted). However, "the use of
such evidence [is limited] to issues of credibility and not
substantive evidence on the issue of defendant's guilt or
innocence." Id. at 191 (citation omitted). The judge's findings
pointed out these inconsistencies. The inconsistencies and
defendant's demeanor on the videotape were all part of what the
court used in evaluating defendant's credibility.
The State concedes that the court "improperly" commented on
defendant’s exercise of his right to counsel, and we agree.
However, the court's verdict was clearly based on its credibility
assessment of Kimberly, the "inconsistencies" between defendant's
trial testimony and statements he made to the detectives and his
demeanor and not on defendant's invocation of his right to speak
with counsel. The error was not plain error. R. 2:10-2.
C.
Defendant raises that his trial counsel provided ineffective
assistance by failing to cross-examine Kimberly about
13 A-3690-13T3 inconsistencies between her statement to the police and her
testimony at trial, by not conducting a meaningful cross-
examination of Dr. D'Urso and by not thoroughly examining Detective
McNulty about her interview techniques and their impact on
defendant's demeanor.
There exists "a general policy against entertaining
ineffective-assistance-of-counsel claims on direct appeal because
such claims involve allegations and evidence that lie outside the
trial record." State v. Preciose, 129 N.J. 451, 460 (1992)
(citations omitted). We decline to address the issues here.
D.
Defendant contends the trial suffered from "cumulative
errors" that deprived him of a fair trial. See State v. Simms,
224 N.J. 393, 407 (2016) (reversing conviction based on the
"cumulative effect of the errors"). This claim warrants only
brief comment. R. 2:11-3(e)(2). As for the claim that other text
messages on Kimberly's phone were not preserved by the detectives,
defendant did not allege the requisite "bad faith" by the
detectives in not preserving them. See State v. Hollander, 201
N.J. Super. 453, 479 (App. Div.) (citations omitted) (focusing on
three factors to determine whether a due process violation occurred
by the loss of physical evidence, including "whether there was bad
faith or connivance on the part of the government"), certif.
14 A-3690-13T3 denied, 101 N.J. 335 (1985). As for the claim of cumulative
errors, "the theory of cumulative error [does] not apply where no
error was prejudicial and the trial was fair." State v. Weaver,
219 N.J. 131, 155 (2014) (citation omitted). Defendant did not
show any prejudicial error.
E.
We reject defendant's claim that the judge erred in imposing
consecutive sentences and in balancing the aggravating and
mitigating factors.6
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
We must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
"A judge's sentencing analysis is a fact-sensitive inquiry, which
must be based on consideration of all the competent and credible
6 Reference is to N.J.S.A. 2C:44-1(a) and (b). 15 A-3690-13T3 evidence raised by the parties at sentencing." State v. Jaffe,
220 N.J. 114, 116 (2014).
Defendant contends the trial court erred by finding that
aggravating factor three applied and also by not finding that
mitigating factors eight, nine and ten applied. N.J.S.A. 2C:44-
1(a)(3); N.J.S.A. 2C:44-1(b)(8)-(10).
In sentencing defendant, the court found that aggravating
factors two, three and nine applied. The court gave significant
weight to factor two, the seriousness of the harm, noting that
Kimberly did not reveal the assaults because she was trying to
keep her family together and that she also suffered "severe
emotional trauma" from her silence. The court gave minimal weight
to factor three, the risk of re-offense, noting that although
defendant maintained his innocence, there was a risk he would
reoffend. The court gave substantial weight to factor nine, the
need to deter, finding there was a great need to deter individuals
from committing sex offenses. The court found that aggravating
factor four, breach of trust, applied to counts one and two, giving
that factor substantial weight.
In applying the mitigating factors, the court gave
significant weight to factor seven, as defendant had no criminal
history and several members of the community had written supportive
letters. The court gave minimal weight to factor eleven, finding
16 A-3690-13T3 there was always a hardship to a family when one member becomes
incarcerated. The court found the aggravating factors
substantially outweighed the mitigating factors, and sentenced
defendant accordingly.
We have no quarrel with the court's analysis. There was
evidence that defendant was not forthcoming even with the character
witnesses who testified for him because none were aware defendant
was the father of three other children from a prior relationship.
The court highlighted inconsistencies in defendant's testimony and
in his demeanor. The incidents were not disclosed. We cannot
say, therefore, that the judge erred by finding a risk of re-
offense, even though defendant maintained his innocence, based on
defendant's behavior and the judge's assessment of his
credibility. These bases also support the non-applicability of
the mitigating factors now advanced by defendant such as number
eight (circumstances unlikely to recur), number nine (unlikely to
commit another offense) and number ten (will respond favorably to
probationary treatment). See N.J.S.A. 2C:44-1(b)(8)-(10).
There was nothing shocking about the sentence given the
offense, where the victim was ten and defendant is her uncle.
There was no compelling reason to downgrade the sentence because
the mitigating circumstances did not outweigh the aggravating
ones. See N.J.S.A. 2C:44-1(f)(2).
17 A-3690-13T3 Defendant contends that the court should have imposed
concurrent rather than consecutive sentences for the sexual
assault offenses. However, the trial court properly considered
and applied the relevant factors under State v. Yarbough, 100 N.J.
627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986). The court noted that the crimes were
committed "independent of each other; that they . . . were separate
acts occurring at least twice, separate[d by] at least two weeks
apart . . . [and] they were committed at different times or
different places." We agree with the court's application and
analysis of the Yarbough factors and with defendant's sentence to
consecutive terms.
Affirmed.
18 A-3690-13T3