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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0667-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.S.C.,
Defendant-Appellant. ____________________________
Argued September 18, 2018 – Decided September 25, 2018
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-02-0138.
Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael J. Confusione, of counsel and on the briefs).
Adam D. Klein, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Adam D. Klein, of counsel and on the brief). PER CURIAM
Defendant J.S.C. appeals from his conviction and sentence following a
jury trial for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a);
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and
third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The
victim was his biological son, Jason.1 For the following reasons, we affirm the
conviction and sentence.
I.
A jury convicted defendant of sexually abusing Jason and directing his
wife to sexually abuse Jason based on evidence the abuse occurred in the
family's residence between June 2010 and February 2012, when Jason was
thirteen to fourteen years old. 2
Jason testified the first incident of abuse occurred in summer 2011 when
his father asked him "out of nowhere" if he ever wondered what it was like to
be with a girl. Jason stated on four occasions his father woke him up in the
middle of the night, blindfolded him, and led him to the family's living room
1 We use a pseudonym for the name of the victim, do not refer to his mother by name, and identify the defendant by his initials to protect the identity of the victim. 2 Defendant's wife was also indicted but is not a party to this appeal. A-0667-16T4 2 where he orchestrated sexual interactions, including oral intercourse and vaginal
penetration, between Jason and "some woman [Jason] never even knew."
Jason further testified his relationship with his father "shifted" when
defendant asked him if he "ever wondered how it felt to be with a man," to which
Jason responded "no." Defendant then made Jason perform oral sex on him,
which defendant referred to as "practice." Defendant conditioned things Jason
wanted, such as a cell phone, guitar, or attending Burlington County Institute of
Technology, on him partaking in these practice sessions. As Jason stated, "I'd
say I want something, he'd say you haven't earned it, you haven't practiced
enough." Jason estimated his father made him "practice" about fifteen times.
Not limited to the sexual abuse involving oral sex, Jason testified
defendant attempted anal intercourse on him as well. For instance, when Jason
wanted an electric guitar for Christmas, defendant told him he "hadn't practiced
enough for it. Or [his] practice was getting low." Jason testified he had to allow
defendant to "anally penetrate [him] in order for me to earn that guitar."
These abusive encounters further escalated when defendant twice
involved Jason's biological mother. Jason testified defendant "brought [him] in
the shower with her and had [him] fondle her breasts." His mother had "no
response to it" and "just let it happen" when he entered the shower.
A-0667-16T4 3 Jason further testified that one week later, his father brought him into his
mother's bedroom and "laid her down and had [Jason] insert [his] hand into her
vagina and stimulate her," before he "told [Jason] to lay on the bed," procee ded
to lay next to him, and his mother "gave [them] both oral."
For her part, Jason's mother testified regarding these incidents, detailing
two occasions in which Jason touched her breasts and penetrated her with his
fingers at defendant's urging and instruction. She stated she was initially against
it, but eventually agreed to her husband's proposal "[b]ecause [she] knew
[defendant], if he said he was going to do something, he was going to do it.
There was no stopping him." She also stated defendant told her he "wouldn't
mind [doing] something like that once a month." Jason's mother stated she did
not agree, but defendant offered to have her broken tooth fixed. This broken
tooth caused her pain, and factored into her decision-making process, leading
her to take part in the sexual abuse.
In February 2012, Jason reached a breaking point when he "felt like [he]
couldn't bottle it up anymore and . . . needed to talk to someone." He informed
his aunt, who told him "we need to stop this now," and called his mother, who
then drove him to the Delran Township Police Department.
A-0667-16T4 4 Jason was then taken to the Burlington County Child Advocacy Center
where he spoke with Detective Wayne Raynor of the Burlington County
Prosecutor's Office. Jason described the abuse he endured, and Raynor
organized a telephone intercept between Jason and defendant. During this
approximately forty-five minute phone call, Jason confronted defendant.
Although the telephone intercept did not elicit a confession, defendant stated
"I'll tell you something, you can tell anybody you want but honestly, your mom's
secrets are gonna come out of the closet too. And by the time you get done
you'll lose both of us. Do you want that?"
Thereafter, at approximately 3:13 a.m., detectives went to defendant's
home, and asked him to come to the Delran Police Department for an interview.
Defendant agreed to go to the police department for the interview. No details
were provided to defendant regarding the nature of the interview.
Upon arrival at the police department, defendant was read his Miranda3
rights before making a recorded statement to the police. Defendant initially
denied the allegations against him, stating "I haven't touched this kid."
However, he later admitted Jason performed oral sex on him, claiming it was
Jason's idea, stating it began when Jason "wanted to try oral," and it lasted for a
3 Miranda v. Arizona, 384 U.S. 436 (1966). A-0667-16T4 5 "[c]ouple of minutes. He said he was alright with it. I was like OK. We just
let it go at that point."
As questioning progressed, defendant made reference to Jason's mother,
prompting detectives to further question him about her. In response, defendant
stated, "[h]e knows his mom's not an angel," and, after an additional question,
stated, "I'm going to plead the 5th on that one. . . . We're not going to talk about
that."
Although he initially denied engaging in anal intercourse with Jason, he
later stated, "I didn't have anal sex with him. He pretended to sit down. It never
even went even in." He added, "I know he put the lube on his butt, he went to
sit down, he couldn't. Tried it again, he couldn't. That's pretty much all that
ever happened." Defendant was then arrested.
A Burlington County Grand Jury charged defendant with first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) (counts one, two, three,
four, five, ten, eleven, twelve, thirteen, and fourteen); second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts six, seven, eight,
nine, fifteen, sixteen, seventeen, eighteen, twenty, and twenty-one); and third-
degree promoting prostitution, N.J.S.A. 2C:34-1(b)(6).
A-0667-16T4 6 On March 30, 2015, the judge granted defendant's unopposed motion to
sever counts one through twenty-one from counts twenty-two through thirty-six.
The judge also granted defendant's unopposed motion to dismiss counts twenty-
seven, twenty-eight, and twenty-nine as time-barred.
Defendant moved to suppress his recorded statement to police on Fifth
Amendment and Miranda grounds. After conducting a Miranda hearing on May
26, June 22, July 13, and July 16, 2015, the court issued a detailed oral decision
denying defendant's motion. The trial court found the only witness, Detective
Raynor, to be credible and believable.
The judge found defendant was properly Mirandized and signed the
Miranda card without hesitation and without asking any questions. Defendant
said he was willing to answer questions. The judge concluded defendant's will
was not overborne in any way and his waiver was voluntary, knowing and
intelligent, and that "at no time did [defendant] indicate that he wanted to revoke
his consent, that he wanted to consult with counsel, or that he did not want to
continue the investigation with the officers." The judge also concluded the State
proved beyond a reasonable doubt that defendant's statement was freely and
voluntarily made.
A-0667-16T4 7 The judge further found the only objection raised by defendant during the
two-hour interview related to a question involving his wife. He also found
defendant was able to understand the questions.
From the inception of this case, defendant was represented by assigned
attorney Timothy P. Reilly. During a March 21, 2016 pre-trial conference, the
judge noted, "there was some discussion of [defendant], perhaps, seeking new
counsel at this point [in] the case." To this end, the judge informed defendant's
attorney it was "highly unlikely the Court would allow Mr. Reilly to get out of
the case at this point," and if a substitution of attorney was allowed "that would
in no way, shape or form delay the trial at all," as this is a "very old case." The
new counsel was retained by defendant's family to represent him at trial.
Trial was initially scheduled for April 5, 2016, but was postponed two
weeks because Mr. Reilly was scheduled for another trial. During an April 15,
2016 pre-trial conference, defendant requested an adjournment of the trial so his
privately retained counsel could prepare for trial. The judge declined
defendant's request to adjourn the start of trial, stating April 19, 2016, was a
firm date.
A jury trial was held between April 19 and May 3, 2016. The jury found
defendant guilty on two counts of first-degree aggravated sexual assault (counts
A-0667-16T4 8 two and eleven), three counts of second-degree endangering the welfare of a
child (counts nine, eighteen, and twenty-one), and the lesser-included offense of
third-degree aggravated criminal sexual contact (count ten). Defendant also
pleaded guilty to an additional count of first-degree aggravated sexual assault
under count 25 of the indictment.
Defendant was sentenced on August 26, 2016. The trial court made the
following findings during the sentencing hearing. During diverse dates over a
nineteen-month period, defendant forced Jason to perform fellatio upon him for
"practice" and to obtain gifts. On multiple other occasions, defendant attempted
to perform anal sex upon Jason. The sexual assaults were "demeaning and
humiliating," with each act operating as "a separate indignity to the victim." The
crimes were "committed in a particularly heinous, humiliating and cruel
manner," using "his title as a father to satisfy his own sick, perverted sexual
desires and he did so in the most unimaginable and perverted way possible."
The judge stated he could "think of no more humiliating and reprehensible act"
than to engage in this conduct and thereby commit "the ultimate betrayal and
breach of trust that is typically inherent in the father-son relationship."
The trial court found aggravating factors one (nature and circumstances
of the offense, including whether it was committed in an especially heinous,
A-0667-16T4 9 cruel, or depraved manner), N.J.S.A. 2C:44-1(a)(1); two (gravity and
seriousness of harm, including whether defendant knew or should have known
the victim was particularly vulnerable or incapable of resistance), N.J.S.A.
2C:44-1(a)(2); three (risk to reoffend), N.J.S.A. 2C:44-1(a)(3); and nine (need
to deter), N.J.S.A. 2C:44-1(a)(9). Although defendant had not previously been
convicted of a crime, he had been convicted of two disorderly persons offenses
in 2007. The court gave substantial weight to aggravating factors one and two
and moderate weight to aggravating factors three and nine.
The court found mitigating factor seven (lack of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period of time),
N.J.S.A. 2C:44-1(b)(7), and gave it moderate weight. The court also found
mitigating factor twelve (cooperation with law enforcement), N.J.S.A. 2C:44-
1(b)(12), and gave it "lesser weight." The court found the aggravating factors
substantially preponderated over the mitigating factors on both a qualitative and
quantitative basis.
With regard to whether to impose consecutive or concurrent sentences,
the court noted there can be no free crimes, citing State v. Yarbough, 100 N.J.
627 (1985). The court found the crimes and their objectives were not
predominantly independent of each other, having been "done with the same
A-0667-16T4 10 objective, to embarrass and harass and humiliate the victim, to exercise control
over the victim and to satisfy defendant's own perverted sexual desires."
Although the crimes were perpetrated on a single victim, the court found the
offenses "involved separate acts of violence at different times and in different
manners" over a nearly two-year span. The court noted the assaults occurred in
different areas of the house and "were not done so close in time as to constitute
one incident of aberrant behavior." The court indicated it was not imposing
numerous sentences.
Defendant was sentenced to an aggregate thirty-nine-year term. On count
two, defendant was sentenced to a seventeen-year term, subject to an eighty-five
percent period of parole ineligibility and a mandatory five-year period of parole
supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On count eleven, the court imposed a consecutive seventeen-year NERA term.
On count ten, defendant was sentenced to a consecutive five-year term. The
court also imposed a concurrent ten-year NERA term for the first-degree
aggravated sexual assault to which defendant pleaded guilty (count twenty-five).
The court also ordered defendant to comply with all provisions of Megan's Law,
N.J.S.A. 2C:7-2, and parole supervision for life, N.J.S.A. 2C:43-6.4, and
imposed appropriate fines and penalties. The court merged counts nine,
A-0667-16T4 11 eighteen, and twenty-one for sentencing purposes, and dismissed the remaining
counts of the indictment. This appeal followed.
On appeal, defendant raises the following points:
POINT ONE
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL (Plain Error; Not Raised Below).
POINT TWO
DEFENDANT'S ASSIGNED TRIAL ATTORNEY PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE (Plain Error; Not Raised Below). POINT THREE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS ON MIRANDA AND FIFTH AMENDMENT GROUNDS.
POINT FOUR
TOO MUCH [RULE] 404(b) EVIDENCE WAS ALLOWED BEFORE THE JURY THAT, CUMULATIVELY, UNFAIRLY PREJUDICED DEFENDANT ON THE ACTUAL CHARGES AT ISSUE.
POINT FIVE
THE TRIAL COURT INFRINGED DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY PANEL BY DECLINING TO REMOVE A TAINTED JUROR FROM THE PANEL.
A-0667-16T4 12 POINT SIX
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
II.
Defendant contends the trial court erred by declining to adjourn the trial
to allow privately-retained counsel to substitute for assigned counsel; however,
the trial court never received a formal adjournment request. Rather, counsel
made an informal inquiry.
The decision to allow or deny an adjournment is discretionary. State v.
Hayes, 205 N.J. 522, 537 (2011). We review a trial court's decision to deny an
adjournment request under an abuse of discretion standard. Ibid. Therefore, "a
trial court's decision to deny a request for an adjournment to permit a defendant
to retain counsel of his choice will not be deemed reversible error absent a
showing of abuse of discretion which caused defendant 'manifest wrong or
injury.'" Ibid. (quoting State v. McLaughlin, 310 N.J. Super. 242, 259 (App.
Div. 1998)).
"[A] defendant's right to counsel of choice 'is not absolute' and may be
balanced against the demands of the court's calendar, among other issues . . . ."
State v. Kates, 216 N.J. 393, 396 (2014) (citations omitted). See also State v.
Furguson, 198 N.J. Super. 395, 401 (App. Div. 1985) (recognizing "[a] trial
A-0667-16T4 13 court . . . must have the power to tightly control its own calendar so that the
assignment of cases cannot be manipulated by the defense counsel or the
defendant.").
"What constitutes a reasonable adjournment to permit a defendant to
retain counsel of his own choice depends upon the surrounding facts and
circumstances." Hayes, 205 N.J. at 538 (quoting Furguson, 198 N.J. Super. at
402). The factors included in this determination are set forth in United States v.
Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978) and were adopted by our courts
in Furguson, 198 N.J. Super. 395. The Burton/Furguson factors include:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstances which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.
[Furguson, 198 N.J. Super. at 402 (quoting Burton, 584 F.2d at 490-91).]
A-0667-16T4 14 "[T]he availability of other competent counsel, while relevant, is no
substitute by itself for the constitutional right to counsel[.]" Kates, 216 N.J. at
396 (citations omitted). Nevertheless, "a deprivation of the right only occurs
when the court mistakenly exercises its discretion and erroneously or arbitrarily
denies a continuance to retain chosen counsel." Ibid. (citations omitted). As
such, "[i]f a trial court conducts a reasoned, thoughtful analysis of the
appropriate factors, it can exercise its authority to deny a request for an
adjournment to obtain counsel of choice." Id. at 396-97 (citing McLaughlin,
310 N.J. Super. at 260). The Court emphasized that a deprivation of the right to
counsel can only be found "if a trial court summarily denies an adjournment to
retain private counsel without considering the relevant factors, or abuses its
discretion in the way it analyzes those factors. Structural error is not triggered
otherwise." Id. at 397.
Abuse of discretion warranting reversal and remand has been found where
the defendant is otherwise left without competent counsel to represent him. See
Hayes, 205 N.J. at 536-37. Abuse of discretion has also been found when the
trial court does not provide its reasoning for denying an adjournment request.
Kates, 216 N.J. at 397.
A-0667-16T4 15 Here, the circumstances surrounding defendant's informal adjournment
request are wholly distinguishable from the cases relied upon by defendant.
Unlike Hayes, where defendant's conflict-based adjournment request was denied
"effectively leaving him without counsel," there was no such circumstance
precluding Mr. Reilly from representing defendant at trial. Further, th is matter
is distinguishable from Kates, where the defendant would be forced to change
counsel mid-trial after learning of his counsel's pending military deployment on
the dawn of trial. Here, Mr. Reilly had been representing defendant since the
inception of this case and was ready, willing, and able to try the case. Further,
this matter is distinguishable from State v. Martinez, 440 N.J. Super. 537 (App.
Div. 2015), where the record was devoid of any rationale behind the court's
denial of the adjournment.
Defendant was indicted in February 2013. He was represented by Mr.
Reilly for the two years preceding the trial. Trial was originally scheduled for
April 5, 2016, but adjourned to April 19, 2016, because Mr. Reilly had another
trial scheduled. During a March 21, 2016 case management conference, the trial
judge noted "there was some discussion of [defendant], perhaps, seeking new
counsel at this point of the case." The judge directed Mr. Reilly to inform
defendant:
A-0667-16T4 16 it's highly unlikely the [c]ourt would allow Mr. Reilly to get out of the case at this point. But, even if the [c]ourt did allow Mr. Reilly or allowed a substitution of attorney for Mr. Reilly, that would in no way, shape or form delay the trial at all. This is a very old case. We've had this scheduled for some time. And so, [J.S.C.], if he wishes to get new counsel, and the court allows him to do so, would do so at his own peril because the [c]ourt would not delay the trial . . . ."
During a subsequent case management conference, the judge told
defendant, "you're free to get whoever you want, but they have to be prepared,
because there are time frames and deadlines that need to be met for the efficient
resolution of this case. This case is extremely old." The judge noted "[t]here's
a need for finality and closure, not just for yourself but for the victim as well.
So the 19th is the trial date. I want to move forward on that date and time." Jury
selection commenced on April 19, 2016.
When defendant's privately retained counsel entered an appearance the
trial was still one month away. Private counsel advised defendant he could be
ready to try the case in thirty days. Therefore, a further trial postponement was
not necessary for private counsel to be ready for trial. Moreover, private counsel
did not make a formal trial adjournment request. Instead, he withdrew from the
case upon learning April 19, 2016, was a firm trial date.
A-0667-16T4 17 During the final case management conference, Mr. Reilly confirmed
privately retained counsel withdrew from representing defendant. Mr. Reilly
did not request an additional trial postponement at that time.
Considering the age of the case, the prior two-week trial adjournment, the
readiness of trial counsel to proceed, the right of the trial court to control its
calendar, the impact on the victim, and the need for closure, the trial court
declined to further postpone the trial. We conclude the trial court considered
and weighed the appropriate factors in reaching that decision. The denial of
defendant's adjournment request resulted in no identifiable prejudice and was
not "clearly unreasonable in the light of the accompanying and surrounding
circumstances." Hayes, 205 N.J. at 539 (citation omitted). We discern no abuse
of discretion by the trial court in declining to adjourn the trial.
III.
Defendant also contends his trial attorney rendered ineffective assistance
of counsel by failing to request a trial adjournment so defendant's newly retained
private counsel could represent him at trial. We decline to consider defendant's
arguments in the present context, applying the "general policy against
entertaining ineffective-assistance-of-counsel claims on direct appeal because
such claims involve allegations and evidence that lie outside the tri al record."
A-0667-16T4 18 State v. Preciose, 129 N.J. 451, 460 (1992). To that end, a claim of ineffective-
assistance-of-counsel is best addressed in a post-conviction relief proceeding.
Ibid.; State v. Morton, 155 N.J. 383, 433 (1998). Our decision does not preclude
defendant from raising his ineffective-assistance-of-counsel claim in a timely
filed petition for post-conviction relief. See Morton, 155 N.J. at 433 (citing
State v. Marshall, 148 N.J. 89, 147-54 (1997) (permitting defendant to raise
ineffective-assistance-of-counsel claims on post-conviction relief proceeding
despite rejection of these claims on direct appeal)).
IV.
Defendant next contends the trial court erred in denying his motion to
suppress his recorded statements to detectives during his initial questioning at
the Delran police department, on Miranda and Fifth Amendment grounds.
Specifically, when questioned regarding his wife, defendant stated: "I'm going
to take the 5th on that one. . . . We're not going to talk about that." Defendant
argues his Fifth Amendment rights were violated because detectives continued
questioning him following this answer. We disagree.
When reviewing a trial court's decision on a motion to suppress, we defer
to the trial court's findings supported by sufficient credible evidence in the
record, particularly when they are grounded in the judge's feel of the case and
A-0667-16T4 19 ability to assess the witnesses' demeanor and credibility. State v. Robinson, 200
N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). We review legal
issues de novo. State v. Shaw, 213 N.J. 398, 411 (2012); State v. Vargas, 213
N.J. 301, 327 (2013). We will not reverse a motion court's findings of fact based
on its review of a recording of a custodial interrogation unless the findings are
clearly erroneous or mistaken. Robinson, 200 N.J. at 16-17.
The record demonstrates defendant was properly advised of his Miranda
rights and his waiver of those rights was made knowingly and intelligently. The
trial court held the State had proven defendant's statement was made freely and
voluntarily. At no time during the questioning did defendant indicate he sought
to revoke his consent, that he wanted to consent with an attorney, or that he
sought to terminate the interview. Instead, defendant invoked his Fifth
Amendment right to remain silent only with regard to a question regarding his
wife. The detectives scrupulously honored defendant's rights to the extent of
the invocation by not furthering their inquiry regarding his wife.
"A person can assert the right to remain silent by 'indicat[ing] in any
manner, at any time prior to or during questioning, that he wishes to remain
silent.'" State v. Bruno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008)
(alteration in original) (quoting Miranda, 384 U.S. at 473-74). "[A] defendant
A-0667-16T4 20 can invoke Fifth Amendment protection against self-incrimination for a limited
purpose, and statements outside the scope of that limited invocation are
admissible." State v. Adams, 127 N.J. 438, 446 (1992) (citing Connecticut v.
Barrett, 479 U.S. 523, 529 (1987)); see also State v. Gerald, 113 N.J. 40, 116
(1988); State v. Shelton, 344 N.J. Super. 505, 515-16 (App. Div. 2001).
Here, defendant never invoked the right to remain silent beyond his refusal
to answer questions regarding his wife. Any question about his intent when he
indicated he would not answer questions regarding his wife is dispelled by his
unambiguous willingness to talk about other aspects of the investigation despite
thoroughly understanding his rights. See Adams, 127 N.J. at 446-47. The trial
court properly denied defendant's motion to suppress his statement to police.
We next address defendant's argument "too much [Rule 404(b)] evidence
was allowed before the jury that, cumulatively, unfairly prejudiced defendant on
the actual charges at issue." Defendant specifically objects to his wife's
testimony regarding his "manipulative" and controlling nature, arguing the issue
at trial involved crimes committed against his son, not his wife. We are
unpersuaded by this argument.
A-0667-16T4 21 N.J.R.E. 404 involves character evidence not admissible to prove conduct,
exceptions, and evidence of other crimes. N.J.R.E. 404(b) applies to other
crimes, wrongs, or acts, and provides:
Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
"As a general rule, evidence of a criminal defendant's prior crimes or
wrongdoing is inadmissible." State v. Mazowski, 337 N.J. Super. 275, 281
(App. Div. 2001). This rule "is premised on the virtually self-evident
proposition that such evidence is likely to impair the defendant's right to have a
jury decide his guilt or innocence based solely on the relevant evidence
presented at trial, free of the prejudice that such proof would likely inject into
the proceeding." Ibid. (citing State v. Stevens, 115 N.J. 289, 302 (1989)).
However, N.J.R.E. 404(b) does not apply to evidence directly relating to the
commission of the crime for which defendant is on trial. State v. Muhammad,
359 N.J. Super. 361, 390-91 (App. Div. 2003) (admitting evidence pertaining to
a robbery when other charges included conspiracy to commit robbery).
A-0667-16T4 22 The sexual assaults defendant committed against his son involved his
wife, thus making her testimony relevant. The indictment charged defendant
with directing Jason to perform digital penetration of his mother (counts three
and twelve), directing Jason to engage in vaginal intercourse with his mother
(counts four and thirteen), and directing Jason's mother to perform fellatio on
him (counts five and fourteen). The indictment also charged defendant with
related endangering the welfare of a child counts.
The trial court properly admitted testimony regarding defendant's
manipulative and controlling nature as relevant and probative evidence of
defendant directing his wife to commit various sexual acts against Jason.
Defendant's "manipulative nature" is directly relevant to this conduct, and the
charges for which he was on trial. See ibid. The admission of such testimony
was not error.
VI.
Defendant contends his right to trial by an impartial jury was infringed by
the trial court declining to remove a juror who had read a portion of defendant's
statement that should have been redacted. We disagree.
A criminal defendant is entitled to be tried before an impartial jury "that
is free from outside influence and will decide the case according to the
A-0667-16T4 23 evidence." State v. Williams, 93 N.J. 39, 60 (1983). When a juror may have
been exposed to such influence or extraneous information, "the trial judge must
make a probing inquiry into the possible prejudice caused by any jury
irregularity, relying on his or her own objective evaluation of the potential for
prejudice rather than on the jurors' subjective evaluation of their own
impartiality." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997)
(citations omitted). In making this determination, a trial court
is obligated to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any jurors have been tainted thereby. The trial court must then determine whether the trial may proceed after excusing the tainted jurors, or whether a mistrial is necessary.
[State v. R.D. 169 N.J. 551, 558 (2001) (citations omitted).]
However, a new trial "is not necessary in every instance where it appears an
individual juror has been exposed to outside influence." Id. at 589 (citing Smith
v. Phillips, 455 U.S. 209, 217 (1982)). Indeed, "it is virtually impossible to
shield jurors from every contact or influence that might theoretically affect their
vote." Smith, 455 U.S. at 217.
The jurors were provided with portions of the transcript of a videotaped
statement defendant made to the police. Inadvertently, juror fourteen read a
A-0667-16T4 24 portion of page seventy-nine of defendant's statement, which should have been
redacted, detailing defendant having been sexually abused when he was young.
When this was discovered, the trial court promptly made a diligent inquiry of
juror fourteen. The juror indicated he did not share the information he read with
the other jurors. He further stated that, although he read the page seventy-nine,
he did not recall the contents "in great detail," and did not "have a hundred
percent recollection" because he was "perusing through [the] document." The
juror did not believe what he read would make it difficult to be fair and impartial.
The trial court also provided the following instruction to the jury
regarding their consideration of the statement:
I instruct you that in this case certain portions of the videotaped statements have not been provided to you. You may only consider those portions of the statements which have been provided to you. You may only consider those portions of the statement which have been admitted into evidence and must not speculate as to the content of the omission or the reason for the omission.
In that regard, there were certain parts of defendant's videotaped statement that were redacted. The transcript which you were provided did not remove the entire redacted portion of defendant's statement.
I have instructed counsel to remove pages 79 through 80 of the transcript so that the transcript is now consistent with the videotaped statement.
A-0667-16T4 25 We accord "trial courts deference in exercising control over matters
pertaining to the jury," and review a trial court's decision not to remove a juror
for abuse of discretion. R.D., 169 N.J. at 559-60. "Application of that standard
respects the trial court's unique perspective." Id. at 559.
Here, the exposure to the unredacted material was minimal and fleeting in
nature, and did not warrant removing the juror. There is no evidence the juror
discussed the unredacted material with any other jurors. Therefore, it was not
necessary to individually voir dire the other jurors. See id. at 560-61.
Accordingly, we conclude the trial court did not abuse its discretion.
VII.
Lastly, defendant contends his sentence is improper and excessive. First,
he argues his sentence for counts two and eleven should be concurrent rather
than consecutive since the crimes involved a single victim and the time interval
of the incidents is unclear. Second, he argues the court erred in applying
aggravating factors one and two, contending the consideration of the victim's
age was double counting since the age of the victim was an element of the
offenses. Third, he argues the sentencing court abused its discretion by allowing
statements from individuals at the sentencing hearing on matters outside the
scope of the indicted offenses and evidence presented at trial. Finally, he argues
A-0667-16T4 26 resentencing is appropriate because of the disparity with the ten-year sentence
received by his wife. We are unpersuaded by these arguments.
"Appellate review of sentencing is deferential, and appellate courts are
cautioned not to substitute their judgment for those of our sentencing courts."
State v. Case, 220 N.J. 49, 65 (2014) (citation omitted). A sentence must be
affirmed unless: (1) the trial court failed to follow the sentencing guidelines, (2)
the aggravating and mitigating factors found by the trial court are not supported
by substantial evidence in the record, or (3) the application of the guidelines
"makes the sentence clearly unreasonable so as to shock the judicial
conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v.
Cassidy, 198 N.J. 165, 180-81 (2009). None of those failings occurred here.
We find no merit in defendant's argument that the trial court did not
properly apply the aggravating and mitigating factors. In our review of the
record, we are satisfied the trial judge adequately considered, weighed, and
applied the relevant factors in sentencing defendant. Roth, 95 N.J. at 365-66.
Aggravating factor one requires consideration of "[t]he nature and
circumstances of the offense, and the role of the actor therein, including whether
or not it was committed in an especially heinous, cruel, or depraved manner[.]"
N.J.S.A. 2C:44-1(a)(1). Under aggravating factor one, "the sentencing court
A-0667-16T4 27 reviews the severity of the defendant's crime, the single most important factor
in the sentencing process, assessing the degree to which defendant's conduct has
threatened the safety of its direct victims and the public." State v. Lawless, 214
N.J. 594, 609 (2013) (citations omitted). In that analysis, "courts applying
aggravating factor one focus on the gravity of the defendant's conduct,
considering both the impact on its immediate victim and the overall
circumstances surrounding the criminal event." Id. at 609-10.
Here, the record amply supports the court's finding of aggravating factor
one based on the particularly heinous, cruel, and depraved manner in which the
crimes were repeatedly committed against the defendant's son over a twenty-
month period, and the gravity of the impact on the victim. We are satisfied the
court's application of aggravating factor one was appropriate, as it did not
double-count an element of the charged crime, and was supported by the court's
express findings as placed on the record. See State v. Fuentes, 217 N.J. 57, 74-
75 (2014).
Aggravating factor two focuses on the gravity of the harm and its impact
on the victim of the crime, "with particular attention to the factors that rendered
the victim vulnerable." Lawless, 214 N.J. at 611. The gravity and seriousness
of the psychological harm Jason suffered at the hands of defendant was itself
A-0667-16T4 28 sufficient to justify application of aggravating factor two. See State v. Logan,
262 N.J. Super. 128, 132-33 (App. Div. 1993) (holding that psychological harm
justified the application of aggravating factor two when sentencing a defendant
convicted of sexual assault, aggravated sexual assault, and endangering the
welfare of a child).
Defendant argues it was error to impose consecutive sentences. The
criteria for determining consecutive sentencing is set forth in Yarbough, 100
N.J. at 643-44. The Yarbough criteria include: whether "the crimes and their
objectives were predominately independent of each other," whether "the crimes
involved separate acts of violence or threats of violence," whether "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," whether "any of the crimes involved multiple victims," and whether
"the convictions for which the sentences are to be imposed are numerous." Id.
at 644. The trial judge considered and applied these factors. Additionally, the
consecutive terms "would typically not exceed in aggregate duration, except for
an habitual offender, the longest term for the two most serious offenses." Id. at
646. Here, the aggregate thirty-nine-year sentence did not exceed the longest
term for the two aggravated sexual assaults. When a sentencing court properly
A-0667-16T4 29 evaluates the Yarbough factors in light of the record, the court's decision will
not normally be disturbed on appeal." State v. Miller, 205 N.J. 109, 129 (2011).
In sum, our careful review of the record convinces us "the aggregate
sentence is fully warranted in light of the evidence of defendant's protracted
sexual abuse of the young victim." Logan, 262 N.J. Super. at 132-33. "[T]here
can be no free crimes in a system for which the punishment shall fit the crime."
Yarbough, 100 N.J. at 643. The sentence imposed was manifestly appropriate
and does not shock our judicial conscience. Defendant's remaining arguments
regarding his sentence lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-0667-16T4 30