STATE OF NEW JERSEY VS. N.J.E. (14-04-0875, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 3, 2018
• Docket: A-1924-16T2
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1924-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

N.J.E.,

Defendant-Appellant.

Argued September 18, 2018 – Decided October 3, 2018

Before Judge Ostrer, Currier, and Mayer.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-04-0875.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Brian P. Keenan, of counsel and on the brief).

Melinda A. Harrigan, Assistant Prosecutor, argued the cause for respondent (Damon G. Tyner, Atlantic County Prosecutor, attorney; Melinda A. Harrigan, of counsel and on the brief).

PER CURIAM Defendant N.J.E. appeals from his conviction following a jury trial and

subsequent sentence. After a review of his contentions in light of the record and

applicable principles of law, we affirm.

In March 2012, defendant was charged in an indictment with second-

degree sexual assault, N.J.S.A. 2C:14-2(c). A second indictment in June 2013

charged defendant with sexual assault by force, N.J.S.A. 2C:14-2(c)(1), sexual

assault of a victim between the ages of thirteen and fifteen, N.J.S.A. 2C:14-

2(c)(4), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The

charges arose from the sexual assault of a fourteen-year-old male friend of

defendant's daughter, while the two minors were spending the night at

defendant's home.

The trial on these charges did not take place until April 2016. In the

interim between the indictment and the trial, there were numerous requests to

postpone the trial, almost all initiated by defense counsel. When the trial date

was again postponed in October 2014, defendant was released from jail.

After three days of trial, defendant was convicted on all charges. He was

sentenced to ten years incarceration with an eighty-five percent parole

ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, parole

supervision for life, and other Megan's Law requirements.

A-1924-16T2 2 On appeal defendant raises the following arguments:

POINT I: THE STATE'S UNREASONABLE DELAY OF FOUR YEARS, THREE MONTHS, AND TEN DAYS, IN PROSECUTING THE CHARGES IN THIS CASE DEPRIVED [N.E.] OF HIS RIGHT TO A SPEEDY TRIAL.

POINT II: ADMISSION OF SURROGATE TESTIMONY BY THE STATE'S SEROLOGY EXPERT, WHO DID NOT TEST THE SAMPLES, UNDERTAKE ANY INDEPENDENT ANALYSIS OR AUTHOR ANY INDEPENDENT CERTIFICATION OR REPORT, VIOLATED [N.E.]'S CONFRONTATION RIGHTS AND WAS INADMISSIBLE HEARSAY.

POINT III: THE TRIAL JUDGE ERRED IN OMITTING A SIGNIFICANT PORTION OF THE COERCION SECTION OF THE JURY INSTRUCTION ON THE SEXUAL ASSAULT BY FORCE/COERCION CHARGE.

POINT IV: THE TRIAL JUDGE ERRED IN IMPOSING THE MAXIMUM TEN-YEAR TERM ON A SECOND-DEGREE OFFENSE AFTER FINDING ONLY AGGRAVATING FACTORS THREE, SIX, AND NINE.

Defendant asserts his right to a speedy trial under the Sixth Amendment

of the United States Constitution was violated by the State's unreasonable delay

of four years to prosecute his case. Whether defendant's constitutional right to

a speedy trial was violated presents a legal issue that is subject to de novo

review. See State v. Handy, 206 N.J. 39, 44-45 (2011). However, we will not

A-1924-16T2 3 overturn a trial court's factual determination on a speedy trial issue unless it is

"clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 n.7 (App. Div.

1977).

On May 18, 2015, defense counsel asserted defendant's speedy trial right

and requested the dismissal of the indictment. The trial judge, while

acknowledging the delays in prosecuting the case, also noted the State was

prepared on the current trial date but the court had scheduling issues

necessitating a trial postponement. The judge further noted defendant was not

then incarcerated and had not been impacted by the delays to date. The court

permitted defendant to renew his application if the State was not prepared to

proceed on the next trial date. When the court again adjourned the trial in

January 2016, due to a lack of available judges, defendant renewed his speedy

trial application, which the court denied.

We assess the asserted violation of defendant's speedy trial right using the

four-factor balancing analysis set forth in Barker v. Wingo, 407 U.S. 514, 530

(1972). See State v. Cahill, 213 N.J. 253, 258 (2013) ("We conclude that the

four-factor balancing analysis of [Barker] remains the governing standard to

evaluate claims of a denial of the federal and state constitutional right to a

speedy trial in all criminal and quasi-criminal matters."). The four non-

A-1924-16T2 4 exclusive factors are: (1) length of the delay, (2) reason for the delay, (3) a

defendant's assertion of the right, and (4) prejudice to the defendant. Id. at 264

(citing Barker, 407 U.S. at 530). No one factor determines a violation. Id. at

267 (citing Barker, 407 U.S. at 533). Rather, they are related factors to be

considered together with such other circumstances as may be relevant. Barker,

407 U.S. at 533. The analysis is highly fact-sensitive and requires "a case-by-

case analysis rather than a bright-line time limitation." Cahill, 213 N.J. at 270.

Under the first factor, the inquiry is whether the length of the delay "is

reasonable or whether it violated defendant's right to a speedy trial." Id. at 272-

73. Depending on the circumstances, the length of the delay may be

presumptively prejudicial and such a delay will trigger consideration of the other

factors, including the nature of the charges against the defendant. Id. at 264-65.

Typically, once the delay exceeds one year, it is appropriate to analyze the

remaining Barker factors. Id. at 266. However, there is no bright-line test

requiring dismissal after a specified period of delay. Id. at 270.

Without doubt, the length of the delay here weighs in defendant's favor.

He was incarcerated for two and one-half years prior to being released, subject

to electronic monitoring for a period of time, and waited four years for a trial.

A-1924-16T2 5 Such a lengthy troubling delay is presumptively prejudicial and so we must

address the remaining factors.

As for the second and third factors, the Court has noted, "[a]ny delay that

defendant caused or requested would not weigh in favor of finding a speedy trial

violation." State v. Gallegan, 117 N.J. 345, 355 (1989). Further, while "[a]

defendant does not . . . have the obligation to bring himself to trial[,]" a failure

to timely assert the right, is a factor to be considered when assessing an alleged

speedy trial violation. Cahill, 213 N.J. at 274.

Here, the trial judge found, with ample support in the record, that

defendant was responsible for most of the delays while he was incarcerated. A

review of the record reveals that defense counsel requested postponements of

hearings and trial dates at least a dozen times while defendant remained in

prison. In May 2014, defense counsel advised for the first time that he wanted

to retain a DNA expert and needed three to four weeks for the expert to prepare

a report. On that same date, the State advised the court it would like to try the

case by early June as the victim and his family were moving out of state. In

July, defense counsel stated he did not intend to use a DNA expert and both

parties agreed the matter was ready for a trial listing.

A-1924-16T2 6 On the October 20, 2014 trial date, the State requested an adjournment for

the first time. As a result, defense counsel requested defendant's release from

jail and, over the State's objection, the court agreed. Several more trial dates

came and went, with adjournments due to both defense counsel and the court's

scheduling conflicts. It cannot be disputed that the great majority of

postponements causing the delay in prosecuting the matter were at the behest of

defendant. This factor does not weigh in his favor.

Factor three also weighs against defendant. He did not assert his right to

a speedy trial until May 18, 2015, more than three years after his arrest and first

indictment.

Evaluating the fourth factor, prejudice, requires a consideration of three

interests: preventing oppressive pretrial incarceration, minimizing defendant's

anxiety concerns, and avoiding impairment of the defense. See Barker, 407 U.S.

at 532; Cahill, 213 N.J. at 266. We have stated, however, that the hardship

caused by the uncertainty of awaiting disposition of a case, "is insufficient to

constitute meaningful prejudice." State v. Misurella, 421 N.J. Super. 538, 546

(App. Div. 2011) (quoting State v. Le Furge, 222 N.J. Super. 92, 99-100 (App.

Div. 1988)).

A-1924-16T2 7 The record does not support defendant's argument that he was prejudiced

by the delay. He was released from prison on October 20, 2014, and provides

no specific detail as to his anxiety or resulting prejudice due to the delay.

Therefore, despite the presumptive lengthy delay before trial, the three

remaining Barker factors do not weigh in defendant's favor, and he has not

demonstrated he was denied a speedy trial.

We turn next to defendant's Confrontation Clause argument. During

discovery, the State retained a serology expert who prepared a report stating that

the victim's tank top had semen on it. A DNA expert opined that defendant's

DNA profile matched the DNA profile of the semen found on the tank top.

Because the original serology expert had retired prior to trial, the State sought

to present a replacement witness – Laura Tramontin. After conducting a Rule

104 hearing, the judge cited the factors required under State v. Michaels, 219

N.J. 1, 6-7 (2014), to admit the substitute expert and her testimony. The judge

found Tramontin was an independent reviewer. He noted that Tramontin

reviewed and agreed with the initial report's findings, and then she subsequently

reviewed the test results and made her own conclusions as to the serology

results. Therefore, the judge was satisfied that defendant's confrontation rights

A-1924-16T2 8 were not violated as Tramontin was subject to cross-examination on all aspects

of her testing.

"[T]he decision to admit or exclude evidence is one firmly entrusted to the

trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 383-84 (2010). "We review the trial court's evidentiary ruling under a

deferential standard; it should be upheld absent a showing of an abuse of

discretion, i.e., there has been a clear error of judgment" which is "so wide of

the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J.

281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)).

Defendant contends the trial judge erred in admitting Tramontin's

testimony because it violated defendant's rights guaranteed under the

Confrontation Clause in the Sixth Amendment. We disagree.

In support of his argument, defendant relies on Bullcoming v. New

Mexico, 564 U.S. 647 (2011). There, the United States Supreme Court

considered the issue of the admissibility of an expert report proffered through a

surrogate witness's testimony. The witness did not observe the work of the

analyst who performed the testing, did not supervise the analyst, or certify the

results obtained by the analyst. Under those circumstances, the Court found a

violation of defendant's confrontation right, rendering the testimony

A-1924-16T2 9 inadmissible. But see Williams v. Illinois, 567 U.S. 50 (2012) (plurality

opinion) (affirming the admissibility of an expert's testimony in a bench trial

that related the contents of a DNA testing report and results prepared by a non-

testifying witness).

Our Supreme Court has permitted the State to present testimony from a

qualified expert who supervised the testing and conducted an independent

observation and analysis regarding the test results. State v. Bass, 224 N.J. 285,

291-92 (2016); Michaels, 219 N.J. at 6, 45-46; State v. Roach, 219 N.J. 58, 61,

79-80 (2014). In Bass, the Court stated that "[A] truly independent reviewer or

supervisor of testing results can testify to those results and to his or her

conclusions about those results, without violating a defendant's confrontation

rights," if the independent reviewer or supervisor meets three requirements. 224

N.J. at 315 (quoting Michaels, 219 N.J. at 45-46). The testifying reviewer must

(1) be "knowledgeable about the testing process"; (2) "independently verif[y]

the correctness of the machine-tested processes and results"; and (3) "form[] an

independent conclusion about the results." Ibid. (quoting Michaels, 219 N.J. at

45-46).

Tramontin was the assistant lab director of the serology unit of the Offic e

of Forensic Sciences of the New Jersey State Police. She directly supervised

A-1924-16T2 10 the original preparer of the serology report. In that capacity, Tramontin testified

she was responsible for overseeing and directly supervising "a team of analysts

in the daily operation of analysis of body fluid identification," had extensive

familiarity with the serological testing process, reviewed the work of analysts

under her supervision and recognized the report in this case as one she

administratively reviewed. Tramontin reviewed the test data produced by the

original preparer and arrived at the same conclusion as the prior analyst.

Although Tramontin did not produce her own independent report based on the

data, she had initialed the bottom of each page of the original report, indicating

she confirmed the data's accuracy and that it satisfied the lab's administrative

procedures.

We disagree with defendant's argument that Tramontin's testimony is

inadmissible under Bullcoming. There, the prosecutors sought to introduce the

testimony of a surrogate expert witness who "could not convey what [the

certifying analyst] knew or observed about the events his certification

concerned, i.e., the particular test and testing process he employed. Nor could

such surrogate testimony expose any lapses or lies on the certifying analyst's

part." Here, however, as noted by the trial judge, Tramontin had specific

knowledge of the testing processes, personally reviewed the data, came to her

A-1924-16T2 11 own independent conclusions based on that data, and certified the original

report. The judge properly analyzed the criteria under Bass and Michaels and

did not abuse his discretion in admitting the testimony.

On appeal, defendant contends the trial judge erred in omitting the

"coercion" portion of the model jury charge on sexual assault. As there was no

objection during trial, we review for plain error. R. 2:10-2. Defendant must

demonstrate a "[l]egal impropriety in the charge prejudicially affecting [his]

substantial rights . . . and sufficiently grievous to justify notice by the reviewing

court and to convince the court that of itself the error possessed a clear capacity

to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014)

(internal quotation marks omitted). We are satisfied defendant has not met that

burden.

The pertinent part of the model jury charge regarding sexual assault states:

"[t]he third element that the State must prove beyond a reasonable doubt is that

defendant used physical force or coercion." Model Jury Charges (Criminal),

"Sexual Assault (Force/Coercion) (N.J.S.A. 2C:14-2c(1))" (rev. Jan. 24, 2005)

(emphasis added). After reading that sentence, the judge stated: "In this case,

the State's theory is that the defendant used physical force." Accordingly, the

judge did not read the section of the charge instructing on the coercion element.

A-1924-16T2 12 Defendant did not object to the proposed sexual assault charge at the

charge conference or during the charge to the jury. As the Supreme Court has

stated, "[I]f the defendant does not object to the charge at the time it is given,

there is a presumption that the charge was not error and was unlikely to prejudice

the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).

We discern no prejudice here. As demonstrated in closing arguments, the

State's theory was that defendant sexually assaulted the victim by force, not

coercion. In his summation the prosecutor argued "[D]efendant put his penis in

[the victim's] mouth. He did this by first grabbing the victim's hand and making

him masturbate. . . . then took his own hand and forced [the victim's] head down

to his penis." The prosecutor continued, stating "[The victim] says that he was

forced by the defendant to help him masturbate and then defendant forced his

penis in [the victim's] mouth and ejaculated." In discussing the specific charges,

the prosecutor asserted: "[E]ven if you believe from Count 1 there's no force,

well, still against the law to engage in sexual contact with a minor."

In denying defendant's motion for acquittal notwithstanding the verdict,

the trial judge stated:

[T]he jury was in my view properly instructed on the issues of force or coercion. The jury had evidence from the victim relative to his will being subject to the demands of the defendant in this case, and that alone,

A-1924-16T2 13 based on the applicable law, would be sufficient for the jury to find force or coercion.

Therefore, as the State only needed to prove sexual assault by physical force or

coercion, and its case was based on the theory of force, there was no prejudice

in the omission of the coercion portion of the jury charge.

We turn next to defendant's argument that the "sentencing judge here erred

in imposing the maximum sentence for a second-degree offense after finding

only aggravating factors three[,] six, and nine applicable." Reviewing a trial

court's sentencing determination under a deferential standard of review, we are

"bound to affirm a sentence, even if [we] would have arrived at a different result,

as long as the trial court properly identifies and balances aggravating and

mitigating factors that are supported by competent credible evidence in the

record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214

N.J. 594, 606 (2013)).

Here, the sentencing judge thoroughly evaluated both the aggravating and

mitigating factors in fashioning an appropriate sentence, concluding there were

no mitigating factors and finding aggravating factors three, N.J.S.A. 2C:44-

1(a)(3); six, N.J.S.A. 2C:44-1(a)(6); and nine, N.J.S.A. 2C:44-1(a)(9). In

discussing aggravating factor three, the judge noted defendant had thirteen prior

arrests and five prior convictions. Defendant's convictions were for third-degree

A-1924-16T2 14 possession of CDS and fourth-degree criminal trespass and at the time of the

current offense, he was on probation. The judge stated:

There is more than a risk that the defendant will commit another offense. With his track record and his criminal history, it is a virtual certainty that when left to his own devices this defendant will offend again. Given the escalation of his criminal behavior, the court is convinced that when the defendant offends again, it is more than probable that he will do so in a violent or sexual manner.

In considering factor six, the judge noted defendant's criminal history and

"the seriousness of the instant offenses show[] that [he] is a dangerous

recidivist" whose tendencies could only be managed through a substantial

commitment to state prison. Lastly, the court found factor nine to be applicable

because of the "obvious need for deterring this defendant specifically." The

judge stated: defendant "appears to remain offense free only when he is

confined" and noted any prior attempts at rehabilitation and confinement failed

to have the desired deterrent effect.

Therefore, because the court found three aggravating factors to apply with

a great degree of weight supported by substantial facts and evidence in the

record, and no mitigating factors, there was no abuse of discretion in imposing

the maximum sentence in the range for a second-degree crime.

Affirmed.

A-1924-16T2 15