Opinion
DOCKET NO. A-3442-13T3
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief; Lisa Sarnoff Gochman, Legal Assistant, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 12-11-1535. Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief; Lisa Sarnoff Gochman, Legal Assistant, on the brief). PER CURIAM
Tried by a jury, defendant P.S. appeals from his convictions resulting from the sexual assault of his minor step-daughter (the child), including: three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(a)(2)(a) (counts one, four and seven); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two and five); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts three, six and nine); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count eight). On appeal, defendant seeks a new trial. He argues the trial judge admitted prejudicial testimony allowing the jury to learn the child was in foster care, which he contends violated an in limine order excluding any reference to intervention by and placement with the Division of Youth and Family Services (DYFS). Defendant also seeks resentencing, arguing the judge improperly imposed aggravating factors, consecutive sentences, and excessive monetary penalties. More specifically, on appeal defendant asserts:
We note the matter was initiated prior to the passage of the June 29, 2012 bill, which reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) the Division of Child Protection and Permanency. L. 2012, c. 16, § 20, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). For clarity, we continue to use the acronym DYFS, as used at trial, to refer to the Division.
POINT I
A NEW TRIAL SHOULD OCCUR BECAUSE THE COURT PERMITTED COMPLAINANT, DEFENDANT'S STEP-DAUGHTER, TO TESTIFY THAT SHE HAD BEEN PLACED IN FOSTER CARE AFTER MAKING THE SEXUAL ASSAULT ALLEGATIONS, THEREBY
IMPROPERLY SUGGESTING THAT DYFS HAD JUDGED THE CHARGES TO BE WELL-FOUNDED. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARA. 1.Following our review of the arguments presented, viewed in light of the record and applicable law, we affirm.
POINT II
P.S. SHOULD BE RESENTENCED BECAUSE THE COURT IMPROPERLY FOUND AGGRAVATING FACTORS AND IMPROPERLY IMPOSED CONSECUTIVE SENTENCES FOR CLOSELY-RELATED OFFENSES.
A. The Court Improperly Double-Counted the Youthful Status of the Victim — Which Was Already an Element of Aggravated Sexual Assault and Child Endangerment — in Finding a Heightened Need for Deterrence (Aggravating Factor Nine).
B. The Court Improperly Ignored the Low Risk that Intrafamilial Sex Offenders Have of Reoffending and Found the Opposite — that P.S. Had a Heightened Risk of Reoffending (Aggravating Factor Nine).
C. The Court Improperly Made the Sentences Consecutive Where the Offenses Were Closely Related, with Both Based on the Same Act Against the Same Victim.
POINT III
P.S. SHOULD BE RESENTENCED BECAUSE THE SENTENCING COURT IMPROPERLY FAILED TO CONSIDER THE APPROPRIATE FACTORS BEFORE IMPOSING A NEAR-MAXIMUM SCVTF PENALTY OF $2500.
The State's case included testimony from the child, who detailed many instances when defendant digitally penetrated and fondled her, beginning at age twelve and continuing through age fourteen. The first encounter was in December 2006, after defendant learned the child was dating an older boy and insisted he must "check" whether she remained a virgin. A couple of days later, the child was relocated to her uncle's Maryland home. When she returned in the summer prior to entering sixth grade, the child was required to sleep in the same bedroom as her parents. Daily sexual abuse by defendant resumed.
The child testified she was in seventh grade beginning in 2008. When asked what grade she was in in 2006, she stated "sixth grader," which in context, appears to be a mistake. In later testimony when asked if she was in fifth grade when the first encounter occurred she replied affirmatively.
Defendant's wife, the child's mother, testified. She related an incident when she unexpectedly walked into the master bedroom and saw defendant and the child alone in the room. The child had testified when her mother walked in, defendant's hand was inside her shirt. He quickly removed his hand and told his wife he and the child were "playing," as he was looking for something hidden in the child's clothing. The mother's testimony regarding the details of this encounter differed and were more opaque. She testified defendant and the child were on the floor together and defendant held the child's arms with his arms.
The State's final witnesses included the police investigators, who interrogated defendant on October 28, November 1, and November 30, 2010. During the second interview, they stated defendant explained he confronted the child about engaging in sex and she told him to "check me yourself" to see if she was a virgin. He did so by digitally penetrating her.
The defense asserted the child's accusations of abuse were fabricated in retaliation for defendant's strict rules prohibiting dating. With his wife's agreement, after learning she was dating an older boy, the child was sent to live with a relative in Maryland. Thereafter, in October 2008, the parents again suspected the child was engaging in sexual relations. They confronted the child, accompanied by their pastor. It was then, for the first time, the child revealed defendant's past sexually abusive conduct.
During the pending criminal investigation, DYFS removed the child and placed her in a resource home. Prior to trial, upon defendant's motion, the judge ordered "references to DYFS and the child[] being placed in DYFS' care, [and] DYFS investigations not be mentioned." At trial, during the child's direct examination, this colloquy occurred:
[PROSECUTOR]: . . . [W]hat happens to you after you tell your mother and you tell the police what the defendant did to you?
[THE CHILD]: I was placed in foster care.
Q: You were away from the defendant?
A: Yes.
Q: You were away from your mother?
A: Yes.
Q: And for how long were you in foster care for?
A: Two years.
Q: When you went to Maryland with your uncle did you want to go there?
A: No.
Q: You couldn't live with your mom, did you want to do that?
A: Huh?
Q: You couldn't live with your mom, is that what you wanted, to not live with your mom?
A: No.
. . . .
[DEFENSE COUNSEL]: Objection. Your Honor, may we approach?
Defendant asserted the testimony violated the in limine order because "references to foster care [were] included under the DYFS aegis[.]" Defendant moved to strike the testimony, arguing that informing the jury the child was in foster care "implies State action" and, by extension, reveals involvement by DYFS. The trial judge disagreed, stating the jury "certainly ha[s] a right to know where [the child] was living" and the State has a right to probe the witness's motivations, which were directly challenged by defendant. The judge also determined use of the term foster care "doesn't imply that there's wrongdoing on the part of the parents" and the line of questioning was pertinent to the child's motivations to rebut defendant's defense of fabrication. Trial resumed and the State asked two more questions:
Q: [H]ow long were you away from your mom when you had to live away from your mother?
A: Two years.
Q: Two years. Is that something that you wanted — did you want to be taken away? Did you want to have to be [taken] away from your mother?
A: No.
The jury convicted defendant on nine out of ten charges. Defendant's motion for a new trial was denied.
After merger, the judge imposed these sentences on the two non-merged counts: a seventeen-year sentence on count one, first-degree aggravated sexual assault, subject to the 85% period of parole ineligibility imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2; and a consecutive seven-year sentence on count three, second-degree endangering the welfare of a child, with a two-year period of parole ineligibility. The judge also assessed fines and penalties totaling $3730, including a $2500 penalty for the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A. 2C:14-10. This appeal ensued.
Challenging his conviction and denial of his motion for a new trial, defendant focuses on the child's testimony revealing she was placed in foster care. He asserts once jurors heard the child was in foster care, they would assume he was guilty, because the statements imply State action. He argues such prejudicial comments not only violated the pretrial exclusion, but also his right of due process, as granted by Rule 403. See N.J.R.E. 403. ("Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury . . . .").
"[I]n reviewing a trial court's evidential ruling[s], an appellate court is limited to examining the decision for abuse of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation and internal quotation marks omitted). Generally, when reviewing the admission or exclusion of evidence, we afford considerable latitude to a trial judge's determinations, which will be reversed only when there exists a clear error in judgment or the ruling is "'so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Importantly, "[u]nder that standard, an appellate court should not substitute its own judgment for that of the trial court . . . ." Ibid.
Defendant's arguments correctly note prejudice may occur if evidence presented to a jury "not only fostered the suggestion that defendant was guilty of that which was charged, but told the jury that a [State actor] believed the victim, thus bolstering her credibility." State v. Vallejo, 198 N.J. 122, 133 (2009). He further invokes this passage by our Supreme Court in support of his request for a new trial:
We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, to assure the complete opportunity of the jury alone to determine guilt, to prevent the court or the State from expressing an opinion of defendant's guilt, and to require the jury to determine under proper charges no matter how obvious guilt may be. A failure to abide by and honor these strictures fatally weakens the role of the jury, depriving a defendant of the right to trial by jury.The State may not rely on improper methods that impermissibly raise a presumption of guilt in the minds of the jury. State v. McClean, 205 N.J. 438, 461-63 (2011) (concluding it was improper to allow police officer's testimony relating opinion he observed the defendant engage in a narcotics transaction because it offered a statement about the ultimate question to be decided by the jury); State v. Green, 313 N.J. Super. 385, 391 (App. Div. 1998) (holding "[t]he prosecutor's references during her summation to the actions of the grand jury were . . . improper.").
[State v. Frisby, 174 N.J. 583, 594 (2002) (citations omitted).]
In overruling defendant's objection, the trial judge found the use of the term "foster care" neither directly invoked DYFS action nor suggested defendant's wrongdoing. The State argues defendant suffered no prejudice and the judge correctly ruled the foster care reference did not include any mention of DYFS. Further, the testimony rebutted defendant's claim he was "the real victim" of the child's fabricated allegations. Finally, the State suggests the testimony was relevant for the jury to understand the adverse consequences suffered by the child as a result of her disclosures.
Although foster care may not be associated with DYFS in everyone's mind, we do not agree with the trial judge's suggestion that the phrase would not evoke a sense of State intervention. Further, we find the State's argument construing the testimony as necessary to reveal the consequences of the child's disclosure, and possibly comparing the result to the child being sent to her uncle's home after revealing she was dating, a stretch, diminishing its claim of necessity. Nevertheless, reviewing the whole of the record, we conclude the child's brief foster care comments were not "clearly capable of producing an unjust result[]" and their inclusion does not warrant a new trial. R. 2:10-2. See also Pressler and Verniero, Current N.J. Court Rules, cmt. 4.7 on R. 2:10-2 (2015) ("Error in the admission of evidence in a criminal trial will not, however, be deemed harmful if no fundamental rights of the defendant are impaired and the weight of the evidence against the defendant is great.")
A reviewing court must confer considerable deference upon a trial judge's determinations under N.J.R.E. 403. We will not disturb the judge's decision unless convinced a palpable abuse of discretion occurred. State v. Carter, 91 N.J. 86, 106 (1982). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998). All evidence is prejudicial. Rule 403(a) excludes evidence where the "probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Thompson, 59 N.J. 396, 421 (1971).
When viewing the foster care reference in light of the child's complete testimony and all the State's evidence, we cannot draw the prejudicial inference warranting reversal sought by defendant. The comment recounted the child's status, not defendant's, and made no direct mention of DYFS or the State. Further, the child's response that she was in foster care does not reflect a finding she was abused or that her allegations were substantiated. In fact, defendant's opening statement, uttered prior to the child's testimony, labeled her as "rebellious," "head-strong" and stated "she would not listen." These assertions might equally point to the child's need for an alternate residential placement.
Importantly, the verdict itself, which included acquittal of sexual contact charged in count ten, reflects the jury was not poised to accept an implied determination of guilt by a State actor, but instead shows the jury carefully sifted through the evidence and applied the law. Accordingly, we reject as unavailing defendant's claim the mention of foster care, in the context raised at trial, was "unmistakable" and "manifestly" prejudicial. The comment did not condemn defendant's conduct, inform the jury the State expressed an opinion as to defendant's wrongdoing, or otherwise substantiate the child's allegations. See Morton, supra, 155 N.J. at 453-54 ("The mere possibility that evidence could be prejudicial does not justify its exclusion.").
Even defendant's brief notes the testimony was "potentially harmful" and merely "could have" influenced the jury, attesting to the speculative conclusion sought to be drawn. --------
We recognize, "every single thing that happens at a trial cannot be completely controlled . . . ." Vallejo, supra, 198 N.J. at 132. Nor must the record "be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). "[A] defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials." Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565, 1570, 36 L. Ed. 2d 208, 215 (1973) (alteration in original) (internal quotation marks omitted).
We turn to defendant's three-fold challenge attacking the imposed sentences. He argues the judge: (1) improperly applied aggravating factors; (2) failed to support imposition of consecutive sentences; and (3) did not support the imposition of the maximum SCVTF fines, contrary to the Court's directive in State v. Bolvito, 217 N.J. 221, 224 (2014). The State concedes the factual basis for the SCVTF fine was omitted, agreeing remand on this issue is necessary. See ibid. ("We further hold that the sentencing court should provide a statement of reasons as to the amount of any penalty imposed pursuant to N.J.S.A. 2C:14-10(a)."). We address the remaining challenges.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Although we must be "careful and vigorous[,]" we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). Consideration is limited to whether the judge's sentencing decision represents an abuse of discretion. We examine aggravating and mitigating factors found by the judge to assure they are supported by competent, credible evidence in the record. State v. Blackmon, 202 N.J. 283, 297 (2010). When the judge properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, we affirm. State v. Cassaday, 198 N.J. 165, 180-81 (2009). We will "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that . . . shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
Defendant argues the sentence was unduly harsh because the judge double counted the victim's age when applying aggravating factors three (the risk of re-offense), N.J.S.A. 2C:44-1(a)(3) and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence). We reject defendant's assertions, and do not find the judge abused her discretion.
In reciting the applicable aggravating factors, emphasis on the risk of re-offense resulted because "defendant does not to this day admit to any wrongdoing involving the victim. He has even reneged on his initial confession . . . ." Further, noting defendant had been previously convicted for possession of narcotics and had illegally entered the United States at least three times despite being deported, the judge found defendant "demonstrated a clear inability or a will not to follow the rules of society" such that "he remains at great risk of committing another offense." Thus, the factual support for application of aggravating factor three was ample. Further, defendant's suggestion that the interfamilial nature of his crime means he was at a low risk for re-offense is unavailing.
As to aggravating factor nine, the judge found the need not only for general societal, but also for specific deterrence of defendant. She noted defendant's convictions were for first and second degree crimes against a child, "the most vulnerable segment of our society." The mention of the victim's status in connection to the need to deter defendant, as well as deter others in society, merely reflected the overarching public policy that children be protected. It does not apply the factor because the victim was a child. Rather, the factor was applied because the need for deterrence "increase[s] proportionately with the degree of the offense." State v. Carey, 168 N.J. 413, 426 (2001). Moreover, throughout the judge's findings, she scrupulously avoided double counting any requested factor, which included the victim's age. We find no error in the application or the weight placed on aggravating factors three and nine.
Finally, we consider the propriety of imposing concurrent or consecutive sentences. The judge analyzed the guidelines delineated in 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), which include:
(1) [T]here can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crime, including whether or not:
The sentencing decision must apply these factors qualitatively, not quantitatively. Carey, supra, 168 N.J. at 427.(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
Defendant does not contend the sentencing court failed to properly evaluate the Yarbough factors or to explain the rationale for imposing consecutive sentences. State v. Miller, 108 N.J. 112, 122 (1987) (requiring trial judges to express basis for sentencing decisions). Rather, he argues the sentences should be concurrent because they are based on the same physical act, occurring during the same time period, and against the same victim.
"When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence . . . ." N.J.S.A. 2C:44-5. Unmistakably, "there is no presumption" in New Jersey favoring concurrent sentences over consecutive ones. State v. Abdullah, 184 N.J. 497, 513 (2005).
Here, when explaining her reasons supporting the sentencing decision, the judge recognized there was only one victim, but reasoned the distinct nature of the two types of crimes, the numerous offenses for which defendant was convicted, and "the generous outcome" resulting from merging all other offenses, justified consecutive sentences.
The time frames for defendant's two convictions for aggravated sexual assault and for endangering, as set forth in the indictment in counts one and three, were November 20, 2006 to February 28, 2007. The judge noted there were a number of separate sexual assaults committed by defendant during that period, as well as the other periods set forth in the merged charges, committed at various times over several years, which could be considered as separate offenses, not subject to merger. However, she generously decided to merge similar convictions for sentencing purposes despite the time of their occurrence. That finding implicates these Yarbough factors: (1) that there are no free crimes; (2) the objective of the two offenses — aggravated sexual assault and child endangering — were independent of each other; and (3) defendant was not convicted for committing a single act, but for a continuing course of sexually abusive conduct over the time period stated. Yarbough, supra, 100 N.J. at 643-44. The judge's rationale led her to conclude it was appropriate to impose consecutive sentences for the two remaining non-merged offenses and consecutive sentences would be inappropriate under these facts. We agree.
Yarbough provided guidelines for the judge's qualitative analysis. Carey, supra, 168 N.J. at 427. "It follows that a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-428. See also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose," which "were somewhat interdependent of one another," and were both committed in a short time frame), certif. denied, 165 N.J. 492 (2000). Most importantly, "'in fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing.'" State v. Friedman, 209 N.J. 102, 122 (2012) (alteration omitted) (quoting Yarbough, supra, 100 N.J. at 630).
Following our review, we determine the applied aggravating factors and the absence of mitigating factors were properly supported by substantial evidence in the record. The sentences imposed fell within the range for the crimes committed. Finally, the judge identified and analyzed the Yarbough factors and fully set forth her reasoning for imposing consecutive sentences, and these facts are sufficiently supported by the record. We conclude the sentences imposed were not manifestly excessive or unduly punitive, nor do they shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65. Accordingly, we find no abuse of the court's sentencing discretion.
Affirmed with remand for partial resentencing regarding imposition of the SCVTF fine. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION