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State v. J.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 19, 2016
DOCKET NO. A-5559-13T1 (App. Div. Sep. 19, 2016)

Opinion

DOCKET NO. A-5559-13T1

09-19-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.M., Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0330. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief). PER CURIAM

Tried by a jury, defendant J.M. was found guilty of two counts of committing first-degree aggravated sexual assault upon one minor victim, R.P., N.J.S.A. 2C:14-2(a)(1); two counts of second-degree sexual assault of R.P., N.J.S.A. 2C:14-2(b); and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). After appropriate mergers, the sentencing judge imposed concurrent fifteen-year custodial terms for the aggravated sexual assault offenses, plus a five-year consecutive term for the merged endangering offenses. The aggregate twenty-year sentence is subject to a period of parole ineligibility mandated by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(d)(7).

Since the minor victim is the stepdaughter of defendant, we use initials for her, her sister, and defendant to protect the minors' privacy. --------

Defendant now appeals his convictions and sentence. For the reasons that follow, we affirm.

The State's proofs at trial showed that defendant tried to pursue sexual acts with the victim's minor sister, Y.P., on multiple occasions. In one instance, he grabbed Y.P.'s hand and attempted to kiss her until she resisted him by brandishing a knife. On another occasion, defendant pushed Y.P. into the bathroom, where she rebuffed him by throwing bleach into his face. Thereafter, defendant repeatedly touched the breasts of the younger stepdaughter, R.P., with his upper arm when passing her in the hallway. When R.P. was twelve, defendant attacked her when she was folding laundry, pulled her pants down, and forcibly penetrated her vagina. A week or two later, he entered R.P.'s bedroom while she was watching television, pinned her to her bed and forcibly penetrated her anus. Those incidents came to light in August 2011 after a conversation between the sisters that prompted Y.P. to call the police. When defendant learned that the incidents had been reported, he left voicemail messages with his mother and brother admitting that he had "made a mistake," and also told the girls' mother that he was going to "jump off the bridge" and kill himself.

Both stepdaughters testified at trial for the prosecution and recounted the incidents. In addition, the State presented, over objection, testimony from a clinical psychologist who is an expert in Child Sexual Abuse Accommodation Syndrome ("CSAAS"). The psychologist explained the general aspects of the syndrome and why minor victims of sexual assault might delay reporting abuse. Defendant did not testify or present any witnesses in his behalf.

In his brief on appeal, defendant raises the following arguments for our consideration:

POINT I

J.M.'S CONSTITUTIONAL RIGHT TO TRIAL BY A JURY EXERCISING ITS COLLECTIVE JUDGMENT WAS
VIOLATED WHEN SEVEN JURORS WERE ESCORTED OUTSIDE THE COURTHOUSE BY A COURT OFFICER DURING JURY DELIBERATIONS SO THEY COULD SMOKE CIGARETTES WHILE THE FIVE OTHER JURORS REMAINED IN THE JURY ROOM, AND WHEN THE COURT DID NOT INSTRUCT THE JURORS IMMEDIATELY BEFORE THEY SEPARATED THAT THEY WERE NOT TO DELIBERATE WHILE THEY WERE APART, THE COURT OFFICER DID NOT RELATE WHAT THE SMOKERS DISCUSSED WHILE THEY WERE OUTSIDE THE COURTHOUSE, AND THE COURT DID NOT VOIR DIRE THE TWO GROUPS OF JURORS REGARDING WHAT THEY DISCUSSED WHILE THEY WERE APART.

POINT II

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EXPERT TESTIMONY REGARDING THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS), BECAUSE CSAAS TESTIMONY AS A GENERAL RULE IS NOT SUFFICIENTLY RELIABLE TO BE ADMITTED, THERE WAS NO DELAY IN REPORTING IN THIS MATTER TO WHICH CSAAS TESTIMONY WAS MATERIAL, AND THE CSAAS TESTIMONY CONTAINED UNDULY PREJUDICIAL DETAILS WHICH EXCEEDED THE PERMISSIBLE SCOPE OF CSAAS TESTIMONY IN THIS CASE AND POSED A DANGER OF PREJUDICE WHICH FAR OUTWEIGHED ANY PROBATIVE VALUE IT MIGHT HAVE.

POINT III

J.M. WAS DENIED HIS STATE CONSTITUTIONAL RIGHT TO INDICTMENT BY THE COURT'S SUBMISSION TO THE JURY OF SIX CHARGES CONTAINED IN THREE PAIRS OF COUNTS, EACH PAIR ALLEGING A SPECIFIC CRIME, WHEN THE IDENTIFICATION OF THAT CRIME AND THE CRIMINAL CONDUCT OF IT COVERED WAS IDENTICALLY WORDED IN THE COUNTS COMPRISING THAT PAIR, IT WAS NOT POSSIBLE FROM THE LANGUAGE EMPLOYED TO DETERMINE THE SPECIFIC CRIMINAL CONDUCT WHICH WAS CHARGED, AND THE PROSECUTOR AND COURT ARBITRARILY ALLOCATED CONDUCT WHICH WOULD SATISFY THOSE COUNTS TO THOSE COUNTS IN THE PROSECUTOR'S SUMMATION AND THE COURT'S CLOSING JURY INSTRUCTIONS.
POINT IV

DEFENDANT'S CONSECUTIVE SENTENCE IS MANIFESTLY EXCESSIVE.
Having considered these points in light of the record and the applicable law, we conclude they have no merit.

First, we reject defendant's claim that his constitutional right to trial by a jury exercising its collective judgment was violated when seven of the twelve jurors left the jury room during deliberations to smoke cigarettes. The record shows that the court specifically admonished the jurors at the beginning of the trial to not discuss the case among themselves during recesses. Moreover, when the trial concluded, the court instructed the jurors that they could only deliberate "when all twelve jurors are present and all the evidence is in the jury room," and not during recesses.

Due to an apparent misunderstanding, seven jurors took a smoking break shortly after deliberations had begun, accompanied by a sheriff's officer, without the court's permission to release them for that purpose. When the judge became aware of this incident, she instructed the officers to obtain the court's permission for any such future breaks. In addition, the judge expressly reminded the jurors before two subsequent smoking breaks that they could not deliberate during those breaks.

Although defendant speculates that some of the jurors might have discussed the case without all of their fellow jurors present during the first smoking break, there is no evidence to support that conjecture. Nor is there any circumstantial indication of prejudice to defendant. The jurors did not, for example, immediately issue a verdict after some of them returned from a smoking break. Indeed, the logic of defendant's argument would require a judge to instruct jurors not to deliberate each time one of them went to the restroom, which is obviously not a practical or a sensible mandate.

On the whole, we are satisfied that the initial smoking break by the seven jurors was an innocuous event. There is no proof that defendant was prejudiced or was deprived of the collective judgment of all deliberating jurors. We must presume that the jurors heeded the judge's clear admonition that they not deliberate or discuss the case during recesses. See State v. Feaster, 156 N.J. 1, 65 (1998) (recognizing such a presumption of adherence to the court's instructions), cert. denied, 532 U.S. 932, 149 L. Ed. 2d 306, 121 S. Ct. 1380 (2001).

In his second point, defendant argues that the State's CSAAS expert's testimony was improper and unduly prejudicial. Defendant contends in this regard that the scientific rationale underlying CSAAS expert testimony is flawed and that our courts should disallow such testimony. The Supreme Court has repeatedly rejected such claims of unreliability and inadmissibility of CSAAS proof, most recently in State v. W.B., 205 N.J. 588, 609-11 (2011). Moreover, any systemic challenge to CSAAS testimony would require evidentiary support from competing experts, which defendant failed to proffer in the trial court or attempted to develop in an appropriate record.

We likewise reject defendant's related contention that the State's CSAAS expert in this case overstepped her bounds and that her opinions unduly prejudiced the defense. The expert did not offer any specific opinions about whether the victims in this case had CSAAS syndrome, or whether, in fact, they had been abused. Nor are we persuaded that the delay of R.P. of a month or more in reporting defendant's sexual assaults was too short or too insignificant to justify the admission of the CSAAS testimony. The expert's opinions were sufficiently relevant for the limited purpose to be admitted. See State v. P.H., 178 N.J. 378, 395-96 (2004). Additionally, the trial court issued the customary lengthy instructions to the jurors about the proper use of CSAAS testimony. See also Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation Syndrome" (2001).

We need not comment at length on defendant's third argument, raised for the first time on appeal, that the paired counts in the indictment were allegedly confusing, lacked sufficient factual details, and spanned an overbroad timeframe. We discern no prejudicial error in the wording of the indictment. The indictment fairly placed defendant on notice of the offenses being charged. It is well established that identically worded counts, as utilized here, are permissible, so long as they fairly enable the preparation of a defense. State v. Salter, 425 N.J. Super. 504, 515 (App. Div. 2012). Furthermore, in child sexual abuse cases, indictments need not include exact dates of offenses charged to satisfy the fair notice requirement. State in Interest of K.A.W., 104 N.J. 112, 113-24 (1986).

The indictment here adequately set forth the statutory elements of each offense and identified the victim by her initials and date of birth. Moreover, the operative timeframe (January 1, 2011, through August 10, 2011), which was narrowed significantly through R.P.'s trial testimony, afforded defendant fair notice of the charges, in light of the nature of the multiple offenses charged and the victim's age. In addition, the arrest and indictment occurred without undue delay following the offenses. See K.A.W., supra, 104 N.J. at 119-20.

Furthermore, even assuming some error occurred at the indictment stage, as a matter of law, such error is "harmless given the subsequent conviction of defendant by the petit jury." State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); United States v. Mechanik, 475 U.S. 66, 70, 89 L. Ed. 2d 50, 56, 106 S. Ct. 938, 941 (1986) (holding that "supervening jury verdict made reversal of the conviction and dismissal of the indictment inappropriate[,]" despite error during grand jury proceedings).

Defendant's fourth argument, contending that his sentence is manifestly excessive, is equally unavailing. Applying, as we must, our deferential scope of review of sentencing determinations, see, e.g., State v. Bieniek, 200 N.J. 601, 612 (2014), we are not persuaded that the twenty-year aggregate sentence was manifestly unjust or shocks our conscience. Mindful that "appellate courts are cautioned not to substitute their judgment for those of our sentencing courts," State v. Case, 220 N.J. 49, 65 (2014), we detect no basis here to interfere with the trial court's assessment of the pertinent aggravating and mitigating sentencing factors.

The consecutive sentence imposed for the two child endangerment offenses merged into a single offense was justified under the principles of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 89 L. Ed. 2d 308, 106 S. Ct. 1193 (1986), and State v. T.E., 342 N.J. Super. 14, 37 (App. Div.), certif. denied, 170 N.J. 86 (2001), cases that the sentencing judge expressly cited in her disposition. In addition, the judge sentenced defendant on the child endangerment conviction to a consecutive term that, notably, was below the midpoint of the range for a second-degree offense. The judge duly took into account defendant's age and his prior lack of a criminal record, but was justified in imposing the sentence that she selected for these multiple sexual acts committed against his own minor stepdaughter.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. J.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 19, 2016
DOCKET NO. A-5559-13T1 (App. Div. Sep. 19, 2016)
Case details for

State v. J.M.

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.M., Defendant-Appellant.

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Sep 19, 2016

Citations

DOCKET NO. A-5559-13T1 (App. Div. Sep. 19, 2016)