Opinion
DOCKET NO. A-2479-11T2
02-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.G., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-06-00778.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant J.G. appeals from convictions for sexually assaulting his two daughters between 1996 and 2000. He successfully appealed the admissibility of statements he made to a family pastor to the Supreme Court. State v J.G., 201 N.J. 369 (2010). He then was tried and convicted of all charges. He now appeals from these convictions raising numerous claims of trial error and excessive sentence. We affirm in all respects.
A jury convicted J.G. of all twelve counts of the indictment charging: two counts of first-degree aggravated sexual assault by penetration of his daughters when they were less than thirteen years old, N.J.S.A. 2C:14-2(a), (counts 1 and 8); two counts of first-degree aggravated sexual assault by penetration of his daughters when they were at least thirteen but less than sixteen years old, N.J.S.A. 2C:14-2(a), (counts 2 and 9); second-degree aggravated sexual assault by penetration of his older daughter when she was at least sixteen but less than eighteen years old, N.J.S.A. 2C:14-2(c), (count 3); two counts of second-degree sexual assault by sexual contact with his daughters when they were less than thirteen years old and he was at least four years older, N.J.S.A. 2C:14-2(b), (counts 4 and 10); two counts of third-degree sexual assault by sexual contact with his daughters when they were at least thirteen but less than sixteen years old, N.J.S.A. 2C:14-3(a), (counts 5 and 11); fourth-degree sexual assault by sexual contact with his older daughter when she was at least sixteen but less than eighteen years old, N.J.S.A. 2C:14-3(b), (count 6); two counts of second-degree endangering the welfare of his daughters, N.J.S.A. 2C:24-4(a), (count 7 and 12).
The trial record revealed the following facts. In May 2000 J.G.'s two daughters, who were then thirteen and sixteen years old, both told their mother that they had been sexually assaulted by their father from the age of twelve. Their mother contacted the police and the Division of Youth and Family Services (DYFS). Defendant was indicted in 2000, but not located and arrested until 2006.
Now known as the Division of Child Protection and Permanency.
The two daughters, the mother, a pediatrician who examined the two girls after the mother notified the authorities, the family pastor, a psychologist who works for DYFS and an expert in child sexual assault accommodation syndrome (CSAAS) were called as witnesses by the State. The defense called no witnesses.
After merging counts 4, 5, 6, 7, 10, 11 and 12 into other counts, the judge sentenced defendant to an aggregate of eighteen years in prison on counts 1, 2 and 3, all crimes against the older daughter, and a consecutive aggregate term of fifteen years in prison on counts 8 and 9, crimes against the younger daughter. A parole-ineligibility term of sixteen and one-half years was also imposed on the thirty-three year sentence pursuant to N.J.S.A. 2C:43-6(b).
On appeal defendant raises the following issues:
POINT I: INORDINATE DELAY VIOLATED DEFENDANT'S STATE AND FEDERAL RIGHTS TO A SPEEDY TRIAL.
POINT II: IMPROPER FRESH COMPLAINT TESTIMONY WAS PERMITTED AT TRIAL.
POINT III: THE EXPERT TESTIMONY BY THE STATE EXCEEDED PROPER LIMITS AND PREJUDICED DEFENDANT AT TRIAL BELOW (PLAIN ERROR).
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT V: DISCOVERY VIOLATION BY THE STATE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT VI: THE FLIGHT CHARGE WAS IMPROPER AND PREJUDICIAL.
POINT VII: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I
Defendant claims that his due-process rights and, for the first time on appeal, his Sixth Amendment right to a speedy trial were violated by the six-year delay between indictment and arrest as well as the five-year delay between arrest and trial. He made a motion to dismiss the charges based on due process grounds prior to trial. Defendant was indicted promptly and a bench warrant was issued when he did not appear to answer to the charges. The delay in the trial was due in large part to the State's interlocutory appeal that was ultimately decided in defendant's favor by our Supreme Court. Defendant alleges no specific prejudice the delay caused him in preparing his defense.
The right to a speedy trial is intended to protect a defendant against prosecutorial delay and minimize the possibility of lengthy incarceration after indictment and prior to trial. Speedy trial claims are evaluated with a four-part test: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his speedy trial right, and (4) the amount of prejudice to defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117 (1972); State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
Defendant argues that the five-year delay necessitated by an interlocutory appeal violated his right to a speedy trial. Delays attributable to the lengthy nature of the appeals process, including where the delay is caused by the prosecution and the courts, do not necessarily violate the right to a speedy trial. See State v. Misurella, 421 N.J. Super. 538, 544-46 (App. Div. 2011) (finding no speedy trial violation where defendant appealed a municipal conviction and the delay was partly due to prosecutorial and judicial errors). The State was granted leave to appeal the judge's decision suppressing defendant's admissions to the pastor. After we reversed, defendant successfully appealed to the Supreme Court. Such delay, necessitated by appellate review of a novel legal issue, did not violate defendant's right to a speedy trial. The only prejudice complained of by defendant is that unspecified exculpatory witnesses may have become unavailable due to the delay. Defendant is thus unable to demonstrate a violation of his right to a speedy trial.
Defendant also makes the related argument that his due process rights were violated because of pre-trial delay. A due process delay claim requires defendant to show "(1) the State's delay in seeking the indictment was a deliberate attempt to gain an advantage over him, and (2) the delay caused defendant actual prejudice in his ability to defend the charge." State v. Townsend, 186 N.J. 473, 488-89 (2006). See also United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed. 2d 146, 157 (1984). As the trial judge noted, the indictment in this case was returned remarkably fast and delay not caused by the appellate process was caused by defendant's failure to appear. Defendant is unable to point to any attempt by the State to gain advantage by delaying the proceedings. Mere assertions of witness unavailability without further explanation of how those witnesses would help the defense do not constitute actual prejudice. Townsend, supra, 186 N.J. at 489. Thus, defendant's due process claim fails as well.
II
Defendant also maintains that the trial judge erred in allowing the mother, pastor and pediatrician to testify as to what the children told them. Both the mother and pastor testified that the children told them they had been sexually abused by their father. As an uncodified hearsay exception, the fresh-complaint rule allows, among other things, the State to introduce a sexual victim's out-of-court revelation of such conduct to a confidante shortly after the conduct occurs. Fresh-complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. State v. W.B., 205 N.J. 588, 616-17 (2011). Although their mother questioned the girls, such questioning is permitted in the context of child sexual abuse, especially where, as here, the questioning was not "coercive," but rather that of a concerned parent. State v. Bethune 121 N.J. 137, 144-45 (1990).
Defendant did not object at trial to the pediatrician's testimony regarding the complaints of sexual abuse by the victims. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2. State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotation marks omitted). The pediatrician's statements were admissible as the children were brought to her for treatment and their statements to her were provided to aid in "diagnosis and treatment." N.J.R.E. 803(c)(4).
III
As plain error, defendant argues that the CSAAS expert should not have been permitted to testify. The CSAAS expert's general testimony was offered only to explain behavior of a sexually abused child. Our Supreme Court delineated the permissible parameters of such testimony in State v. P.H., 178 N.J. 378, 395-96 (2004), holding that such testimony is admissible to explain behavior, not to diagnose a victim, and there must be a limiting instruction given. The CSAAS expert did not speak with any of the witnesses and the judge carefully cautioned the jury before she testified as to the limited use of her expert testimony. No error was committed by the admission of this testimony.
IV
Defendant's argument that the judge should have granted his motion for a judgment of acquittal at the close of the State's case pursuant to Rule 3:18-1 and his argument that he was denied full pre-trial discovery of his suppressed admissions made to the pastor are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).
The State maintained it had provided all discovery to defendant before trial.
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V
Defendant argues the trial judge erred in charging the jury that it could consider as consciousness of guilt defendant's flight from the area after his daughters complained of his sexual abuse of them. Defendant's argument is contrary to established case law. See State v. Ingram, 196 N.J. 23, 47 (2008) (holding that a flight charge is unwarranted "unless separate proofs are tendered to sustain the claim that the defendant's absence was designed to avoid detection, arrest, or the imposition of punishment"). The mother testified that she told her husband about the children's allegations and that she was going to tell the police. Defendant maintained his wife had forced him out of the marital home. The trial judge told the jury they must first determine whether the State had proved defendant fled to avoid apprehension before considering whether such flight indicated a consciousness of guilt. We discern no error in this charge.
VI
Finally, defendant argues that the sentence imposed was excessive. In determining the appropriate sentence to be imposed, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified in N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). An appellate court should not second-guess an otherwise valid decision of a sentencing judge. State v. Bieniek, 200 N.J. 601, 612 (2010).
Defendant alleges that the judge should not have caused the sentence for the crimes against one daughter to run consecutive to the sentence for the crimes against the other daughter. The judge, however, considered the factors outlined in State v. Yarbrough, 100 N.J. 627, 643-44 (1985). He did not abuse his discretion when he ordered that the concurrent sentences imposed for crimes against one victim be served consecutive to the concurrent sentences imposed for crimes against the other victim. Id. at 646. The sentence imposed on the whole was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. Bieniek, supra, 200 N.J. at 608-09.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION