Opinion
DOCKET NO. A-1349-11T4
03-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.P.B., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment Nos. 06-03-0120 and 07-06-0230. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant J.P.B. was convicted of Hunterdon County Indictment No. 06-03-0120, first-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3), (count one) and second-degree sexual assault, N.J.S.A. 2C:14-2(b), (count three). In the same trial, defendant was also convicted under Indictment No. 07-06-0230 of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (count one) and second-degree child endangering, N.J.S.A. 2C:24-4(a), (count two). On January 25, 2011, he was sentenced on the second indictment to eighteen years of imprisonment on the aggravated sexual assault, subject to the No Early Release Act (NERA) eighty-five percent parole ineligibility. See N.J.S.A. 2C:43-7.2. A concurrent term of eight years was imposed on the second-degree child endangering. On Indictment No. 06-03-0120, the judge sentenced defendant to fifteen years, to be served on the first-degree child endangering, and seven years on the second-degree sexual assault, subject to NERA. All sentences were to be served concurrently. Appropriate fines, penalties, Megan's Law registration requirements, and parole supervision for life were also imposed. He appeals, and we affirm, except that the conviction for Indictment No. 06-03-0120, count one, first-degree endangering, is amended to second-degree endangering. Thus defendant must be resentenced on that count, and the matter is remanded for that purpose. Additionally, the court is to recalculate the credits due to defendant in light of the fact his earlier guilty plea was vacated, the two indictments consolidated for trial and sentence, and that, therefore, gap time was erroneously awarded.
Count two, which charged defendant with second-degree child endangering, was dismissed prior to trial.
I
Initially, defendant entered a guilty plea to second-degree endangering on Indictment No. 06-03-0120, in exchange for a six-year sentence recommendation. He subsequently moved to vacate his plea, prior to sentencing, when he learned the State intended to indict him for the more serious offenses charged in Indictment No. 07-06-0230 as a result of additional disclosures made months later by the victim. The Law Division judge denied the motion, and defendant appealed on the excessive sentencing calendar. See R. 2:9-11. The case was moved to the regular calendar and we reversed, finding the judge needed to address defendant's application to vacate, in light of the second indictment, applying the standards articulated in State v. Slater, 198 N.J. 145 (2009). Slater had been decided while defendant's appeal was pending. It was undisputed that the State was unaware of the more serious conduct until after defendant's guilty plea.
II
The victim was born in July 1993. The victim's mother and defendant married in 1997. After her mother's death in 2003, the victim continued to reside with defendant, and not her biological father, with whom she had little contact during her childhood. Defendant's youngest child, the victim's half-brother, was born in December 1996. He too resided with defendant when these events occurred, as did the victim's two older brothers and a young adult maternal uncle. Also in the house for some unspecified brief period was a twenty-one-year-old woman who had been friends with defendant's deceased son.
On November 9, 2005, one of the victim's older brothers, "Tom" for the sake of anonymity, went into defendant's bedroom searching for change with which to buy cigarettes. While rummaging through defendant's nightstand, he found a pornographic magazine. When he opened it, he discovered twelve pictures of his sister sexually posed in the nude. The size of the pictures ranged from small to large. He left them in the magazine and called a family member. A couple of hours later, Tom agreed to turn the photos over to state police, and returned to the bedroom to retrieve them.
Tom gave two statements to the authorities, the first after the discovery of the photographs, and the second months later, after the victim's additional disclosures. During the course of his second statement, Tom provided details which he restated on the stand. They included that the victim had slept in defendant's bed every night since the death of her mother, that defendant spent disproportionate amounts of money on gifts for her in comparison with the other children, and that at times the victim would go into the bathroom with defendant.
When Tom was cross-examined at trial, counsel asked him if defendant had instructed him to bag up his uncle's belongings, including a pornographic magazine called "Family Sex Letters." Tom denied having been asked to do so. Tom was also cross-examined about serious disagreements he had with defendant, as a result of which defendant asked him to leave the home.
When initially interviewed, the victim insisted that a friend had taken the pictures, but eventually admitted that defendant took them. The discovery of the photographs occurred on November 9, 2005. Within days of being removed from the home by the then Division of Youth and Family Services (Division), the victim and her younger brother, whom for the sake of anonymity we will refer to as "Harry," were placed with their maternal aunt, who eventually adopted them.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families and renames the Division as the Division of Child Protection and Permanency. L. 2012, c. 16.
The Division recommended to the aunt that she not allow the victim access to a camera or cell phone with camera capabilities, and that she closely supervise the victim's use of computers. In the summer of 2006, in violation of these guidelines, the aunt discovered that the victim had a camera in her purse. When confronted about the camera, the victim admitted stealing it from a cousin. Minutes after the confrontation regarding the camera, the victim became emotionally distraught and told her aunt that defendant "raped her." The aunt immediately reported the disclosure, and the victim and her family were reinterviewed.
The victim testified at trial that defendant began to molest her within a year of her mother's death, when she was nine years old. The conduct accelerated from touching to fellatio and cunnilingus to sexual intercourse, in addition to the photographic sessions. When she would ask defendant why he did these things to her, he claimed it was because she reminded him of her mother. He also told her he would stop after he adopted her. The victim acknowledged that defendant bought her things in exchange for her cooperation.
The victim said eventually matters progressed to the point that even if her younger brother was sleeping on the floor in defendant's bedroom, defendant would abuse her while the two were in the bed. He told her not "to tell anybody," because if she did "you would be taken away and you wouldn't see us anymore, you wouldn't see me. Bad things would happen."
When the victim's younger brother testified at trial, he said he remembered seeing things he was too young to understand at the time, as he was six and seven years old. He was thirteen when the trial took place. On one occasion, in the middle of the day, he looked into the window of his father's bedroom and saw the victim and defendant "humping," "under the covers and [] moving up and down." On another occasion during the day, he walked into his father's bedroom to ask for permission to go to a friend's house only to find defendant and the victim in bed together. The victim got up, wearing only her underwear, and "went to find her clothes and put them on." Later on that day, he said, his father bought him a paintball gun and ammo in which he had previously expressed an interest.
During defendant's Mirandized and recorded interview in 2005 regarding the photographs, he initially claimed they were taken by the victim and her friend. Eventually, he took "one hundred percent of the blame" for the pictures. He acknowledged that the victim was ten or eleven when photographed, as she did not turn twelve until the summer of 2005. He said he began taking them after he gave the victim a camera for Christmas in 2004 but stopped after she asked him to stop.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant acknowledged keeping the photographs in a pornographic magazine, along with a nude photo of the victim's mother. He denied ever having touched the victim, but admitted to masturbating several times while viewing the photographs. Defendant also admitted that when he instructed the victim as to the ways she would pose, he showed her pornographic pictures in magazines that he wanted her to emulate. Although usually he and the victim were the only ones in the house when this occurred, there were times when others were present elsewhere in the home. Defendant described the activity as "obviously one of the biggest mistakes I ever made in my entire life[,]" and said he was sorry he had done it. He also said it was "a possibility" that he told the victim not to tell anyone. The photos were dated January, July, and August of 2005.
On the stand during trial, defendant repudiated his earlier statement. He said he confessed to taking the photographs solely to protect the victim and her friend. Defendant insisted that he had mouthed the words "blame me" to the victim as he was being taken away by state police because he did not want anyone else in the household to get into trouble with the law. He denied taking the pictures, and said that he gave details, such as that he had masturbated while viewing the photographs, to make his confession seem plausible. Defendant claimed that all the young adults who lived in his home during the relevant time period were drug users and that he "always put my hand out to kids. I allowed a lot of kids to move into my house that were kicked out of their houses by their parents because the[y] got into arguments and different things." He acknowledged having had a sexual relationship with the young woman who stayed in his home, and claimed that if the victim's younger brother saw him in bed while engaging in intercourse, it would have been with that young woman.
Defendant described the victim as very jealous of this young woman, eventually causing him to ask her to leave. He acknowledged that the victim slept in bed with him every night since her mother's death, insisting she was too afraid to sleep alone. Defendant denied spending time with her in the bathroom. He acknowledged ownership of only one of the three pornographic magazines found in his nightstand, insisting the others, including "Family Sex Letters," had been planted by someone else in the house. He claimed "Family Sex Letters" was in a bag of trash he had found in the victim's uncle's bedroom, and which he had asked Tom to burn. Defendant added that he was the one who originally found the photographs, and that when he did so, he confronted the victim about them.
Defendant's testimony, confused at times, entirely repudiated his earlier statement to the authorities. At trial, he said that after confronting the victim about the photographs, he saved them so that he could also confront the person whom he suspected of taking them. He explained the presence of the two nude photographs of the victim that the police found in his wallet at the time he was processed as being there because he absentmindedly picked them up off the floor when they fell from the magazine, and that he had just forgotten to discard them. Defendant also testified that the officer, who said that when processed defendant had a nude photograph of the victim on his cell phone, was mistaken.
In cross-examination, the prosecutor probed defendant's narrative that he instructed the victim to blame him for the photographs as he passed her by while she was seated in a police car. The prosecutor asked if a Division worker had in fact remained in the house with the victim as he was driven to the station, which defendant denied.
The prosecutor also asked defendant if he had claimed, when police interviewed him about the sexual assault complaints, that the charges were just Division harassment. He explained the Division had been at his house twice the prior year with "bogus complaints." Defendant added that the Division cleared him, and that his home was "very much [in] top order" when the Division inspected it.
The officers who investigated the sexual assaults, however, had testified that the house was in deplorable condition. Defendant claimed that the Division's photographs did not accurately depict the cleanliness and order in his home, and that the photos were taken after the police searched the house, because the house was not in that condition before the search. Defendant also added that home improvements he was making could have contributed to the disorderly appearance of the home.
Without objection, the judge gave the jury the fresh complaint instructions. Model Jury Charge (Criminal), "Fresh Complaint" (2007). When sentencing defendant, the trial judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk defendant would reoffend, in light of defendant's evaluation, as well as nine, N.J.S.A. 2C:44-1(a)(9), the need to deter him and others from violating the law. Defendant had one prior third-degree conviction, a theft offense dating back to 1990.
The Adult Diagnostic and Treatment Center (ADTC) report completed in 2006 found defendant to be a repetitive and compulsive offender within the meaning of N.J.S.A. 2C:47-1. It was prepared for the 2006 sentence which was later vacated as defendant withdrew his plea, and no update was ordered.
The judge did not find any factors in mitigation. He observed that defendant's actions over an extended period of time were "nothing short of appalling."
III
On appeal, defendant raises the following points:
POINT ONE
BECAUSE [THE VICTIM]'S DISCLOSURE TO [THE AUNT] THAT J.B. "RAPED" HER, MADE EIGHT MONTHS AFTER [THE VICTIM] TOLD DETECTIVES THAT NO SEXUAL ABUSE HAD OCCURRED, DID NOT QUALIFY AS FRESH COMPLAINT, THE TRIAL COURT'S FRESH-COMPLAINT CHARGE WAS ERRONEOUS. THE ERRONEOUS CHARGE WAS HIGHLY PREJUDICIAL BECAUSE IT IMPROPERLY INTERFERED WITH THE JURY'S FREEDOM TO CONCLUDE THAT [THE VICTIM]'S CLAIM OF SEXUAL ABUSE WAS FALSE BASED ON THE FACTS SURROUNDING HER DELAYED DISCLOSURE AND HER FAILURE TO CONFIDE IN THE DETECTIVES WHEN GIVEN THE OPPORTUNITY TO DO SO. THUS, [J.P.B.]'S CONVICTIONS UNDER INDICTMENT NO. 07-06-0230 MUST BE REVERSED. (Not Raised Below).
POINT TWO
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE HIGHLY INFLAMMATORY EVIDENCE FOR THE SOLE PURPOSE OF IMPUGNING [J.P.B.]'S CHARACTER BY PORTRAYING HIM AS A SEXUAL DEVIANT WITH A PROPENSITY TO COMMIT INCEST, WHOM DYFS HAD INVESTIGATED IN THE PAST. (Not Raised Below).
A. The Hardcore Pornography
B. The Prior DYFS Investigations
C. Conclusion
POINT THREE
FIRST-DEGREE ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY BECAUSE THE STATE FAILED TO PROVE THAT [J.P.B.] HAD BEEN LEGALLY CHARGED WITH THE CARE OR CUSTODY OF [THE VICTIM] BY A COURT OR PUBLIC AGENCY. (Not Raised Below).
POINT FOUR
THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE NEAR-MAXIMUM SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE, AND BECAUSE THE TRIAL COURT FAILED TO AWARD 1215 DAYS OF JAIL CREDIT TO WHICH [J.P.B.] WAS ENTITLED.
A. [J.P.B.]'s Sentence Was Unduly Excessive
B. The Judge Failed to Award [J.P.B.] Jail Credit to Which He Is Entitled
A.
Defendant's arguments in point one all stem from the same premise: that the victim's disclosures regarding the sexual assaults were not the equivalent of fresh complaint evidence since they were made months after she was in a position to reveal the alleged conduct. From that premise, defendant then challenges the court's fresh complaint instruction, claiming the judge should have instead given the Model Jury Charge (Criminal), "Fresh Complaint: Silence or Failure to Complain" (2004), known as the "lack of fresh complaint" charge. As a result of these errors, defendant contends the jury was deprived of the ability to use the victim's months of silence as a factor in weighing her credibility in a case where credibility was key.
At trial, defendant did not object to the testimony nor to the instruction. We thus review the claims employing the plain error standard of review. R. 2:10-2. In the context of jury instructions, failure to object at trial is treated as "a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013). Nonetheless, if the error was "clearly capable of producing an unjust result," the matter will be reversed. See R. 2:10-2.
"The fresh-complaint rule allows witnesses in a criminal trial to testify to a victim's complaint of sexual assault." State v. Hill, 121 N.J. 150, 151 (1990). Such testimony is admissible for the limited purpose of rebutting the inference that the victim's initial silence was inconsistent with the later claims of abuse. Id. at 151-52. That is, "it is admissible 'to prove only that the alleged victim complained [at a particular time], not to corroborate the victim's allegations concerning the crime.'" State v. W.B., 205 N.J. 588, 616-17 (2011) (alteration in original) (quoting State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006)); accord Model Jury Charge (Criminal), "Fresh Complaint" (2007). To constitute a fresh complaint, "'the victim's statements to someone [he or she] would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary.'" State v. Williams, 377 N.J. Super. 130, 151 (App. Div.) (quoting Hill, supra, 121 N.J. at 163), certif. denied, 185 N.J. 297 (2005). The trial judge's decision to admit testimony as fresh-complaint evidence is reviewed for an abuse of discretion. State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div.), certif. denied, 174 N.J. 546 (2002).
Notably, "the requirement of reporting sexual assault within a reasonable time must be 'applied more flexibly in cases involving children than in [cases] involving adults.'" W.B., supra, 205 N.J. 618 (alteration in original) (quoting L.P., supra, 352 N.J. Super. at 382); see also State v. P.H., 178 N.J. 378, 393 (2002); State v. Bethune, 121 N.J. 137, 143-44 (1990). Because of a child's "special vulnerability to being cajoled and coerced into remaining silent by their abusers, courts allow additional time to make a fresh complaint." Bethune, supra, 121 N.J. at 143. Further, a court should consider "the reluctance of children to report a sexual assault and their limited understanding of what was done to them." P.H., supra, 178 N.J. at 393. And, even a significant period of time between the complaint and the abuse "may be permissible if satisfactorily explainable by the age of the victim and the circumstances surrounding the making of the complaint." State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572 (2003).
Our courts have admitted fresh-complaint testimony even where the delay was longer than in this case. See W.B., supra, 205 N.J. at 618-19 (given the victim's age of sixteen at the time of complaint, two-year interval between the sexual assault and disclosure was not unreasonable); R.E.B., supra, 385 N.J. Super. at 88 (admitting fresh-complaint evidence where the disclosure occurred two years after the sexual abuse); but see Pillar, supra, 359 N.J. Super. at 285 (excluding fresh-complaint testimony made six years after the alleged abuse because it was not made to someone with whom the alleged victim shared a relationship that would allow a "spontaneous confidential communication").
Here, the victim was particularly psychologically vulnerable to defendant. Although she had contact with her biological father, her relationship with him was troubled. After her mother's death, she chose to remain with defendant, whom she viewed as her father. Whether the result of the premature loss of her mother, or for some other reason, she was so emotionally dependent on defendant that she slept in bed with him every night after her mother's death. Defendant told her that he engaged in sexual activity with her because she reminded him of her mother. He also told her that he would stop abusing her when he adopted her.
During her second set of interviews, the victim informed police that she feared the further disintegration of her family if she were to disclose defendant's conduct and that she remained silent for that reason. She admitted that defendant's lavish gifts somehow balanced the equation in her mind and further motivated her to keep quiet.
Given these considerations, the delay from November 2005 to July 2006 before the child disclosed the sexual abuse, which commenced when she was only nine years old, does not seem unreasonable. The testimony regarding her disclosure, therefore, is fresh-complaint evidence.
As fresh-complaint evidence, the testimony's admission was not error. The judge's instruction, which tracked the model jury charge, was proper. Although the instruction's language informs the jury that the evidence is being admitted solely to negate the inference that the offense did not occur because the victim did not complain, it also instructs the jury that the evidence is not substantive. The instruction states that the testimony "does not strengthen [the victim's] credibility." Model Jury Charge (Criminal), "Fresh Complaint" (2007). Nothing in the language of the instruction creates prejudice, or impedes the jury's ability to assess credibility as a result. Since the evidence was properly admitted as fresh complaint, the instruction was also proper.
B.
Next we address defendant's claim that the introduction of "hardcore pornography," and testimony that the Division had investigated him in the past, was "highly inflammatory . . . by portraying him as a sexual deviant with a propensity to commit incest." Defendant claimed that only one of the pornographic magazines found in his nightstand belonged to him, accusing some unidentified person of planting the materials in his bedroom because Tom failed to burn them as defendant had requested.
Certainly it is true that the prosecutor cross-examined defendant extensively on the subject of his possession of "Family Sex Letters," and to drive the point home, mentioned it in closing. These questions were part of the State's strategy and intended to highlight the points at which defendant's testimony was inherently inconsistent or conflicted with the testimony of others. Counsel did not object to the admission of the actual magazines, including the publication "Family Sex Letters," the title of which was first mentioned to the jury during Tom's cross-examination. In any event, since no objections were made to the introduction of the magazines into evidence, the prosecutor's cross-examination, or the closing statement, we again employ the plain error standard of review.
Credibility was a crucial issue in this case. Tom and Harry's testimony, to some extent, corroborated the victim's testimony. Defendant in 2005 gave a detailed and lengthy confession regarding the pictures, had two nude photographs of the victim in his wallet when he was processed by police, and the officer who processed defendant saw a nude photograph of the child on defendant's cell phone. But that statement was made before the victim, months later, disclosed the sexual assaults. At trial, defendant repudiated the confession, claimed he put the photos in his wallet when he dropped them on the floor and simply forgot about them, and that the officer's observation regarding his cell phone was a mistake.
Defendant's convoluted explanation for how two of the three pornographic magazines, including "Family Sex Letters," came to be found in his nightstand was not convincing. Since the testimony was not credible, the State's questioning cannot be fairly characterized as an effort at labeling defendant as a deviant. Rather, it was intended to explore the weaknesses in his narrative and emphasize to the jury the point that there were numerous gaps in his version of events. Thus the cross-examination was not improper.
On appeal, defendant contends that the introduction of the evidence, and the prosecutor's closing references to it, violated the principle embedded in N.J.R.E. 404(b), that "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." The prosecutor said in closing:
And as uncomfortable as it may be, you will have that publication and you will see what it is. Letters from various family members talking about hav[ing] sex with their other family members. Their children, their siblings, their grandchildren. And where was that found? In the defendant's night stand in a book.Immediately preceding that statement, the prosecutor honed in on defendant's testimony repudiating his ownership of the magazine, and his attorney's cross-examination of Tom with regard to the publication. She reminded the jury of the "confusion" on Tom's face when his attention was brought to the title of the publication, as he denied any knowledge of it.
Nonetheless, the closing statement, unlike the cross-examination, does urge the jury to consider the fact that defendant kept a pornographic publication regarding sex among family members in his nightstand. The prosecutor was clearly suggesting that jurors take the propensity arguably demonstrated by the presence of the magazine into account in deciding defendant's guilt.
"A prosecutor is given 'considerable leeway in summing up the State's case.'" State v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009) (quoting State v. Williams, 113 N.J. 393 (1988)). They may even do so "graphically and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div.), certif. denied, 114 N.J. 314 (1988); see also State v. Johnson, 287 N.J. Super. 247, 265 (App. Div.), certif. denied, 144 N.J. 587 (1996).
In weighing whether a prosecutor engaged in misconduct during summation, a reviewing court must examine "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court gave the jury a curative instruction." Atkins, supra, 405 N.J. Super. at 401 (internal quotation marks omitted) (quoting State v. W.L., Sr., 292 N.J. Super. 100, 110 (App. Div. 1996)).
In this case, although we conclude the statement was improper, it was brief. It was a suggestion that pales in comparison to the other proofs in the case. Furthermore, the issue of defendant's ownership of the magazine was first raised by counsel in support of the defense theory that two of the magazines, including "Family Sex Letters," along with the victim's photographs, were planted by someone in defendant's nightstand. Therefore, although error, we conclude that the comment alone was not clearly capable of producing an unjust result.
Defendant further objects to references to the Division's involvement as irrelevant and prejudicial. This includes testimony by one of the investigating officers that when defendant was originally told that the Division would care for the victim and Harry while he went to the police station to be interviewed, he complained he was once again being harassed by the Division. As defendant concedes, however, it was clear from his cross-examination by the prosecutor that the prior contacts concerned the condition of his house, which had been described as deplorable.
We can discern no relevance of mention of the Division, or defendant's reaction to mention of it. Likewise, we can discern no legitimate reason for defendant to have been cross-examined on the subject as the condition of his house was not an issue in the trial. The prosecutor did legitimately challenge defendant on cross-examination about his description of the victim being seated in the back of a police car when he walked by and allegedly mouthed the words "blame me" to her because the children were in the house accompanied by a Division worker.
In any event, we do not believe that the jury would have been led by the questioning or the testimony from the officers to improperly speculate as to whether prior investigations related to improper sexual conduct. Hence even if error, the error in the context of the State's strong case was harmless.
C.
Defendant next disputes the applicability of the statute to his first-degree endangering conviction, as he never adopted the victim or obtained a court order granting him custody. Defendant contends that he could only have been found guilty of the lesser second-degree offense, not the first-degree crime.
No objection was made to the charge on that basis in the trial court, thus the plain error standard applies. The pre-amendment version of the statute with which defendant was charged read:
Defendant was charged with first-degree child endangering, N.J.S.A. 2C:24-4(b)(3), in 2006. The statute, however, was amended in 2013 to eliminate the distinction pertaining to the offender's relationship to the child. L. 2013, c. 136, § 1, eff. Aug. 14, 2013.
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A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If
the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.
[N.J.S.A. 2C:24-4(b)(3) (2001) (emphasis added).]
Defendant, relying upon State v. McAllister, 394 N.J. Super. 571 (App. Div. 2007), argues that as the victim's stepfather, he was not a "parent, guardian or other person legally charged with the care or custody of the child." In that case, we found that the victim's mother's live-in boyfriend, who had a de facto parental relationship with the victim, could not be charged with the first-degree offense. Id. at 576.
In this case, although defendant and the victim clearly had the type of familial relationship about which legislators were concerned in enacting the statute, the plain language, by which we are bound, makes it inapplicable to this case. Thus in this instance, we are constrained by the persuasive analysis found in McAllister. We therefore vacate defendant's conviction under N.J.S.A. 2C:24-4(b)(3), and find he must be resentenced on Indictment No. 06-03-0120, count one, to the lesser second-degree child endangering.
D.
Finally, defendant contends that his sentence under Indictment No. 07-06-0230 was excessive, and that his credits were mistakenly calculated. He argues the sentencing judge relied too heavily on the ADTC determination that his crimes fell within a pattern of repetitive and compulsive conduct. In support, defendant offers that he will be receiving treatment at Avenel; that the State may move for civil commitment pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to - 27.38, at the completion of his sentence; and that if and when released, he will be subject to Megan's Law registration requirements. As a result, defendant claims the eighteen-year sentence imposed on the first-degree sexual assault, in the higher end of the range, was excessive.
We affirm the trial court's sentence unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. at 334, 364-65 (1984)).
In addition to the ADTC evaluation finding that defendant was a repetitive and compulsive offender, his behavior occurred over multiple years. He not only photographed the victim, for whom he acted as the only surviving parent, in nude poses, but he also sexually assaulted her, beginning by touching and progressing to sexual intercourse, for years when she was between nine and eleven years old.
In any event, even if we discount the ADTC report in its entirety, there was ample evidence in the record from which the judge could have determined that defendant was at risk to re-offend. The conduct, which was varied in nature, occurred on many occasions over a long period of time. There was ample competent credible evidence in the record that defendant was at risk to commit other offenses. See State v. T.C., 347 N.J. Super. 219, 244 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); see also State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.), certif. denied, 122 N.J. 386 (1990).
That society has developed techniques by which to address these types of offenses, such as Megan's Law registration or parole supervision for life, does not affect the separate sentencing calculus. The sentence fell within the first-degree range. The judge accorded great weight to aggravating factor three. The eighteen-year sentence imposed on the sexual assault, although at the high end, takes into account the length of time over which these crimes occurred; the young age of the victim, which exceeded the minimum required by the statute; and the victim's significant emotional dependency upon the perpetrator of the sexual abuse. Although a minimal consideration, the judge was also aware of defendant's prior conviction. The length of the term, in light of the absence of any mitigating factors or counterveiling considerations, seems entirely appropriate.
Lastly, defendant's credits were awarded as gap time, rather than recalculated in the ordinary course day-for-day. This was an error as the two indictments were tried together. See State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013) ("Gap-time credits give a defendant who is sentenced on two separate dates credits against the second sentence for time served following imposition of the first sentence." (citation omitted)), certif. denied, 217 N.J. 284 (2014).
Affirmed, except that the sentence for first-degree endangering is vacated and the matter is remanded for defendant to be resentenced on second-degree endangering and all credits for jail time to be recalculated as directed herein. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION