STATE OF NEW JERSEY VS. LAMAR G. FIELDSÂ Â (11-03-0404, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4815-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAMAR G. FIELDS, a/k/a
LOMONT FIELDS,
Defendant-Appellant.
________________________________________
Submitted March 28, 2017 – Decided May 11, 2017
Before Judges Yannotti, Gilson and
Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0404.
James R. Lisa, attorney for appellant.
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Eric P. Knowles,
Assistant Prosecutor, on the brief).
PER CURIAM
A Hudson County grand jury returned Indictment No. 11-03-
0404, charging defendant with eight counts of first-degree
aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(4), and
numerous other charges arising from acts committed on September
3, 2010, and September 24, 2010. The charges were severed and
tried separately. Defendant was convicted on numerous counts, and
the court sentenced defendant to an aggregate term of life
imprisonment, plus sixty years, with periods of parole
ineligibility prescribed by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Defendant appeals from the judgments of
conviction dated May 15, 2013, and May 2, 2014. We affirm.
I.
Defendant was charged with first-degree aggravated sexual
assault upon S.B., while armed with a weapon, N.J.S.A. 2C:14-
2(a)(4) (count one); third-degree criminal restraint of S.B., with
risk of serious bodily injury, N.J.S.A. 2C:13-2(a) (count two);
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); third-
degree making terroristic threats to S.B., N.J.S.A. 2C:12-3(b)
(count five); first-degree aggravated sexual assault upon S.B.,
while armed with a weapon, N.J.S.A. 2C:14-2(a)(4) (counts six,
seven, and eight); first-degree aggravated sexual assault upon
S.B., during the commission of a burglary, N.J.S.A. 2C:14-2(a)(3)
(counts nine, ten, eleven, and twelve); second-degree burglary,
N.J.S.A. 2C:18-2(a) (count thirteen); first-degree aggravated
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sexual assault upon L.L., while armed with a weapon, N.J.S.A.
2C:14-2(a)(4) (counts fourteen, nineteen, and twenty-nine); third-
degree criminal restraint of L.L., with risk of serious bodily
injury, N.J.S.A. 2C:13-2(a) (count fifteen); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d) (count sixteen); first-degree robbery, N.J.S.A. 2C:15-1(a)(1)
(count seventeen); fourth-degree child abuse, cruelty, or neglect,
involving L.L., N.J.S.A. 9:6-1 and 9:6-3 (count eighteen); third-
degree criminal restraint of S.L., with risk of serious bodily
injury, N.J.S.A. 2C:13-2(a) (count twenty); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d) (count twenty-one); first-degree armed robbery, N.J.S.A.
2C:15-1(a)(1) (count twenty-two); second-degree burglary, N.J.S.A.
2C:18-2(a)(1) (count twenty-three); third-degree making
terroristic threats to L.L. and S.L., N.J.S.A. 2C:12-3(b) (count
twenty-four); fourth-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-5(d) (count twenty-five); first-degree
aggravated sexual assault upon L.L., N.J.S.A. 2C:14-2(a)(3)
(counts twenty-six and twenty-seven); third-degree aggravated
criminal sexual contact with S.L., during the commission of a
burglary or robbery, N.J.S.A. 2C:14-3(a) (count twenty-eight);
first-degree aggravated sexual assault upon S.L. during the
commission of a burglary or robbery, N.J.S.A. 2C:14-2(a)(3)
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(counts thirty and thirty-two); and first-degree aggravated sexual
assault upon S.L., while armed with a weapon, N.J.S.A. 2C:14-
2(a)(4) (count thirty-one).
The trial court severed the charges in counts one to thirteen,
which pertained to S.B., and the charges in counts fourteen to
thirty-two, which pertained to S.L. and L.L. The court conducted
separate trials on the severed charges.
A. The Trial on Counts Fourteen to Thirty-Two
We briefly summarize the evidence presented at the first
trial. On September 24, 2010, L.L. was in the kitchen of a single-
family home in Jersey City, where she resided with her mother,
S.L. L.L. was seventeen-years old at the time. She heard the rear
screen door open, and she was confronted by a black male, who she
described as about five feet, eleven inches tall.
L.L. began to scream. She wound up on the floor, with the
intruder standing or kneeling above her, trying to stop her from
screaming. The intruder grabbed a fork that L.L. was using to
prepare food, and he raised it over her so she would stop
screaming. S.L. was upstairs and heard L.L.'s screams. She came
downstairs and entered the kitchen. S.L. was then sixty-five years
old.
The intruder asked S.L. and L.L. for money, and L.L. gave him
ten dollars. He took the money, but he was not satisfied. S.L.
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offered to take him to a cash machine to withdraw more money. The
intruder slapped S.L. in the face. He told her not to look at him
or he would kill her if she did not do as she was told. He reached
into his pocket. S.L. testified that it appeared as if he had a
gun. The intruder ordered S.L. and L.L. to go to the living room,
and made them remove their clothes. He placed his penis in S.L.'s
mouth for several minutes. Then, he led S.L. and L.L. to the second
floor of the house and directed them to L.L.'s bedroom. He had
S.L. and L.L. lie down on their stomachs.
The intruder had S.L. and L.L. perform fellatio upon him, and
he penetrated L.L.'s vagina with his penis. He also placed his
fingers in S.L.'s vagina and he touched her breast. He apparently
was unable to achieve sexual satisfaction and did not ejaculate.
After he committed these acts, the intruder asked S.L. and L.L.
if they had any televisions, cameras, or computers in the house.
He took a laptop, camera, cellphone, and a canvas bag to carry
these items. The intruder and the victims returned to the kitchen.
He told S.L. and L.L. he would murder them if they told anyone
what had happened.
The intruder left the house, and S.L. called 9-1-1. Officers
from the Jersey City Police Department (JCPD) arrived, and the
victims were taken to the hospital, where they were treated. A
physical exam of L.L. noted cuts and tears to her vagina.
5 A-4815-13T3
Investigators from the Hudson County Prosecutor's Office
(HCPO) retrieved evidence from the scene, including five latent
fingerprints from the door handle, a fork, a battery, a cardboard
box, and the screen door. The State presented expert testimony,
which indicated that defendant's fingerprint matched a latent
fingerprint recovered from the scene.
The HCPO's investigators interviewed S.L. and L.L. They were
each shown a photo array, which included defendant's photo. S.L.
identified defendant as the perpetrator, but L.L. was not able to
identify defendant. At the trial, S.L. provided an in-court
identification of defendant as the individual who committed the
sexual assaults and other offenses.
An officer from the JCPD contacted defendant's mother to ask
about defendant's whereabouts. A warrant for defendant's arrest
was issued, and on September 29, 2010, he was arrested in Brooklyn,
New York. Defendant was thereafter returned to New Jersey. He told
a detective from the HCPO that he did not rape anyone. Among other
statements, defendant said, "[t]hese girls are just tricks that
are mad because I fucked them and I didn't pay them."
Defendant did not testify on his own behalf but presented
testimony from his mother, who had moved from Jersey City to Newark
several years earlier. She said that her daughter still resides
in Jersey City. She recalled seeing defendant in September 2010
6 A-4815-13T3
because her daughter's birthday is September 23, 2010. She stated
that she was not sure defendant attended the birthday party, but
conceded that he might have been there.
The jury found defendant guilty on counts fourteen and twenty-
nine (aggravated sexual assault upon L.L. while armed); sixteen
(possession of a weapon for an unlawful purpose); seventeen (armed
robbery); eighteen (child abuse); nineteen (aggravated sexual
assault of S.L. while armed); twenty-two (armed robbery); twenty-
three (burglary); twenty-four (terroristic threats); twenty-five
(unlawful possession of a weapon); twenty-six, twenty-seven, and
thirty (aggravated sexual assault upon L.L. in connection with the
commission of a burglary or robbery); twenty-eight (aggravated
criminal sexual contact with S.L. in connection with the commission
of a burglary or robbery); thirty-one (aggravated sexual assault
upon S.L. while armed); and thirty-two (aggravated sexual assault
upon S.L. in connection with the commission of a burglary or
robbery). The jury found defendant not guilty on counts fifteen
and twenty (criminal restraint); and twenty-one (possession of
weapon for an unlawful purpose).
The trial judge denied defendant's motion for a new trial,
and granted the State's motion for imposition of an extended-term
sentence pursuant to N.J.S.A. 2C:44-3(a) as a persistent offender.
The judge sentenced defendant to an extended term of life
7 A-4815-13T3
imprisonment on count fourteen, and consecutive twenty-year
sentences on counts seventeen and nineteen, with periods of parole
ineligibility as prescribed by NERA. The judge imposed concurrent
sentences on the other counts.
The judge also ordered defendant to register as a sex offender
pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23; ordered defendant
to comply with Nicole's Law, N.J.S.A. 2C:14-12; imposed parole
supervision for life; and required defendant to pay appropriate
fines and penalties. The judge entered a judgment of conviction
dated May 15, 2013. On June 12, 2013, defendant filed a notice of
appeal.
B. The Trial on Counts One to Thirteen
We briefly summarize the evidence presented at the second
trial. S.B. had been asleep in her basement apartment in Jersey
City. She heard the bedroom door move and she went to investigate.
A black male put a knife to her throat, put his hand over her
mouth, and told her not to scream.
S.B. stated that the man pushed her onto her bed and tore her
clothes off. He penetrated her vagina and anus with his penis.
According to S.B., the man ejaculated in her vagina. He left the
apartment, but S.B. remained in the bedroom. She was scared because
he told her that if he saw her outside, he would kill her.
8 A-4815-13T3
After the incident, S.B. visited the offices of the Division
of Child Protection and Permanency (DCPP), and informed a
caseworker that she had been raped. She said that someone had
entered her basement apartment through a window. S.B. did not,
however, see the face of the person who assaulted her. S.B. was
taken to a hospital, where she was examined.
An officer from the JCPD responded to the hospital. S.B.
described her attacker. She said he was five feet, two inches
tall, and was wearing blue jeans and a white t-shirt. She did not
know the person who attacked her. He came into the apartment, put
a knife to her throat, threatened her, and sexually assaulted her.
A detective from the HCPO went to S.B.'s apartment to investigate.
The detective recovered three latent fingerprints from the window
in the kitchen/living room area.
Another detective from the HCPO showed S.B. two photo arrays,
one with defendant's photo and one without. S.B. was unable to
identify defendant from the photo array with his picture. The
State presented expert testimony indicating that defendant's
fingerprint matched a latent fingerprint recovered from S.B.'s
apartment. A physical examination of S.B. indicated that she had
vaginal tearing.
The jury found defendant guilty on counts one and six
(aggravated sexual assault while armed with a weapon); two
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(criminal restraint); five (terroristic threats); nine and ten
(aggravated sexual assault during the commission of a burglary);
and thirteen (burglary).
The jury found defendant not guilty on counts three
(possession of a weapon for an unlawful purpose); four (unlawful
possession of a weapon); seven and eight (aggravated sexual assault
while armed with a weapon); and eleven and twelve (aggravated
sexual assault during the commission of a burglary).
The judge imposed concurrent twenty-year prison terms, with
85 percent periods of parole ineligibility, on counts one, six,
nine, and ten, and ordered that the sentences be served consecutive
to the sentences defendant was then serving. The judge also imposed
a concurrent ten-year term, with a period of parole ineligibility
as prescribed by NERA, on count thirteen. Concurrent five-year
sentences were imposed on counts two and five.
The judge again ordered defendant to comply with registration
under Megan's Law, required defendant to comply with Nicole's Law,
and imposed parole supervision for life. Defendant was ordered to
pay appropriate fines and penalties. The judge entered a judgment
of conviction dated May 2, 2014, and defendant filed an amended
notice of appeal on July 7, 2014.
On appeal, defendant raises the following arguments:
10 A-4815-13T3
Point I – The Court erred in refusing to allow
Cross Examination of [Detective] Carlos
Carames[.]
Point II – The Defendant was deprived of a
Fair Trial by Cumulative Error, including
Prosecutorial Misconduct[.]
Point III – The Denial of the Motion in Limine
Was Improper[.]
Point IV – The Sentence is Excessive[.]
II.
We first consider defendant's contention the trial judge
erred by refusing to allow his attorney to cross-examine Detective
Carames about certain texts.
Detective Carames was employed by the HCPO's Bureau of
Criminal Identification, and the State presented him as an expert
witness at both trials. At the first trial, Carames stated that
he was a member of the recovery team of the Federal Bureau of
Investigation (FBI), a member of the International Association of
Fingerprint Examiners, and a member of the consulting team to the
New Jersey State Police (NJSP) with regard to fingerprint
examinations.
Carames had been provided with a latent fingerprint obtained
from the residence where the offenses involving S.L. and L.L. were
committed. He performed a manual comparison of the two prints and
opined that the fingerprints were the same. On cross-examination,
11 A-4815-13T3
Carames said he was familiar with a report issued by the FBI in
June 2011 regarding fingerprint testimony.
Defense counsel asked Carames about the FBI report, which
counsel said indicated that the FBI's fingerprint examiners are
no longer allowed to testify that they are 100 percent certain
that fingerprints match. The assistant prosecutor objected to the
question, and the judge ruled the defendant's attorney could not
question Carames about the report because it was not a recognized
learned treatise on the subject.
It should be noted that earlier in the trial, the State had
presented testimony from Sandra Knox, the acting assistant
supervisor of the Automated Fingerprint Identification System
(AFIS) unit in the NJSP. Knox was qualified as an expert in
fingerprint analysis and identification. Knox testified as to her
peer review of a latent fingerprint analysis performed by an
examiner in the AFIS unit who had retired. Knox stated that the
analysis showed that defendant's fingerprint matched a fingerprint
recovered from the crime scene. She noted that there were fourteen
characteristic similarities between the prints, and the NJSP uses
ten characteristics as the threshold for a positive
identification.
On cross-examination, defendant's attorney asked Knox if she
was familiar with an article published in 2009 in the National
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Academy of Sciences Journal (NASJ), entitled "Strengthening
Forensic Science in the United States: A Path Forward." According
to defense counsel, the article criticizes certain courts for
"giving fuel to the misconception that the forensic discipline of
fingerprinting is infallible[,]" and the Analysis Comparison,
Evaluation and Verification methodology "does not guard against
bias or produce repeatable or reliable results[.]" Knox said she
was aware of the article, but she had not read it.
The assistant prosecutor objected to this line of inquiry,
and the judge sustained the objection. The judge ruled that Knox
did not recognize the article as a known treatise, and she said
she had not read the article. The judge determined that the article
could not be used for impeachment purposes.
On appeal, defendant argues that the judge erred by ruling
that the FBI report and NASJ article were not learned treatises,
and could not be used to impeach Detective Carames. Defendant
contends that use of these texts was necessary to effectively
impeach the State's experts with regard to the bias and reliability
of the method used for fingerprint analysis. We disagree.
In general, "learned treatises are inadmissible hearsay when
offered to prove the truth of the matter asserted therein because
the author's out-of-court statements are not subject to cross-
examination." Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486
13 A-4815-13T3
(1992). Although learned treatises are "inadmissible as
substantive evidence, [they] may be used to impeach the credibility
of witnesses on cross-examination." Ibid.
A learned treatise may be used for impeachment when the
witness recognizes that the text is authoritative. DeGraca v.
Laing, 288 N.J. Super. 292, 299 (App. Div.) (citing Jacober, supra,
128 N.J. at 498), certif. denied, 145 N.J. 372 (1996). However,
if the witness does not accept the publication as authoritative,
it may be shown to be a "reliable authority by experts other than
the cross-examined expert, as well as by judicial notice." Jacober,
supra, 128 N.J. at 409. Under Jacober, "a text will qualify as a
'reliable authority' if it represents the type of material
reasonably relied on by experts in the field." Id. at 495.
In making a reliability determination, "[t]he focus should
be on what the experts in fact rely on, not on whether the court
thinks they should so rely." Id. at 495-96. If there is any doubt
as to the reliability of the text, the court should conduct a
hearing, either before or during the trial, "to determine whether
the text qualifies as a learned treatise." Id. at 496.
The holding in Jacober was later reflected in N.J.R.E.
803(c)(18), which states that
To the extent called to the attention of an
expert witness upon cross-examination or
relied upon by the expert in direct
14 A-4815-13T3
examination, statements contained in
published treatises, periodicals, or
pamphlets on a subject of history, medicine,
or other science or art, established as a
reliable authority by testimony or by judicial
notice. If admitted, the statements may not
be received as exhibits but may be read into
evidence or, if graphics, shown to the jury.
As noted previously, at the first trial, Knox testified that
she had not read the article published in the NASJ. Therefore, she
did not acknowledge that the article was an authoritative text on
fingerprint analysis. In addition, Carames did not acknowledge
that the FBI report was an authoritative text on the subject of
fingerprint analysis. Furthermore, defendant presented no expert
testimony showing that the NASJ article or the FBI report were
authoritative publications.
Because neither the NASJ article nor the FBI report qualified
as a learned treatise under N.J.R.E. 803(c)(18), the trial judge
correctly found that defense counsel could not cross-examine
Carames using those texts. Moreover, there was insufficient
testimony to raise a genuine issue as to the reliability of the
article and report. Therefore, the judge was not required to
conduct a N.J.R.E. 104 hearing to determine if either text
qualified as a learned treatise under N.J.R.E. 803(c)(18).
15 A-4815-13T3
III.
We next consider defendant's contention that his convictions
should be reversed due to prosecutorial misconduct. Defendant
argues that in both trials, the assistant prosecutor made
inappropriate comments that denied him a fair trial. He further
argues that he was denied a fair trial due to cumulative errors
on the part of the trial judge.
When evaluating a claim of prosecutorial misconduct, the
court must consider "the severity of the misconduct and its
prejudicial effect on the defendant's right to a fair trial."
State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 425
U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "[P]rosecutorial
misconduct is not a grounds for reversal of a criminal conviction
unless the conduct was so egregious as to deprive [the] defendant
of a fair trial." Ibid. (citing State v. Chew, 150 N.J. 30, 84
(1997)).
In reviewing the record to determine whether a prosecutor's
conduct warrants reversal of a conviction, the court "must consider
several factors, including whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly,' and whether the trial court struck the remarks and
provided appropriate instructions to the jury." State v. Smith,
212 N.J. 365, 403 (2012) (citations omitted) (quoting State v.
16 A-4815-13T3
Frost, 158 N.J. 76, 83 (1999)), cert. denied, ___ U.S. ___, 133
S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Here, defendant argues that in her summation in the first
trial, the assistant prosecutor improperly referred to S.L.'s
sexual assaults and other offenses as her personal 9/11/2001.
Defendant maintains that by making this statement, the assistant
prosecutor intended to inflame the jury. We note, however, that
in her testimony, S.L. compared being subjected to the sexual
assaults and other offenses to the events of 9/11/2001. Therefore,
the assistant prosecutor's remark was a fair comment on the
evidence presented at trial. See State v. Dixon, 125 N.J. 223, 259
(1991) (noting that in summation, a prosecutor may comment on the
evidence and draw reasonable inferences from the proofs).
Defendant also contends that the assistant prosecutor
improperly inserted her personal opinions into her summation. He
points to the assistant prosecutor's remark regarding S.L.'s
identification. Referring to S.L., the assistant prosecutor
stated, "[t]his isn't somebody who doesn't deal with people of all
races." The comment was not improper. The assistant prosecutor
suggested that S.L. had the ability to identify defendant because
she had resided for several years in a multi-racial neighborhood
and worked in New York City. This was a reasonable inference based
on S.L.'s testimony.
17 A-4815-13T3
In addition, defendant contends the assistant prosecutor
improperly attempted to have the jury believe that he was in New
Jersey on September 23, 2010, the day before the offenses involving
S.L. and L.L. were committed. However, the assistant prosecutor's
remark was a fair comment on the evidence. As noted, defendant's
mother had testified that defendant was in New Jersey in September
2010, and she indicated he might have been present at his sister's
birthday party in Jersey City on September 23, 2010.
Defendant also argues that the assistant prosecutor made
inappropriate remarks during the second trial. He asserts that the
assistant prosecutor stated she might call defendant's mother as
a rebuttal witness. Consequently, defendant's mother was not
permitted to be in the courtroom during the testimony of other
witnesses. Defendant asserts that the assistant prosecutor
intended to bar as many of his family members from the trial as
possible to give the jury the impression his family was not
supporting him. However, this contention has no support in the
record.
Defendant further argues that the assistant prosecutor
improperly commented on the use of antidepressants. He notes that
the assistant prosecutor had objected to a question that
defendant's attorney asked on this subject. The assistant
prosecutor withdrew her objection, but made a comment regarding
18 A-4815-13T3
these drugs. However, the remark was made at sidebar, and could
not have affected the jury's verdict in this case.
In addition, the record shows that S.B. became ill while
testifying and had to leave the courtroom. During her re-direct
examination of S.B., the assistant prosecutor noted that S.B. had
become ill. Defendant argues that the prosecutor made an improper
appeal for the jury's sympathy. We disagree. There was nothing
improper about the comment.
Defendant also contends that the assistant prosecutor made
improper remarks in her summation at the second trial and during
the sentencing proceedings. These contentions are without
sufficient merit to warrant discussion. R. 2:11-3(e)(2). We note,
however, that the assistant prosecutor's comments were fair
comments on the evidence, and the remarks at sentencing were not
improper.
In addition, defendant argues that his conviction should be
reversed due to the cumulative effect of the judge's "misplaced
emphasis" on management of the jury rather than his right to a
fair trial and the alleged improper remarks by the assistant
prosecutor. He contends that the judge improperly moved the case
at a rapid pace, and the assistant prosecutor's comments reflected
a personal vendetta against him rather than the pursuit of justice.
19 A-4815-13T3
We are convinced that these arguments are without sufficient
merit to warrant discussion. R. 2:11-3(e)(2). The trial judge did
not conduct the trial with undue haste. Moreover, as we have
explained, the assistant prosecutor's remarks were fair comment
on the evidence.
We therefore reject defendant's contentions that his
convictions should be reversed due to alleged prosecutorial
misconduct or cumulative error.
IV.
Defendant argues that the trial judge erred by denying his
motion to compel the DCPP to produce S.B.'s medical records for
an in camera review. Defendant asserts that a review of these
records was warranted to determine if they would support his
contention that if he had engaged in sexual activity with S.B.,
it was with her consent. Defendant argues that the court's denial
of his motion to compel production of the records violated his
right under the Sixth Amendment to the United States Constitution
to confront adverse witnesses.
We note that records of the DCPP pertaining to abuse of
children are confidential, but may be released if a court
determines that "access to such records may be necessary for
determination of an issue before" the court. N.J.S.A. 9:6-
8.10(a)(6). When, as in this case, a defendant seeks the records
20 A-4815-13T3
of a child protection agency like the DCPP, the court "must weigh
the conflicting constitutional rights of criminal defendants to a
fair trial and the confrontation of witnesses, against the State's
compelling interest in protecting child abuse information and
records." In re Z.W., 408 N.J. Super. 535, 536-37 (App. Div. 2009)
(citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-61, 107 S. Ct.
989, 1002-03, 94 L. Ed. 2d 40, 58-60 (1987)).
Here, defendant sought the DCPP's records in an apparent
effort to show that S.B. may have had a psychological condition
called "disinhibition," which purportedly would lend credence to
his claim that she engaged in sexual relations with him with
consent. It appears that S.B. had some involvement with a case
pending with the DCPP regarding a family member; however, it
appears that the records at issue do not relate directly to the
charges against defendant, and defendant's claim that S.B.
consented to the sexual assaults due to "disinhibition" rests on
speculation.
We conclude that in view of the strong public policy to ensure
the confidentiality of the DCPP's records regarding children, the
judge did not err by denying defendant's motion to compel
production of the DCPP's records. We reject defendant's contention
that the judge's ruling violated his right to confrontation under
the Sixth Amendment.
21 A-4815-13T3
V.
Defendant argues that his sentence is excessive. He contends
the judge erred by imposing an extended-term sentence. He also
contends the judge erred by failing to merge certain offenses for
sentencing.1
Initially, we note that the scope of our review of the trial
court's "sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard." State v. Blackmon, 202 N.J.
283, 297 (2010). We may not set aside a sentence unless (1) the
trial court did not follow the sentencing guidelines; (2) the
court's findings of aggravating and mitigating factors were not
based upon sufficient credible evidence in the record; or (3) the
court's application of the sentencing 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. 334, 364-65 (1984)).
Defendant argues that the judge erred by granting the State's
motion for imposition of an extended term sentence pursuant to
N.J.S.A. 2C:44-3(a), on the ground that he is a persistent
1 We note that in its brief, the State asserts that defendant's
"ultimate" sentence is life plus forty years. However, the record
shows that the sentence imposed after the first trial was life
plus forty years, and a consecutive sentence of twenty years was
imposed after the second trial. Thus, defendant's aggregate
sentence is life imprisonment, plus sixty years.
22 A-4815-13T3
offender. The trial judge correctly determined that defendant
qualified for an extended-term sentence. We reject defendant's
contention that an extended term should not have been imposed
because his prior convictions were not for violent offenses. The
statute imposes no such requirement.
Defendant also argues that the extended term of life
imprisonment is excessive. Here, the judge found aggravating
factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of
the offense, including whether or not it was committed in a
heinous, cruel, or depraved manner); two, N.J.S.A. 2C:44-1(a)(2)
(gravity and seriousness of harm to the victim); three, N.J.S.A.
2C:44-1(a)(3) (risk that defendant will commit another offense);
six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal
record); nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and
others from violating the law); and twelve, N.J.S.A. 2C:44-
1(a)(12) (defendant knew or should have known that a victim was
sixty years or older). The judge found no mitigating factors.
There is sufficient credible evidence in the record to support the
judge's findings. In view of the court's findings, the imposition
of an extended term of life imprisonment was not an abuse of the
trial court's sentencing discretion.
Defendant further argues that the judge erred by failing to
merge certain offenses. He contends that count fourteen should
23 A-4815-13T3
have merged with count twenty-six, and count twenty-nine should
have merged with count thirty.
In count fourteen, defendant was charged with vaginal
penetration of L.L. while armed with a weapon, and in count twenty-
six, he was charged with vaginal penetration of L.L. during the
commission of a burglary or robbery. In count twenty-nine,
defendant was charged with an act of sexual penetration of L.L.
(fellatio) while armed with a weapon, and in count thirty,
defendant was charged with an act of sexual penetration of L.L.
(fellatio) during the commission of a burglary or robbery.
Defendant notes that the sexual acts charged in counts
fourteen and twenty-six, and those charged in counts twenty-nine
and thirty are the same. He therefore argues that the offenses
should have merged for sentencing. We agree. Imposition of separate
sentences on all four counts, which involved two separate acts of
sexual penetration, is inconsistent with the principle that "[i]f
an accused has committed only one offense he cannot be punished
as if for two." State v. Davis, 68 N.J. 69, 77 (1975).
We emphasize, however, that separate sentences were
appropriate for the underlying offenses of unlawful possession of
a weapon and burglary because the aggravated sexual assaults are
"separate and distinct from the underlying offenses." State v.
Cole, 120 N.J. 321, 332 (1990). We also note that the merger of
24 A-4815-13T3
the offenses will not affect the aggregate term of incarceration
imposed.
We reach the same conclusion with regard to the charges in
counts nineteen and twenty-seven; counts thirty-one and thirty-
two; and counts one and nine. In count nineteen, defendant was
charged with an act of sexual penetration of S.L. (fellatio) while
armed with a weapon, and in count twenty-seven, he was charged
with an act of sexual penetration of S.L. (fellatio) during the
commission of a burglary or robbery. In count thirty-one, defendant
was charged with the digital penetration of S.L., while armed with
a weapon, and in count thirty-two, he was charged with the digital
penetration of S.L., during the commission of a burglary or
robbery. We conclude that, because counts nineteen and twenty-
seven involved the same sexual act, count nineteen should have
merged with count twenty-seven. Similarly, count thirty-one should
have merged with count thirty-two. Merger was not, however,
required with the underlying offenses of unlawful possession of a
weapon and burglary.
For the same reason, the court should have merged counts one
and nine, and counts six and ten. Count one charged defendant with
vaginal penetration, risk of serious bodily harm, upon S.B.; and
count nine charged defendant with vaginal penetration, during the
commission of a burglary. In addition, count six charged defendant
25 A-4815-13T3
with anal penetration, while armed with a weapon, and count ten
charged defendant with anal penetration, during the commission of
a burglary. The sexual acts charged in counts one and nine, and
in counts six and ten are the same. Therefore, the court should
have merged counts one and nine, and six and ten for sentencing.
Again, merger was not required with the underlying offenses of
unlawful possession of a weapon and burglary.
Accordingly, we affirm defendant's convictions, and the
sentences imposed, with the exception of the sentences imposed on
counts nine, ten, twenty-six, twenty-seven, thirty, and thirty-
two. We remand the matter to the trial court for entry of amended
judgments of conviction merging the offenses in accordance with
this opinion. We do not retain jurisdiction.
26 A-4815-13T3