STATE OF NEW JERSEY VS. J.I.L. (14-09-0780, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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 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-3155-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.I.L.,
Defendant-Appellant.
_________________________
Submitted October 31, 2018 – Decided December 3, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-09-0780.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jay L. Wilensky, Assistant Deputy Public
Defender, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant J. I. L.1 appeals from his conviction for first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A.
2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a).2 He also appeals from the sentence, imposed after merger, of
nineteen years in prison subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, for first-degree aggravated sexual assault, plus a consecutive nine-
year term for endangering the child's welfare.
In his brief, defendant presents the following points of argument:
POINT I. THE TRIAL COURT ERRED
PREJUDICIALLY IN PERMITTING "FRESH-
COMPLAINT" TESTIMONY WHICH FAR
EXCEEDED THE PERMISSIBLE BOUNDS OF
SUCH TESTIMONY. U.S. CONST., AMEND. XIV.;
N.J. CONST. (1947), ART I, PAR. 10. (Not Raised
Below)
POINT II. THE TRIAL COURT ERRONEOUSLY
PERMITTED HIGHLY PREJUDICIAL HEARSAY
IDENTIFICATION TESTIMONY BY A PHYSICIAN,
TO DEFENDANT'S PREJUDICE.
1
We use defendant's initials to avoid disclosing the victim's identity.
2
The alleged sexual assaults occurred in two different cities, Plainfield and
Passaic. The jury acquitted defendant of aggravated sexual assault relating to
acts alleged to have occurred in Passaic, but convicted him of sexual assault
with respect to those acts. The jury convicted defendant of aggravated sexual
assault for acts committed in Plainfield.
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POINT III. THE DEFENDANT WAS PREJUDICED
BY THE TRIAL COURT'S UNDUE RESTRICTION
OF THE DEFENDANT'S SUMMATION.
POINT IV. THE TRIAL COURT IMPOSED AN
EXCESSIVE SENTENCE, NECESSITATING
REDUCTION.
A. The Imposition of Consecutive Sentences
Constituted an Abuse of Discretion.
B. The Quantum of the Sentence Was Excessive.
After reviewing the entire record, we reject those arguments and affirm
the conviction and sentence.
I
In light of the legal issues raised, a brief summary of the most pertinent
trial evidence will suffice. Defendant was accused of repeatedly molesting his
stepdaughter, I.C., from the time she was six years old until she was eight years
old. On May 31, 2014, when I.C. was eight and living in Plainfield, she first
reported defendant's conduct to a close friend, G.N. According to G.N., I.C.
told her that defendant had been "humping" her. G.N. testified that I.C. was
very reluctant to tell anyone else about these incidents, but G.N. convinced the
child to tell her mother. I.C.'s mother immediately confronted defendant and
kicked him out of her house. However, she waited four days before reporting
the crimes to the police.
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On June 5, 2014, a trained detective from the special victims unit (SVU)
conducted a videotaped interviewed with I.C. The detective also asked I.C.'s
mother to produce some of the child's unwashed clothing for scientific testing.
DNA analysis established that defendant's semen was present on two pairs of
the child's underwear. Defendant's DNA material was found on the inside
portion of the crotch in each garment.
The State presented brief testimony from G.N., and testimony from the
SVU detective. The jury then watched the videotape of I.C.'s interview with the
detective. In the interview, she told the detective that defendant "humped" her
at her grandmother's house in Passaic and at her mother's house in Plainfield. It
was clear from her statement that on some of those occasions, he either took her
pajama pants off or pulled them down. She told the detective that defendant
rubbed his penis between the cheeks of her buttocks on numerous occasions, and
on at least one occasion, in Plainfield, he inserted his penis into her vagina "a
little bit."
I.C., who was eleven by the time of the trial, testified about the sexual
assaults she endured while living at her grandmother's house in Passaic, and
while living with defendant and her mother in Plainfield. Her testimony was
substantially consistent with what she told the detective.
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The defense presented brief testimony from two witnesses, defendant's ex-
wife and his daughter with the ex-wife. The two witnesses testified that on the
occasions that they visited with defendant and I.C., the two of them appeared to
have an affectionate relationship and she did not appear to be afraid of him.
II
For the first time on appeal, defendant claims it was plain error for the
court to let G.N. testify that I.C. told her she was afraid to tell anyone about the
assault for fear that defendant "would do something to her." We cannot agree.
There was no objection to that testimony and no request for a curative
instruction. Instead, defense counsel chose to cross-examine the witness about
the statement in some detail.
To give the issue further context, on the first day of the trial, the defense
and the State stipulated that the jury could consider G.N.'s testimony as
"substantive evidence" in addition to considering it for fresh complaint
purposes. This was consistent with the defense strategy to demonstrate that I.C.
made statements to G.N. that were inconsistent with her later descriptions of
defendant's conduct. Notably, I.C. told G.N. that defendant did not take her
clothes off when he molested her, but she later told the SVU detective and the
jury that defendant sometimes did take her clothes off. G.N.'s statement about
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I.C.'s asserted fear of defendant was another example of contradictory
testimony. I.C. testified that she was afraid her mother would punish her for not
reporting the crime sooner, but she did not mention fear of defendant. That
played into the defense strategy of emphasizing contradictions in the State's
evidence.
Defendant's reliance on State v. R.K., 220 N.J. 444 (2015), is misplaced.
In R.K., the State had no physical evidence to support its case, defendant
testified and denied the allegations, and the State was permitted to bolster its
case with several fresh complaint witnesses. Id. at 448-49. One of those fresh
complaint witness provided graphic details about the alleged sexual assault, as
well as an allegation that defendant had threatened the victim. Id. at 459-60. In
that context, the Court found reversible error. Id. at 460. This case is nothing
like R.K. Given the overwhelming evidence of defendant's guilt, even if G.N.'s
one-sentence testimony about I.C.'s fear of defendant should have been
excluded, we would find no plain error. See R. 2:10-2; R.K., 220 N.J. at 456-
57.
Defendant's arguments on this point are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(2).
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III
We find defendant's second point equally unpersuasive. The State's first
witness was Dr. Frances Pelliccia, a pediatric specialist who examined I.C. on
June 11, 2014, for the purpose of recommending any physical or psychological
treatment the child might need. After being asked whether she elicited
information from the child that was necessary for her diagnosis, Dr. Pelliccia
testified that the child told her the person who molested her was a male, and that
he was an adult. The judge overruled a defense objection on the grounds that
such general information was admissible. The doctor gave no further testimony
about the identity of the perpetrator.
Defendant contends it was prejudicial error to permit the testimony that
the child told her the perpetrator was an adult male. We find no abuse of
discretion in the judge's decision to admit that brief and limited testimony about
the alleged perpetrator. See State v. Nantambu, 221 N.J. 390, 402 (2015). That
testimony was elicited in the course of having the doctor describe the
information she obtained from the child to help make her diagnosis and
recommend physical and psychological treatment. Such general information
could be reasonably necessary to the diagnosis and treatment of a child sexual
assault victim. See N.J.R.E 803(c)(4).
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However, even if the ruling were error, on this record, it was harmless.
Viewed in context, the testimony did not imply that the child had accused
defendant. There was no evidence of third-party guilt in this case, and in
particular, there was no evidence that a juvenile or a woman committed the
assaults. The one-line testimony about an "adult male" had no clear capacity to
produce an unjust result. See R. 2:10-2; State v. McBride, 213 N.J. Super. 255,
273-74 (App. Div. 1986).
IV
Defendant next argues that the judge made unduly critical remarks to the
jury in sustaining an objection to a portion of defense counsel's summation.
We cannot agree.
Defense counsel began his summation with the following remarks:
On October 13, 2016 Samsung Corporation
recalled 2.5 million phones worldwide because 45 of
those phones overheated and blew up. The reason
Samsung Corporation did that is because they had a
reasonable doubt about the safety of 2.5 million phones
because 45 of those phones –
At that point, the prosecutor objected, and the judge sustained the
objection. The judge instructed the jury that there was no evidence about
Samsung Corporation in the case, and they should not speculate about the
company's motives for recalling its cell phones or speculate that the company's
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action was due to its view of "reasonable doubt." The judge told counsel to
"leave instructions as to the law to the court" and asked him to continue his
summation.
We find no abuse of the judge's discretion in cutting off defense counsel's
inappropriate discussion of information outside the trial record. Further, w e
cannot conclude that the judge's remarks unfairly influenced the jury or had the
capacity to produce a miscarriage of justice.
The evidence of defendant's guilt was overwhelming, and we find nothing
to suggest that the judge's comments prejudiced the jury against the defense. In
fact, the jury acquitted defendant of aggravated sexual assault for the acts
committed in Passaic, and instead convicted him of sexual assault. They only
convicted him of aggravated sexual assault for his conduct in Plainfield, where
the evidence demonstrated the presence of his semen in the child's underwear.
Defendant's arguments on this point are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(2).
V
Finally, we find no errors in the imposition of a consecutive sentence for
endangering the child's welfare, or in the length of the aggregate sentence. The
judge cogently explained the reasons for imposing a consecutive sentence
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pursuant to State v. Yarbough, 100 N.J. 627 (1985). We find no basis to disturb
his decision. See State v. Miller, 205 N.J. 109, 129 (2011); State v. T.E., 342
N.J. Super. 14, 36-37 (App. Div. 2001).
The judge found that defendant's lack of remorse precluded a finding of
mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (defendant was unlikely to
reoffend). See State v. O'Donnell, 117 N.J. 210, 216 (1989). The court also
gave some weight to defendant's lack of remorse in finding aggravating factor
nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). However, the court gave
particular weight to aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity
and seriousness of the harm inflicted on the victim, including her extreme youth.
See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). The judge stated
that the child was "severely impacted by the actions of the defendant," a
conclusion supported by what the judge observed when he saw the victim testify.
The judge also considered a victim impact letter from the child's mother. As the
judge stated: "To say that defendant's repeated actions will have left this poor,
young, unsophisticated girl scarred for her life would be an understatement."
Defendant exploited his parental authority and repeatedly molested his
stepdaughter over a two-year period, beginning when she was six years old until
she was eight years old. We cannot say that a twenty-eight year term, nineteen
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of which is subject to NERA, is a conscience-shocking sentence for those
crimes. See State v. Roth, 95 N.J. 334, 363-65 (1984). Defendant's sentencing
arguments do not warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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