STATE OF NEW JERSEY VS. ABDUL M. STANBACK (16-08-0633, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2871-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABDUL M. STANBACK,
a/k/a ABDUL STANBAK,
ABDUL M. STANABACH,
and DUL,
Defendant-Appellant.
_______________________
Submitted December 15, 2020 – Decided February 9, 2021
Before Judges Yannotti, Haas, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 16-08-
0633.
Joseph E. Krakora, Public Defender, attorney for
appellant (Margaret McLane, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Lila B. Leonard, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Abdul Stanback was convicted of
aggravated sexual assault in the course of a burglary, N.J.S.A. 2C:14 -2(a)(3),
and third-degree burglary, N.J.S.A. 2C:18-2, and sentenced to a forty-five year
extended prison term with an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals
his convictions and sentence, raising the following points for our consideration:
POINT I
THE COURT'S INCOMPLETE AND CONFUSING
INSTRUCTIONS ON BURGLARY AND
AGGRAVATED SEXUAL ASSAULT REQUIRE
REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT II
THE Y-STR DNA EVIDENCE AND THE EXPERT'S
TESTIMONY ABOUT DEFENDANT "MATCHING"
THE Y-STR PROFILE WAS CONFUSING,
IRRELEVANT, UNFAIRLY PREJUDICIAL, AND
SHOULD HAVE BEEN EXCLUDED.
DEFENDANT'S CONVICTIONS MUST BE
REVER[S]ED.
A. Testimony About DNA Evidence.
B. The Expert Testimony About The DNA
Results Should Have Been Excluded, Or At
A Minimum, The Expert Should Not Have
Been Allowed To Testify That Defendant
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"Matched" The DNA Found On The
Victim.
POINT III
DEFENDANT'S [FORTY-FIVE]-YEAR NERA
SENTENCE IS EXCESSIVE.
We have considered these contentions in light of the record on appeal and
the applicable law and affirm defendant's convictions and sentence.
I.
We glean the following facts from the trial record. On December 11,
2015, P.S.1 woke up at approximately 5:00 a.m. when defendant grabbed her
ankles and "pulled [them] all the way up to the ceiling." P.S. noted that it felt
like her "neck was being . . . pushed into the bed." P.S. saw defendant's face
between her legs and started kicking. In response, defendant "grabbed [her]
head and . . . wound it up and snapped [it] . . . over and over." P.S. also testified
that defendant twisted her neck harder each time and that he smothered her, and
defendant demanded that P.S. "stop fighting."
In fear for her life, P.S. grabbed a handful of hair from defendant's beard
because she "wanted to get DNA under [her] fingernails." P.S. also noted that
she believed defendant left his DNA on her after he bit her finger. Defendant
1
We use the victim's initials to protect her privacy.
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then ordered P.S. to "get on [her] hands and knees" and raped her. P.S. testified
that defendant penetrated her vaginally "from behind . . . with his penis[ ,]"
without her consent.
P.S. noted that although "[t]he rape itself was not long," the entire assault
lasted over two hours. After defendant stopped, he told P.S. that he "wanted
[her] to take a shower." P.S. refused because she thought defendant would "start
up again and [she] was going to be dead."
Defendant wiped off his penis with a towel, laid back on her bed, and
asked "I'm sorry for raping you and . . . if I promise to never . . . come back
again would [she] not call the police[?]" Defendant then left P.S.'s apartment
after she explained to him that she was not a "cop caller." Defendant purportedly
had a key to P.S.'s apartment, and had been to the residence between five and
six times, although a witness for defendant testified that he had frequented the
apartment at least forty to fifty times.
Thereafter, P.S. called her friend to tell him what happened because
defendant's sexual assault "really messed [her] up and [her] face was all beat up
. . . ." P.S. called the police and when they arrived, P.S. provided the officers
with the hairs she pulled from defendant's beard, which she had wrapped in a
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folded paper towel. P.S. was then transported in an ambulance to Underwood
Hospital.
At the hospital, P.S. was examined by a sexual assault nurse examiner.
The nurse testified that P.S. had "numerous areas of tenderness or pain along
with injury" which included facial "[r]edness, swelling, tenderness, [and] an
abrasion to her lip . . . ." She further noted that P.S. had an "abrasion to her right
wrist, bruising and tenderness to her left rib area[,]" and a bite mark on the left
index finger. The nurse also took buccal, vaginal, cervical, anal, and rectal
swabs of P.S. and collected her underwear. She also took swabs of P.S.'s
external injuries, including the bite mark on her left index finger. These items
were then placed into an evidence kit, and subsequently sent to the New Jersey
State Police (NJSP) Laboratory for DNA testing along with the defendant's
beard hair.
Defendant was later arrested and charged with first-degree aggravated
sexual assault during the course of a burglary, N.J.S.A. 2C:14-2(a)(3); second-
degree burglary, N.J.S.A. 2C:18-2(a)(1); second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1); and fourth-degree possession of a drug without a prescription,
N.J.S.A. 2C:35-10.5(e)(2).
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At trial, Dolores Coniglio-Rivera, a forensic scientist with the NJSP,
testified regarding the recovered DNA evidence. She stated that she performed
short tandem repeat (STR) tests on the provided samples, which she explained
was "a short piece of DNA that gets repeated a certain number of times and
different people have different numbers of repeats."
Coniglio-Rivera also explained the meaning of the terms source, match,
and exclusion. She noted that if a "statistic is [one] in at least [seven] trillion
for [African-American, Caucasian, and Hispanic] populations . . . then . . . [the]
individual is identified as the [']source['] of the profile." She further stated that
"[i]f the statistic does not meet that threshold of [one] in at least [seven] trillion,
then . . . the profiles [']match['] each other." Finally, she stated that "[i]f it was
not a match and not source identity, then it would be an [']exclusion['] . . . ."
Coniglia-Rivera identified defendant as the source of the beard hairs,
which statistically calculated to one in 7.82 sextillion individuals among
African-Americans, one in 571 sextillion among Caucasians, and one in 160
sextillion among Hispanics. Also, as to the STR epithelial (skin) fraction from
one of the underwear samples, she noted that defendant "matched the minor
profile" which statistically occurred in one of twenty-two African-Americans.
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Coniglio-Rivera also explained additional Y-STR testing that she
performed, which was identical to the original STR tests with "the only
exception being that instead of looking at a bunch of different chromosomes
from all across the genome, now it's looking strictly at the Y chromosome[,] so
only male DNA."
As to the vaginal sample, she confirmed that the Y-STR profile obtained
"matched the profile from [defendant]" but acknowledged that statistically every
African-American male would be a match. Regarding the Y-STR epithelial
fraction anal sample, Coniglio-Rivera stated defendant "matches the major
profile" which was "expected to occur no more frequently than [one] in 413 . . .
of the African-American population."
As to the Y-STR sperm fraction external genital sample, she noted that
"matched the Y-STR profile from [defendant]" which occurred in approximately
one in six African-American males. Further, with respect to the Y-STR testing
of P.S.'s index finger, Coniglio-Rivera indicated that the specimen "matched the
Y-STR profile of [defendant]" which was statistically found in fifty percent of
African-American males. In addition, the Y-STR testing excluded defendant as
source from the underwear sample and the cervical swab.
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Following the close of testimony, the judge discussed the proposed jury
charges with counsel. The judge noted that he was aware that the model jury
charge for aggravated sexual assault during the course of a burglary did no t
include language found in State v. Cuni, 303 N.J. Super. 584 (App. Div. 1997),
aff'd on other grounds, 159 N.J. 584 (1999). Accordingly, the judge included
language from the sexual assault force and coercion charge under Model Jury
Charges (Criminal), "Sexual Assault (Force/Coercion) (N.J.S.A. 2C:14-
2(c)(1))" (rev. Jan. 24, 2005), as it "seemed to be the best way to resolve the
Cuni matter . . . ." Defendant did not object to any of the proposed instructions.
The judge instructed the jury on the elements of burglary in the second-
degree. In pertinent part, the judge noted that the State was required to prove
beyond a reasonable doubt that "defendant entered [P.S's apartment] . . . without
permission" and "[u]pon entering[,] the defendant did purposely inflict, attempt
to inflict or threaten to inflict bodily injury on [P.S]." The court explained to
the jury that "in order for you to find that the defendant acted purposely, the
State must prove . . . that it was the defendant's conscious object at the time he
. . . unlawfully entered the premises[,] to commit . . . sexual assault."
The judge next instructed the jury on aggravated sexual assault stating:
In order to convict the defendant of this charge, the
State must prove the following elements beyond a
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reasonable doubt: One, that the defendant committed
an account of sexual penetration with another person
without their consent. Two, that the defendant acted
knowingly. Three, that the penetration occurred during
the commission or attempted commission, whether
alone or with one or more other persons, of burglary.
The judge further explained that the State must prove that defendant
"committed an act of sexual penetration with [P.S.]." Immediately thereafter,
the judge defined physical force as "the commission of the act of sexual
penetration without the victim's freely and affirmatively given permission to the
specified act of penetration . . . ." The court emphasized to the jury that "[y]ou
must decide whether the defendant's alleged act of penetration was undertaken
in circumstances that led the defendant reasonably to believe that the victim had
freely given affirmative permission to the specific act of sexual penetration."
In addition, the judge explained the definition of burglary in the context
of aggravated sexual assault, stating:
The third element the State must prove beyond a
reasonable doubt is the penetration occurred during the
commission or attempted commission, whether alone or
with one or more persons, of burglary. A person has
committed burglary if with the purpose to commit an
offense therein, the person enters a structure unless the
structure at the time is open to the public or the person
is licensed or privileged to enter. Purpose to commit an
offense means that the defendant intended to commit an
unlawful act in the structure. The unlawful act here is
sexual assault.
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The judge also noted that "[i]f you find the State has failed to prove any of the
elements beyond a reasonable doubt, then you must find the defendant not guilty
of aggravated sexual assault."
The judge then instructed the jury that to find the defendant guilty of
sexual assault, the State must prove that the defendant knowingly "committed
an act of sexual penetration with [P.S.]" and used physical force or coercion.
The judge reiterated to the jury that he previously instructed them on sexual
physical force.
The jury convicted defendant of aggravated sexual assault, count one, and
the lesser included offense of burglary in the third degree, N.J.S.A. 2C:18-2. At
sentencing, the judge determined that defendant was extended term eligible
under N.J.S.A. 2C:43-6.4(e)(1). The judge applied aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another
offense"), six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior
criminal record and the seriousness of the offenses of which the defendant has
been convicted"), and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the
defendant and others from violating the law"). The judge also found that the
aggravating factors substantially outweighed the non-existent mitigating factors.
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With respect to aggravating factor three, the court stated:
As a juvenile, defendant received diversions for simple
assault twice, criminal trespass or defiant trespass and
lewdness. He received adjudications for simple assault
three times and possession of [a controlled dangerous
substance]. In municipal court, the defendant was
charged with several ordinance violations, simple
assault, littering, criminal mischief, damage to property
and resisting arrest. In Superior Court[,] he[ ] received
convictions for sexual assault, victim less than
[thirteen] and he being [four] years older, special
sentence of community supervision for life, violating
without good cause twice and registered sex offender,
failure to notice [his] change of address. He also
received a parole violation. He has pending charges out
of Gloucester County Superior Court for aggravated
assault on law enforcement, throwing bodily fluids and
obstruction.
With respect to aggravating factor six, the judge noted "the extent of the
defendant's prior criminal record and the seriousness of the offenses of which
he [has] been convicted." Finally, regarding aggravating factor nine, the judge
stated that "[t]his factor applies in every case of this type" and it "especially
applies due to the fact the defendant is [a] repetitive offender."
The judge further noted that defendant "has demonstrated that he is a true
menace to society" and "[u]nless there's [a] substantial change in attitude, the
defendant's highly likely to reoffend." The judge concluded that "defendant's
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confinement is required for the adequate protection of society." This appeal
followed.
II.
Defendant argues in his first point that the trial court's "incomplete and
confusing jury instructions deprived [him] of his rights to due process and a fair
trial and require reversal of his convictions." Specifically, defendant relies on
Cuni for the proposition that the court's "instruction on aggravated sexual assault
failed to adequately explain that force or coercion was an additional element for
aggravated sexual assault" and further failed to "to explain that this element of
intending to engage in sexual assault by using force or coercion also applied to
the burglary charge." We disagree.
"It is a well-settled principle that appropriate and proper jury charges are
essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). The trial
court must provide the jury with "a comprehensible explanation of the questions
that [it] must determine, including the law of the case applicable to the facts that
the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). A jury charge
sets up a "road map to guide the jury" and must explain the law to the jury in the
context of the material facts of the case. Savage, 172 N.J. at 387 (quoting State
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v. Martin, 119 N.J. 2, 15 (1990)). A jury charge must be reviewed in its entirety
to determine the overall effect. State v. Delibero, 149 N.J. 90, 106 (1997).
Where no objection is raised to the instruction, we consider the
instructions for plain error and must determine if the instructions were "clearly
capable of producing an unjust result." State v. Alexander, 233 N.J. 132, 141-
42 (2018) (quoting R. 2:10-2). We assess the alleged error here in light of "the
totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275,
289 (2006). While an erroneous jury charge may be a "'poor candidate[ ] for
rehabilitation' under the plain error theory," State v. Jordan, 147 N.J. 409, 422
(1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless
consider the effect of any error in light "of the overall strength of the State's
case." Chapland, 187 N.J. at 289. In addition, the failure to object signifies that
"in the context of the trial[,] the [alleged] error was actually of no moment."
State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417,
471 (2002)).
Here, the trial court clearly and sufficiently charged the jury on burglary,
aggravated sexual assault, and sexual assault. First, the court instructed the jury
that to convict defendant of second-degree burglary, it must find that defendant
unlawfully entered P.S.'s apartment with the intent to commit a sexual assault.
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The judge also stated that the jury could only convict defendant of burglary if it
determined that the State established all the elements of burglary, including
defendant's intent to commit an unlawful sexual assault, beyond a reasonable
doubt.
The court further instructed the jury that to convict defendant of
aggravated sexual assault, it must find that during the commission of a burglary,
the defendant knowingly committed an act of sexual penetration with another
person without that person's consent. The court also defined that physical force
in relation to sexual penetration occurs when the victim does not give
affirmative permission to the act of sexual penetration. The court then to ld the
jury that it must "decide whether the defendant's alleged act of penetration was
undertaken in circumstances that led the defendant reasonably to believe that the
victim had freely given affirmative permission to the specific act of sexual
penetration." Thereafter, the judge informed the jury that it can only convict the
defendant if the State proved all the elements of aggravated sexual assault
beyond a reasonable doubt.
Finally, the judge charged the jury that to convict defendant of sexual
assault, it had to find that defendant knowingly used physical force or coercion
to commit an act of sexual penetration. The judge also informed the jury to use
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the same definition of physical force he had provided in the aggravated sexual
assault charge.
Accordingly, the infirmities that existed in Cuni are absent here. In Cuni,
the court upheld the State's theory that the commission of second-degree sexual
assault could become burglary, which could then be used as the predicate offense
for first-degree aggravated assault. 303 N.J. Super. at 595. The court, however,
determined that the judge's charge for aggravated sexual assault "was
incomplete because he did not give a complete description of the elements of
sexual assault, the underlying crime" and therefore potentially caused jury
confusion. Id. at 595, 600.
In this regard, the court found that the charge on aggravated sexual assault
was insufficient because the judge "did not explain to the jury that where no
violence or force is used other than the sexual penetration, then for the sexual
penetration to be a sexual assault, the sexual penetration must occur 'without the
affirmative and freely-given permission of the alleged victim.'" Id. at 596
(quoting In re M.T.S., 129 N.J. 422, 448 (1992)). Although the judge instructed
the jury on affirmative permission in its charge for sexual assault, the court noted
that he "never tied the requirement of affirmative permission" to aggravated
sexual assault. Id. at 599.
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The court found that this "may have exacerbated the problem" because
"[c]harging affirmative permission as to [sexual assault] but not as to
[aggravated sexual assault] carries an inference that proving the absence of
affirmative permission" was not required for aggravated sexual assault. Ibid.
The court noted that this instruction could have led the jury to conclude that
consensual sexual penetration was "an aggravated sexual assault if the defendant
did not have permission to enter the premises." Ibid.
Similarly, the court found that the judge's charge for burglary could have
misled the jury "into reaching an erroneous conclusion that entry without
permission with the purpose to commit an act of consensual sexual penetration
would alone be sufficient to constitute burglary." Id. at 604. The court
determined that the charge was defective because it failed to instruct the jury
that the defendant could not be found guilty of burglary if the defendant entered
with a purpose to have consensual sexual relations with the victim. Ibid. The
court also found that the judge "did not define sexual assault until much l ater in
the charge" and he did not "clearly tie this definition into the burglary charge."
Ibid.
Unlike in Cuni, the jury instructions here could not lead the jury to find
defendant guilty of aggravated sexual assault or burglary if he entered P.S.'s
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apartment with the intent to have consensual sex. The court appropriately
defined the elements of burglary, aggravated sexual assault, and sexual assault.
The court also defined physical force in its charge for aggravated sexual assault
and required the jury to determine whether defendant reasonably believed he
had affirmative permission to commit the act of sexual penetration. Moreover,
the court instructed the jury that it must find that defendant had the intent to
commit an act of sexual assault to find him guilty of burglary, and likewise
committed a burglary to find him guilty of aggravated sexual assault. Therefore,
the jury instructions were correct, and not clearly capable of producing an unjust
result. Alexander, 233 N.J. at 141-42.
III.
Defendant next contends that his convictions should be reversed because
the admission of Y-STR DNA evidence and Coniglio-Rivera's testimony that
defendant "matched" the Y-STR profile was confusing, irrelevant, and unfairly
prejudicial. Specifically, defendant maintains that: 1) the probative value of the
of the Y-STR DNA tests is outweighed by its likelihood to prejudice the
defendant and confuse the jury; and 2) the repeated testimony from Coniglio-
Rivera that defendant "matched" the DNA from various swabs was misleading
and prejudicial. We are not persuaded by any of these arguments.
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Again, as defendant never raised these objections during trial, we review
the admission of the DNA evidence and the expert's testimony under the plain
error standard. See State v. Black, 380 N.J. Super. 581, 593 (App. Div. 2005).
We reverse because of plain error only if the error was "clearly capable of
producing an unjust result." State v. Ross, 229 N.J. 389, 407 (2017) (quoting R.
2:10-2). Against this standard of review, we reject all of defendant's arguments.
Relevant evidence is "evidence having a tendency in reason to prove or
disprove any fact of consequence to the determination of the action." N.J.R.E.
401. Our Rules of Evidence "broadly admit 'all' relevant evidence, unless the
evidence is otherwise excluded." State v. Burr, 195 N.J. 119, 126 (2008).
Relevant evidence nevertheless may be excluded "if its probative value is
substantially outweighed by the risk . . . of undue prejudice [or] confusion of
issues . . . ." N.J.R.E. 403(a).
Defendant claims that the Y-STR DNA test results were improperly
admitted. We disagree. In State v. Calleia, 414 N.J. Super. 125 (App. Div.
2010), rev'd on other grounds, 206 N.J. 274 (2011), the court noted that that
even in circumstances where Y-STR testing could only show that defendant
could not be excluded as the source of the sample, such evidence was relevant
and admissible.
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Here, although the Y-STR results did not prove that defendant was a
source, they did establish that defendant could not be excluded from the class of
individuals who could have sexually assaulted P.S. For example, Coniglio-
Rivera testified that defendant could not be excluded based on the results of the
Y-STR testing on the sperm fraction from the vaginal swabs. Moreover, as
noted, Coniglio-Rivera testified that the Y-STR results actually excluded
defendant as a source from P.S.'s underwear sample and the cervical swab.
Defendant next maintains that Coniglio-Rivera should not have been
"allowed to testify that defendant 'matched' the DNA found on the victim."
Coniglio-Rivera, however, used this term to explain her detailed statistical
findings regarding the DNA evidence and to illustrate the differences between a
source, match, and exclusion as those terms are understood in the scientific
community. Thus, on this record, there is no discernible reason why the jury
would be confused or misled by the repeated use of the word "match" when such
terms were thoroughly explained by the expert.
In addition, when viewed in light of the overwhelming evidence of
defendant's guilt, including P.S.'s identification of defendant and detailed
description of the assault, the nurse's testimony regarding her injuries, and the
STR DNA evidence identifying defendant as the source of the beard hairs, we
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find that the admission of the Y-STR and Coniglio-Rivera's testimony, even if
erroneous, was not capable of producing an unjust result. Ross, 229 N.J. at 407.
IV.
In defendant's final point he argues that his forty-five-year NERA
sentence is excessive. Defendant asserts that "[t]he court's errors in finding and
weighing [the] aggravating factors, as well as the overall length of the sentence,
render it excessive." Regarding the aggravating factors, defendant maintains
that the judge: 1) improperly relied on pending charges in his application of
aggravating factor three; 2) did not fully explain his application of aggravat ing
factor six; and 3) incorrectly found that aggravating factor nine applies "in every
case of this type." Defendant also contends that the burglary charge must merge
with the aggravated sexual assault charge. Again, we disagree.
We employ a deferential standard when reviewing a trial court's
sentencing decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes,
217 N.J. 57, 70 (2014). We must affirm a sentence unless: 1) the trial court
failed to follow the sentencing guidelines; 2) the court's findings of aggravating
and mitigating factors were not based on competent and credible evidence in the
record; or 3) "'the [court's] application of the guidelines to the facts of [the] case
makes the sentence clearly unreasonable so as to shock the judicial conscience.'"
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Fuentes, 217 N.J. at 70 (second alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).
Here, defendant does not contest the judge's ruling that he was subject to
an extended term pursuant to N.J.S.A. 2C:43-6.4(e)(1). As such, on defendant's
aggravated sexual assault conviction, he faced a maximum extended term of life
imprisonment, N.J.S.A. 2C:43-7(a)(2). The judge's decision to sentence
defendant to a forty-five-year term of imprisonment was within the sentencing
guidelines.
Defendant's challenges to the court's application of aggravating factors are
without merit. Here, after reviewing the presentence report, the judge applied
aggravating factors three, six, and nine and found no mitigating factors. The
judge also determined that the aggravating factors substantially outweighed the
non-existent mitigating factors.
In the judge's findings for aggravating factor three, he noted that defendant
had pending charges in Gloucester County for an aggravated assault on law
enforcement. In State v. K.S., our Supreme Court disapproved of the notion that
a "sentencing judge might find it significant that a defendant who experienced
an unwarranted arrest was not deterred . . . from committing a crime thereafter."
220 N.J. 190, 199 (2015) (quoting State v. Green, 62 N.J. 547, 562 (1973)).
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Indeed, the Court noted that "deterrence is directed at persons who have
committed wrongful acts," not those merely charged. Ibid. Further, a
"sentencing judge shall not infer guilt as to any underlying charge with respect
to which the defendant does not admit his guilt." Green, 62 N.J. at 571.
Here, the judge reviewed defendant's extensive criminal history, including
multiple juvenile adjudications and adult convictions. Specifically, the judge
found that defendant had previously been convicted of sexual assault on a victim
less than thirteen years old when he was four years older. The judge also noted
that defendant had been sentenced to community supervision for life, which he
violated twice, and that defendant was a registered sex offender.
Notwithstanding the judge's reference to defendant's pending charges, there is
sufficient competent and credible evidence in the record in support of his
application of aggravating factor three.
Although the judge's statement of reasons related to his application of
aggravating factor six could have been more detailed, a remand is unnecessary
when it is "possible in the context of [the] record to extrapolate without great
difficulty the [sentencing] court's reasoning." State v. Pillot, 115 N.J. 558, 566
(1989); State v. Bieniek, 200 N.J. 601, 609 (2010). Here, from our review of
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the record we have no "doubt as to the facts and principles the court considered
and how it meant to apply them." Miller, 205 N.J. at 130.
Indeed, it is clear that the judge was aware of defendant's criminal history
from his findings in aggravating factor three. The judge also stated that
defendant "has demonstrated that he is a true menace to society" and without
reform, he is likely to reoffend. The judge further noted that defendant's
incarceration is necessary for the "adequate protection of society." Based on the
record before us, we are able to "extrapolate without great difficulty," the judge's
reasoning regarding the application of aggravating factor six. Pillot, 115 N.J. at
566.
Finally, despite the judge's statement that aggravating factor nine applied
in every case of this type, the judge also expressly found that "defendant is a
repetitive offender." We are convinced that the judge considered the specific
facts of this case and adhered to the sentencing guidelines. The sentence
imposed was well within the judge's sentencing discretion and does not shock
our judicial conscience.
We also reject defendant's claim that the burglary conviction must be
merged into the aggravated sexual assault conviction. "The doctrine of merger
is based on the concept that 'an accused [who] committed only one offense . . .
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cannot be punished as if for two.'" State v. Tate, 216 N.J. 300, 302 (2013)
(quoting State v. Davis, 68 N.J. 69, 77 (1975)). In enacting N.J.S.A. 2C:14-
2(a)(3), the legislature "intended the crime of aggravated sexual assault to be
separate and distinct from the underlying offenses." State v. Cole, 120 N.J. 321,
332 (1990); see also State v. Adams, 227 N.J. Super. 51, 66-67 (App. Div. 1988)
("The harm from the attempted aggravated sexual assault is of a different nature
from that involved in the burglary . . . . The fact that it is committed during the
course of one of the crimes enumerated in N.J.S.A. 2C:14-2(a)(3) only enhances
the potential risk of harm to the victim.").
Similar to Adams, defendant here was convicted of both aggravated sexual
assault and burglary. Although burglary is a statutory element of aggravated
sexual assault, the two convictions should not be merged, as the crimes represent
distinct harms to the victim. Accordingly, the judge properly decided to
sentence defendant to a five-year term of imprisonment for burglary, concurrent
to his sentence for aggravated sexual assault.
Affirmed.
A-2871-18
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