State of New Jersey v. Jeremiah F. Forde ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2847-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEREMIAH F. FORDE,
Defendant-Appellant.
__________________________
Submitted February 6, 2024 – Decided September 9, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment Nos. 19-02-0163,
20-01-0039, 20-11-0586, and 20-12-0674.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Samuel Carrigan, Assistant Deputy Public
Defender, of counsel and on the briefs).
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Paula Jordao, Assistant Prosecutor, on
the brief).
PER CURIAM
Following a jury trial, defendant Jeremiah Forde was convicted of several
sex-related offenses, the most serious of which was first-degree aggravated
sexual assault on a helpless or incapacitated person. The charges stemmed from
defendant having sexual relations with a woman to whom he had provided illicit
drugs in exchange for sex. Defendant filmed the encounters, some of which
were played at trial. One of the encounters that was captured on video depicted
defendant engaging in sexually explicit conduct with the woman who was later
identified as K.M.1 K.M. did not move or open her eyes for the duration of the
video and later testified at trial that she never consented to defendant's actions
as she was under the influence of heroin at the time. Defendant maintained that
the sexual encounters were consensual.
After the trial, defendant entered negotiated guilty pleas to numerous
unrelated charges and was sentenced to an aggregate term of twenty-eight years
in prison, which included a nineteen-year sentence that was subject to an eighty-
five percent period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a special
sentence of parole supervision for life, N.J.S.A. 2C:43-6.4, and requirements
and restrictions under Megan's Law, N.J.S.A. 2C:7-1 to -23.
1
We use initials to protect the victim's identity. R. 1:38-3(c)(12).
A-2847-21
2
On appeal, defendant raises the following points for our consideration:
POINT I
THE LAY OPINION TESTIMONY FROM THE
LEAD INVESTIGATOR EXPRESSING A BELIEF IN
[DEFENDANT'S] GUILT WAS IMPERMISSIBLE
AND RECURRENT, CAUSING UNFAIR
PREJUDICE THAT THE TRIAL COURT WAS
UNABLE TO CURE.
POINT II
THE [TWENTY-EIGHT]-YEAR AGGREGATE
SENTENCE IS EXCESSIVE.
Based upon our review of the record and the applicable legal principles, we
reject defendant's arguments and affirm.
I.
On January 15, 2020, defendant was charged in Morris County Indictment
No. 20-01-00392 with first-degree aggravated sexual assault on a helpless or
incapacitated person, N.J.S.A. 2C:14-2(a)(7) (count one); second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1) (count two); third-degree aggravated criminal
sexual contact, N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(7) (count three); fourth-
degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four); and three
counts of third-degree invasion of privacy, N.J.S.A. 2C:14-9(b)(1) (counts five
2
Indictment No. 20-01-0039 superseded Indictment No. 19-09-0762.
A-2847-21
3
to seven). The indictment also charged defendant with three other counts, but
those counts were severed and later dismissed. A six-day jury trial was
conducted in July 2021, during which the State produced several witnesses,
including the victim, K.M. We glean these facts from the trial record.
Following a motor vehicle stop, defendant was arrested on December 28,
2018, by members of the Roxbury Police Department. As a result of the arrest,
an "L.G. Verizon cell phone and a Sony HDR-AS20 camera" were recovered
from defendant's person. The camera contained "[a]pproximately [fifty-one]
videos." Given the nature of the seizure, the Department contacted Detective
Carolina Moreno, who was assigned to the Sex Crimes Unit at the Prosecutor's
Office and became the lead investigator on the case.
On January 4, 2019, Moreno and several detectives executed a search
warrant at defendant's apartment in Budd Lake. The detectives seized a black
tablet, a camera box for the previously seized Sony camera, and a cell phone
box for the previously-seized Verizon cell phone. During a forensic
examination, eighty-two videos were found on the tablet. One of the videos that
is central to the issues raised on appeal was six minutes and twenty seconds long
and was created at 5:40 a.m. on September 9, 2018.
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At trial, Moreno testified that the September 9, 2018, video "appear[ed]
to be taken in a hotel room or a motel room" and depicted a woman lying "on a
floral comforter." According to Moreno, the woman had "[h]er eyes . . . closed"
and appeared to be "limp" while she was "straddled by a male." Moreno testified
that in the video,
[the male] takes his penis out, he takes [the woman's]
hands, both hands to masturbate his penis. He
masturbates his own penis. He takes his penis and
opens [the woman's] mouth with it and puts it in
between her lips. The video . . . concludes with him
ejaculating on [the woman's] face. The [woman] does[
not] move at all. To my recollection the only time her
face even moves is when he like pats his penis on her
face and she just kind of moves.
The video was admitted into evidence and played for the jury.
Moreno testified that after seeing the video, she attempted to identify the
woman by taking "screen[shots] of her face" and submitting the pictures to the
New Jersey State Police's Facial Recognition Unit. From their database, the
woman was identified as K.M. On June 26, 2019, Moreno and other detectives
went to K.M.'s home in Wharton to speak to her about the investigation. When
Moreno showed K.M. the screenshots and "asked if she was the female in the
[screenshots]," K.M. "immediately recognized herself" and "started crying ."
K.M. recognized her "rings and . . . bracelets" in the screenshots and was
A-2847-21
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"shock[ed]" and "devastated" when she saw the photos. K.M. had no
"recollection or knowledge of th[e] video." She admitted that she "was on heroin
at the time" but denied ever "agree[ing] to any of th[e] actions that took place in
th[e] video."
In the course of the investigation, Moreno took screenshots of the clothing
worn by the man in the September 9, 2018, video, including a "red shirt" with
"distinctive . . . white lettering" and a "black jacket" with a "red zipper."
Moreno also reviewed other videos found on the tablet seized from defendant,
including four videos recorded on September 8, 2019, "between the hours of
6:37 p.m. and 9:16 p.m." at a business in Dover. In the September 8, 2019,
videos, a man is depicted in the same distinctive clothing worn in the September
9, 2018, video and his face is visible. Additionally, the distinctive "red shirt
with the white lettering" was found by detectives inside a bag in defendant's
girlfriend's vehicle. Defendant lived with his girlfriend at the time.
Through her investigation, Moreno determined that the September 9,
2018, video with K.M. was taken at a hotel room at the Parsippany Inn in Morris
Plains. Moreno took photos of the room and, during her testimony, matched
details visible in the video with the room photos. In addition, Moreno reviewed
the contents of the cell phone seized from defendant when he was arrested and
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found eighteen text messages between defendant and K.M. on September 8,
2018, beginning at 7:53 p.m. and ending at 10:43 p.m. Among the text
exchanges, defendant sent K.M. a text at 8:40 p.m., asking if K.M. was "coming
out?" K.M. replied "yeah, I need a scoop." Defendant texted K.M. at 8:42 p.m.,
stating "I'll text you when I'm close to Wharton, like a half hour." At 10:43
p.m., defendant texted K.M., asking if she was "still home?"
Moreno also reviewed defendant's cell phone browsing web history and
discovered that at 12:09 a.m. on September 9, 2018, defendant searched for
"hotels in Morris Plains," visited booking.com, and searched Google for the
Parsippany Inn. Finally, Moreno observed on defendant's phone a "photograph
of [K.M.]" with a "comforter . . . over her" that looked like the comforter in the
September 9, 2018, video.
Moreno met with K.M. again on November 7, 2019, after identifying three
additional videos from defendant's tablet that Moreno believed depicted K.M.
According to Moreno, all three videos depicted K.M. performing oral sex on
defendant in a bathroom, which Moreno determined was located at the "Canal
House in Wharton." The first video was filmed at approximately 5:00 a.m. on
October 13, 2018. Earlier the same day, defendant and K.M. had texted each
other, starting at 3:09 a.m., to arrange a meeting place. The second and third
A-2847-21
7
videos were filmed on October 29, 2018, at 10:16 p.m. and 11:33 p.m.,
respectively. K.M. identified herself in all three videos and all three videos were
admitted into evidence and played for the jury.
K.M. testified she was "not aware that th[ese] film[s] existed" and that she
had "no discussions" and "no conversations" with defendant about him
"videotaping th[e] act[s]." In fact, the first time she learned of the videos was
through the investigation. K.M. admitted being addicted to drugs for several
years and being arrested and placed on probation for drug possession related
charges. She underwent substance abuse treatment but relapsed in August 2018,
after her mother passed away unexpectedly. When she relapsed, K.M. was using
heroin and sometimes cocaine every day, "many times" a day, for several
months. K.M. testified that defendant was her drug dealer, and that she first met
him after her mother died at the Canal House, a "rooming house" where people
rented rooms, shared community bathrooms, and obtained drugs.
K.M. further testified that on September 8, 2018, her boyfriend, whom she
had been dating seriously for a year, broke up with her through a text message.
According to K.M., she "was devastated," and "went out to buy heroin" from
defendant to cope. That evening, she texted defendant, "I need a scoop,"
meaning that she "needed to get picked up" so that she could get drugs at the
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Canal House. Defendant picked her up at her house and gave her heroin, which
she used "[r]ight away" in the car. K.M. had no memory of anything else that
happened that evening.
K.M. acknowledged that because she "was desperate to get heroin," she
had "made a deal" with defendant, whereby she agreed to "perform[] fellatio on
him, [so] that he would provide [her] with heroin" without her paying for it. She
further testified that she agreed to perform fellatio on defendant "at least three"
times in the bathroom at the Canal House in exchange for heroin. However,
K.M. testified she was not aware that defendant was recording her in the three
sexual encounters at the Canal House.
On July 15, 2021, the jury found defendant guilty of counts one through
five, and not guilty of counts six and seven of Indictment No. 20-01-0039. On
August 25, 2021, the trial judge denied defendant's motion for a new trial. See
R. 3:20-1; R. 3:20-2. On November 19, 2021, defendant negotiated a global
resolution of four outstanding unrelated indictments and entered negotiated
guilty pleas to two counts of third-degree promoting prostitution, N.J.S.A. 2C:34-
1(b)(2), charged in Indictment Nos. 19-02-0163 and 20-11-0586, and one count of
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), charged in Indictment No.
20-12-0674. Indictment No. 20-02-0121 was dismissed in accordance with the plea
A-2847-21
9
agreement. On February 18, 2022, the judge sentenced defendant on all four
indictments and entered conforming judgments of conviction on March 16,
2022, from which this appeal follows.
II.
In Point I, defendant argues that Moreno "gave inadmissible lay opinion
testimony that went to the key questions meant to be resolved by an impartial
jury." Defendant asserts that although the judge gave curative instructions to
the jury on several occasions, the instructions "could not sufficiently remedy the
harm caused" by Moreno's multiple lay opinions, which deprived defendant of
"his right to a fair trial."
"[T]he decision to admit or exclude evidence is one firmly entrusted to the
trial court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (alteration in
original) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
383-84 (2010)). "We defer to a trial court's evidentiary ruling absent an abuse
of discretion," State v. Garcia, 245 N.J. 412, 430 (2021) (citing State v.
Nantambu, 221 N.J. 390, 402 (2015)), and will "not substitute our own judgment
for the trial court's unless its 'ruling "was so wide of the mark that a manifest
denial of justice resulted,"'" State v. Medina, 242 N.J. 397, 412 (2020) (quoting
State v. Brown, 170 N.J. 138, 147 (2001)). Still, not every mistaken evidentiary
A-2847-21
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ruling will "lead to a reversal of a conviction. Only those that have the clear
capacity to cause an unjust result will do so." Garcia, 245 N.J. at 430.
When a trial judge determines that a curative instruction is needed to
eliminate any prejudice resulting from the admission of improper testimony, the
instruction "must be firm, clear, and accomplished without delay." State v.
Vallejo, 198 N.J. 122, 134 (2009). Our Supreme Court "has consistently
stressed the importance of immediacy and specificity when trial judges provide
curative instructions to alleviate potential prejudice to a defendant from
inadmissible evidence that has seeped into a trial." Id. at 135-36 (collecting
cases).
In State v. Herbert, 457 N.J. Super. 490 (App. Div. 2019), we provided
guidance to assess whether a curative or limiting jury instruction is adequate.
"First, a court should consider the nature of the inadmissible evidence the jury
heard, and its prejudicial effect." Id. at 505. "The adequacy of a curative
instruction necessarily focuses on the capacity of the offending evidence to lead
to a verdict that could not otherwise be justly reached." Ibid. (quoting State v.
Winter, 96 N.J. 640, 647 (1984)). We further noted that "while a general charge
may suffice to cure 'only slightly improper' remarks, 'a single curative
instruction may not be sufficient to cure the prejudice resulting from cumulative
A-2847-21
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errors at trial.'" Ibid. (quoting Vallejo, 198 N.J. at 136). Additionally,
"[e]vidence that bears directly on the ultimate issue before the jury may be less
suitable to curative or limiting instructions than evidence that is indirect and that
requires additional logical linkages." Ibid."Second, an instruction's timing and substance affect its likelihood of
success." Ibid. "As for timing, . . . a swift and firm instruction is better than a
delayed one," and "[a]s for substance, a specific and explanatory instruction is
often more effective than a general, conclusory one." Id. at 505-06. An
instruction can be more effective when the judge "'explains the reason for the
underlying rule.'" Id. at 507 (quoting David A. Sklansky, Evidentiary
Instructions and the Jury as Other, 65 Stan. L. Rev. 407, 452 (2013)). "Although
trial judges may understandably try to avoid repeating and thereby reinforcing
an offending remark, a court must describe it with enough specificity to enable
the jury to follow the instruction." Ibid."Third, a court must ultimately consider its tolerance for the risk of
imperfect compliance." Ibid. "Yet, even in criminal cases involving errors of
constitutional dimension, 'not "any" possibility [of an unjust result] can be
enough for a rerun of the trial.'" Ibid. (alteration in original) (quoting Winter,
96 N.J. at 647). "The possibility must be real, one sufficient to raise a reasonable
A-2847-21
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doubt as to whether the error led the jury to a result it otherwise might not have
reached." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). On the other
hand, "a non-constitutional error 'shall be disregarded by the appellate court
"unless it is of a nature as to have been clearly capable of producing an unjust
result."'" Id. at 507-08 (quoting Winter, 96 N.J. at 648).
That said, we recognize that "[t]rials are not perfectly
orchestrated productions." State v. Yough, 208 N.J.
385, 388 (2011). A curative instruction that is "firm,
clear, and accomplished without delay" can be an
appropriate remedy to a trial court's error in admitting
proscribed evidence, [State v. Prall, 231 N.J. 567, 586
(2018)] (quoting [Vallejo, 198 N.J. at 134]), because
the jury is presumed to follow the court's instructions,
State v. Burns, 192 N.J. 312, 335 (2007).
[State v. Gonzalez, 249 N.J. 612, 635 (2022) (first
alteration in original).]
We now turn to the legal principles that govern lay opinion testimony and
narration evidence by a witness who did not observe events depicted in
surveillance videos in real time. Lay opinion testimony is admissible subject to
two conditions set forth in N.J.R.E 701. First, the lay witness's opinion must be
"rationally based on the witness' perception"; second, the opinion must "assist
in understanding the witness' testimony or determining a fact in issue." N.J.R.E.
701. To satisfy the first condition, the "witness must have actual knowledge,
acquired through his or her senses, of the matter to which he or she testifies."
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State v. Sanchez, 247 N.J. 450, 466 (2021) (quoting State v. LaBrutto, 114 N.J.
187, 197 (1989)). The second condition limits lay testimony only to that which
will "assist the trier of fact either by helping to explain the witness's testimony
or by shedding light on the determination of a disputed factual issue." Id. at 469
(quoting State v. Singh, 245 N.J. 1, 15 (2021)); see also State v. Higgs, 253 N.J.
333, 363 (2023). The second condition therefore precludes "lay opinion on a
matter 'as to which the jury is as competent as [the witness] to form a
conclusion.'" Sanchez, 247 N.J. at 469-70 (alteration in original) (quoting State
v. McLean, 205 N.J. 438, 459 (2011)).
Recently, our Supreme Court considered how our case law has applied
N.J.R.E. 701 to law enforcement officers narrating video recordings or
identifying the defendant as the individual depicted in a photograph or video
relating to the offense charged:
In State v. Lazo, we excluded the opinion testimony of
a law enforcement officer unacquainted with a
defendant who stated that he included a photo of the
defendant in a photo array "[b]ecause of his similarities
to the suspects that were described by the victim." 209
N.J. 9, 19 (2012) (alteration in original). We held that
"[n]either a police officer nor another witness may
improperly bolster or vouch for an eyewitness'
credibility and thus invade the jury's province." Id. at
24.
A-2847-21
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In State v. Singh, however, we affirmed the
admission of an arresting officer's lay opinion that the
sneakers worn by the suspect in surveillance video
looked similar to sneakers worn by the defendant at the
time of his arrest, given the officer's direct observation
of the defendant's sneakers. 245 N.J. at 17-18. We held
in Singh that the officer's reference to the suspect in the
video as "the defendant" was improper in light of the
dispute about the identity of the suspect, but that the
reference was "fleeting" and did not amount to plain
error. Ibid.
In Sanchez, we reversed the trial court's
exclusion of the defendant's parole officer's
identification of the defendant in a photograph taken
from surveillance video, given the parole officer's many
in-person meetings with the defendant and the capacity
of her identification testimony to assist the jury. 247
N.J. at 469-75. There, the parole officer's identification
derived from her personal perception, which enabled
her to identify the defendant in the surveillance
photograph "more accurately than a jury could." Id. at
474.
....
In Higgs, we barred the lay opinion of a law
enforcement officer who was not present at a shooting
and testified that an object depicted in a surveillance
video appeared to be a firearm. 253 N.J. at 365-67.
Applying N.J.R.E. 701's "perception" prong, we noted
that the detective "had no prior interaction or
familiarity with either defendant or the firearm in
question" and that "[h]is testimony was based entirely
on his lay opinion from watching the video." Id. at 365.
We reasoned that "[t]he video was in evidence and the
jury should have been permitted to view it slowly,
frame by frame, to determine for themselves what they
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saw on screen, without the influence of opinion
testimony by an officer who was not there at the time."
Id. at 367. We held that the officer's testimony had
invaded the jury's province. Id. at 366-67. We did not,
however, "rule out the possibility of allowing a law
enforcement officer to testify about a sequence in a
video that is complex or particularly difficult to
perceive." Id. at 367.
In State v. Watson, . . . we addressed the
admissibility of a police officer's narration of a video
of a bank robbery at which the officer was not present,
and held that the narration exceeded the bounds of
proper lay opinion testimony under N.J.R.E. 701 and
N.J.R.E. 602 when the officer provided commentary
about the suspect's actions during the robbery.
[Watson, 254 N.J. 558, 606-08 (2023)]. We
disapproved of portions of the officer's narration
testimony that reflected his subjective belief of what
occurred in the surveillance video, including
observations about alleged efforts by the suspect not to
touch surfaces during the robbery and a comment that
"the suspect was very careful in . . . not attempting to
leave any type of evidence behind." Id. at 608.
[State v. Allen, 254 N.J. 530, 544-46 (2023) (all but last
alteration in original) (last omission in original).]
After reviewing other jurisdictions' handling of the subject, in Watson, the
Court held that "Rules 701, 602, and 403 provide a framework for the admission
of narration evidence" by "a witness who did not observe events in real time."
Watson, 254 N.J. at 600, 602. The Court stated:
[W]hether narration evidence is helpful turns on the
facts of each case. Rule 701's helpfulness prong can be
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satisfied when an investigator draws attention to key
details that might be missed, or helps jurors follow
potentially confusing, complex, or unclear videos that
may otherwise be difficult to grasp. Counsel may offer
other reasons to allow limited narration testimony,
which courts should evaluate with care.
Narration testimony must also comply with
N.J.R.E. 403. The rule guards against the risk of
"[u]ndue prejudice, confusion of issues, . . . misleading
the jury, . . . [and] needless presentation of cumulative
evidence." Placing appropriate limits on narration
testimony can help avoid those problems.
[Id. at 602 (alterations and omissions in original).]
The Court added that such testimony "must accord with specific limits."
Ibid. First, "continuous commentary during a video by an investigator whose
knowledge is based only on viewing the recording" must be avoided. Id. at 603.
Second, an investigator may "describe what appears on a recording but may not
offer opinions about the content. In other words, they can present objective,
factual comments, but not subjective interpretations." Ibid. "Third,
investigators may not offer their views on factual issues that are reasonably
disputed," as "[t]hose issues are for the jury to decide." Ibid. Finally, while "lay
witnesses generally may offer opinion testimony under Rule 701 based on
inferences, investigators should not comment on what is depicted in a video
based on inferences or deductions, including any drawn from other evidence.
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That type of comment is appropriate only for closing argument." Id. at 604. The
Court explained that, "[c]onsistent with those principles, an investigator who
carefully reviewed a video in advance could draw attention to a distinctive shirt
or a particular style of car that appear in different frames, which a jury might
otherwise overlook," if those issues are not in dispute. Ibid.
Applying these principles, we discern no abuse of discretion in the judge's
rulings and no basis to intervene. Defendant challenges various instances of
Moreno's purportedly incurable lay opinion testimony that he believes created
unfair prejudice warranting reversal of his convictions. Specifically, defendant
points to Moreno's description of K.M. as "asleep" or "unconscious" in the
September 9, 2018, video; Moreno labelling the September 9, 2018, video as
"the aggravated sexual assault video;" Moreno repeatedly identifying defendant
"as the person depicted in pictures and videos, even where his face was not
visible;" and Moreno referring to K.M. as "the victim."
When describing the September 9, 2018, video, Moreno testified that the
woman in the video was "unconscious." Upon defense counsel's immediate
objection, the judge told Moreno that this was a "medical conclusion[]" and
directed Moreno to "describe what [she] saw, but not whether the person [was]
unconscious." Moreno then testified that the woman's "eyes were closed, [and]
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she was[ not] moving." Moreno said "I do[ not] want to say sleeping, because
it seemed to be more than sleeping."
Moreno added, "to me . . . [the woman] was not awake in the video"
because she "does[ not] move at all." Defense counsel objected, and the judge
sustained the objection, instructing the jury, "Members of the Jury, you will
determine what the state of the person on the video is, and disregard Detective
Moreno's testimony that she was unconscious or asleep. You will make that
determination." Additionally, during the final charge, the judge reiterated:
[A]s I have previously instructed you, you shall
disregard . . . certain testimony of Detective Carolina
Moreno during her direct testimony as impermissible
lay opinion.
Those impermissible lay opinions were that the
female in the [September 9, 2018,] video admitted into
evidence . . . was unconscious or asleep . . . .
Such determinations are the province of the jury
as judges of the facts after consideration of all of the
evidence. . . . Detective Moreno is . . . no better
situated than you, the jury, to make such
determinations.
You are instructed to disregard those
impermissible lay opinions. You, the jury, will
determine from all of the evidence the condition of the
female in [the September 9, 2018, video].
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We are satisfied that the judge's swift, specific, and effective curative
instructions properly directed the jury to disregard the testimony and
ameliorated any harm from Moreno's objectionable testimony. We therefore
reject defendant's claims of unremedied "unfair prejudice."
Regarding defendant's challenge to Moreno repeatedly identifying
defendant as the person depicted in the videos and screenshots of the videos, the
State counters that defendant conceded in his opening statement that he was in
the videos because his defense was that "the encounters and recordings between
defendant and K.M. were consensual." Indeed, in defense counsel's opening
statement, he argued that "K.M. consented to each and every video that was taken
in exchange for heroin from [defendant]." Defense counsel suggested that "[o]ut of
. . . embarrassment," K.M. may now testify that she did not consent to the videos,
but maintained that "[K.M.] did consent to all of the" videos that are the subject of
the charges.
Further, during Moreno's testimony, defense counsel did not object to Moreno
identifying defendant. When Moreno was describing the September 9, 2018,
video, she stated that "defendant [was] taking the victim's hand and plac[ing] it
on his penis." When Moreno was describing a screenshot from that video, she
stated that she could "see . . . defendant's shadow next to" a refrigerator in the
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hotel room. Additionally, Moreno testified that she took screenshots "of the [red]
shirt . . . defendant was wearing" in the video. Further, Moreno testified that in
several of the screenshots, "defendant's face" was visible, and he was seen wearing
"the red shirt [with] the white lettering." At no point did defense counsel object to
the testimony or the identification.
In fact, during Moreno's testimony, it was the judge who raised the issue of
whether he "should give a curative instruction as to Detective Moreno's testimony
that that was defendant's face." Referring to his opening statement, defense counsel
replied that an instruction was not needed. The judge acknowledged defense
counsel's opening statement, noted that the issue was "not contested," and confirmed
with defense counsel that he was waiving any objection. Nonetheless, when the jury
returned from recess, the judge still gave the following curative instruction:
Before we resume that testimony though, I do want to
give you a curative instruction. Detective Moreno, on
at least two occasions, there may have been another
one, . . . testified that . . . it was defendant's face . . . on
some of the [screenshots]. . . . You are to disregard
that. That is what is known as a lay opinion. That is
your province as jurors to determine whether that is
defendant's face or not in the[screenshots], all right? So
you are to disregard her testimony to that effect. . . .
[T]hat is something that you can consider as to whether
or not that is, in fact, defendant's face.
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When Moreno's direct examination resumed, she testified that in the
October videos, K.M. was "performing oral sex or fellatio on . . . defendant."
When defense counsel objected, the judge overruled the objection in the
following colloquy at sidebar:
[DEFENSE COUNSEL]: . . . [Moreno] said [K.M. is]
performing fellatio on . . . defendant. Th[ere] was a
prior curative instruction . . . . So . . . [Moreno] is . . .
presenting . . . that [K.M. is] performing fellatio in the
video, but does[ not] have to say it[ is] upon . . .
defendant. The jury is going to have [to] make that
determination.
....
THE COURT: Is that a contested point?
[DEFENSE COUNSEL]: I[ am] just trying to be
consistent, Judge. The curative instruction where she
referred to him as . . . defendant—
....
[PROSECUTOR]: In the opening you said she
consented to all these acts.
....
THE COURT: That[ is] why I did[ not] think you were
contesting it, so that[ is] true. So what do you want me
to do?
[DEFENSE COUNSEL]: Well, if you can just [give]
an instruction, that[ it is] up to the jury's determination.
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Just to be consistent with the prior curative instruction
given on the photographs.
....
THE COURT: . . . . I[ am] going to overrule that
objection given the opening. I mean, has your position
changed since the opening?
[DEFENSE COUNSEL]: No.
THE COURT: Okay. Then I[ will] overrule.
Despite overruling the objection, the following day, before Moreno continued
her testimony, the judge instructed the jury to "disregard" Moreno's testimony that
"defendant [is] . . . in . . . the videos . . . and . . . certain of the still photographs."
The judge continued,
You, the jury, will determine from all of the evidence
whether or not it is defendant . . . in the videos . . . and
the still photographs from those videos. Detective
Moreno is in no better position than you, the jury, to
identify the person who is in the videos and
photographs. I instruct you to disregard her testimony
that the person was . . . defendant . . . as it is
impermissible . . . lay witness opinion testimony . . . I
instruct you to evaluate for yourselves all of the
evidence . . . concerning the videos and the
photographs.
"'Generally, if no objection was made to the improper remarks,' they 'will not
be deemed prejudicial.'" State v. Kane, 449 N.J. Super. 119, 141 (App. Div. 2017)
(quoting State v. Frost, 158 N.J. 76, 83 (1999)). "The failure to object suggests that
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23
defense counsel did not believe the remarks were prejudicial at the time they were
made" and "deprives the court of an opportunity to take curative action." Frost, 158
N.J. at 84. Under Rule 2:10-2, "[a]ny error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result."
Because defense counsel did not object to most of Moreno's references to
"defendant" in the videos and photos, we disregard the references because "they
were not so prejudicial as to meet the plain error standard." Singh, 245 N.J. at 18.
Because defendant conceded during trial that he was in the videos, he cannot now
argue that Moreno's references to him created undue prejudice. As to defense
counsel's single objection, the judge ultimately provided prompt, clear, forceful, and
effective curative instructions, both throughout the trial and before deliberations.
We are satisfied that the judge's instructions eliminated any prejudice resulting
from the admission of Moreno's testimony, and that the jury followed the
instructions. See Gonzalez, 249 N.J. at 635.
Next, defendant argues that "Moreno gave further inadmissible and
prejudicial testimony by continuing to refer to [K.M.] as 'the victim.'" Defendant
contends that "[d]espite defense counsel's objection on the second day of trial," the
judge "did not issue a curative instruction . . . until the third day."
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On the second day of trial, during her direct examination, Moreno referred to
K.M. as "the victim" on several occasions, including twice when Moreno was
describing the September 9, 2018, video, and two more times when describing
screenshots of the video. After the four references, in a sidebar, defense counsel
raised his concerns for the first time. The following day, the judge reviewed his
proposed curative instruction with counsel. Upon their agreement, the judge
instructed the jury as follows:
Detective Moreno in her direct testimony referred to
[K.M.] as "the victim". I instruct you . . . to disregard
that testimony. [K.M.] is the alleged victim.
[Defendant] is presumed innocent . . . , and you, the
jury, as judges of the facts will determine whether or
not the State meets its burden of proving each and
every element . . . of each charge beyond a reasonable
doubt. And . . . that will be done after all of the
evidence is before you. Again, [K.M.] is the alleged
victim . . . and [defendant] is presumed innocent.
In the final jury charge, the judge reiterated that "Moreno[,] in her direct
testimony, referred to . . . [K.M.] as 'the victim.' . . . I instruct you to disregard
that testimony." The judge continued,
defendant is presumed innocent and you, the jury, will
determine . . . after consideration of all the
evidence . . . whether or not the State has met its burden
of proving each and every element . . . of each charge
beyond a reasonable doubt. Again, the State alleges
that [K.M.] is the victim and . . . defendant is presumed
innocent.
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Despite the slight delay, see Prall, 231 N.J. at 587 (holding curative instruction
given "twelve days after the improper testimony" was insufficient), the
substance of the instructions clearly explained that the jury was to disregard the
reference to K.M. as a victim and we presume the jury followed the judge's
instructions, see Gonzalez, 249 N.J. at 635. As such, we are satisfied Moreno's
references to K.M. as "the victim" did not cause defendant undue prejudice and
did not "'lead to a verdict that could not otherwise be justly reached,'" Herbert,
457 N.J. Super. at 505 (quoting Winter, 96 N.J. at 647).
Defendant also argues that "the most serious prejudicial testimony" was
presented when Moreno twice described the September 9, 2018, video as an
"aggravated sexual assault video." Defendant argues that because Moreno
labelled the video before it was "first screened for the jurors," "the jurors had no
chance to watch the video without a preconceived notion of what it would
portray." Further, although the judge gave a curative instruction when defendant
objected, defendant asserts that in the final jury charge, the judge did not
reiterate the instruction. Nonetheless, according to defendant, "no curative
instruction could possibly be sufficient."
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26
After Moreno improperly characterized the September 9, 2018, video and
defense counsel objected, the judge sustained the objection and promptly issued
the following curative instruction:
Ladies and gentlemen, I[ am] sustaining the objection.
Detective Moreno has now twice referred to . . . the
video[] as the aggravated sexual assault video.
Disregard that. The question whether. . . [it is] . . .
aggravated sexual assault is the province of the jury.
We are satisfied that Moreno's description of the video, while
objectionable, was not so prejudicial that the judge's instruction could not cure
its prejudicial impact. Indeed, the "judge immediately instructed the jury in the
strongest terms to disregard the offending remark. Moreover, the evidence of
defendant's guilt was so strong . . . that in the overall picture the error in question
must be regarded as inconsequential . . . ." Winter, 96 N.J. at 648 (omissions in
original) (quoting State v. La Porte, 62 N.J. 312, 318 (1973)).
III.
Finally, in Point II, defendant challenges his sentence as "excessive" on
the grounds that (1) "it is not based on a proper fairness assessment considering
the diminishing deterrence effects of a lengthier sentence;" and (2) the judge
failed to "give greater consideration" to defendant's age, "especially as it
pertains to . . . deterrence." Defendant also contends that "the invasion of
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27
privacy conviction should have merged into the sexual assault conviction
because both offenses occurred at the exact same time and place, and both
convictions were part of a single criminal episode."
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute
[our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321,
347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In State v. Yarbough, 100 N.J. 627, 643-44 (1985), our Supreme Court set
forth guidelines for evaluating the threshold question of whether to impose
concurrent or consecutive sentences for multiple offenses pursuant to
N.J.S.A. 2C:44-5(a). The Yarbough Court enumerated five specific facts
sentencing courts should consider, including whether or not:
(a) the crimes and their objectives were predominantly
independent of each other;
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28
(b) the crimes involved separate acts of violence or
threats of violence;
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be
imposed are numerous.
[Yarbough, 100 N.J. at 644.]
"The Yarbough factors serve much the same purpose that aggravating and
mitigating factors do in guiding the court toward a sentence within the statutory
range," State v. Abdullah, 184 N.J. 497, 514 (2005), and "should be applied
qualitatively, not quantitatively," Carey, 168 N.J. at 427; see also State v.
Molina, 168 N.J. 436, 442 (2001) (affirming consecutive sentences although
"the only factor that support[ed] consecutive sentences [was] the presence of
multiple victims").
In Abdullah, the Court reminded trial judges "that when imposing either
consecutive or concurrent sentences, '[t]he focus should be on the fairness of the
overall sentence,' and that they should articulate the reasons for their decisions
with specific reference to the Yarbough factors." 184 N.J. at 515 (alteration in
original) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). In State v. Torres,
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246 N.J. 246 (2021), the Court directed that when imposing lengthy consecutive
sentences, "an explanation for the overall fairness of a sentence by the
sentencing court is required" in order to curtail and, if necessary, correct
"'arbitrary or irrational sentencing.'" Id. at 272 (quoting State v. Pierce, 188 N.J.
155, 166-67 (2006)). Thus, consideration of the fairness of the overall sentence
is "a necessary feature in any Yarbough analysis." Cuff, 239 N.J. at 352.
Our Supreme Court has explained that "[a] defendant's age is doubtlessly
among the information that courts should consider when calibrating a fair
sentence. Assessing the overall fairness of a sentence requires a real-time
assessment of the consequences of the aggregate sentences imposed, which
perforce includes taking into account the age of the person being sentenced."
Torres, 246 N.J. at 273. However, "age alone cannot drive the outcome. An
older defendant who commits a serious crime, for example, cannot rely on age
to avoid an otherwise appropriate sentence." Ibid.
Here, on Indictment No. 20-01-0039, the judge sentenced defendant to
nineteen years in prison, subject to NERA, on the aggravated sexual assault
charge (count one), and a concurrent four-year term on the invasion of privacy
charge (count five). The remaining charges were merged into count one. On the
three unrelated indictments, the judge imposed a three-year term, with a nine-month
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period of parole ineligibility, on each, to run consecutive to each other and to the
nineteen-year sentence, for an aggregate sentence of twenty-eight years.
Based on the high risk of re-offense, the extent of defendant's prior
criminal record, and the need for deterrence, the judge found aggravating factors
three, six, and nine. See N.J.S.A. 2C:44-1(a)(3), (6), (9). Acknowledging
defendant's "adjudications of delinquency" and "three prior indictable offense
convictions," as well as an absence of remorse or empathy for his victims, the
judge "ha[d] no doubt" that defendant would re-offend if given the opportunity.
According to the judge, "given the grave risk of re[-]offense," there was an
"overwhelming need" to deter defendant specifically, as well as the general need
to deter others from violating the law. The judge found no mitigating factors
and concluded that the aggravating factors outweighed "the nonexistent
mitigating factors."
The judge also analyzed and weighed the Yarbough factors, and
considered the overall fairness of the consecutive sentences under Torres,
concluding that the aggregate sentence was appropriate "in totality." Despite
defendant's age,3 the judge highlighted that defendant's "criminal sexual
behavior is characteristic of an individual with antisocial personality traits who
3
Defendant was born in 1981.
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31
does not respect laws and does not hesitate to use violence to achieve his goals."
The judge continued that defendant "views some people . . . [including] . . . the
victims . . . in these cases," "as chattel, as property, . . . [and] as vehicles for his
own sexual gratification and financial benefit."
Contrary to defendant's contentions, we are satisfied the judge
meticulously adhered to the sentencing principles in identifying and applying
the aggravating factors, and complied with the dictates of Yarbough and Torres
in imposing the overall sentence. Because the judge's explanation was clear,
detailed, and supported by competent, credible evidence in the record, there is
no basis to disturb the judge's findings.
Equally unavailing is defendant's contention that the judge erred when he
"did not merge the invasion of privacy conviction" with the aggravated sexual
assault conviction. "In State v. Bowens, the Court, relying on N.J.S.A. 2C:1-8,
held that merger is not required when each offense 'may be established by proof
of a different fact which the other does not require.'" State v. Herrera, 469 N.J.
Super. 559, 566 (App. Div. 2022) (quoting State v. Bowens, 108 N.J. 622, 639
(1987)). "However, that standard 'has been characterized as "mechanical."'"
Ibid. (quoting State v. Tate, 216 N.J. 300, 307 (2013)).
Most recently in State v. [Michael] Miller, the
Court reaffirmed that we are to use the more flexible
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32
approach to merger issues, stressing that convictions
for "offenses that merely offer an alternative basis for
punishing the same criminal conduct will merge." 237
N.J. 15, 33 (2019) (quoting [State v. Brown, 138 N.J.
481, 561 (1994))]. With respect to the fact-sensitive
portion of the multi-part merger test, the Court
explained that the flexible standard entails,
[the] analysis of the evidence in
terms of, among other things, the time and
place of each purported violation; whether
the proof submitted as to one count of the
indictment would be a necessary ingredient
to a conviction under another count;
whether one act was an integral part of a
larger scheme or episode; the intent of the
accused; and the consequences of the
criminal standards transgressed.
[Herrera, 469 N.J. Super. at 567 (all but second
alteration in original) (quoting State v. Davis, 68 N.J.
69, 81 (1975)).]
Under N.J.S.A. 2C:14-9(b)(1), invasion of privacy is defined as follows:
An actor commits a crime of the third degree if,
knowing that he [or she] is not licensed or privileged to
do so, he [or she] photographs, films, videotapes,
records, or otherwise reproduces in any manner, the
image of another person whose intimate parts are
exposed or who is engaged in an act of sexual
penetration or sexual contact, without that person’s
consent and under circumstances in which a reasonable
person would not expect to be observed.
Under N.J.S.A. 2C:14-2(a)(7), aggravated sexual assault on a helpless or
incapacitated person is defined as follows:
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a. An actor is guilty of aggravated sexual assault if the
actor commits an act of sexual penetration with another
person under any one of the following circumstances:
....
(7) The victim, at the time of sexual penetration, is one
whom the actor knew or should have known was:
(a) physically helpless or incapacitated . . . .
Here, the judge explained that the invasion of privacy conviction did not
merge with the aggravated sexual assault conviction because of the "additional
element" of "recording involved." The judge further expounded:
[T]he jury did find [defendant] guilty of that invasion
of privacy [charge] which was recording the sexual act
without the victim’s consent. That[ is] a third degree
crime . . . [in] violation of [N.J.S.A.] 2C:14-9(b)(1).
That does not merge so a separate sentence will be
required on that. And that is because of the recording
element that[ is] not involved in any of the counts one
through four.
Both parties agreed with the judge's merger ruling as do we. The crime of
invasion of privacy clearly and distinctly requires a recording element that is not
present in aggravated sexual assault.
Affirmed.
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