STATE OF NEW JERSEY VS. R.D.(11-03-0127, SOMERSET COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1812-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.D.,
Defendant-Appellant.
___________________________________
Submitted January 31, 2017 – Decided July 18, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 11-03-0127.
Joseph E. Krakora, Public Defender, attorney
for appellant (Louis H. Miron, Designated
Counsel, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (James L.
McConnell, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant R.D. pleaded guilty to first-degree aggravated
sexual assault of his daughter, N.J.S.A. 2C:14-2(a)(2)(a); second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a);
and third-degree aggravated criminal sexual contact, N.J.S.A.
2C:14-3(a). He admitted committing the offenses between December
2009 and December 2010, when his daughter was thirteen to fourteen
years old.
Defendant entered his plea under somewhat unusual procedural
circumstances. On the eve of trial, defendant filed an adjournment
motion so he could retain an expert to conduct a medical
examination of the victim, which the court denied. The court
began, but then interrupted jury selection to hold a Miranda1
hearing, to determine the admissibility of statements defendant
made to a police officer. Before completing the Miranda hearing,
defendant entered a conditional plea of guilty to all three counts,
retaining his right to appeal the denial of his adjournment motion.
Consistent with its promise in advance of the plea, the court
imposed an aggregate ten-year sentence, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1
to -23. The State made no promises regarding sentence in the plea
agreement.
On appeal, defendant raises the following points for our
consideration:
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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I. THE TRIAL COURT ABUSED ITS DISCRETION AND
ERRED IN DENYING [R.D.'s] MOTION FOR AN
ADJOURNMENT TO RETAIN AN[] EXPERT AND TO
HAVE AN INDEPENDENT PHYSICAL EXAMINATION
OF J.D.
II. THE TRIAL COURT SHOULD HAVE COMPLETED
[R.D.'s] MIRANDA HEARING AND RENDERED A
DECISION CONCERNING WHETHER [R.D.'s]
CONSTITUTIONAL RIGHTS WERE VIOLATED IN
CONNECTION WITH HIS CONFESSION PRIOR TO
[R.D.'s] HAVING ENTERED HIS GUILTY PLEA.
III. [R.D.] RECEIVED THE INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN CONNECTION
WITH THE DECISION NOT TO COMPLETE THE
MIRANDA HEARING PRIOR TO [R.D.'s]
ENTERING INTO THE PLEA AND WITH RESPECT
TO FAILING TO PRESERVE [R.D.'s] RIGHT TO
APPEAL THE MIRANDA ISSUE AS PART OF HIS
GUILTY PLEA.
IV. [R.D.'s] SENTENCE WAS EXCESSIVE AND
UNFAIR.
The only point on appeal that merits any extended discussion
is defendant's challenge to the court's adjournment decision. In
his allocution, defendant admitted that while he touched his
daughter's clitoris, he became sexually aroused and knew that his
touching would impair or debauch his daughter's morals. However,
in advance of his plea, he contended his touching did not
constitute penetration. To support this defense, he proposed on
the eve of trial to retain an expert to conduct a physical
examination of his daughter. Defendant presented a certification
from a physician — not included in the record — which reportedly
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opined that depending on a girl's development, it was possible to
touch a portion of the clitoris without penetrating the vaginal
opening.
Judge Robert B. Reed denied the adjournment request.2 He
noted the request to secure an expert and conduct an examination
was not raised previously, it was untimely, and defendant did not
show good cause for the delay. However, he also denied the request
on the merits. He concluded the nature of a child's development
was not pertinent to whether defendant's touching constituted
penetration as a matter of law. Furthermore, defendant failed to
demonstrate how examining his daughter, then seventeen years old,
would demonstrate the state of her development when she was
thirteen or fourteen. Finally, Judge Reed concluded that the
likely embarrassment and imposition upon the victim from a medical
examination outweighed the slight benefit to defendant. On appeal,
defendant renews his argument that the nature of the victim's
development was a critical fact in ascertaining whether he engaged
in an act of penetration and the court abused its discretion in
denying his adjournment request.
2
We previously remanded the matter to the trial court to
reconstruct the record, as the audio recording or stenographic
record of Judge Reed's oral decision was apparently lost.
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We are unpersuaded. "New Jersey long has embraced the notion
that '[a] motion for an adjournment is addressed to the discretion
of the court, and its denial will not lead to reversal unless it
appears from the record that the defendant suffered manifest wrong
or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011) (quoting
State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926)). We also apply
an abuse-of-discretion standard of review to the trial court's
determination whether to allow discovery, such as an independent
medical examination of a victim. State v. Kane, 449 N.J. Super.
119, 132 (App. Div. 2017). We discern no abuse of discretion
here.
Defendant bore a "heavy burden" to establish the need to
conduct a compelled physical examination of the victim. Id. at
133. In this case, defendant sought a physical examination of
the most personal and intimate sort. A defendant's right to such
discovery must clearly outweigh the victim's rights to be free
from emotional trauma and distress. See State ex rel. A.B., 219
N.J. 542, 561-62 (2014); see also State v. D.R.H., 127 N.J. 249,
256-59 (1992); Kane, supra, 449 N.J. Super. at 133; N.J.S.A. 52:4B-
36(c) (stating crime victims shall be "free from intimidation,
harassment or abuse" by the defendant).
Defendant fell far short of meeting his burden. Penetration
need only be slight to satisfy the essential element of an
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aggravated sexual assault. See State v. Cabrera, 387 N.J. Super.
81, 103 (App. Div. 2006); N.J.S.A. 2C:14-1(c) (defining "sexual
penetration" to include insertion of the hand or finger into the
vagina and "depth of insertion shall not be relevant as to the
question of commission of the crime"); N.J.S.A. 2C:14-2(a)
(defining aggravated sexual assault as an act of sexual penetration
under specified circumstances). Yet, we need not dwell on the
issue of whether the nature of a child's development may
conceivably be pertinent to determining if certain touching
involved penetration, since defendant failed to submit in his
appellate appendix the physician's opinion, which presumably
provided the alleged basis for the examination. See Cmty. Hosp.
Grp., Inc. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div.
2005) (stating that an appellate court is not "obliged to attempt
[to] review . . . an issue when the relevant portions of the record
are not included"). Furthermore, defendant provided no meaningful
response to the court's concern that any present examination of
the child would have no relevance to her development at the time
of the assaults. In short, defendant's flimsy explanation cannot
justify the "extraordinary intrusions" he proposed. See A.B.,
supra, 219 N.J. at 561.
Defendant's remaining arguments warrant only brief comment.
The court was not obliged to complete the Miranda hearing once
6 A-1812-14T4
defendant pleaded guilty. As he did not preserve his Miranda
motion in his plea, he waived his challenge to the admissibility
of his prior statement. See State v. Marolda, 394 N.J. Super.
430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007); R. 3:9-
3(f) (authorizing conditional pleas). We also decline to reach
defendant's ineffective-of-assistance-of-counsel claims on direct
appeal, because they "involve allegations and evidence that lie
outside the trial record." State v. Hess, 207 N.J. 123, 145 (2011)
(internal quotation marks and citations omitted); State v.
Preciose, 129 N.J. 451, 460 (1992).
Lastly, we discern no abuse of the trial court's sentencing
discretion. The court sentenced defendant to the bottom of the
first-degree range after finding that aggravating factors two
("[t]he gravity and seriousness of the harm inflicted") and nine
("[t]he need for deterring the defendant and others"), were in
equipoise with mitigating factors seven (the lack of a history of
criminal activity), eight ("defendant's conduct resulted from
circumstances unlikely to recur"), and nine (his character and
attitude indicated he was unlikely to reoffend). See N.J.S.A.
2C:44-1(a)(2), (9); N.J.S.A. 2C:44-1(b)(7), (8), and (9). The
sentence was in accord with the plea agreement. We are satisfied,
based on our review of the record, that the court set forth its
reasons with sufficient clarity and particularity, the court's
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essential findings were supported by competent and credible
evidence in the record, the court correctly applied the sentencing
guidelines in the Code, and the court did not abuse its sentencing
discretion. See State v. Fuentes, 217 N.J. 57, 70 (2014); State
v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J.
334, 363-65 (1984).
Affirmed.
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