STATE OF NEW JERSEY VS. G.S. (14-02-0122 AND 16-01-0069, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2070-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.S.,
Defendant-Appellant.
_____________________________
Submitted February 28, 2019 – Decided June 12, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 14-02-0122
and 16-01-0069.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian P. Keenan, Assistant Deputy Public
Defender, of counsel and on the briefs).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Milton S.
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the November 21, 2016 amended judgment of
conviction after a jury convicted him of 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(c)(1);
second and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-2(c) and
N.J.S.A. 2C:14-3(b); and second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a)(1). We affirm.
We discern the following facts from the record. Defendant married his
wife, J.G., in Colombia. J.G. had a daughter, Jane,1 in Colombia in 1993. J.G.
and defendant moved to the United States. For several years, Jane lived with
her grandmother in Colombia while her mother was in the U.S. with defendant.
When Jane was nine years old, she came to the U.S to live with her mother and
defendant.
When she arrived, defendant, J.G., and their one-year-old son, were living
in the basement apartment of defendant's parents' house in Elizabeth. In 2002,
defendant and J.G. had another child, Julia. While J.G. was at the hospital
giving birth to Julia, Jane was home with defendant. At some point during the
night, defendant asked Jane if she was ready to go to sleep with him, and she
1
Due to the similarity of family names and initials, we use pseudonyms for ease
of reference and privacy. R. 1:38-3(d)(10).
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said yes. While they were on the bed talking, defendant started to kiss Jane. He
touched her breasts and her vagina and inserted his fingers into her vagina. Jane
started to cry and told defendant that she was going to tell her mother. Defendant
told her that she could not say anything to her mother or else something bad
would happen to them.
Defendant continued to touch Jane, at least once per month, over the next
two years. Jane did not disclose what happened for two years until she spoke
with her guidance counsellor. The Division of Child Protection and Permanency
sent investigators to speak with Jane. Fearing she may be taken away from her
mother, Jane told the investigator that it was all a misunderstanding. Defendant
stopped touching Jane after her disclosure.
In 2006, defendant and J.G. separated, and J.G. and the three children
moved to another address. Defendant was permitted weekend visitation with his
daughter and step-daughter at his house.
In 2013, then eleven-year-old Julia approached her maternal grandmother
and disclosed to her, and for the first time to anyone, that defendant had been
sexually assaulting her for three years when she was between the ages of nine
and twelve. At night, he would pick her up, take her to his room, undress her,
and then touch her vagina. On multiple occasions, defendant tried to put his
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penis inside of her vagina, but Julia pushed him away with her hands and feet.
Julia was afraid when these events occurred but did not scream or disclose any
of the assaults because defendant threatened to kill her, Jane and her mother if
she told anyone. After Julia's allegations surfaced, Jane renewed her claims
about defendant.
On February 21, 2014, a Union County grand jury charged defendant in
an indictment with two counts of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b)
and N.J.S.A. 2C:14-2(c)(1); two counts of fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-3(b); and two counts of second-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a), arising from both victims' allegations. A second
Union County grand jury returned a second indictment, charging defendant with
one count of fourth-degree contempt, N.J.S.A. 2C:29-9(a).
After a trial, the jury found defendant not guilty on counts regarding Julia,
but guilty on counts related to Jane. Defendant was sentenced to twelve years
imprisonment, subject to an eighty-five percent parole disqualifier pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2, parole supervision for life, and
was assessed appropriate fees and penalties. This appeal followed.
On appeal, defendant argues the following:
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POINT I
AFTER A PREJUDICIAL JOINDER OF OFFENSES
SEPARATED BY ALMOST A DECADE, THE TRIAL
JUDGE FAILED TO SUA SPONTE SEVER THE
CHARGES OR INSTRUCT THE JURY NOT TO USE
THE EVIDENCE FROM THE SUBSEQUENT
OFFENSE FOR PROPENSITY PURPOSES. (Not
raised below).
POINT II
THE SENTENCING JUDGE FAILED TO CREATE
AN ADEQUATE APPELLATE RECORD
REGARDING HIS FINDING OF AGGRAVATING
FACTORS, AND FAILED TO FIND MITIGATING
FACTORS SUPPORTED BY THE RECORD,
RESULTING IN A MANIFESTLY EXCESSIVE
SENTENCE.
I.
Because defendant's first point was not raised at trial, we review his
argument under the plain error rule. See R. 2:10-2. If an error was not brought
to the trial court's attention, we will not reverse unless the appellant shows plain
error. State v. Bueso, 225 N.J. 193, 202 (2016). Plain error must be "clearly
capable of producing an unjust result." Ibid. (quoting R. 2:10-2). However,
"[we] may, in the interests of justice, notice plain error not brought to the
attention of the trial or appellate court." Ibid.We reject defendant's argument the trial judge should have severed the
charges. Rule 3:7-6 permits the State to charge multiple offenses in a single
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indictment "if the offenses are of the same or similar character or are based on
the same act or transaction or on [two] or more acts or transactions connected
together." "Although joinder is favored, economy and efficiency interests do
not override a defendant's right to a fair trial." State v. Sterling, 215 N.J. 65,
72-73 (2013). Rule 3:15-2(b) "provides relief from prejudicial joinder." Id. at
73. "The test for assessing prejudice is 'whether, assuming the charges were
tried separately, evidence of the offenses sought to be severed would be
admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Ibid.
(alteration in original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341
(1996)). "If the evidence would be admissible at both trials, then the trial court
may consolidate the charges because 'a defendant will not suffer any more
prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, 145
N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.
1983)).
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity
therewith[,] [but] [s]uch evidence may be admitted for
other purposes, such as proof of motive, opportunity,
intent, . . . plan, knowledge, [or] identity . . . [if]
relevant to a material issue in dispute.
[N.J.R.E. 404(b).]
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Thus, we look to Rule 404(b) and apply the Cofield factors. State v. Cofield
127 N.J. 328, 338 (1992). Other crime evidence is admissible under the
following circumstances:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[Ibid.]
Defendant argues had the trial judge applied Rule 404(b), the judge would
have severed the charges. In defendant's view, evidence of offenses committed
against one child were inadmissible character evidence related to the charges
against the other child. We disagree.
Here, the charges were offered as similar crimes based on nearly identical
facts and involved victims in the same family who were assaulted in similar
places2 at different times. Defendant was Jane's stepfather and Julia's father.
2
The two sets of assaults did occur in different locations, the first, involving
Jane, occurred at the shared apartment, and the second, involving Julia, occurred
where defendant had moved following the marital separation, which was in the
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He was charged with sexually assaulting both victims when they were between
the ages of nine and thirteen. Even the alleged pattern of assaults is similar:
defendant began by kissing the victims and escalated to physical touching. Each
instance was similarly followed by a threat to prevent disclosure. Thus,
evidence as to one victim was admissible to prove defendant's identity, plan and
intent.
In further support of his position, defendant relies on State v. Williams,
167 N.J. Super. 57, 60 (App. Div. 1979), and State v. Harris, 105 N.J. Super.
319, 322 (App. Div. 1969). His reliance is misplaced. Williams involved
charges that could not be joined as a matter of law: certain persons offenses with
other substantive crimes. Williams, 167 N.J. Super. at 63. Joinder placed the
defendant's prior record before the jury regardless of whether the defend ant
chose to testify. Id. at 63.
Harris involved two indictments charging ten crimes that were alleged to
have been committed over several months, against different victims, and in
separate locations. Harris, 105 N.J. Super. at 321. One indictment was related
to burglary and theft, while the other involved a string of assaults, batteries and
same house, but a different apartment. We do not consider this to be a crucial
distinction.
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robberies. Id. at 323. The court held it was manifestly unjust to consolidate the
ten counts for trial because the only justification offered was that the same police
officer investigated all of the crimes. Ibid.Here, the commonality between the two offenses is self-evident. The
victims are stepsisters and were assaulted by defendant at about the same age.
The assaults occurred in defendant's residence and followed the same pattern of
touching, escalation, and threats to silence the victims. Thus, joinder was
permitted under Rule 3:7-6.
The judge instructed the jury that the charges were related to separate
offenses and that they should only consider evidence relevant to the particular
charges. Specifically, the court explained:
There are ten offenses charged in the indictment. The
charges are separate offenses by separate counts in the
indictment. The defendant is entitled to have his guilt
or innocence separately considered on each count by
the evidence that is relevant and material to the
particular charge based on the law as I will give it to
you.
Defendant argues the foregoing model jury charge is insufficient when the
jury hears other-bad-act evidence.
As applied to a jury instruction, plain error requires
demonstration of legal impropriety in the charge
prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by
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the reviewing court and to convince the court that of
itself the error possessed a clear capacity to bring about
an unjust result.
[State v. Nero, 195 N.J. 397, 407 (2008) (quoting State
v. Chapland, 187 N.J. 275, 288-89 (2006)).]
There is no evidence in the record indicating that the jury was distracted
or improperly considered any of the evidence provided to them. Indeed, the
verdict itself demonstrated the jury considered the two sets of allegations
independently.
II.
We also reject defendant's argument the judge did not adequately consider
aggravating and mitigating factors and therefore gave defendant a manifestly
excessive sentence. We apply a deferential standard of review with respect to a
trial court's sentencing determination, State v. Fuentes, 217 N.J. 57, 70 (2014),
and do not substitute our judgment for that of the sentencing court. State v.
Lawless, 214 N.J. 594, 606 (2013).
Defendant argues the judge did not explain his rationale for finding
aggravating factors two, three, and nine. N.J.S.A. 2C:44-1(a)(2), (3) & (9).
Factors three and nine required little explanation, as the incidents in question
happened more than once and therefore increased the risk of re-offense and the
need for specific and general deterrence. Defendant argues the judge did not
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adequately explain his decision with respect to aggravating factor two, harm to
the victim. The record supports the existence of factor two. The jury found
defendant guilty of sexually assaulting his stepdaughter when she was a young
girl.
Defendant also argues mitigating factors seven, no history of criminality,
and eleven, excessive hardship, should have been considered. N.J.S.A. 2C:44-
1(b)(7), (11). The record reflects that the judge considered defendant's lack of
prior convictions. Irrespective of whether the judge chose to apply factor seven,
the judge did consider defendant's prior criminal record as "part of the
deliberative process." State v. Case, 220 N.J. 49, 64 (2014). With respect to
factor eleven, defendant did not show how imprisonment would create an
excessive hardship. Accordingly, we discern no error in the sentence imposed.
We also conclude that, based on the facts before the court, the application of the
guidelines to the facts before us does not shock the judicial conscience.
Affirmed.
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