                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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         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).

                                      2                                A-1812-14T4
           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


                                         3                             A-1812-14T4
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.

                                  4                         A-1812-14T4
       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

                                        5                               A-1812-14T4
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

                                      7                             A-1812-14T4
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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