                             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                        NOT FOR PUBLICATION WITHOUT THE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-5308-14T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

T.R.G.,

     Defendant-Appellant.
__________________________________________

              Submitted September 14, 2017 – Decided November 17, 2017

              Before Judges Alvarez, Nugent, and Geiger

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              13-01-0003.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jay L. Wilensky, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Maura G. Murphy,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Tried by a jury, defendant T.R.G. was convicted of sexual

crimes against his step-granddaughters.                On March 23, 2015, the
judge imposed an aggregate sentence of sixteen years, subject to

eighty-five percent parole ineligibility in accord with the No

Early   Release   Act   (NERA),       N.J.S.A.      2C:43-7.2,       after        denying

defendant's motion for a new trial.            Defendant appeals, contending

that the trial judge's errors and the prosecutor's prejudicial

opening and closing statements warrant reversal, and that his

sentence was excessive. After consideration of the legal arguments

and our review of the record, we affirm.

      Defendant was convicted of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a)(1), (count one); two second-degree

aggravated assaults, N.J.S.A. 2C:14-2(b), (counts two and three);

and   three   second-degree     endangering         the    welfare       of   a    child,

N.J.S.A. 2C:24-4(a) (counts four, eight, and thirteen).                       The first

three counts charged defendant with conduct involving Ann1, who

was born in 2003.       Ann, Ann's sister Barbara, who was born in

2002,   and   Ann's   cousin,   Cathy,        who   was    born     in    2001,       were

separately named in each count of child endangering.

      The trial judge merged the second-degree sexual assault into

the   first-degree    crime,    and    sentenced      defendant          to   the     NERA

sixteen-year term of imprisonment on count one.                     The judge also

imposed   seven-year    terms    on    each    of    the    three    second-degree


1
  To preserve the anonymity of the parties, we do not use their
real names.

                                        2                                         A-5308-14T2
endangering convictions, to be served concurrent to each other and

to the first-degree offense.

     The jury acquitted defendant of two counts of first-degree

aggravated sexual assault against Barbara and Cathy.       After the

jury was unable to reach a unanimous verdict, the prosecutor

dismissed counts six, seven, ten, eleven, and twelve, which charged

second-degree sexual assaults of Barbara and Cathy.

                                I.

     At trial, R.E. (Ted), Ann and Barbara's father and Cathy's

uncle, testified that his mother, the children's grandmother,

married defendant in 2007.   Ted's relationship with defendant was

"cool," but changed dramatically in July 2010, when Ann told Ted

about defendant's sexual abuse. Ted immediately called his mother,

who is a nurse.    She instructed him to take the child to the

emergency room, which he did later that evening.       The following

day Martin A. Finkel, M.D., a pediatrician at the Child Abuse

Research, Education, and Service Institute, examined the child.

     Around the time Ann disclosed the conduct, Ted asked Barbara

if defendant had done anything to her.   She denied it.   As a result

of Ann's disclosures, Ted sent his daughters to live with their

mother out-of-state.   In March 2012, they returned.      After their

return, he allowed his children to visit his mother's home, but

claimed he assumed that defendant would not be present.

                                 3                            A-5308-14T2
      In August 2012, Barbara disclosed to her father that she too

had been abused by defendant.                When he asked Barbara the reason

she delayed in telling him, the child said she was frightened.

The   next    day,    Ted    spoke    with       Cathy,   who   also    reported     that

defendant had molested her.             Ted asked the girls to write down

what had occurred; he did not read the statements because he was

afraid he would harm defendant after doing so.                    Ted denied telling

the   girls    what    to    write.      He        admitted     destroying     some    of

defendant's property out of anger over the abuse, and calling

defendant a "blood sucker" in court.                  Ted denied influencing the

children in any way.          He insisted he only told them to tell the

truth.

      Ted also described at some length the rupture the allegations

caused within the family.            He acknowledged that before Barbara and

Cathy alleged defendant abused them as well, he actually telephoned

defendant's     first       trial    attorney        about      the    possibility     of

dismissing the case for the sake of his relationship with his

mother.      Ted said that he had wanted to drop the charges, but

changed his mind when Barbara and Cathy came forward.                         On cross-

examination, Ted denied talking to defendant's counsel at the

courthouse,     or    that    the    lawyer       told    him   to    speak   with    the

prosecutor about the dismissal.



                                             4                                  A-5308-14T2
     In 2010, Ann lived with her grandmother and defendant during

the week, and on the weekends lived with her father.          She was ten

at the time of the trial.         She testified that on occasions,

defendant applied some kind of "grease" inside her body, and

afterwards "put his penis inside."        He also touched her private

parts with his fingers.      Defendant would stop if he heard someone

come to the door.      Ann said "it hurted" when she tried to go to

the bathroom, and that "it hurted" during the course of the

assault.

     The incidents occurred while defendant alone was watching the

children, and Barbara and Cathy would be in another room.            On one

occasion, Ann was asleep when she was assaulted, and recalled that

she "felt something and it hurted and then that's when I woke up."

When the assaults occurred, defendant's penis was hard.                  She

estimated that the incidents happened approximately five times.

     Ann said she also saw defendant touch Barbara when he was

with her under the covers on one occasion, shortly after he had

touched her.     Ann never saw defendant touch Barbara again, and she

never saw him touch Cathy.

     Ann decided to tell her father about defendant assaulting her

after   seeing   defendant   touching   her   sister,   and   did   so   the

following day.     She had been worried that Ted would be mad at her,

but he was not, although he was upset.         Ann denied that Ted had

                                    5                               A-5308-14T2
coached her.       She told the prosecutor's investigator, who also

testified, about what happened and reported pain on urination to

her,    although   no   bleeding.    She   never   said   anything   to   her

grandmother.

       Barbara was twelve at the time of trial.           Back in 2010, she

was at her grandmother's house frequently, and knew her father and

defendant had never gotten along.          Barbara remembered defendant

touching her inappropriately, but could not recall how many times

it occurred.       Defendant used some kind of substance during the

assaults, which she described as "lotion."           She pretended being

asleep when defendant placed his penis inside her vagina, and

touched her bottom.       She said it hurt, and that she had pain on

urination afterwards, but did not recall bleeding.                She said

nothing to her grandmother.         Defendant touched Barbara with his

penis on more than one occasion, and the second time he penetrated

her was similar to the first.

       Barbara also reported that defendant liked playing a "tickle

game" with her.      He would touch her all over her body, including

her chest, her bottom, and her private part.              Barbara only saw

defendant play this game with her and with Cathy.                He rubbed

Cathy's chest and all over her body, although not her private

part.    Barbara saw defendant touch Cathy on one occasion while

they were all under the covers.          All the inappropriate touching

                                     6                               A-5308-14T2
stopped when Ann told.    Barbara explained that she said nothing

at the time Ann disclosed because she was afraid that defendant

"was going to say or going to do something with my grandmom."

       When Barbara did disclose to her father, he became angry and

instructed her to write down everything that had happened, but did

not tell her what to write.    When she spoke to the detectives in

2012, she told them the truth.

       When Cathy testified at the trial, she was twelve.   She said

that in 2010, while her grandmother was working, defendant would

sometimes watch her and her cousins.    She recalled one particular

occasion on which defendant began to rub her back, and touched her

private part with his hands.     He took off her pants and "put his

penis inside."    Cathy was lying on her back and he was on top of

her.    She said it "felt weird, and it hurt."   It also hurt when

she went to the bathroom afterwards on urination, but there was

no blood.    Defendant never touched her again after that one time

other than the tickle game.

       Cathy reported defendant played the game with her, Ann, and

Barbara.    He only played the game when their grandmother was

absent, and he told them not to say anything because he would get

into trouble.    It was not until she was older that she realized

there was something wrong about a grown man touching the private

areas of children.

                                  7                          A-5308-14T2
     On one occasion, Cathy saw Ann go into the bathroom, and

defendant follow her in.    They were in there for approximately

twenty minutes.   Ann acted as if nothing had taken place, and

afterwards came out and watched a movie with the other children.

Defendant did not come back into the room.

     When Cathy made her disclosures to Ted, she did so because

she felt she might as well tell since everyone else had.        Her

uncle was the first adult she spoke to and he did not tell her

what to say, only that she needed to write down what had happened

on paper.

     Finkel, qualified as an expert in the field of pediatrics,

testified on behalf of the State.    He examined Ann on July 23,

2010.   She reported pain and discomfort after being touched when

she urinated, a condition known as dysuria.     The condition can

occur for a number of reasons, but Ann experienced the condition

only after defendant allegedly molested her.      Although actual

penetration into the vagina of a prepubescent girl would result

in significant genital trauma, he found none in Ann.   He did not

expect to find such symptoms given the time that had elapsed since

the events.   Finkel further explained the absence of such trauma

as possibly the result of the nature of the penetration, which he

had asked Ann to demonstrate on an anatomical model.      When no



                                8                          A-5308-14T2
other explanation for dysuria is present, Finkel opined it results

from sexual abuse.

     A Camden County Prosecutor's Office detective explained that

she became involved with the case after notification from a local

hospital.   The detective's recorded July 28, 2010 interview with

Ann was shown to the jury.

     An   investigator   with   the       prosecutor's   office   videotaped

interviews with Barbara and Cathy on August 28, 2012; they too

were shown to the jury.     The medical examination of Barbara and

Cathy did not reveal any physical trauma or signs of abuse.

     After the State rested, defense counsel informed the court

that he intended to call defendant's former attorney regarding his

recollection of his conversation with Ted.         Accordingly, the court

conducted an N.J.R.E. 104 hearing out of the presence of the jury

on the admissibility of the proposed testimony.

     During the hearing, the attorney said he spoke to Ted in

person at the court house on either March 26, 2012, or April 16,

2012, not on the phone.    He said that Ted told him "he was having

. . . disbelief as to the statements of his daughter, [Ann] he

. . . did not believe that the allegations were true."                    The

attorney advised Ted to contact the prosecutor and convey his

doubts about Ann's veracity.



                                      9                              A-5308-14T2
     On cross-examination, the attorney explained that Ted did not

give a specific reason for his "disbelief," just that he did not

believe the child's allegations.      The conversation occurred before

Barbara and Cathy had made their disclosures.

     At the close of the hearing, the court found a portion of the

testimony to be inadmissible.     The judge held that Ted's opinion

about the veracity of his daughter's allegations was irrelevant,

observing that it was the jury's job to decide whether or not Ann

was credible.    Furthermore, he considered the statement to be

hearsay, highly prejudicial to the State, and excluded by N.J.R.E.

602 as inadmissible lay opinion.

     The court agreed the attorney could testify for impeachment

purposes,   however,   and   described   his   recollection   that   the

conversation occurred in person in the courthouse and not on the

phone, and that contrary to Ted's testimony, Ted told the attorney

that he wanted to resolve the case not because of "family issues,"

but because of "something" else instead.       The attorney could state

that he directed Ted to convey the information to the prosecutor.

The first attorney's testimony before the jury complied with the

limits imposed by the court.

     Defendant presented several witnesses, including a character

witness and his sister.      Defendant's sister testified that his

relationship with Ted was poor.          The children's grandmother,

                                 10                             A-5308-14T2
defendant's     wife,    also   testified,     and   she   described          many

confrontations over the years between defendant and Ted, beginning

between 2004 and 2005, when Ted moved in with her and defendant.

The   disagreements,     including     several     physical    altercations,

continued even after her marriage.            She recalled that Ted and

defendant had an altercation just prior to July 22, 2010, the day

that Ann came forward with the allegations against defendant.

      Defendant's wife explained that during the relevant time

frame, she was the primary caregiver for the children, and that

they would confide in her about everything.            Despite this close

relationship,    the    children    never   said   anything    to   her     about

defendant molesting them.          Defendant's wife also said she would

not leave the children alone with defendant because they were "too

bad – too active for [him]."        She mentioned that she and defendant

cared for Ted's youngest child, a boy who has special needs.

Defendant's wife recalled leaving Ann alone with defendant once

in the summer of 2010 so that the child could finish watching a

movie before going to a family get-together.                  When she left,

defendant was outside.      She further testified that she took a work

leave of absence from March 2010 until November 2010, and saw no

change in the girls' normal behavior or physical appearance, or

anything unusual on their clothes or linens.



                                      11                                  A-5308-14T2
     Defendant's wife further stated that even after the alleged

incidents, the family had gone on trips and vacations together,

and acted like a family.   Defendant, Ted, and the girls went on

at least one of those trips.     Ted sent the grandchildren to her

house knowing defendant would be present.   She denied ever seeing

defendant in the bedroom with any of her granddaughters, although

she saw him tickling the girls, which he did with all their

grandchildren.

     Defendant also testified.    He categorically denied sexually

assaulting his step-granddaughters.    He acknowledged seeing them

after he was released on bail, although his bail conditions barred

contact.   Defendant said it had been explained to him that he

could not approach the girls, but that if they came to him it was

not a violation of his bail.     When the prosecutor attempted to

cross-examine him regarding post-bail contact with the girls,

defendant asserted his Fifth Amendment privilege.

     The judge immediately called a recess, and excused the jury

to allow defendant's attorney to consult with his client.       Once

back in the courtroom, counsel advised that defendant did not

intend to testify further, and in fact, had left the courthouse

and told his attorney on the phone that he would probably be

hearing about him in the news.   After discussion with counsel, the

judge struck defendant's testimony, and told jurors not to consider

                                 12                         A-5308-14T2
it.   We more completely describe these events, and the challenged

remarks by the prosecutor, in the relevant section.

      On appeal, defendant raises the following points:

           POINT I

           THE TRIAL COURT ERRED TO DEFENDANT'S GREAT
           PREJUDICE IN PRECLUDING TESTIMONY THAT THE
           ALLEGED VICTIMS' FATHER/UNCLE HAD STATED THAT
           HE DID NOT BELIEVE THE ACCUSATIONS AGAINST
           DEFENDANT. U.S. CONST., AMEND. (1947) [sic]
           XIV, N.J. CONST. (1947), ART. 1, PAR. 10.

           POINT II

           THE PROSECUTOR DILUTED THE STATE'S BURDEN OF
           PROOF BY ARGUING IN SUMMATION THAT THE
           PRESUMPTION OF INNOCENCE WAS EXTINGUISHED
           BEFORE DELIBERATIONS, VIOLATING DEFENDANT'S
           RIGHT TO A FAIR TRIAL. U.S. CONST., AMEND.
           XIV, N.J. CONST. (1947), ART. 1, PAR. 10. (Not
           Raised Below).

           POINT III

           THE STATE, IN ITS OPENING STATEMENT, COMMITTED
           MISCONDUCT    SUFFICIENTLY    PREJUDICIAL   TO
           WARRANT REVERSAL.    U.S. CONST., AMEND. XIV,
           N.J. CONST. (1947), ART. 1, PAR. 10.      (Not
           Raised Below).

           POINT IV

           THE DEFENDANT WAS DENIED HIS DUE-PROCESS RIGHT
           TO PRESENT HIS DEFENSE WHEN HIS TESTIMONY WAS
           STRICKEN AFTER HE ASSERTED HIS RIGHT TO
           SILENCE AND THEN ABSENTED HIMSELF FROM COURT,
           AND COUNSEL WAS INEFFECTIVE FOR ACQUIESCING
           IN THE PROCEDURE.    U.S. CONST., AMENDS. VI,
           XIV, N.J. CONST. (1947), ART. 1, PARS. 9, 10.
           (Not Raised Below).



                                13                          A-5308-14T2
            POINT V

            THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE,
            NECESSITATING REDUCTION.

                                       I.

      Defendant contends the court erred in limiting his first

trial attorney's testimony about his conversation with Ted because

it was admissible under N.J.R.E. 803(a)(1) as a prior inconsistent

statement.      We note that the first attorney was permitted to

testify as to the fact that the children's father made statements

inconsistent with what he said at trial.                  Thus, the jury had

information it could have used to conclude that Ted was not

credible.     But the judge's limitation properly prevented them from

factoring in Ted's opinion on Ann's credibility in making their

determination.

      Prior    inconsistent       statements   are   only   admissible      under

N.J.R.E.      803(a)(1)      if   admissible    while     the   declarant     was

testifying.        Since only otherwise admissible statements can come

in under the rule, this improper opinion testimony had to be

redacted from the first attorney's statements. See State v. Pasha,

280 N.J. Super. 265, 270-71 (App. Div.), certif. denied, 142 N.J.

453   (1995).          Repeating     Ted's     statement    regarding       Ann's

truthfulness would have been improper because one witness is not

permitted     to    assess    the   credibility      of   another   witnesses'


                                       14                                A-5308-14T2
testimony.     It would have been "an encroachment upon the province

of the jury."    State v. Frisby, 174 N.J. 583, 595 (2002) (citation

omitted).

     Furthermore,     a     trial   court's   evidentiary       rulings     are

"entitled to deference absent a showing of an abuse of discretion,

i.e., there has been a clear error of judgment." State v. Marrero,

148 N.J. 469, 484 (1997); see also Verdicchio v. Ricca, 179 N.J.

1, 34 (2004) (holding admissibility of evidence falls within the

broad discretion of the trial judge).            On appellate review, a

trial court's evidentiary ruling must be upheld "unless it can be

shown that the trial court palpably abused its discretion, that

is, that its finding was so wide of the mark that a manifest denial

of justice resulted."       State v. Carter, 91 N.J. 86, 106 (1982).

     It   is   undisputed    that   Ted's   statement   about    his    belief

regarding the truthfulness of Ann's accusation was hearsay as

defined within N.J.R.E. 801(c):        "'hearsay' is a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted."      Hearsay is only admissible if permitted on some

separate grounds found in the rules of evidence "or by other law."

N.J.R.E. 802.     But the statement does not fall under any other

exception.



                                     15                                A-5308-14T2
       Ted had no personal knowledge of whether Ann was actually

sexually assaulted by defendant.                 His belief was not based on his

perception.      Thus, the opinion he expressed was nothing more than

inadmissible lay opinion testimony.                   See N.J.R.E. 602; N.J.R.E.

701.

       The    logical    leap     between        defendant's       theory    that    Ted

instigated the accusations and his expressed doubt about Ann's

statements is not one we are willing to make.                     To that extent, we

agree with the trial judge that his opinion was irrelevant.

Certainly      we   agree      with   the     judge      that    the   statement     was

inadmissible, albeit for a different reason.                     See Isko v. Planning

Board, 51 N.J. 162, 175 (1968) (an order or judgment will be

affirmed on appeal if it is correct, even though the judge gave

the wrong reasons for it).

                                         II.

       Defendant also contends that the prosecutor's remarks during

summation      about     the     presumption        of      innocence       constituted

prosecutorial misconduct which deprived him of a fair trial.                           We

review the claim under the plain error rule, as it was not

previously raised.          See R. 2:10-2.

       The remarks to which defendant now objects are highlighted

in   the     following   quote,       which      includes       language    immediately

preceding and following those statements.

                                            16                                  A-5308-14T2
You've heard all the elements. You've heard
all the evidence, you've heard all the girls
testify.

Again, I stood up here in front of you at the
beginning of the trial. Presume [defendant]
innocent. You hadn't seen any evidence. You
hadn't heard any testimony from any of the
witnesses.

I told you throughout the course of the trial,
through the presentation of the evidence,
through the presentation of witnesses, the
State would tear down that presumption. Brick
by brick we would tear it down by showing you
the girls and their truthful testimony.     By
putting [Ted] on the stand.

The State has – by putting [] Finkel on the
stand. The State has done that. Now, that
the case is over, now that you've seen all the
evidence, the presumption of innocence is
gone.

And the State's proven to you each and every
element of each and every offense beyond a
reasonable doubt.

Ladies and gentlemen, you go back into the
jury room, bring your common sense with you.
Bring your ability to assess the credibility
of people. You do it every day in a lot of
different situations.

Consider   the   evidence.     Consider   the
testimony. Remember how the girls testified.
Remember how they gave those statements when
they were six, eight, and nine years old.

If you consider that evidence, and you
consider it fairly, and you consider it
thoroughly, you'll come back with the only
reasonable verdict in this case, and that's
guilty beyond a reasonable doubt to each and
every element of each and offense [sic].

                     17                          A-5308-14T2
     In considering the weight to be given to this claim, we look

first to the judge's instructions to the jury.   He instructed that

the presumption of innocence carried through deliberations unless

and until the jury determined that defendant was guilty.

     "Not every instance of misconduct in a prosecutor's summation

will require a reversal of a conviction.   There must be a palpable

impact."   State v. Roach, 146 N.J. 208, 219, cert. denied, 519

U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

     It is noteworthy that no objection was made to the now

objected-to comments when uttered.   See State v. Timmendequas, 161

N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136,

151 L. Ed. 2d 89 (2001).   The assumption is that the remarks were

not considered prejudicial by defense counsel when made, and in

this case, that conclusion is inescapable.

     In his closing statement, although the prosecutor misspoke

regarding the duration of the presumption of innocence, that

fleeting reference was unlikely to have prejudiced the outcome.

The jury was instructed that statements by the attorneys were not

the law, and that only the judge conveyed the law as it applied

to the case.    The trial court correctly instructed the jury

regarding the presumption of innocence and the State's burden of

proof.



                                18                          A-5308-14T2
     Defendant's argument, that the judge erred in his final

instruction by only tracking the Model Jury Charge and omitting

mention of the prosecutor's misstatement of the law, is not

persuasive.   State v. Compton, 304 N.J. Super. 477, 483 (App. Div.

1997), certif. denied, 153 N.J. 51 (1998).            It is presumed that

juror's follow a judge's instruction.        Ibid.    The judge instructed

the jury that the presumption of innocence follows defendant into

the jury room.     Thus, the prosecutor's fleeting remarks, even if

a misstatement of the law, were not clearly capable of producing

an unjust result, nor so egregious that they deprived defendant

of a fair trial.    Timmendequas, supra, 161 N.J. at 575.

                                     III.

     Defendant     also   contends    that   the     prosecutor's   opening

statement included language that was improper and prejudicial,

requiring reversal even under the plain error standard.             See R.

2:10-2.   The prosecutor described the case as "very, very ugly,"

and involving "hideous acts performed against the most vulnerable

of all victims, children[.]"

     Additionally, the prosecutor introduced himself by stating

that it was his "job in this case to represent the people of the

State of New Jersey[.]"        Defendant argues that language was

intended to align the prosecutor with the jury, to the exclusion

of the defendant.    We do not agree as to either claim.

                                     19                             A-5308-14T2
     The prosecutor's opening remarks, in relevant part, are as

follows:

           Good morning, ladies and gentlemen.   I know
           we've been introduced before, but my name is
           [ ]. I'm [an] Assistant Prosecutor here in
           Camden County. It's my job in this case to
           represent the people of the State [of] New
           Jersey.

                . . . .

           Now, this case, this is somewhat of a
           difficult case.    That's because it [is] a
           very, very ugly case.    It involves hideous
           acts performed against the most vulnerable of
           all victims, children.    And that's exactly
           what this defendant did. He preyed on three
           little girls, his three step[-]grandchildren,
           who were six, eight and nine years old at the
           time that he did it.

           I'm not going to sugarcoat this for you,
           ladies and gentlemen.   You're going to hear
           things   that   are   going   to   make  you
           uncomfortable.   You're going to hear things
           that may disgust you. Listen to the facts,
           listen to the evidence.

     In their context, the description simply does not appear

egregious, or pose the risk of having so inflamed or prejudiced

the jury that defendant was deprived of his right to a fair trial.

The prosecutor is entitled to describe the facts he or she intends

to prove by competent evidence.    State v. Wakefield, 190 N.J. 397,

442 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L.

Ed. 2d 817 (2008).   A prosecutor is permitted to comment on the

evidence he intends to present to the jury.    Ibid. at 442.

                                  20                           A-5308-14T2
     It also bears noting that not only did defense counsel not

find the introductory language objectionable, he responded in his

opening to the comments the prosecutor had made.   He agreed that

the alleged crimes were "heinous," -- but that it was important

to keep in mind that the State had to prove beyond a reasonable

doubt that the offenses occurred, and that sympathy could not play

a role in the jury's decision.      The prosecutor's description,

albeit somewhat hyperbolic, did not "substantially prejudice[]

defendant's fundamental right to have a jury fairly evaluate the

merits of his defense."   Timmendequas, supra, 161 N.J. at 575.

Furthermore, in this case, as in every case, the judge instructed

the jury regarding the manner in which they were to weigh the

evidence before rendering their verdict.   He said, tracking the

model jury charge:

          As jurors, it's your duty to weigh the
          evidence   calmly,   without   any   passion,
          prejudice, or sympathy, as any influence
          caused by these motions [sic] has the
          potential to deprive both the State and the
          defendant what you promised them, a fair and
          impartial trial by fair and impartial jurors.

          Also, speculation, conjecture, or any other
          form of guessing, should play no role in the
          performance of your duties.

          [Model Jury Charge, (Criminal),     "Criminal
          Final Charge" (2014).]




                               21                          A-5308-14T2
      Again, it is presumed that the jury understood and followed

the trial judge's instructions.              Manley, supra, 54 N.J. at 271;

Compton, supra, 304 N.J. Super. at 483.

      Defendant relies on State v. Negron, 355 N.J. Super. 556

(App. Div. 2002) to support his argument that the prosecutor's

introduction    was    improper   and        prejudicial.2     In   Negron,     the

prosecutor stated that he represented "the citizenry of our State."

Id. at 576.     He added, however, that he was "alone on behalf of

the State[,]" and that he wanted the jurors "to pretend that in

that seat next to [him] are all [their] friends, neighbors and

relatives in the community because it's on their behalf that [he]

bring[s] this case to [the jurors] and as a public servant it's

[his] obligation and [his] desire to seek out justice. . . ."

Ibid.   These comments were prejudicial because they asked the jury

to   align   themselves   with    the    State     to   the   exclusion    of   the

defendant. In contrast, in this case, the prosecutor's explanatory

introduction     was      fleeting,          arguably    factual     and        thus

unobjectionable.      It was not prejudicial.

      Thus, we conclude that the prosecutor's remarks in the opening

statement were neither clearly capable of producing an unjust



2
  We do not address counsel's reliance on State v. Raiford, No. A-
4370-10 (App. Div. Oct. 16, 2013) because it is an unpublished
decision. See R. 1:36-3.

                                        22                                 A-5308-14T2
result, nor so egregious that defendant was deprived of a fair

trial.    Timmendequas, supra, 161 N.J. at 575.        Defendant's failure

to object only corroborates the conclusion.          Id. at 576.

                                    IV.

       Defendant contends he is entitled to a new trial because his

testimony was stricken after he claimed the Fifth and left the

courthouse.       This   unfortunate      outcome   was    the   product      of

defendant's own conduct and does not warrant reversal of the

conviction.

       As a threshold matter, we will not now address defendant's

ineffective assistance of counsel claim.        His attorney's decisions

regarding whether to object to the judge striking the testimony

will be deferred to petition for post-conviction relief, should

defendant choose to pursue such relief. The record is insufficient

for evaluation of the claim.        See State v. McDonald, 211 N.J. 4,

30 (2012).     Additionally, it is sheer unwarranted speculation to

suggest that had the judge allowed the testimony to stand, the

trial's outcome would have been different.

       Turning to the merits of his argument, during his direct

examination, defendant denied abusing his step-granddaughters.

The judge called a recess when during cross-examination, the

prosecutor attempted to query defendant regarding his contacts

with     the   step-grandchildren    despite    bail      conditions     which

                                    23                                 A-5308-14T2
prohibited   them.    Defendant   unexpectedly   claimed    his     Fifth

Amendment privilege against self-incrimination, and the court

excused the jury to allow defense counsel time to confer with his

client.   The trial court then said to counsel, while defendant was

still in the courtroom:    "Let [defendant] know that, if he doesn't

want to answer questions, I've got to strike his direct[,]" to

which defense counsel responded, "I know."

     Upon his return, counsel advised the court, "I think he is

going to have the testimony stricken, because he's thinking he's

going to get locked up."    The court advised defense counsel that

he was "going to direct [defendant] to testify[,]" and if he

refused, it would "cite him in contempt." The court further stated

that if defendant continued to refuse to testify, the prosecution

could move to strike his testimony.     Defense counsel again asked

for, and was granted, a second recess to confer with defendant.

It is not clear if defendant was in the room during this colloquy.

     When defense counsel returned to the courtroom alone after

speaking with defendant, he explained:

           [T]the court gave me the opportunity to go out
           and speak to [defendant] about . . . his
           exertion of his Fifth Amendment right.     And
           with respect to his testimony, of course,
           everything that gave rise to this was
           concerning the no contact as a point of his
           bail.



                                  24                              A-5308-14T2
         As a result of that, the discussion went from
         the Fifth Amendment issue to whether . . . his
         bail was going to be revoked. And I told him,
         I don't know. But that's not an issue before
         the court at this particular point. He asked
         for some assurances. I told him that I could
         not give him any assurances to that.

         I told him what would happen    here is that   we
         would come back into court if   you're going   to
         exert your Fifth Amendment      right, which    I
         believe he might have waived    . . . , so,    he
         wouldn't have to testify.

         But certainly you have to answer questions,
         or if you choose not to, then that's another
         option . . . we were talking about this.

              . . . .

         [W]hen I went out this time, [defendant]
         wasn't out there.   So, I called him on the
         phone.   And he advised me that he was not
         going to be returning. And we would probably
         hear about him on the news today.

The court and defense counsel then engaged in this dialogue:

         THE COURT: What I'm going to do is, . . . I
         think it's clear at this point, he's
         voluntarily chosen –

         [DEFENSE COUNSEL]: Not to testify.

         THE COURT:     -- not to be here.

         [DEFENSE COUNSEL]:    Right.

              . . . .

         THE COURT: So, clearly at this point, he has
         waived his right . . . to his Fifth Amendment
         - -

         [DEFENSE COUNSEL]:    Right.

                                25                           A-5308-14T2
          THE COURT:    -- by taking       the   stand,   and
          revoking it at this point.

          Based on that information, quite frankly, I
          would be compelling him to continue to
          testify.

          [DEFENSE COUNSEL]:    Right.

          THE COURT: Now, if he refuses, then he can
          be held in contempt of court.

          Based   on  what   you're   telling  –  your
          conversation with your client, he has chosen
          not to testify, and not to continue.

          [DEFENSE COUNSEL]:    Correct.

          THE COURT: Okay. Therefore, I – I would be
          compelled to direct that his entire testimony
          be stricken from the record.

     Later in the proceeding, but before striking defendant's

testimony, the judge asked defense counsel if defendant's position

had changed, to which defense counsel responded that it had not.

Defendant concedes that defense counsel did not object to the

striking of his testimony.     R. 1:7-2.   Therefore, this issue is

reviewed for plain error, which requires the error to be "of such

a nature as to have been clearly capable of producing an unjust

result[.]"   R. 2:10-2.

     "It is well-settled that a defendant who voluntarily takes

the stand and offers testimony in his own behalf exposes himself

to cross-examination and the possibility of being compelled to


                                 26                             A-5308-14T2
testify against himself."     State v. Bogus, 223 N.J. Super. 409,

422 (App. Div.), certif. denied, 111 N.J. 567 (1988); see also

Brown v. United States, 356 U.S. 148, 154-56, 78 S. Ct. 622, 626-

27 2 L. Ed. 2d 589, 596-97 (1958) ("If [a criminal defendant]

takes the stand and testifies in his own defense, his credibility

may be impeached and his testimony assailed like that of any other

witness, and the breadth of his waiver is determined by the scope

of relevant cross-examination.    'He has no right to set forth to

the jury all the facts which tend in his favor without laying

himself open to a cross-examination upon those facts.'") (quoting

Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S. Ct. 944,

949, 44 L. Ed. 1078, 1083 (1900)).

     "The practical result, therefore, of a defendant's decision

to testify is to effect a waiver of his constitutional privilege

against self-incrimination, at least to the extent necessary to

permit   effective   cross-examination."   Bogus,   supra,   223   N.J.

Super. at 422.   Moreover, when a defendant is called to the stand

by his counsel and testifies without objection, "[t]he inference

is clear that defendant knowingly, voluntarily and intelligently,

with the advice of counsel, waived his right not to testify and

took the stand on his own behalf."    Id. at 423.

     One of the essential purposes of cross-examination is to test

the reliability of testimony given on direct-examination.          State

                                 27                           A-5308-14T2
v. Branch, 182 N.J. 338, 348 (2005).         Generally, direct testimony

cannot be deemed reliable unless tested in the "crucible of cross-

examination."    Ibid.   Our courts have recognized "the fundamental

unfairness of permitting such testimony to be considered by the

trier of fact." State v. Feaster, 184 N.J. 235, 249 (2005). Thus,

"[w]hen a witness's direct testimony concerns a matter at the

heart of a defendant's case, the court should strike that testimony

if the witness relies on the privilege against self-incrimination

to prevent cross-examination."        Id. at 248.

     It is mere speculation for defendant to assert that had he

been given the opportunity to understand the court's contempt

power, or more explicitly, that his direct testimony would be

stricken   if   he   left,   that   his   decision   would   have   changed.

Defendant heard the judge's initial comments and knew his testimony

would be stricken.     Unless counsel was lying to the court, counsel

reiterated to defendant once outside the courtroom, the likely

outcome of his continued reliance on his Fifth Amendment privilege

to remain silent.

     Clearly, defendant's direct testimony went to the heart of

the matter, as he denied sexually abusing his step-granddaughters.

It would not have been reasonable for him to assume that having

made those statements, he could leave and avoid cross-examination

on the central issue in the case, without any repercussions.

                                     28                              A-5308-14T2
     Furthermore, defendant acknowledges that had he continued to

refuse to subject himself to cross-examination, regardless of the

court's contempt power, his direct testimony would ultimately have

been legitimately stricken.         The argument seems to be that the

court should have adjourned the matter, or should have taken other

steps to attempt to convince him to testify, on the chance he

would    continue   to   testify   without   asserting   the   Fifth.     An

overnight delay in the hopes defendant would change his mind was

not necessary – defendant made a decision for which he paid a high

price.    He knew his testimony would be stricken if he left, and

chose to do so.

                                     V.

     Finally, defendant objects to his sentence, asserting that

the judge's weighing of the aggravating and mitigating factors was

not supported by the record, and that it resulted in the imposition

of excessive terms of incarceration.         He also complains that the

court did not take into account the real time consequences of

NERA.

     Trial courts "are given wide discretion so long as the

sentence imposed is within the statutory framework."              State v.

Dalziel, 182 N.J. 494, 500 (2005).        The standard of review is "one

of great deference and '[j]udges who exercise discretion and comply

with the principles of sentencing remain free from the fear of

                                    29                             A-5308-14T2
second guessing.'"      Id. at 501 (quoting State v. Megargel, 143

N.J. 484, 494 (1996)) (alteration in original).

      "[A] trial court should identify the relevant aggravating

[factors   of   N.J.S.A.   2C:44-1(a)]      and   mitigating   factors   [of

N.J.S.A. 2C:44-1(b)], determine which factors are supported by a

preponderance of the evidence, balance the relevant factors, and

explain how it arrives at the appropriate sentence."               State v.

O'Donnell, 117 N.J. 210, 215 (1989).

      "An appellate court should disturb the sentence imposed by

the trial court only in situations where the sentencing guidelines

were not followed, the aggravating and mitigating factors applied

by the trial court are not supported by the evidence, or applying

the    guidelines     renders    a        particular    sentence    clearly

unreasonable."      State v. Roach, 146 N.J. 208, 230 (citing State

v. Roth, 95 N.J. 334, 364-65 (1984)), cert. denied, 519 U.S. 1021,

117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

      Defendant's sentence to sixteen years' imprisonment subject

to NERA does not shock our conscience.            See Roth, supra, 95 N.J.

at 363-64.

      The court found three aggravating factors, N.J.S.A. 2C:44-

1(a)(3), (6), and (9), and two mitigating factors, N.J.S.A. 2C:44-

1(b)(7) and (11).     The court concluded that the risk of re-offense

arose from defendant's prior contacts with the court system, and

                                     30                             A-5308-14T2
the fact the present indictment alleged eight indictable charges

involving three different victims.   This was sufficient evidence

in the record to justify the factor. As to N.J.S.A. 2C:44-1(a)(b),

defendant's priors were certainly quite old, from 1988 to 1998.

Although we may not agree with the trial judge regarding the

appropriateness of the factor based on the age of defendant's

prior criminal history, we cannot say that the judge's decision

to find that factor was unreasonable or not authorized by law.

     Nor do we agree that the great weight the judge gave to

N.J.S.A. 2C:44-1(a)(9) was improper.    In this case, the victims

are children.   That factor has great weight not only as to the

individual defendant, but to the public as well.

     The court was not compelled to explicitly take into account

the real time consequences of NERA.     NERA is a consideration,

among others, that plays a role in a judge's decision to fashion

an appropriate sentence.   See State v. Hernandez, 208 N.J. 24, 50

(2011) (quoting State v. Marinez, 370 N.J. Super. 49, 58 (App.

Div.), certif. denied, 182 N.J. 142 (2004)).

     That the judge found mitigating factors no doubt informed his

decision to impose concurrent sentences for the offenses committed

against the victims.   Similarly, it also explains his reduction

from the outer limit of the range of twenty years.   Overall, the



                                31                         A-5308-14T2
balancing   between   aggravating   and   mitigating   factors    is

unassailable.

    Affirmed.




                               32                          A-5308-14T2
