                           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                        NOT FOR PUBLICATION WITHOUT THE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-3690-13T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

J.M.,

     Defendant-Appellant.
________________________________

              Argued January 18, 2017 – Decided August 16, 2017

              Before Judges Espinosa, Guadagno, and Suter.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Bergen County,
              Indictment No. 13-01-0091.

              Jane M. Personette argued the cause for
              appellant (Law Offices of Brian J. Neary,
              attorneys; Mr.     Neary, of counsel; Ms.
              Personette, on the brief).

              Suzanne E. Cevasco, Assistant Prosecutor,
              argued the cause for respondent (Gurbir S.
              Grewal, Bergen County Prosecutor, attorney;
              Ms. Cevasco, of counsel and on the brief).

PER CURIAM

        Defendant J.M. appeals his convictions and sentence.                       We

affirm.
                                I.

     Defendant is the uncle and godfather of Kimberly.1   In 2006,

when Kimberly was ten, she would stay overnight at her aunt and

defendant's house to play with her cousin Jimmy.     She slept in

Jimmy's room when she stayed over, and he slept with his parents.

Kimberly stopped staying overnight after 2006.

     In 2013 when Kimberly was seventeen, she revealed to her

boyfriend that when she was ten years old, defendant twice touched

her inappropriately when she stayed at his house.   She also told

her mother, who contacted the local police.

     Following investigation, defendant was indicted on two counts

of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts one

and two), and one count of second-degree endangering the welfare

of a child, N.J.S.A. 2C:24-4(a) (count three).    He waived trial

by jury, and following a bench trial, was convicted on all counts.

Defendant was sentenced to consecutive terms of six years each for

the sexual assault charges subject to parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a

concurrent term of six years on the endangerment charge. Defendant

also was sentenced to parole supervision for life, to comply with




1
  We use pseudonyms throughout this opinion to maintain         the
confidentiality of the minors involved in the case.
                                2                         A-3690-13T3
Megan's Law requirements,2           to adhere to a restraining order under

Nicole's Law,3 and to a no-contact order.

       At trial, Kimberly testified that when she was in fifth grade

and staying at defendant's home for the weekend, she was in bed

around midnight but watching television.              She heard the door open

and closed her eyes to pretend to be asleep as defendant entered

the room. He stood over her, breathing heavily, and began touching

her breasts and vagina over her clothing.               His hands were rough.

After he began to touch her, Kimberly rolled over to let defendant

know she was awake, and he left.                Nothing was said about the

incident.

       A   few    weeks   later   when   Kimberly     was    staying   over,   she

testified        defendant   again    entered   her   room    around   midnight,

touched her breasts and continued touching her, moving down toward

her vagina.        She said she wet the bed prior to being touched by

defendant and again rolled over to signal to defendant she was

awake.     After defendant left, she went out to the bathroom and saw

defendant walking back to his room.             Nothing was said about the

incident.

       Kimberly did not disclose any of this to her family members

at the time.          She continued to go places with her aunt and


2
    N.J.S.A. 2C:7-1 to -23.
3
    N.J.S.A. 2C:14-12.
                                         3                               A-3690-13T3
defendant, and to visit with Jimmy after this, but did not stay

overnight.   At her sixteenth birthday party, Kimberly told family

and friends in a speech she had written that defendant was "very

special" to her and she was "lucky to have him."

     When Kimberly was seventeen and she and her boyfriend were

"opening up to each other," she texted him about defendant's

inappropriate touching.   The next day, Kimberly texted her mother

about defendant's "touching," "begging" her not to tell anyone,

but her mother contacted the police.

     Kimberly gave a statement to Detective Linda McNulty of the

Bergen County Prosecutor's Office.     In her statement, Kimberly

alleged defendant touched her under her clothing and that his hand

was rough.   Detective McNulty looked at and videotaped the text

message that Kimberly identified on her phone as pertaining to the

allegations against defendant, but did not look at any of her

other messages.    Kimberly acknowledged the text message to her

boyfriend was part of a longer series of texts.

     Defendant was questioned by detectives from the Prosecutor's

Office.   The interview was recorded.4   The detectives conducted

the interview by representing to defendant their belief in the

quality and believability of Kimberly's accusations against him.


4
  We were not provided the video of the interview, but were
provided with the transcript. The video was admitted into evidence
at the trial.
                                 4                        A-3690-13T3
During the course of the interview, defendant acknowledged he

entered Kimberly's room but only to check on her, and said he did

not remember touching her, but that it was "possible."              Defendant

was shaking his foot throughout the interview, his pulse was

visible in his neck and his stomach was growling.               At the end,

defendant    asked   to   speak   with   an   attorney,     the    interview

terminated, and defendant was arrested.

       Defendant was not successful in suppressing the videotape nor

reference to his demeanor or body language during the interview.

His interview with the detectives was played in its entirety at

the bench trial.     Kimberly also testified, and her statement to

the detectives and the text messages from her to her boyfriend and

mother were admitted in evidence at the trial. Dr. Anthony D'Urso,

the State's expert, testified at trial about Child Sexual Abuse

Accommodation Syndrome (CSAAS) in general, but he was not familiar

with the specific facts of this case.

       Defendant's   witnesses    testified   about   his   character      for

honesty and trustworthiness.       Defendant's wife offered testimony

that   Kimberly   might   be   retaliating    for   her   and     defendant's

expression to Kimberly that she was too young for a boyfriend.

Defendant testified he did not touch Kimberly inappropriately when

she slept, responding "[n]o.       Absolutely, not" when asked.




                                     5                               A-3690-13T3
     On October 13, 2013, the trial judge issued a written "verdict

of the court" (verdict).               The judge found the State had proven

beyond    a    reasonable       doubt       that    defendant      sexually   assaulted

Kimberly.      The "primary issue" was whether the "conduct alleged .

. . actually occurred." In that regard, the court found Kimberly's

testimony      credible    based       on    "several    factors,"        including   her

demeanor.      Her testimony "echoed with the ring of truth."                   She had

no motive to "make false allegations" against defendant.                       Further,

the court found Dr. D'Urso's testimony "persuasive to explain

[Kimberly's]       failure      to     confront       defendant      or    address    the

incidents in a timely fashion."                      However, the court did not

consider this expert testimony as proving one way or the other

whether       sexual    abuse    had    occurred.            The   judge    "completely

discount[ed       the     detective's]             opinion    statements      regarding

[Kimberly's] credibility."

     The      court     gave    little       weight     to   defendant's      character

witnesses.      He rejected defendant's wife's testimony that Kimberly

continued to sleep over at their house after 2006, finding her

testimony "inherently biased."                    The court found inconsistencies

between defendant's trial testimony and his statement to the

detectives:

               Defendant's statements at the . . . interview
               that it was possible he could have put his
               hands on [Kimberly's] chest by accident, or
               that the incidents could have happened when

                                              6                                 A-3690-13T3
           he was drinking, or that he did not recall or
           remember touching [Kimberly] when he entered
           the bedroom, are diametrically opposed to his
           testimony at trial when he unequivocally
           denied that he touched [Kimberly]. Defendant
           did not have a clear memory in October 2012,
           albeit, six years after the alleged incidents.
           Yet, he definitely testified in October 2013
           that he never touched [Kimberly].

     The   court   noted   defendant's    demeanor   at    trial   and   his

statement.   During the interview he was not "excited, agitated,

angry or upset."     The court found defendant was "untruthful" when

he did not disclose to the detectives that he had other children

who lived out of state.

     The   court   concluded   "after    analyzing   all   the   testimony,

considering the credibility of the witnesses and reviewing the

evidence" that defendant "touched [Kimberly's] breast/breasts and

vagina on two occasions in the fall of 2006."              The court found

defendant's purpose and intent "was sexually motivated."              Also,

defendant had "assumed responsibility for [Kimberly's] care when

she was in his presence," which supported a finding of second-

degree endangering the welfare of a child.

     On appeal, defendant raises the following claims:

           POINT I

           THE COURT BELOW ERRED IN FAILING TO SUPPRESS
           THE STATEMENT TAKEN FROM DEFENDANT.

           POINT II



                                   7                               A-3690-13T3
DEFENDANT'S CONVICTION MUST BE REVERSED
BECAUSE, IN RENDERING ITS VERDICT, THE TRIAL
COURT IMPERMISSIBLY USED DEFENDANT'S EXERCISE
OF HIS RIGHT TO REMAIN SILENT AND RIGHT TO
COUNSEL AGAINST HIM.

POINT III

DEFENDANT'S CONVICTION MUST BE REVERSED BASED
UPON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

a. Trial counsel's failure to confront the
alleged victim with a material inconsistency
between her trial testimony and an earlier
statement constituted ineffective assistance
of counsel.

b. Trial [c]ounsel's failure to conduct a
meaningful cross-examination of the State's
expert   witness,   Dr.    Anthony    D'Urso,
constitutes   ineffective    assistance    of
counsel.

c. Trial counsel's failure to conduct a
thorough cross-examination of Det. Linda
McNulty with respect to her interrogation
techniques and the impact upon [d]efendant's
demeanor during the police interrogation
constitute ineffective assistance of counsel.
POINT IV

SPOLIATION   OF   EVIDENCE    REQUIRES   THAT
DEFENDANT'S CONVICTION BE REVERSED.

POINT V

CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE
PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR
TRIAL AND WARRANT REVERSAL.

POINT VI

THE SENTENCE IMPOSED BY THE COURT BELOW IS
EXCESSIVE.



                      8                          A-3690-13T3
          a. The [c]ourt below erred in its analysis of
          aggravating and mitigating factors.

          b. Concurrent   sentences      should   have   been
          imposed.

          c. The [c]ourt below erred in failing to
          sentence [d]efendant as if convicted of
          offenses one degree lower. (not argued below)

                                   II.

                                   A.

     Defendant contends the trial court erred in denying his motion

to suppress the statement he gave when he was interviewed by the

detectives.    On   appeal,   he    contends   that   the   "aggressive

interrogation" and references by the detectives to Kimberly's

veracity and defendant's guilt "so permeated and tainted the

interview process that the questions cannot be separated from the

responses, verbal and non-verbal."

     In admitting the statement in its entirely, the trial court

found the statement was "knowingly and voluntarily taken."              We

agree with the trial court. Defendant was read his Miranda5 rights

and he initialed the Miranda card. He never asked that questioning

cease and when he did ask for a lawyer, the interview stopped.

     Defendant takes issue with the "aggressive interrogation."

However, "[u]se of psychological tactics is not prohibited." State




5
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                    9                           A-3690-13T3
v. Faucette, 439 N.J. Super. 241, 260 (App. Div. 2015) (citation

omitted).   "Unlike the use of physical coercion, . . . use of a

psychologically-oriented       technique     during   questioning    is    not

inherently coercive."      Ibid.     (alteration in original) (quoting

State v. Galloway, 133 N.J. 631, 654 (1993)).

     There was nothing coercive about the interview.             It was short

in duration; there were no threats; defendant was provided with

some food; there was no physical force; and the interview was

terminated when he requested an attorney. "A voluntary intelligent

statement   by   a   defendant     fully   informed   of   his    rights    is

admissible."     Id. at 264.

     Defendant    also   challenges    the   denial   of   his   suppression

motion because during the interview the detectives expressed their

views about Kimberly's veracity and defendant's guilt.

     It is improper for a police officer to testify to a jury

regarding his opinion of a defendant's guilt or credibility.               See

State v. Frisby, 174 N.J. 583, 593-94 (2002); see also State v.

Landeros, 20 N.J. 69, 74-75 (1955) (finding that a police captain's

testimony to a jury about defendant's guilt warranted reversal of

the conviction).      In denying the suppression motion, the trial

court found there was "prejudice in the way the questions [were]

phrased."   However, the court stated that it made no "inference

against the defendant because of the tactics and the opinions used


                                      10                             A-3690-13T3
by the detective," and indicated the detective's tactics were

"ripe for cross-examination."

     Moreover, the court expressed "I have no doubt I can ignore

the opinions given by the detectives . . . as to guilt or

innocence," and that whether defendant's nervous demeanor was

because "he's really nervous, or because he's prevaricating" was

for the court to decide as the trier of fact at the bench trial.

     Defendant cites no authority to suppress the statement based

on his unsupported concern the judge would be compromised in

deciding the case because of the detectives' expressions in the

interview.   The judge made a conscious decision here to disregard

the opinions of the detectives.          The record reflects no waver in

this resolve.

                                    B.

     The court's verdict contrasted defendant's demeanor at trial,

where   he   testified   he   was   "shocked"    and   "floored"     by    the

allegations, with his demeanor in the interview, where he "made

no protestations or expressions of 'shock,' nor did he make any

statements indicative of disbelief."         When defendant was asked by

the detectives in the interview if Kimberly were lying, the court

observed "defendant did not respond 'Yes, she is lying,' but

instead replied: 'I need to see a lawyer.'"             Defendant seeks a

reversal     of   his    conviction       claiming     the   trial      court


                                    11                               A-3690-13T3
"impermissibly" used his exercise of the right to counsel and the

right to remain silent against him.

     "[T]he right of . . . a suspect to remain silent when in

police custody or under interrogation has always been a fundamental

aspect    of   the   privilege   [against    self-incrimination]     in   this

state."    State v. Muhammad, 182 N.J. 551, 567 (2005) (alterations

in original) (quoting State v. Deatore, 70 N.J. 100, 114 (1976)).

"Making reference at trial to what a defendant did not say to the

police is commenting on his silence."              Id. at 565 (citations

omitted).      Also, "a suspect who initially responds to police

questioning may later assert his right to remain silent without

fear that his silence will be used to incriminate him at trial."

Id. at 567-68.

     The right to counsel is "an adjunct of the privilege against

self-incrimination."        State v. Reed, 133 N.J. 237, 253 (1993).        In

the "pre-indictment stage of a prosecution . . . the 'essential

purpose' of the right to counsel in the context of custodial

interrogation 'is to prevent compelled self-incrimination.'"               Id.

at 252 (quoting State v. Sanchez, 129 N.J. 261, 266 (1992)).               The

right    requires    that    interrogation     cease   upon   the   suspect's

invocation of the right.         Id. at 253.

     Here, defendant waived his right to remain silent when,

following the administration of his Miranda rights, he voluntarily


                                      12                             A-3690-13T3
spoke with the detectives in a video-recorded interview.              "When a

defendant agrees to give a statement, he or she has not remained

silent, but has spoken."           State v. Tucker, 190 N.J. 183, 189

(2007).   "[I]t is not an infringement of a defendant's right to

remain silent for the State to point out differences in the

defendant's testimony at trial and his or her statements that were

freely given."       Ibid.   (citations omitted).      However, "the use of

such evidence [is limited] to issues of credibility and not

substantive     evidence     on   the   issue   of   defendant's   guilt     or

innocence."     Id. at 191 (citation omitted).         The judge's findings

pointed   out   these     inconsistencies.       The   inconsistencies      and

defendant's demeanor on the videotape were all part of what the

court used in evaluating defendant's credibility.

     The State concedes that the court "improperly" commented on

defendant’s exercise of his right to counsel, and we agree.

However, the court's verdict was clearly based on its credibility

assessment of Kimberly, the "inconsistencies" between defendant's

trial testimony and statements he made to the detectives and his

demeanor and not on defendant's invocation of his right to speak

with counsel.        The error was not plain error.      R. 2:10-2.

                                        C.

     Defendant raises that his trial counsel provided ineffective

assistance      by     failing    to     cross-examine     Kimberly      about


                                        13                            A-3690-13T3
inconsistencies     between        her    statement      to    the    police    and   her

testimony    at    trial,     by    not     conducting        a    meaningful     cross-

examination of Dr. D'Urso and by not thoroughly examining Detective

McNulty about her interview techniques and their                              impact on

defendant's demeanor.

     There    exists     "a        general      policy        against       entertaining

ineffective-assistance-of-counsel claims on direct appeal because

such claims involve allegations and evidence that lie outside the

trial record."       State v. Preciose, 129 N.J. 451, 460 (1992)

(citations omitted).        We decline to address the issues here.

                                           D.

     Defendant     contends        the    trial    suffered          from    "cumulative

errors" that deprived him of a fair trial.                        See State v. Simms,

224 N.J. 393, 407 (2016) (reversing conviction based on the

"cumulative effect of the errors").                   This claim warrants only

brief comment.     R. 2:11-3(e)(2).          As for the claim that other text

messages on Kimberly's phone were not preserved by the detectives,

defendant    did   not   allege       the    requisite        "bad     faith"    by   the

detectives in not preserving them.                See State v. Hollander, 201

N.J. Super. 453, 479 (App. Div.) (citations omitted) (focusing on

three factors to determine whether a due process violation occurred

by the loss of physical evidence, including "whether there was bad

faith or connivance on the part of the government"), certif.


                                           14                                   A-3690-13T3
denied, 101 N.J. 335 (1985).            As for the claim of cumulative

errors, "the theory of cumulative error [does] not apply where no

error was prejudicial and the trial was fair."             State v. Weaver,

219 N.J. 131, 155 (2014) (citation omitted).              Defendant did not

show any prejudicial error.




                                       E.

       We reject defendant's claim that the judge erred in imposing

consecutive    sentences    and   in    balancing   the    aggravating   and

mitigating factors.6

       We review a judge's sentencing decision under an abuse of

discretion standard.       State v. Fuentes, 217 N.J. 57, 70 (2014).

We must determine whether:

            (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."

            [Ibid.   (alterations in original) (quoting
            State v. Roth, 95 N.J. 334, 364-65 (1984)).]

"A judge's sentencing analysis is a fact-sensitive inquiry, which

must be based on consideration of all the competent and credible


6
    Reference is to N.J.S.A. 2C:44-1(a) and (b).
                                       15                          A-3690-13T3
evidence raised by the parties at sentencing."         State v. Jaffe,

220 N.J. 114, 116 (2014).

     Defendant contends the trial court erred by finding that

aggravating factor three applied and also by not finding that

mitigating factors eight, nine and ten applied. N.J.S.A. 2C:44-

1(a)(3); N.J.S.A. 2C:44-1(b)(8)-(10).

     In sentencing defendant, the court found that aggravating

factors two, three and nine applied.        The court gave significant

weight to factor two, the seriousness of the harm, noting that

Kimberly did not reveal the assaults because she was trying to

keep her family together and that she also suffered "severe

emotional trauma" from her silence.       The court gave minimal weight

to factor three, the risk of re-offense, noting that although

defendant maintained his innocence, there was a risk he would

reoffend.    The court gave substantial weight to factor nine, the

need to deter, finding there was a great need to deter individuals

from committing sex offenses.      The court found that aggravating

factor four, breach of trust, applied to counts one and two, giving

that factor substantial weight.

     In     applying   the   mitigating    factors,   the   court   gave

significant weight to factor seven, as defendant had no criminal

history and several members of the community had written supportive

letters.    The court gave minimal weight to factor eleven, finding


                                   16                           A-3690-13T3
there was always a hardship to a family when one member becomes

incarcerated.       The    court    found   the    aggravating     factors

substantially outweighed the mitigating factors, and sentenced

defendant accordingly.

     We have no quarrel with the court's analysis.               There was

evidence that defendant was not forthcoming even with the character

witnesses who testified for him because none were aware defendant

was the father of three other children from a prior relationship.

The court highlighted inconsistencies in defendant's testimony and

in his demeanor.     The incidents were not disclosed.           We cannot

say, therefore, that the judge erred by finding a risk of re-

offense, even though defendant maintained his innocence, based on

defendant's     behavior   and     the   judge's   assessment     of    his

credibility.    These bases also support the non-applicability of

the mitigating factors now advanced by defendant such as number

eight (circumstances unlikely to recur), number nine (unlikely to

commit another offense) and number ten (will respond favorably to

probationary treatment). See N.J.S.A. 2C:44-1(b)(8)-(10).

     There was nothing shocking about the sentence given the

offense, where the victim was ten and defendant is her uncle.

There was no compelling reason to downgrade the sentence because

the mitigating circumstances did not outweigh the aggravating

ones.   See N.J.S.A. 2C:44-1(f)(2).


                                    17                            A-3690-13T3
     Defendant   contends    that   the    court   should   have    imposed

concurrent   rather   than   consecutive    sentences   for   the    sexual

assault offenses.     However, the trial court properly considered

and applied the relevant factors under State v. Yarbough, 100 N.J.

627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193,

89 L. Ed. 2d 308 (1986).       The court noted that the crimes were

committed "independent of each other; that they . . . were separate

acts occurring at least twice, separate[d by] at least two weeks

apart . . . [and] they were committed at different times or

different places."     We agree with the court's application and

analysis of the Yarbough factors and with defendant's sentence to

consecutive terms.

     Affirmed.




                                    18                              A-3690-13T3
