                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3155-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

J.I.L.,

     Defendant-Appellant.
_________________________

                    Submitted October 31, 2018 – Decided December 3, 2018

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-09-0780.

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

                    Respondent has not filed a brief.

PER CURIAM
        Defendant J. I. L.1 appeals from his conviction for 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(b), and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a).2 He also appeals from the sentence, imposed after merger, of

nineteen years in prison subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, for first-degree aggravated sexual assault, plus a consecutive nine-

year term for endangering the child's welfare.

        In his brief, defendant presents the following points of argument:

              POINT   I.   THE     TRIAL   COURT      ERRED
              PREJUDICIALLY IN PERMITTING "FRESH-
              COMPLAINT"      TESTIMONY      WHICH      FAR
              EXCEEDED THE PERMISSIBLE BOUNDS OF
              SUCH TESTIMONY. U.S. CONST., AMEND. XIV.;
              N.J. CONST. (1947), ART I, PAR. 10. (Not Raised
              Below)

              POINT II. THE TRIAL COURT ERRONEOUSLY
              PERMITTED HIGHLY PREJUDICIAL HEARSAY
              IDENTIFICATION TESTIMONY BY A PHYSICIAN,
              TO DEFENDANT'S PREJUDICE.



1
    We use defendant's initials to avoid disclosing the victim's identity.
2
   The alleged sexual assaults occurred in two different cities, Plainfield and
Passaic. The jury acquitted defendant of aggravated sexual assault relating to
acts alleged to have occurred in Passaic, but convicted him of sexual assault
with respect to those acts. The jury convicted defendant of aggravated sexual
assault for acts committed in Plainfield.
                                                                             A-3155-16T1
                                          2
            POINT III. THE DEFENDANT WAS PREJUDICED
            BY THE TRIAL COURT'S UNDUE RESTRICTION
            OF THE DEFENDANT'S SUMMATION.

            POINT IV. THE TRIAL COURT IMPOSED AN
            EXCESSIVE    SENTENCE,  NECESSITATING
            REDUCTION.

            A.     The Imposition of Consecutive Sentences
            Constituted an Abuse of Discretion.

            B.     The Quantum of the Sentence Was Excessive.

      After reviewing the entire record, we reject those arguments and affirm

the conviction and sentence.

                                     I

      In light of the legal issues raised, a brief summary of the most pertinent

trial evidence will suffice. Defendant was accused of repeatedly molesting his

stepdaughter, I.C., from the time she was six years old until she was eight years

old. On May 31, 2014, when I.C. was eight and living in Plainfield, she first

reported defendant's conduct to a close friend, G.N. According to G.N., I.C.

told her that defendant had been "humping" her. G.N. testified that I.C. was

very reluctant to tell anyone else about these incidents, but G.N. convinced the

child to tell her mother. I.C.'s mother immediately confronted defendant and

kicked him out of her house. However, she waited four days before reporting

the crimes to the police.

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                                         3
       On June 5, 2014, a trained detective from the special victims unit (SVU)

conducted a videotaped interviewed with I.C. The detective also asked I.C.'s

mother to produce some of the child's unwashed clothing for scientific testing.

DNA analysis established that defendant's semen was present on two pairs of

the child's underwear. Defendant's DNA material was found on the inside

portion of the crotch in each garment.

       The State presented brief testimony from G.N., and testimony from the

SVU detective. The jury then watched the videotape of I.C.'s interview with the

detective. In the interview, she told the detective that defendant "humped" her

at her grandmother's house in Passaic and at her mother's house in Plainfield. It

was clear from her statement that on some of those occasions, he either took her

pajama pants off or pulled them down. She told the detective that defendant

rubbed his penis between the cheeks of her buttocks on numerous occasions, and

on at least one occasion, in Plainfield, he inserted his penis into her vagina "a

little bit."

       I.C., who was eleven by the time of the trial, testified about the sexual

assaults she endured while living at her grandmother's house in Passaic, and

while living with defendant and her mother in Plainfield. Her testimony was

substantially consistent with what she told the detective.


                                                                         A-3155-16T1
                                         4
      The defense presented brief testimony from two witnesses, defendant's ex-

wife and his daughter with the ex-wife. The two witnesses testified that on the

occasions that they visited with defendant and I.C., the two of them appeared to

have an affectionate relationship and she did not appear to be afraid of him.

                                      II

      For the first time on appeal, defendant claims it was plain error for the

court to let G.N. testify that I.C. told her she was afraid to tell anyone about the

assault for fear that defendant "would do something to her." We cannot agree.

There was no objection to that testimony and no request for a curative

instruction. Instead, defense counsel chose to cross-examine the witness about

the statement in some detail.

      To give the issue further context, on the first day of the trial, the defense

and the State stipulated that the jury could consider G.N.'s testimony as

"substantive evidence" in addition to considering it for fresh complaint

purposes. This was consistent with the defense strategy to demonstrate that I.C.

made statements to G.N. that were inconsistent with her later descriptions of

defendant's conduct. Notably, I.C. told G.N. that defendant did not take her

clothes off when he molested her, but she later told the SVU detective and the

jury that defendant sometimes did take her clothes off. G.N.'s statement about


                                                                            A-3155-16T1
                                           5
I.C.'s asserted fear of defendant was another example of contradictory

testimony. I.C. testified that she was afraid her mother would punish her for not

reporting the crime sooner, but she did not mention fear of defendant. That

played into the defense strategy of emphasizing contradictions in the State's

evidence.

      Defendant's reliance on State v. R.K., 220 N.J. 444 (2015), is misplaced.

In R.K., the State had no physical evidence to support its case, defendant

testified and denied the allegations, and the State was permitted to bolster its

case with several fresh complaint witnesses. Id. at 448-49. One of those fresh

complaint witness provided graphic details about the alleged sexual assault, as

well as an allegation that defendant had threatened the victim. Id. at 459-60. In

that context, the Court found reversible error. Id. at 460. This case is nothing

like R.K. Given the overwhelming evidence of defendant's guilt, even if G.N.'s

one-sentence testimony about I.C.'s fear of defendant should have been

excluded, we would find no plain error. See R. 2:10-2; R.K., 220 N.J. at 456-

57.

      Defendant's arguments on this point are without sufficient merit to warrant

further discussion. R. 2:11-3(e)(2).




                                                                         A-3155-16T1
                                       6
                                         III

      We find defendant's second point equally unpersuasive. The State's first

witness was Dr. Frances Pelliccia, a pediatric specialist who examined I.C. on

June 11, 2014, for the purpose of recommending any physical or psychological

treatment the child might need.          After being asked whether she elicited

information from the child that was necessary for her diagnosis, Dr. Pelliccia

testified that the child told her the person who molested her was a male, and that

he was an adult. The judge overruled a defense objection on the grounds that

such general information was admissible. The doctor gave no further testimony

about the identity of the perpetrator.

      Defendant contends it was prejudicial error to permit the testimony that

the child told her the perpetrator was an adult male. We find no abuse of

discretion in the judge's decision to admit that brief and limited testimony about

the alleged perpetrator. See State v. Nantambu, 221 N.J. 390, 402 (2015). That

testimony was elicited in the course of having the doctor describe the

information she obtained from the child to help make her diagnosis and

recommend physical and psychological treatment. Such general information

could be reasonably necessary to the diagnosis and treatment of a child sexual

assault victim. See N.J.R.E 803(c)(4).


                                                                          A-3155-16T1
                                           7
      However, even if the ruling were error, on this record, it was harmless.

Viewed in context, the testimony did not imply that the child had accused

defendant. There was no evidence of third-party guilt in this case, and in

particular, there was no evidence that a juvenile or a woman committed the

assaults. The one-line testimony about an "adult male" had no clear capacity to

produce an unjust result. See R. 2:10-2; State v. McBride, 213 N.J. Super. 255,

273-74 (App. Div. 1986).

                                    IV

      Defendant next argues that the judge made unduly critical remarks to the

jury in sustaining an objection to a portion of defense counsel's summation.

We cannot agree.

      Defense counsel began his summation with the following remarks:

                  On October 13, 2016 Samsung Corporation
            recalled 2.5 million phones worldwide because 45 of
            those phones overheated and blew up. The reason
            Samsung Corporation did that is because they had a
            reasonable doubt about the safety of 2.5 million phones
            because 45 of those phones –

      At that point, the prosecutor objected, and the judge sustained the

objection. The judge instructed the jury that there was no evidence about

Samsung Corporation in the case, and they should not speculate about the

company's motives for recalling its cell phones or speculate that the company's

                                                                        A-3155-16T1
                                       8
action was due to its view of "reasonable doubt." The judge told counsel to

"leave instructions as to the law to the court" and asked him to continue his

summation.

      We find no abuse of the judge's discretion in cutting off defense counsel's

inappropriate discussion of information outside the trial record. Further, w e

cannot conclude that the judge's remarks unfairly influenced the jury or had the

capacity to produce a miscarriage of justice.

      The evidence of defendant's guilt was overwhelming, and we find nothing

to suggest that the judge's comments prejudiced the jury against the defense. In

fact, the jury acquitted defendant of aggravated sexual assault for the acts

committed in Passaic, and instead convicted him of sexual assault. They only

convicted him of aggravated sexual assault for his conduct in Plainfield, where

the evidence demonstrated the presence of his semen in the child's underwear.

      Defendant's arguments on this point are without sufficient merit to warrant

further discussion. R. 2:11-3(e)(2).

                                       V

      Finally, we find no errors in the imposition of a consecutive sentence for

endangering the child's welfare, or in the length of the aggregate sentence. The

judge cogently explained the reasons for imposing a consecutive sentence


                                                                         A-3155-16T1
                                           9
pursuant to State v. Yarbough, 100 N.J. 627 (1985). We find no basis to disturb

his decision. See State v. Miller, 205 N.J. 109, 129 (2011); State v. T.E., 342

N.J. Super. 14, 36-37 (App. Div. 2001).

      The judge found that defendant's lack of remorse precluded a finding of

mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (defendant was unlikely to

reoffend). See State v. O'Donnell, 117 N.J. 210, 216 (1989). The court also

gave some weight to defendant's lack of remorse in finding aggravating factor

nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). However, the court gave

particular weight to aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity

and seriousness of the harm inflicted on the victim, including her extreme youth.

See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). The judge stated

that the child was "severely impacted by the actions of the defendant," a

conclusion supported by what the judge observed when he saw the victim testify.

The judge also considered a victim impact letter from the child's mother. As the

judge stated: "To say that defendant's repeated actions will have left this poor,

young, unsophisticated girl scarred for her life would be an understatement."

      Defendant exploited his parental authority and repeatedly molested his

stepdaughter over a two-year period, beginning when she was six years old until

she was eight years old. We cannot say that a twenty-eight year term, nineteen


                                                                         A-3155-16T1
                                      10
of which is subject to NERA, is a conscience-shocking sentence for those

crimes. See State v. Roth, 95 N.J. 334, 363-65 (1984). Defendant's sentencing

arguments do not warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




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                                     11
