                             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                        NOT FOR PUBLICATION WITHOUT THE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-4381-14T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

BRUCE D. STERLING,

     Defendant-Appellant.
________________________________

              Submitted December 19, 2016 – Decided June 19, 2017

              Before Judges Sabatino, Nugent and Haas.

              On appeal from Superior of New Jersey, Law
              Division, Middlesex County, Indictment No. 05-
              10-1410.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John V. Molitor, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Bruce D. Sterling appeals from a                  May 5, 2015

judgment of conviction entered after his second jury trial.                        The
jury found defendant guilty of second-degree burglary, first-

degree aggravated sexual assault, second-degree sexual assault,

third-degree aggravated assault with a deadly weapon, second-

degree possession of a weapon for an unlawful purpose, and third-

degree terroristic threats.   For these offenses, a judge sentenced

defendant to an aggregate twenty-year custodial term subject to

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

     On appeal, defendant argues:

            POINT I

            THE TRIAL COURT'S FAILURE TO FOLLOW THE
            APPELLATE    DIVISION'S   DECISION    MANDATES
            REVERSAL OF THE DEFENDANT'S CONVICTIONS. (NOT
            RAISED BELOW).

            POINT II

            THE    STATE   VIOLATED   THE    DEFENDANT'S
            CONFRONTATION RIGHTS. (NOT RAISED BELOW).

            POINT III

            THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Finding no merit in defendant's arguments, we affirm.

     This action's lengthy procedural history is detailed in State

v. Sterling, 215 N.J. 65 (2013), and need not be repeated in its

entirety.    Pertinent to this appeal, in 2005, a Middlesex County

grand jury charged defendant in a twenty-four-count indictment

with multiple offenses committed against five women during five

separate incidents that occurred between 2002 and 2005.      The first

                                  2                            A-4381-14T4
seven counts of the indictment stem from the first incident, in

which the victim was sexually assaulted in her residence in July

2002.    These seven counts and this incident are the subject of

this appeal.

     The first seven counts are: second-degree burglary, N.J.S.A.

2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-

degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a); and third-degree terroristic threats, N.J.S.A. 2C:12-

3(b).    Defendant was tried on all but the unlawful possession of

a handgun offense, and a jury found him guilty on all counts.

Defendant appealed.1

     On appeal, a panel of this court reversed and remanded for a

new trial.     State v. Sterling, No. A-5579-06 (App. Div. Aug. 15,

2011).   The panel held the trial court erred by allowing the State

to present unduly prejudicial other crimes evidence.     Id. (slip

op. at 56-57).     Although the Supreme Court reversed in part the

panel's decision     on charges stemming from some of the other

incidents, the Court affirmed the panel's reversal of defendant's


1
  The unlawful possession of a handgun count was dismissed before
the first trial.

                                  3                         A-4381-14T4
conviction on the indictment's first seven counts.       Sterling,

supra, 215 N.J. at 107-08.

     The new trial on the first seven counts took place in 2014.

The State developed the following proofs.

     In 2002, the victim, her boyfriend, and three others lived

in a single family home in New Brunswick.    The victim's bedroom

was located on the first floor "immediately when you walk in."     On

the day of the incident, the victim returned home after running

errands in preparation for a trip to the mountains.     She parked

her car in a neighbor's driveway because there was no available

parking, she was running late, and she only needed to grab a few

things from inside the house.   She shut the screen door after she

entered the house, but did not lock the front door as she planned

to be inside "less than five minutes."

     After packing toiletries from the upstairs bathroom, the

victim went downstairs into her bedroom.     She heard the screen

door shut, turned around, and saw defendant standing in her bedroom

doorway. She did not know defendant and had never seen him before.

     The victim's boyfriend and roommates were not home, and the

victim asked if she could help defendant.     He replied, "[t]ake

your clothes off or I'll shoot you."   He held a silver gun in his

left hand.   When the victim screamed for help, defendant went



                                 4                          A-4381-14T4
behind her, put one hand around her waist and one hand over her

mouth, and said "[s]hut up or I'll shoot you."

     The victim began to cry.     Defendant pushed her onto her bed

face first, repeatedly told her to shut up or he would shoot her,

closed and dead-bolted the bedroom door, and looked out the window.

The victim offered defendant $600 and asked him not to hurt her.

Defendant did not respond, but reached underneath the victim and

removed her pants, underwear and shoes.

     When the victim attempted to look at defendant, he hit her

in the jaw with his gun and told her not to look at him.                   He

proceeded to have vaginal intercourse with the victim while she

laid with her head down and eyes closed.           The gun remained in his

hand the entire time.

     The   victim   cannot   recall       the   incident's   duration,   but

eventually defendant "just stopped," and pulled up his pants, and

the victim "curled up in a ball on the bed."          Defendant asked the

victim where her money was and she said it was in her car.

Defendant instructed the victim to wait five minutes before exiting

her house or he would shoot her.          The victim waited five minutes

and then drove herself to the hospital.

     Hospital staff called the police, who transported the victim

to a rape crisis center where she underwent a sexual assault

examination.    The nurse created a "sexual assault kit" with

                                      5                             A-4381-14T4
evidence collected during the exam and gave it to the police, who

submitted it to their lab.

       Senior   Forensic       Scientist     Marlene    Strauss   conducted     an

analysis of the DNA taken from the victim's sexual assault kit and

prepared a report detailing her findings. Chief Forensic Scientist

Joseph Petersack peer reviewed Strauss's report.                     The report

indicated the presence of male DNA on the victim's cervical swab.

When Strauss prepared the report, however, there was no suspect.

       When a separate investigation of defendant began in 2005,

three years later, police searched his apartment and found a silver

gun.     Police   took     a    DNA   swab    from     defendant's   cheek,   and

Investigator Virgil Angelini requested a comparison of defendant's

DNA and the male DNA profile recovered from the victim.                Forensic

Scientists Jennifer Banaag and Frank Basile conducted comparisons

and concluded defendant was the source of the DNA recovered from

the victim.

       Police asked the victim to participate in a lineup, but she

was unable to make an identification.                She explained she did not

"get a good look" at defendant because she was afraid he was going

to shoot her and he wore "big reflective sunglasses" that she

could not see through.          When the victim saw defendant at trial,

she testified she did not know him, did not give him permission



                                        6                                A-4381-14T4
to enter her home, and did not give him permission to have

intercourse with her.

     As previously noted, the jury found defendant guilty as

charged.   A judge sentenced defendant to an aggregate custodial

term of twenty years. At sentencing, the judge found the following

aggravating factors: one, the nature and circumstances of the act

and the actor's role therein, including whether it was committed

in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-

1(a)(1); three, the risk defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3); six, defendant's prior record and the

seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and nine, the

need for deterring defendant and others from violating the law,

N.J.S.A. 2C:44-1(a)(9).    The judge found no mitigating factors.

The judge found aggravating factor one because:

           [s]tranger rape of this type and involving the
           violence that was involved in this case,
           striking her with the handgun, display of the
           handgun, putting her at fear of her life if
           she did not submit to what the [Adult
           Diagnostic   Center]   called    [defendant's]
           "hedonistic tendencies" warrants a finding
           that aggravating factor one should apply.

The judge found aggravating factor three because defendant "has a

history of proclivity and inclination to engage in this sort of

crime."    The judge based aggravating factor six on defendant's




                                 7                          A-4381-14T4
extensive and serious criminal record, which includes additional

sexual assaults.

     The judge imposed the maximum sentence because he determined

defendant "needs to be locked up for as long as possible in order

for women . . . to be safe.       Because if he's out on the street,

women are at risk."

     On appeal, defendant first contends the trial court erred by

failing to follow the Appellate Division panel's instructions to

provide the jury with an identification charge at the new trial.

Although the Appellate Division panel reversed defendant's first

conviction   based   on   the   wrongful   admission   of   other    crimes

evidence, the panel discussed other issues defendant raised.             One

issue involved the trial court's refusal to give the identification

instruction defendant expressly requested.       The panel explained:

             On appeal, defendant argues that the court
          should have instructed the jury in accordance
          with the introductory paragraph to the model
          charge pertaining to in-court and out-of-court
          identifications as follows:

                (Defendant) as part of [his/her]
                general denial of guilt contends
                that the State has no[t] presented
                sufficient reliable evidence to
                establish beyond a reasonable doubt
                that [he/she] is the person who
                committed the alleged offense. The
                burden of proving the identity of
                the person who committed the crime
                is upon the State. For you to find
                this defendant guilty, the State

                                    8                               A-4381-14T4
               must prove beyond a reasonable doubt
               that this defendant is the person
               who committed the crime.         The
               defendant has neither the burden nor
               the duty to show that the crime, if
               committed, was committed by someone
               else, or to prove the identity of
               that other person.        You must
               determine,   therefore,   not   only
               whether the State has proved each
               and every element of the offense
               charged beyond a reasonable doubt,
               but also whether the State has
               proved beyond a reasonable doubt
               that this defendant is the person
               who committed it.

               [Model   Jury  Charge   (Criminal),
               "Identification: In-Court and Out-
               Of-Court Identifications" (2007).]

          We agree with defendant that this would have
          been an appropriate instruction in defendant's
          second trial.   Upon retrial, an instruction
          along these lines should be given.        This
          suggestion is tempered, of course, by the
          recognition that the evidence might be
          different, counsel may request different
          charges,   and   the   trial   court   retains
          discretion in fashioning an appropriate
          instruction.

          [Sterling, supra, No. A-5579-06 (slip op. at
          83-84).]

Defendant did not request this instruction during his second trial,

nor did the court give it.   Defendant now claims the trial court's

failure to give the instruction constitutes a reversible error.

     Because clear and correct jury charges are essential to a

fair trial, State v. Adams, 194 N.J. 186, 207 (2008), "erroneous


                                 9                          A-4381-14T4
instructions   on   material   points    are   presumed    to   possess   the

capacity to unfairly prejudice the defendant."          State v. McKinney,

223 N.J. 475, 495 (2015) (citations omitted).             However, an error

in the charge that could not have affected the jury's deliberations

does not amount to reversible error.           State v. Docaj, 407 N.J.

Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009).

In that regard, "[i]f the defendant does not object to the charge

at the time it is given, there is a presumption that the charge

was not error and was unlikely to prejudice the defendant's case."

State v. Singleton, 211 N.J. 157, 182 (2012).

     Here, defendant did not object when the court did not give

the identification charge he had requested at his first trial, nor

did he raise the issue he now raises on appeal.           Because defendant

did not object at trial, we review the charge for plain error.              R.

1:7-2; R. 2:10-2; McKinney, supra, 223 N.J. at 494.             Plain error

in this context is "[l]egal impropriety in the charge prejudicially

affecting the substantial rights of the defendant sufficiently

grievous to justify notice by the reviewing court and to convince

the court that of itself the error possessed a clear capacity to

bring about an unjust result."          Adams, supra,      194 N.J. at 207

(alteration in original) (quoting State v. Jordan, 147 N.J. 409,

422 (1997)). When reviewing a charge for plain error, an appellate

court must not examine the "portions of the charge alleged to be

                                  10                                 A-4381-14T4
erroneous in isolation; rather, 'the charge should be examined as

a whole to determine its overall effect.'"             McKinney, supra, 223

N.J. at 494 (quoting Jordan, supra, 147 N.J. at 422).

      Applying these principles to the case before us, we conclude

the   trial    court's   omission   to   give,   sua   sponte,   the    charge

defendant had requested seven years earlier at his first trial,

was not plain error.       Significantly, the victim never identified

defendant.      The State presented neither an in-court nor an out-

of-court identification.      Instead, the State established defendant

was the perpetrator through DNA evidence retrieved by personnel

at the hospital following the sexual assault, comparison of this

DNA evidence to DNA swabbed from defendant, and expert testimony

linking the DNA evidence.

      In its charge to the jury, as it had done during the trial,

the court instructed the jury on expert testimony.                The court

explained that Banaag, Basile, and Petersack had testified as

experts, but the jury was not bound by their opinions.            The court

further instructed the jury it should give the expert opinions

"the weight to which you deem it is entitled, whether that be

great or slight.         And if you want to reject it, you have the

right."       Additionally, the trial court's instruction on each

substantive offense included the requirement that the State prove

beyond a reasonable doubt defendant committed each element.

                                    11                                 A-4381-14T4
     Examining the charge as a whole to determine its overall

effect, McKinney, supra, 223 N.J. at 494, we find it inconceivable

the trial court's omission — to give an identification charge

neither    required   by   the   facts    of    the   case   nor   requested   by

defendant — either prejudicially affected defendant's substantial

rights or "possessed a clear capacity to bring about an unjust

result."     Adams, supra, 194 N.J. at 207.                  Our conclusion is

fortified not only by defendant's failure to object when the court

charged the jury, but also by his failure now to articulate in his

argument how he was even possibly prejudiced.                   We thus reject

defendant's argument.

     In his second point, defendant argues the trial court erred

by admitting a report prepared by forensic scientist Strauss

without calling Strauss as a witness, thus violating defendant's

right to confront his accusers.                Defendant contends the State

instead called Joseph Petersack, "who read Strauss's conclusions

and then told the jury he approved of his absent colleague's work."

We review this issue for plain error because defendant did not

raise it at trial.     R. 2:10-2.

     In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004), the United States Supreme Court held "the

admission of an out-of-court 'testimonial' statement permitted by

state hearsay rules" unconstitutional "unless the person who made

                                     12                                 A-4381-14T4
the statement is unavailable to testify at trial and the defendant

had a prior opportunity to cross-examine that person."               State ex

rel. J.A., 195 N.J. 324, 328 (2008).              Nonetheless, the Sixth

Amendment's confrontation clause does not require that "every

analyst involved in a testing process . . . testify in order to

satisfy confrontation rights."        State v. Roach, 219 N.J. 58, 77

(2014), cert. denied, __ U.S. __, 135 S. Ct. 2348, 192 L. Ed. 2d

148 (2015).

           [A] defendant's confrontation rights are not
           violated if a forensic report is admitted at
           trial   and   only   the   supervisor/reviewer
           testifies   and   is   available   for  cross-
           examination,    when    the    supervisor   is
           knowledgeable about the testing process,
           reviews scientific testing data produced,
           [makes conclusions based on the data], and
           prepares, certifies, and signs a report
           setting forth the results of the testing.

           [State v. Michaels, 219 N.J. 1, 6, cert.
           denied, __ U.S. __, 135 S. Ct. 761, 190 L. Ed.
           2d 635 (2014).]

      Here, though the State did not call Strauss to testify at

trial, it presented forensic scientist Petersack to testify about

the   conclusions     drawn   in   Strauss's   report.     Petersack       was

responsible for overseeing and directly supervising five forensic

laboratories,   had    extensive    familiarity   with   the   DNA    testing

process, and recognized Strauss's report as one he peer reviewed.

In addition, he had initialed the bottom of each page within the


                                     13                               A-4381-14T4
report, indicating he confirmed the data's accuracy.                Because

Petersack testified and subjected himself to cross-examination,

defendant's confrontation rights were not violated simply because

Strauss did not testify too.

     Importantly, Petersack's testimony was not the only expert

testimony the State presented.           Forensic scientists Banaag and

Basile – who conducted independent comparisons of defendant's DNA

and the DNA recovered from the victim, and concluded the DNA

recovered from the victim belonged to defendant – testified at

trial and were subject to cross-examination.               Considering this

testimony,   we   cannot    conclude     the   admission    of   Petersack's

testimony had a clear capacity to produce an unjust result.                   R.

2:10-2.

     Lastly, defendant argues that his sentence is excessive.                 He

contends the trial court's finding of aggravating factor one is

unsupported by the record.       In a footnote, he asserts the sexual

assault count should have been merged with aggravated sexual

assault for purposes of sentencing, and the sentence the court

imposed on count four, aggravated assault, appears to violate the

No Early Release Act, N.J.S.A. 2C:43-7.2(d)(4); but he provides

no factual basis or legal analysis for either assertion.

     When imposing a sentence, a trial court should "identify the

relevant   aggravating     and   mitigating    factors,    determine     which

                                    14                                 A-4381-14T4
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) (citation

omitted).     We may not substitute our judgment for that of the

trial court, but are "bound to affirm a sentence, even if [we]

would have arrived at a different result, as long as the trial

court     properly   identifie[d]    and    balance[d]     aggravating    and

mitigating    factors   that   are   supported   by    competent   credible

evidence in the record."       Ibid.      (citation omitted).      "Assuming

the trial court follow[ed] the sentencing guidelines," we may

reject the sentence imposed only if it "shocks the judicial

conscience."     Id. at 215-16 (citing State v. Roth, 95 N.J. 334,

365 (1984)).

     Here, the record amply supports the trial court's findings

of aggravating factors.        The trial court's balancing of these

factors against the absence of mitigating factors is unassailable.

As to aggravating factor one, "[i]n appropriate cases, a sentencing

court may justify the application of aggravating factor one,

without     double-counting,   by    reference    to     the   extraordinary

brutality involved in an offense."         State v. Fuentes, 217 N.J. 57,

75 (2014) (citing O'Donnell, supra, 117 N.J. at 217).            In the case

now before us, defendant's gratuitous infliction of violence on

the victim by striking her with his gun, considered in the context

                                     15                              A-4381-14T4
of the horrific crime he committed, supports the court's finding

of the first aggravating factor.

     We    need    not   consider   defendant's   remaining    assertions

concerning his sentence because he raised them in a footnote and

failed to support them with either facts or a legal analysis.            Our

rules require that an appellant identify and fully brief any issue

raised on appeal. R. 2:6-2(a); see also State v. Hild, 148 N.J.

Super. 294, 296 (App. Div. 1977) (reiterating that attorneys are

required to support arguments with appropriate record references

and justify their positions with specific references to legal

authority).       "It is, of course, clear that an issue not briefed

is deemed waived."       Pressler & Verniero, Current N.J. Court Rules,

comment 5 on R. 2:6-2 (2017).

     For   the     foregoing   reasons,   we   affirm   the   judgment    of

conviction in its entirety.

     Affirmed.




                                    16                             A-4381-14T4
