                             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                        NOT FOR PUBLICATION WITHOUT THE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-5308-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSE SANTANA, a/k/a JOSE
DURAN,

        Defendant-Appellant.

______________________________

              Submitted June 5, 2018 – Decided July 6, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              13-08-2521.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Joshua D. Sanders, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Adam Klein, Deputy Attorney
              General, of counsel and on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
       Defendant appeals from jury-tried convictions for second-

degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (a

lesser-included offense under count two), arguing:

            POINT I

            THE COURT FAILED TO CHARGE THE JURY IN
            RELATION TO [DEFENDANT'S] STATEMENT AND THE
            REMAINDER OF THE CHARGE THAT WAS GIVEN WAS
            INSUFFICIENT TO ADVISE THE JURY OF THE NEED
            TO CRITICALLY AND EFFECTIVELY EVALUATE HIS
            STATEMENT IN LIGHT OF THE REALITY THAT JURORS
            HAVE GREAT DIFFICULTY DISTINGUISHING BETWEEN
            FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S.
            CONST. AMEND. VI; N.J. CONST. ART I, ¶ 10.

            POINT II

            THE SENTENCE IS MANIFESTLY EXCESSIVE.

And contending, in a supplemental pro se brief,

            POINT I

            THE TRIAL COURT ERRED IN CONCLUDING THAT
            APPELLANT'S STATEMENTS WERE NOT IN VIOLATION
            OF THE MIRANDA[1] WARNING WHERE A SPANISH
            INTERPRETER SHOULD HAVE BEEN AFFORDED TO HIM
            BEFORE HIS SIGNATURE WAS PLACED ON THE WAIVER
            OF RIGHTS FORM.

We affirm.

       Defendant contends the trial judge erred – following the

admission of his video-recorded statement to detectives from the

Camden    County   Prosecutor's   Office   and   Cherry   Hill    Police


1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                   2                             A-5308-15T2
Department – when she failed to present to the jury the "Statements

of Defendant" model jury charge,2 – familiarly referred to as a

Hampton3 charge or instruction – which he argues should have been

modified to reflect the unreliability of false statements.

       Defendant neither requested a Hampton charge nor objected to

the instruction provided the jury. Nonetheless, our Supreme Court,

in State v. Jordan, 147 N.J. 409, 425 (1997), instructed:

                 Whether requested or not, whenever a
            defendant's oral or written statements,
            admissions, or confessions are introduced in
            evidence the Hampton instruction, directing
            the jury to determine the credibility of the
            statements without any knowledge that the
            court has already determined the issue of
            voluntariness, should be given. By using the
            term "shall" in N.J.R.E. 104(c), we expressly
            recognized that a Hampton charge is required.
            Because   of   the  critical   role   that   a
            defendant's oral and written statement may
            have, a jury should be advised to focus on the
            credibility of those statements.       Indeed,
            unless a defendant specifically requests that
            the Hampton charge not be given, and the trial
            court satisfies itself with written findings
            that such reasons have merit, a Hampton charge
            should always be given.

As reflected in the model charge, once a defendant's statement is

submitted to the jury, jurors must be "instructed that they should



2
  Model Jury Charge (Criminal), "Statements of Defendant" (rev.
June 14, 2010).
3
    State v. Hampton, 61 N.J. 250 (1972).


                                  3                          A-5308-15T2
decide whether in view of all the . . . circumstances" regarding

whether the statement was voluntary, including the waiver of

Miranda rights after administration of Miranda warnings, "the

defendant's confession is true.   If they find that it is not true,

then they must treat it as inadmissible and disregard it for

purposes of discharging their function as fact finders on the

ultimate issue of guilt or innocence."     Hampton, 61 N.J. at 272;

see also Model Jury Charge (Criminal), "Statements of Defendant"

(rev. June 14, 2010).

     Because this alleged error went unchallenged at trial, it is

subject to plain error analysis.      R. 2:10-2; State v. Macon, 57

N.J. 325, 336-37 (1971).   In the setting of this case we consider

that:

               The failure of a court to give a Hampton
          charge, however, is not reversible error per
          se. It is reversible error only when, in the
          context of the entire case, the omission is
          "clearly capable of producing an unjust
          result. . . ." R. 2:10-2. That problem would
          arise most frequently when the defendant's
          statement is critical to the State's case and
          when   the  defendant   has   challenged  the
          statement's credibility.    If, however, the
          defendant's statement is unnecessary to prove
          defendant's guilt because there is other
          evidence that clearly establishes guilt, or
          if the defendant has acknowledged the truth
          of his statement, the failure to give a
          Hampton charge would not be reversible error.

          [Jordan, 147 N.J. at 425-26 (alteration in
          original).]

                                  4                         A-5308-15T2
       We    note   the   State's   introduction   of:    the   eight-year-old

victim's fresh complaint4 on the date of the assault; her video-

recorded statement admitted into evidence under the tender-years

exception;5 and a sexual assault nurse examiner's testimony that

on physical examination on the date of the assault, the victim's

vaginal and anal area was red and swollen – and photographs of

that condition – buttressed the allegations against defendant.

       Moreover, we mark the use to which defendant put the statement

during the trial.         Reminding the jury that they could not draw an

adverse inference from defendant's choice not to testify, defense

counsel told the jury, "Because even though he didn't personally

stand before you, his video, which was allegedly the admission of

guilt testified for him."

       Defense counsel – as he did many times during summation –

strategically referred to defendant's statement as "testimony"

which       supported     the   defense   theory   that   the   touching    was

accidental, not criminally intentional, a tactic obvious from

counsel's questioning of the prosecutor's detective during the




4
    State v. Bethune, 121 N.J. 137 (1990).
5
    N.J.R.E. 803(c)(27); State v. D.G., 157 N.J. 112 (1999).



                                          5                            A-5308-15T2
Miranda   hearing.6    After   apprising    the    jury    of    the   judge's

anticipated instruction that the State must prove that the sexual

contact was intentional, defense counsel told the jury:

                Well when you go back in your mind and
           think about that video of [defendant], one
           thing is certain, that [defendant] at no time
           said that he intentionally did anything to
           that little girl.

                It never happened.    There was no such
           confession on that video. . . .

                Now the most that I can say that the
           defendant may have said on that video was that
           he adopted something that one of the
           detectives said, is it possible.           His
           response, anything is possible, that in the


6
  Referring to a point in the statement where defendant admitted
to "playing with her," the following colloquy ensued:

                [DEFENSE COUNSEL]: Prior to that, he's
           made no statement about doing anything. She
           gets scared.    There's nothing here at all
           until after that about somebody suggests and
           one of you all suggested that it could have
           been a mistake, correct?

           [DETECTIVE RHOADS]: Yes.

                [COUNSEL]:     And he repeated that.             He
           said:

                "ANSWER:    Well,   it   could    have    been   a
           mistake."

           [RHOADS]: Yes.

                [COUNSEL]: That's not a confession is it?

           [RHOADS]:   It's – in that context it's not.


                                    6                                  A-5308-15T2
          wrestling   or   whatever,    you   may   have
          accidentally.

               Well   if  you   accept  that  as   the
          confession, where they say -- and he does on
          the video say well it may have been
          accidentally, but then after that he says I
          don't think so. I don't do that in his best
          English, all right?

               So he never says that I did this thing.
          He only adopts what the detectives had already
          put into his mind by saying well could -- is
          it possible that there was an accidental
          touching. So he said well maybe there was an
          accidental, but I don't think so.       And I
          certainly never formed any intent in my mind
          to do so. If you remember that he said I never
          had any such an intent in my mind.

               So the testimony of the defendant on that
          video is evidence in this court, as is the
          testimony of [Wisleidy] and the detective.
          That's all evidence that you have to consider.

               The question is do you believe the
          defendant. In order to believe the defendant
          you have a couple of things you can look at.
          How he testified on the video, whether or not
          any of the things he said on that video were
          corroborated by the evidence.

     In speaking of defense-witness testimony that defense counsel

said corroborated her client's statement about the time he arrived

home after lunch at TGI Friday's – and contradicted the victim's

testimony – defense counsel argued, "So you can believe [defendant]

on that video when he says, [']I was at [TGI] Friday.      I got home

around 4:00.['] I corroborate that evidence."   He repeated to the

jury, in speaking of the witnesses who testified about defendant's


                                7                             A-5308-15T2
character     for     truthfulness        that    they   "can     also   believe

[defendant's] testimony."          And in advancing defendant's version

of events, defense counsel said, "Well the testimony that you can

believe is his."       Defense counsel continued:

            So now we look back at this video. He says
            that's what happened that day. He went to the
            bathroom, came back out to the living room.
            She doesn't dispute any of that. She said she
            saw him in the hallway. Well she may have.
            He was coming from the bathroom. He went to
            his computer.     She came and turned that
            computer on. I think you can find that from
            the totality of the evidence that's what
            happened.

     Counsel's concluding remarks regarding defendant's statement

continued that theme:

                 Again,   talking   to   you   about   the
            defendant's video, I want you to find that the
            defendant was truthful in his statements to
            the police officers. . . .

                    . . . .

                 . . . You should hang your hats on whether
            or not you find that the defendant was
            truthful. If you find that he was truthful
            and he didn't get home until 4:00, that he was
            at his computer working, that he was on his
            cell phone talking, that she turned it on for
            him, then you're going to have to believe him.
            You're going to have to find him not guilty.

     The     State    in      summation       "disagreed"   with    defendant's

profession    that    the     touching    was    accidental,    contending   "the

photographs [of the victim's vaginal and anal areas] and the



                                          8                              A-5308-15T2
evidence suggest that he did it on purpose and he did it roughly

and violently."

     Under these circumstances, we conclude the failure to give

the Hampton charge was not plain error.          The defendant entreated

the jury to believe his recorded statement that the touching was

not intentional.    Thus, the Hampton charge, which instructs the

jury to disregard a statement if it finds the statement not

credible, would have been antithetical to the proffered defense.

Defendant's choice not to testify, but to rely on the "testimony"

set forth in the recorded statement, militated against giving the

jury instruction.

     We will not consider defendant's attack on the sufficiency

of the model jury charge and his proposed change to same in that

those issues were not raised before the trial court.                State v.

Robinson, 200 N.J. 1, 20 (2009).        Absent a trial court record

regarding the research cited by defendant in his merits brief, the

issues are not before us.        State v. Herrera, 187 N.J. 493, 501

(2006).

     We   reject   defendant's    argument   –    made   in   his    pro    se

supplemental brief – claiming a Miranda rights violation requiring

suppression of his statement because he was not provided a Spanish-

language interpreter during the recorded statement.             The trial

judge reviewed the recording and found defendant "responsive in

                                    9                                A-5308-15T2
his    answers    and   he's   speaking      English   in   reference        to   the

statements that he's given."           She noted a portion of the statement

where defendant actually responded to the detective's question,

"I understand what you're saying.            I understand."      After detailing

much   of   the    colloquy    with    the   detectives,       the   judge    "found

[defendant] to be very responsive.            When you watch the flow of the

conversation it was responsive."             The judge concluded:

            I'm more than satisfied that [defendant]
            understood and I want to make clear that this
            is not a case that I see where you have an
            individual who has Spanish as their native
            tongue and that questions are being presented
            to that individual and he's saying non-
            responsive things or . . . he's just giving a
            yes or a no, that's not what is before the
            [c]ourt.

The trial judge's findings, from our review of the statement,7 are

supported by sufficient credible evidence in the record and are

entitled to our deference.            State v. S.S., 229 N.J. 360, 379-381

(2017).

       Defendant    contends    the    seven-year      state    prison   sentence

imposed by the judge on the second-degree sexual assault count was

excessive "[b]ecause [defendant] can be adequately punished for

this offense with a lesser sentence."               He does not contend the



7
  We reviewed the statement as set forth in the transcripts
provided; a video recording of the statement was not part of the
record.

                                        10                                   A-5308-15T2
trial judge's findings of aggravating factors two, N.J.S.A. 2C:44-

1(a)(2) (youthful victim); three, N.J.S.A. 2C:44-1(a)(3) (risk of

re-offense); and six, N.J.S.A. 2C:44-1(a)(9) (deterrence); or

mitigating      factors   seven,        N.J.S.A.   2C:44-1(b)(7)        (no     prior

record); eight, N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct

was the result of circumstances unlikely to recur"); and nine,

N.J.S.A. 2C:44-1(b)(9) (the defendant's character and attitude

indicate   an      unlikelihood    of    reoffending),    were    not    based       on

competent credible evidence.

      We review a "trial court's 'sentencing determination under a

deferential standard of review.'"             State v. Grate, 220 N.J. 317,

337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).

We may "not substitute [our] judgment for the judgment of the

sentencing court."        Lawless, 214 N.J. at 606.           We must affirm a

sentence     if:    (1)   the   trial      judge   followed      the    sentencing

guidelines; (2) its findings of fact and application of aggravating

and   mitigating      factors     were   "based    upon   competent,      credible

evidence in the record"; and (3) the application of the law to the

facts does not "shock[] the judicial conscience."                        State v.

Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)).

      We determine defendant's argument is without sufficient merit

to warrant discussion in this written opinion.                R. 2:11-3(e)(2).

                                         11                                   A-5308-15T2
The mid-range sentence does not shock our conscious and was meted

in accordance with the sentencing guidelines.

    Affirmed.




                               12                         A-5308-15T2
