                             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                        NOT FOR PUBLICATION WITHOUT THE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-5025-13T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

BRIAN E. KILLION,

     Defendant-Appellant.
__________________________

              Argued December 13, 2016 – Decided            April 26, 2017

              Before Judges Reisner, Koblitz and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              13-03-0720.

              David A. Gies, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Mr. Gies, on the brief).

              Sara M. Quigley, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Ms.
              Quigley, of counsel and on the brief).

              Appellant filed a pro se supplemental brief.


PER CURIAM
     A jury convicted defendant Brian E. Killion of thirty-four

counts of an indictment charging him with sexually assaulting five

children over a sixteen-year period.      Twenty-eight counts survived

merger.   He was given an aggregate sentence of eighty-five years

in prison.   Seventy-five of those years are subject to the eighty-

five percent parole disqualification provision of the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.         Defendant appeals both

the convictions and sentence.      After reviewing the record in light

of the contentions advanced on appeal, we reverse the convictions

for counts twelve and twenty-seven and the sentencing under NERA

on three counts, and remand for resentencing and a further hearing

regarding counts seventeen and twenty-two.       In all other respects

we affirm.

                                    I

     The State called the five victims, two victims' mothers and

several investigators to testify.       Defendant did not testify.

     "David"1   testified   that   he   met   defendant,   who   was   his

assistant scoutmaster, at a Boy Scout meeting at the end of David's

sixth-grade year, when he was approximately twelve years old.

David went to weekly meetings and overnight camping trips where




1 We use pseudonyms or initials for the victims and their mothers.
R. 1:38-3(c)(12).
                              2                                   A-5025-13T2
defendant was present.     David also spent time with defendant at

defendant's home.

     Defendant first performed oral sex on David when David was

"about   fourteen"   in   "the       back   bay   marshes   .    .    .    around

Absecon/Smithville area" in the spring of 1997.                      After this

encounter, before David was sixteen years old, defendant continued

to engage David in oral sex and mutual masturbation at times at

David's home in Atlantic County.

     Defendant sometimes viewed David's semen under a microscope.

Defendant also took pictures of David in defendant's bedroom; some

of these photos included images of David measuring his own penis.

David went on many trips with defendant, including a camping trip

to Bass River where defendant masturbated David and performed oral

sex on David when David was younger than sixteen.           David testified

that it seemed he and defendant engaged in "some kind of sexual

conduct every time [they] were alone together."                 Defendant also

unsuccessfully attempted to have anal sex with David.                       David

continued to have a relationship with defendant until he was twenty

years old.   The State located David in a homeless shelter using

photographs of David retrieved from defendant's bedroom.                    David

was twenty-nine years old at the time of the trial.

     The second victim, "Wyatt," testified he was eleven years old

when he met defendant through a string band that marched in the


                                 3                                        A-5025-13T2
Mummer's Parade.    Wyatt started sleeping over at defendant's house

shortly after meeting him.      One of the first times Wyatt slept at

defendant's    house,   Wyatt   walked    in   on   defendant   watching

pornography and masturbating.       Defendant told Wyatt to take his

pants down and proceeded to masturbate Wyatt.           That same day,

Wyatt witnessed defendant masturbate and ejaculate into a tissue.

Later, Wyatt and defendant masturbated themselves while watching

pornography.

     When Wyatt was thirteen years old, defendant also used a sex

toy, "Flip-a-Sista," in front of Wyatt, and offered it to Wyatt

who also used it.   Defendant also took photos of Wyatt while Wyatt

was naked from the waist down.           Wyatt testified that he was

thirteen years old when defendant took these pictures.          Defendant

kept a chart of Wyatt to keep measurements of his body as he

developed, including the growth of his penis.       Defendant performed

oral sex on Wyatt "a lot."      Wyatt testified that this began when

he was around twelve years old.     When defendant performed oral sex

on Wyatt, defendant also masturbated.

     Defendant masturbated Wyatt and performed oral sex on Wyatt

upstairs in Wyatt's home while Wyatt's mother was downstairs.

Defendant took Wyatt's semen and put it under a microscope to

determine if Wyatt had any sperm.        Defendant and Wyatt built a




                                4                                 A-5025-13T2
computer together, and defendant told Wyatt "now you can go home

and watch videos at home, pornography videos at home."

       Defendant    took    Wyatt       on   trips   at    defendant's     expense,

including a trip to Florida for a week to see NASA.                       Defendant

also brought Wyatt to the dentist to be examined for braces, and

took   Wyatt   "for    an   entry       exam   at    a    local    high   school    by

[defendant's] house."       The last time Wyatt saw defendant was at a

band practice when defendant told Wyatt he had a gift for him, but

Wyatt did not take it because "if I had taken it I'd have been

basically saying it's okay."

       The third victim, "Joey," testified that defendant was a

family friend who he knew for most of his life, but that he became

friends with defendant when Joey was between the ages of seven and

nine years old.       Defendant was not Joey's scoutmaster, but he did

show up at the end of scout day-camp to help "with any work that

would have to be done and just talk after that."                     Joey and Wyatt

went with defendant for more than a week to the Ice Harvest

Festival in Pennsylvania when Joey was eleven or twelve years old.

Defendant showed Joey pornography while at Ice Harvest and while

camping at Belleplain State Park in Woodbine.                     One time while at

Belleplain, Joey walked into the lean-to where they were staying

and found defendant and another boy masturbating while they watched

pornography.       Joey said that he was twelve years old when this


                                    5                                        A-5025-13T2
incident occurred.       Joey also testified that in 2007, when he was

eleven years old, defendant tried to wake Joey by touching Joey's

"genital region."

     When defendant and Joey went on trips, defendant bought the

food, paid for hotel rooms, and was generally in charge.                Joey's

mother told him to listen to defendant when they were together.

     The fourth victim, "Noah," met defendant when Noah was nine

years old.   K.C., Noah's mother, testified that Noah met defendant

through another friend, and that Noah and defendant were very

close.    K.C. was happy defendant was close with her son, because

Noah's husband was not around to do things with Noah.                 Whenever

defendant took Noah anywhere, defendant always paid for Noah.

     Noah testified that after he met defendant, he saw defendant

almost    every    weekend,   and     they   watched   pornographic     movies

"[n]early every time" Noah went to defendant's house.               When they

watched   the      pornography,   defendant     masturbated   while     naked.

Defendant asked Noah if he wanted to join him, and initially Noah

declined,    but    eventually    Noah   joined   defendant   and     the   two

masturbated while they watched the videos.

     Noah identified the sex toy, Flip-a-Sista, and a lubricant,

"Feel the Zing," which defendant showed him how to use.               When he

was at defendant's house, defendant asked Noah to masturbate




                                  6                                    A-5025-13T2
defendant, which Noah refused to do.         Defendant also asked Noah

if defendant could hold Noah's penis, but Noah refused.

     Defendant took Noah several places for day and weekend trips.

They went on one camping trip to Belleplain State Park with Joey,

who was thirteen at the time.         The three of them masturbated

together.

    Noah's    mother,   K.C.,   testified   that   defendant,   whom   she

called "Brian," was responsible for Noah when they went camping:

            Q: And did you consider Brian to be in charge of
            your son?

            A: Most definitely. If you're taking my child
            out of my care, out of my custody, as an adult
            of 37 at the time, you're darn straight that
            you're responsible for my child. Everything
            that happens with my child you're responsible
            for.

            Q: And [what] did you expect him to do . . .
            for your son?

            A: Take care of him, take care, make sure he
            ate, make sure he was fed, make sure he got
            bathed, make sure he went to bed on time. He
            was a little boy at the time, you know, so I
            expected him to do all the things I would
            have done or my husband would have done if he
            had been home.

     K.C. also testified about a weekend trip when defendant took

Noah to Virginia:

            I made sure Brian was in charge.      I had
            written up consent that God forbid anything
            happened with my son, whether it was
            emergency, medical-wise or anything, I gave
            him more or less power-of-attorney for the

                                7                                A-5025-13T2
            weekend that they were there to take care of
            his needs basically, and that's what he did.

            Q: Did you ever give Brian insurance cards?

            A: I always - - he had a copy of [Noah's]
            insurance card, yes, he did.

     The fifth victim to testify, "Ethan," met defendant through

Noah when Ethan was eleven years old, and went camping many times

with Noah and defendant. Ethan testified that during these camping

trips defendant was in charge:

            Q: When you went away on these camping trips,
            who was in charge?

            A: Brian.

            Q: Did you have to listen to what he said?

            A: Yeah.

            Q: Did he get you food?

            A: Yes.

     Ethan also spent many nights at defendant's house.              Ethan

testified   that   when   he   went   to   defendant's   house,   Noah   and

defendant would watch "sexual-type movies" based on "the sounds

that came from the laptop."

     Ethan's mother, B.O., testified about defendant's role when

he was around her son:

            Q: Okay.    Having allowed your son to stay
            overnight with Brian on those two occasions,
            what was your thought as to Brian's role with
            those kids?


                                8                                  A-5025-13T2
         A: He was responsible, and, I mean, I trusted
         [Noah's mother, K.C.]. My son had slept over
         [Noah's]   house,   you  know,   on   several
         occasions, more than several, actually, many
         times, and since [K.C.] trusted Brian, I
         trusted him with my son.

         Q: Did you trust him to take care of [Ethan]
         in case of an emergency?

         A: Yes, he's an adult.

         Q: I'm sorry.

         A: He's an adult; he was the one in charge.

         Q: And did you trust him, I guess, based on
         that line of thinking to feed your son?

         A: Yes.

         Q: And to supervise him?

         A: Yes.

         Q: Did you expect that Brian would, when they
         went camping, did you expect Brian would stay
         with the boys the entire weekend?

         A: Yes.

         Q: When he stayed at his house in Absecon, did
         you expect him to be fed and clothed and
         supervised?

         A: Yes.

    The last camping trip that Noah, Ethan and defendant took was

to Bass River in 2010.   That Sunday morning, Ethan and defendant

started shaking Noah to wake him up.   Defendant decided to wake

Noah by performing oral sex on him until Noah ejaculated.     Ethan



                            9                               A-5025-13T2
testified that he witnessed defendant perform oral sex on Noah and

then buried his face in his pillow "to try not to look at it."

     When Noah and Ethan arrived home from this camping trip with

defendant, Noah immediately told his mother, K.C., that defendant

had molested him.      She punched defendant.          The boys later told

K.C. that earlier that morning defendant placed his mouth on Noah's

penis to wake him up, while Ethan was in the tent.            K.C. alerted

the police.   Later that night, defendant called K.C. and told her,

"whatever [Noah] told you that I did to him, it was true."

     The police searched defendant's bedroom in his house pursuant

to a warrant.   A detective testified he found a lubricant, Feel

the Zing, a sexual toy, Flip-A-Sista, a letter from a mother giving

defendant permission to take her son out of state and a letter

from defendant to Noah.            The detective read the contents of

defendant's   letter   to    the    jury.   In   the    letter,   defendant

apologized for letting Noah down, wrote that he loved Noah and

that he hoped Noah would forgive him.

     The detective also found pictures of Wyatt, and a letter from

Wyatt to defendant, in which Wyatt apologized for acting up and

stated that he would try to do better.           The police also took a

flash drive, a computer, a laptop, floppy disks, a camera and CDs,

from defendant's bedroom. A microscope was visible in a photograph

of defendant's room.        The police found images of nude boys and


                                   10                               A-5025-13T2
girls, of a penis with a ruler measuring the penis's length and

pornographic videos on a hard drive in defendant's home.       Several

of these videos involved young children performing sex acts.        Some

of the photographs depicted David, who, the detective testified,

was "a member of the Boy Scouts at the time with the defendant

Brian Killion."

     A detective who works in the computer crimes unit of the

Atlantic County Prosecutor's Office examined the digital evidence

recovered from defendant's home, which he described as:

          20 pictures of young boys, nude male video,
          it was labeled as a 15-year-old penis, unable
          to tell the age; pictures of pre-teen
          underwear, 125 pictures of young boys in
          underwear; pictures of adult male, 20
          pictures of penises; pictures of nude
          children/child abuse images, there was 1188
          pictures of nude children mostly male under
          the age of 16.

The detective showed the jury samples of many of these pictures

and videos.

                                    II

     Defendant was convicted of the following counts of the second

superseding   indictment,   after   merger:   first-degree   aggravated

sexual assault of Noah in 2010, N.J.S.A. 2C:14-2(a) (count one);

second-degree endangering the welfare of Noah in 2010, N.J.S.A.

2C:24-4 (count three); second-degree sexual assault of Ethan in

2010, N.J.S.A. 2C:14-2(b) (count four); second-degree endangering


                              11                                A-5025-13T2
the welfare of Ethan in 2010, N.J.S.A. 2C:24-4 (count five);

second-degree sexual assault of Noah from 2009 to 2010, N.J.S.A.

2C:14-2(b) (count six); third-degree showing obscene material to

Noah from 2009 to 2010, N.J.S.A. 2C:34-3(b)(2) (count seven);

second-degree endangering the welfare of Noah from 2009 to 2010,

N.J.S.A. 2C:14-2(b) (count eight); first-degree aggravated sexual

assault of Wyatt from 2004 to 2006, N.J.S.A. 2C:14-2(a) (count

nine); second-degree endangering the welfare of Wyatt from 2004

to October 2006, N.J.S.A. 2C:24-4 (count eleven); first-degree

aggravated sexual assault of Wyatt from October 2006 to October

2008,   N.J.S.A.    2C:14-2(a)     (count   twelve);   second-degree

endangering the welfare of Wyatt from October 2006 to October 2008,

N.J.S.A. 2C:24-4   (count fourteen); first-degree aggravated sexual

assault of Wyatt from 2004 to October 2006, N.J.S.A. 2C:14-2(a)

(count fifteen); second-degree endangering the welfare of Wyatt

from 2004 to October 2006, N.J.S.A. 2C:24-4(a) (count seventeen);

third-degree showing obscene material to Wyatt, N.J.S.A. 2C:34-

3(b)(2) (count twenty-one); second-degree endangering the welfare

of Wyatt from 2004 to 2008, N.J.S.A. 2C:24-4(a) (count twenty-

two); second-degree sexual assault of Joey from 2007 to 2008,

N.J.S.A.   2C:14-2(b)     (count     twenty-three);    second-degree

endangering the welfare of Joey from 2007 to 2008, N.J.S.A. 2C:24-

4(a) (count twenty-four); second-degree sexual assault of Joey


                             12                              A-5025-13T2
from   2007   to   2008,   N.J.S.A.   2C:14-2(b)   (count   twenty-five);

second-degree endangering the welfare of Joey from 2007 to 2008,

N.J.S.A. 2C:24-4(a) (count twenty-six); third-degree aggravated

criminal sexual contact of Joey in 2009,            N.J.S.A. 2C:14-3(a)

(count twenty-seven); third-degree showing obscene material to

Joey from 2007 to 2009, N.J.S.A. 2C:34-3(b)(2) (count thirty);

second-degree endangering the welfare of Joey from 2007 to 2009,

N.J.S.A. 2C:24-4(a) (count thirty-one); first-degree aggravated

sexual assault of David from 1997 to 1999, N.J.S.A. 2C:14-2(a)

(count thirty-two); first-degree aggravated sexual assault               of

David from 1997 to 1999, N.J.S.A. 2C:14-2(a) (count thirty-three);

first-degree aggravated sexual assault of David from 1997 to 1999,

N.J.S.A. 2C:14-2(a) (count thirty-five); fourth-degree endangering

the welfare of a child by possessing child pornography, N.J.S.A.

2C:24-4(b) (count thirty-seven); second-degree endangering the

welfare of a child by manufacturing child pornography, N.J.S.A.

2C:24-4(b)(5)(A) (count thirty-eight); second-degree causing a

child to engage in a sex act for photography, N.J.S.A. 2C:24-

4(b)(3) (count thirty-nine).2




2 In addition, the jury found defendant guilty of other counts
that the court subsequently merged into these charges, including
second-degree sexual assault of Wyatt (count thirteen), N.J.S.A.
2C:14-2(c)(4).
                                13                                A-5025-13T2
    Defendant through counsel raises the following issues on

appeal:

          POINT I: COUNT 4 OF THE INDICTMENT MUST BE
          DISMISSED AND THE GUILTY VERDICT PERTAINING
          THERETO VACATED WHERE THE STATE PRESENTED NO
          EVIDENCE TO SUPPORT A CHARGE THAT THE
          DEFENDANT COMMITTED AN ACT OF SEXUAL CONTACT
          WITH [ETHAN].

          POINT II: THE GUILTY VERDICTS PERTAINING TO
          COUNTS 12 AND 27 SHOULD BE REVERSED WHERE THE
          STATE DID NOT SHOW THAT THE DEFENDANT HAD
          SUPERVISORY POWER OVER [WYATT] OR [JOEY] BY
          VIRTUE   OF   HIS  LEGAL,   PROFESSIONAL   OR
          OCCUPATIONAL STATUS.

          POINT III: THE GUILTY VERDICTS PERTAINING TO
          COUNTS 3, 5, 8, 11, 14, 17, 22, 24, 26 AND 31
          SHOULD BE REVERSED NOT ONLY WHERE THE STATE
          FAILED TO MEET ITS BURDEN OF PROOF AS TO THE
          DEFENDANT'S ASSUMPTION OF RESPONSIBILITY FOR
          THE CARE OF [NOAH], [ETHAN], [WYATT] OR
          [JOEY], BUT DUE TO THE TRIAL COURT'S ERROR IN
          FAILING TO CHARGE A LESSER INCLUDED OFFENSE.
          (NOT RAISED BELOW)

          POINT IV: COUNTS 9, 10, 15 AND 16 MUST BE
          DISMISSED AND THE GUILTY VERDICTS PERTAINING
          THERETO VACATED BECAUSE THE STATE FAILED TO
          PROVIDE EXCULPATORY EVIDENCE TO THE GRAND JURY
          WITH RESPECT TO THE AGE OF [WYATT] AT THE TIME
          THE ALLEGED OFFENSES OCCURRED.

          POINT V: NOT ONLY DID THE TRIAL COURT FAIL TO
          PROPERLY INSTRUCT THE JURY ON THE STATE'S
          THEORY OF LIABILITY AS TO THE CRIMES FOR WHICH
          THE DEFENDANT WAS CHARGED REGARDING [DAVID],
          BUT THE STATE DID NOT SHOW BEYOND A REASONABLE
          DOUBT THAT THE DEFENDANT HAD SUPERVISORY
          AUTHORITY OVER [DAIVD] SIMPLY BECAUSE HE WAS
          AN ASSISTANT SCOUTMASTER.

          POINT VI: THE PROSECUTOR'S COMMENTS DURING
          SUMMATION TO WHICH THE DEFENDANT OBJECTED WERE

                            14                             A-5025-13T2
          CLEARLY AND UNMISTAKABLY IMPROPER WHERE THE
          THEME SHE CONVEYED TO THE JURY PORTRAYED THE
          DEFENDANT AND HIS TRIAL ATTORNEY AS LIARS.

          POINT VII: CONTRARY TO ITS EXPRESSED INTENTION
          THAT, IN ORDER TO RECOGNIZE THERE CAN BE NO
          FREE   CRIMES,   IT  WOULD   IMPOSE   SEPARATE
          CONSECUTIVE SENTENCES ON EACH OF THE MOST
          SERIOUS CRIMES INVOLVING EACH VICTIM, THE
          SENTENCING   COURT   DID   OTHERWISE   WITHOUT
          EXPLANATION.

          POINT VIII: UNDER THE PRE-AMENDMENT STATUTE,
          THE APPLICATION OF NERA REQUIRED A JURY TO
          DETERMINE WHETHER THE OFFENSE WAS A "VIOLENT
          CRIME".

     Defendant   raises   the    following   issues   in   his   pro    se

supplemental brief:

          POINT I: WHERE JUDGE . . . , J.S.C. PERSONALLY
          KNEW MR. KILLION AND FAILED TO RECUSE HIMSELF,
          ALL ARREST AND SEARCH WARRANTS ISSUED BY SAID
          JUDGE MUST BE DEEMED INVALID.[3]

          POINT II: COUNTS 32, 33, 34, 35 AND 36 MUST
          BE DISMISSED AND THE ASSOCIATED GUILTY
          VERDICTS VACATED BECAUSE THE PLAINTIFF FAILED
          TO PROVIDE EXCULPATORY EVIDENCE TO THE GRAND
          JURY PERTAINING TO SUPERVISORY POWERS OVER
          [DAVID] AT THE TIME THE ALLEGED OFFENSES
          OCCURRED (NOT RAISED BELOW).

          POINT III: THE ERRONEOUS JURY CHARGE IS NOT
          LEGALLY ACCURATE, FACTUALLY SUPPORTABLE OR



3 The trial judge conducted an investigation as to whether the
judge who approved the search warrant knew at the time that
defendant was connected to the Boy Scouts and found no evidence
that the judge was aware of the connection.        Based on this
decision, and for the reasons expressed by the trial judge in his
April 23, 2013 letter opinion quashing defendant's subpoena of the
judge who issued the warrant, we reject the argument raised in
defendant's pro se Point I.
                                15                               A-5025-13T2
         SUPPORTED BY THE EVIDENCE, THUS CONSTITUTING
         REVERSIBLE ERROR.

               A. LEGALLY VAGUE REASONABLE DOUBT
                  INSTRUCTIONS.
               B. DIFFERING THEORIES OF LIABILITY FOR
                  4, 5, AND 38.
               C. ERRONEOUSLY ADDING [DAVID] TO COUNT
                  39.

         POINT IV: WHERE THE PLAINTIFF FAILED TO PROVE
         THAT ANY CONDUCT OR RESULT OCCURRED WITHIN THE
         JURISDICTION OF THIS STATE, BASING THE VERDICT
         ON   INSUFFICIENT    EVIDENCE   VIOLATED   MR.
         KILLION'S DUE PROCESS AND FAIR TRIAL BY JURY
         RIGHTS AFFORDED BY THE U.S. CONST. AMEND. V,
         VI, AND XIV.

               A. LACK OF JURISDICTION WITH RESPECT TO
                  [JOEY]
               B. LACK OF JURSIDICTION FOR MANUFACTURING
               C. LACK OF JURISDICTION FOR PUBLISHING

         POINT V: WHERE K.C. WAS PRESENTED AS A FRESH
         COMPLAINT WITNESS AND HER TESTIMONY WENT
         BEYOND THE SCOPE OF FRESH COMPLAINT HEARSAY,
         THUS BOLSTERING VICTIM TESTIMONY AND CLEARLY
         CAPABLE OF PRODUCING AN UNJUST RESULT, MR.
         KILLION WAS DENIED HIS DUE PROCESS AND FAIR
         TRIAL BY JURY RIGHTS AFFORDED BY THE U.S.
         CONST. AMEND V, VI, AND XIV AND N.J. CONST.
         ART. I, PARA. 9 AND 10. (NOT RAISED BELOW)

    Defendant through counsel raises the following issues in his

reply brief:

         POINT I: SEXUAL CONTACT OF THE ACTOR WITH
         HIMSELF OR WITH THE VICTIM IS NECESSARY TO
         PROVE A VIOLATION OF N.J.S.A. 2C:14-2b.

         POINT II: THE TRIAL COURT'S FAILURE TO EXPLAIN
         THAT THE SEPARATE QUESTION ON THE VERDICT
         SHEET WOULD DETERMINE THE DEFENDANT'S DEGREE
         OF   CULPABILITY    UNDULY   PREJUDICED    THE
         DEFENDANT'S RIGHT TO A FAIR TRIAL.

                            16                             A-5025-13T2
           POINT III: CONTRARY TO THE STATE'S ARGUMENT,
           THE TRIAL COURT DID NOT CURE WHAT IT BELIEVED
           TO BE "VERY STRONG" LANGUAGE BY THE PROSECUTOR
           IN ORDER TO DISPARAGE THE DEFENDANT AND HIS
           TRIAL ATTORNEY.

           POINT IV: THE DEFENDANT'S SENTENCE      OF   11
           CONSECUTIVE TERMS IS EXCESSIVE.

                                  III

     In Point I, defendant first claims that count four, second-

degree sexual assault of Ethan, violating N.J.S.A. 2C:14-2(b),

should have been dismissed, because defendant did not have sexual

contact with Ethan and Ethan did not witness defendant touch

himself.   The State argues that defendant may be convicted under

N.J.S.A. 2C:14-2(b) because defendant performed a sexual act on

Noah in view of Ethan, who was in the same tent at the time.

    Our review of a trial court's interpretation of a statute is

a question of law.   See State v. Maurer, 438 N.J. Super. 402, 411

(App. Div. 2014).    We review questions of law de novo and "owe no

deference to the trial court's 'interpretation of the law and the

legal consequences that flow from established facts.'"         Ibid.

(quoting State v. Bradley, 420 N.J. Super. 138, 141 (App. Div.

2011)).

    N.J.S.A. 2C:14-2(b) states: "An actor is guilty of sexual

assault if he commits an act of sexual contact with a victim who

is less than 13 years old and the actor is at least four years


                             17                              A-5025-13T2
older than the victim."          N.J.S.A. 2C:14-1(d) defines "sexual

contact" as:

             an intentional touching by the victim or
             actor, either directly or through clothing,
             of the victim's or actor's intimate parts for
             the purpose of degrading or humiliating the
             victim or sexually arousing or sexually
             gratifying the actor. Sexual contact of the
             actor with himself must be in view of the
             victim whom the actor knows to be present.

             [(Emphasis added).]

     Our Supreme Court has interpreted these statutes to cover

three types of scenarios: a defendant touching himself, a defendant

touching a victim and a victim touching a defendant.                 State v.

Zeidell, 154 N.J. 417, 428 (1998).          In Zeidell, the defendant

masturbated on the boardwalk in view of two children under the age

of thirteen.     Id. at 419-21.       The Court found that the statute

prohibited    this   behavior,   because   the    defendant    was   touching

himself   with   the   purpose   of   "sexually     arousing   or    sexually

gratifying" himself.     Id. at 428, 435.        The Court explained,

             When the controlling statutory provisions of
             the Code are read together, we find that a
             tender-years-sexual assault under N.J.S.A.
             2C:14-2(b) contains three key elements. They
             are: (1) a victim who is less than thirteen
             years old, (2) a defendant-actor who is at
             least four years older than the victim, and
             (3) a sexual contact with a victim under the
             critical age.     The sexual contact with a
             victim involves an intentional or purposeful
             touching of an intimate part. There are three
             types of intentional sexual touchings: the
             actor may touch himself or herself, the actor

                                 18                                   A-5025-13T2
          may touch the victim, or the victim may touch
          the actor.    Each such intentional touching
          must be for at least one of four purposes:
          either degrading or humiliating the victim,
          or sexually arousing or sexually gratifying
          the defendant-actor. Finally, if the touching
          is by the actor of himself or herself, the
          sexual touching must be in view of the victim
          whom the actor knows to be present.

          [Id. at 428.]

In contrast, lewdness, N.J.S.A. 2C:14-4(b)(1), "is limited to

exposing or displaying an actor's intimate parts rather than

touching them.   For example, a 'flasher' or 'streaker' may expose

the genitals without touching them."   Id. at 431.

     The charge of N.J.S.A. 2C:14-2(b) arises out of the last

interaction defendant had with Noah and Ethan while camping on the

morning of June 27, 2010.   Defendant performed oral sex on Noah,

and thus defendant violated N.J.S.A. 2C:14-2(b) against Noah.   The

question is whether this activity also constituted     a violation

of the same statute against Ethan.     There was no testimony that

defendant touched himself, rather than Noah, in the presence of

Ethan.   In Zeidell, the Court described three types of touching

that the statute covered, but did not include a defendant touching

a child sexually in the presence of another child. Zeidell, supra,

154 N.J. at 428.

     In deciding not to dismiss      count four, the trial court

explained: "The [d]efendant had sexual contact with a victim under


                            19                             A-5025-13T2
the age of 13 in view of [another] victim under the age of 13."

Defendant was sexually touching Noah when he performed oral sex

on him.     This sexual touching was "in the view of" Ethan, who

testified he was in the tent and saw defendant perform oral sex

on Noah.    Because defendant "engage[d] in a sexual touching 'in

the view of' an underage child," count four of the indictment

should not be dismissed.           Id. at 431.      We agree with the trial

court that although          our Supreme Court       did not consider this

possible scenario when describing the ways a defendant could be

guilty of a violation of the statute, the Legislature intended to

punish    this    behavior    as   well.       We   are   confident   that   the

Legislature intended the statute to cover an incident such as this,

where defendant knew he was in the presence of a second child when

he performed oral sex on a child. Certainly, masturbating in front

of a child, which is behavior clearly covered by the statute, is

less opprobrious than performing a child-sexual assault in front

of another child.         Moreover, the latter offense poses an even

greater risk of a "shocking and threatening" impact on the child-

observer.    Id. at 432.

                                          IV

      We now consider defendant's arguments, in Point II, III, and

V,   that   the   State   failed     to    prove    the   statutorily-required

relationship between defendant and the victims.               We review these


                                   20                                   A-5025-13T2
issues under the same de novo standard as we applied to the

interpretation     of    N.J.S.A.    2C:14-2(b)      above.     When    analyzing

whether   sufficient         evidence      was    presented    of   defendant's

assumption of the childcare responsibility, or his supervisory

power, the question is whether "a reasonable jury could find guilt

of the charge beyond a reasonable doubt" viewing the State's

evidence in the light most favorable to the State. State v. Reyes,

50 N.J. 454, 458-59 (1967).

     In Point III, defendant argues that that the State failed to

meet its burden to prove that defendant assumed the child-care

responsibility required by N.J.S.A. 2C:24-4(a)(1) to sustain a

conviction   of    second-degree         endangering   the    welfare    of   Noah,

Ethan, Wyatt and Joey.         Similarly, in Points II and V defendant

argues that the State failed to meet its burden of proof that

defendant had supervisory power over Wyatt, Joey and David by

virtue of his legal, professional or occupational status to sustain

a conviction of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(2)(b)        or   third-degree        aggravated    criminal       sexual

contact, N.J.S.A. 2C:14-3(a). Both first-degree aggravated sexual

assault   and     third-degree      aggravated      criminal    sexual    contact

require the defendant to have the same supervisory relationship

with the victim.




                                    21                                    A-5025-13T2
      The standard for second-degree endangering the welfare of a

child,       N.J.S.A.        2C:24-4(a)(1),          requiring      a    caregiving

relationship, and first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(2)(b), requiring a recognized supervisory relationship,

differ – "N.J.S.A. 2C:24-4(a) focus[es] more on the dependence and

trust      the    child    places     in    the   adult"   while   N.J.S.A.     2C:14-

2(a)(2)(b) focuses "on the coercive aspects of the relationship

defined      as    'supervisory       or    disciplinary    power.'"       State      v.

McInerney, 428 N.J. Super. 432, 449 (App. Div. 2012).                              Many

aspects of the nature of the relationship between the defendant

and the child "overlap."              Ibid.       The factfinder should consider

"factors such as disparity in ages or maturity; the importance of

the activity the adult supervises to the child; and the extension

of   the    supervisory       relationship        beyond   'guidance    and    advice'

expected given the defendant's supervisory role."                    Ibid.

                                             A.

      In Point III, defendant argues as plain error                           that the

evidence does not support a conviction on counts three, five,

eight,      eleven,       fourteen,    seventeen,      twenty-two,      twenty-four,

twenty-six and thirty-one because the State presented insufficient

proof at trial that defendant had the necessary "legal duty for

the care of" or had "assumed responsibility for the care of" the




                                       22                                      A-5025-13T2
victim, an element of second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a)(1).

     When an issue was not raised in the trial court, we review

for plain error.       See State v. Murray, 338 N.J. Super. 80, 87

(2001) (citing State v. Timmendequas, 161 N.J. 515, 575 (1999),

cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89

(2001)), certif. denied, 169 N.J. 608 (2001).              "Plain error is

'error possessing a clear capacity to bring about an unjust result

and which substantially prejudiced the defendant's fundamental

right to have the jury fairly evaluate the merits of his defense.'"

Timmindequas, supra, 161 N.J. at 576-77 (quoting State v. Irving,

114 N.J. 427, 444 (1989)).

     Our   Supreme    Court   has    explained   that   the    assumption   of

responsibility       covers   more      than     just    the    parent-child

relationship.     See State v. Sumulikoski, 221 N.J. 93, 107-08

(2015). The Court explained that "the assumption of responsibility

in question can be formal or informal; it can be based on custody

situations and less-structured relations."              Ibid. (citing State

v. Galloway, 133 N.J. 631, 659 (1993)).

     To be convicted, the defendant "must have established a

continuing or regular supervisory or caretaker relationship with

the child."     Galloway, supra, 133 N.J. at 661.          In Galloway, the

Court determined that a defendant who dated his victim's mother


                                23                                   A-5025-13T2
did    not     have    the   continuous     caretaking      or    supervisory

responsibilities necessary to be convicted under this statute.

Id. at 662.     The defendant dated the mother for only three months,

and no evidence was presented about how often the defendant assumed

the care of the child.       Ibid.

       Here, defendant had continuous relationships with his victims

in which he regularly assumed responsibility.          Noah testified that

he saw defendant every weekend, often at defendant's home, and

that he viewed defendant as a "father figure."                   During their

relationship, defendant took Noah to the Franklin Institute in

Philadelphia several times, Washington, D.C. for a weekend trip,

the Ice Harvest Festival in the Poconos, and several camping trips

in    New    Jersey.    Additionally,     Noah's   mother   testified       that

defendant was in charge of her son and that defendant always paid

for her son whenever they were together.           When Noah and defendant

went to Washington, D.C., Noah's mother gave defendant a "written

up consent" in case something happened so defendant was "more or

less power-of-attorney."

       Although   Ethan's    relationship   with   defendant      was   not    as

extensive as Noah's, Ethan testified he often spent the night at

defendant's house and went camping with defendant several times.

Ethan's mother also testified that when Ethan was with defendant,




                                 24                                     A-5025-13T2
defendant was in charge and she expected defendant to take care

of Ethan.

      Joey testified that defendant was a family friend whom he had

known for most of his life.    Joey explained that he went on trips

and spent many weekends with defendant.     Joey also testified that

defendant bought him food, paid for hotel rooms and was generally

in charge.   Joey's mother told Joey to listen to defendant while

they were together.

      Defendant and Wyatt had an extensive relationship.       Wyatt

testified that shortly after meeting defendant, he began staying

at defendant's house a few nights a week.    He also took trips with

defendant, including a trip to Florida for one week during which

defendant paid for everything.       Wyatt further testified that

defendant took Wyatt and Joey to Pennsylvania for a trip that

lasted more than one week. Defendant took Wyatt to an orthodontist

appointment and to take a high school entrance examination.         At

one point, defendant even offered to have Wyatt live with him.

      The facts in this case are distinguishable from the facts in

Galloway because here defendant had a continuous relationship with

his victims in which he was responsible for them for frequent and

lengthy periods of time.    See Galloway, supra, 133 N.J. at 661-

62.   As our Supreme Court said in Sumulikoski, the relationship

does not need to be a formal one to fall under this statute.


                              25                             A-5025-13T2
Sumulikoski,   supra,   221   N.J.   at   107-08.    Defendant    has   not

demonstrated plain error.

                                       B.

     To be guilty of first-degree aggravated sexual assault of a

child under thirteen years old, such as Ethan and Noah, the State

need not prove that the defendant had supervisory authority over

the victim.    N.J.S.A. 2C:14-2(a).       When the victim is between the

age of thirteen and sixteen years old, however, the defendant's

supervisory position must be demonstrated to convict for first-

degree sexual assault.    Defendant argues as a matter of law that

counts twelve, thirty-two, thirty-three, and thirty-five should

be dismissed because the State did not prove he had "supervisory

or disciplinary power over [David, Wyatt and Joey] by virtue of

[his] legal, professional, or occupational status" as required

under N.J.S.A. 2C:14-2(a)(2)(b).       Similarly, defendant argues that

count   twenty-seven,   charging     third-degree   aggravated    criminal

sexual contact and also requiring the element of a supervisory

position should be dismissed.         N.J.S.A. 2C:14-3(a).       The State

responds that defendant had supervisory and disciplinary power of

these boys as an adult caregiver, and, in the case of David, as a

scoutmaster.

    The jury should consider many factors in determining whether

a supervisory relationship existed.          See State v. Buscham, 360


                               26                                  A-5025-13T2
N.J. Super. 346, 361-62 (App. Div. 2003).            Not only is a legal,

professional    or    occupational    status    required,   but    also     the

relationship between the adult defendant and the child victim must

be one "inherently unequal as to vest disciplinary or supervisory

power" in the adult.        Id. at 362.    In Buscham, the question was

whether   a    gymnastics     instructor     could   qualify      as    having

supervisory power over the victim.         Id. at 352-62.   While we found

that a gymnastic instructor might exercise supervisory power, we

noted that the inquiry was fact-specific.         We listed several case-

specific questions for the jury to consider:

          whether there was a significant disparity in
          ages and/or maturity level between the two;
          the role that the athletic activity plays in
          the life of the alleged victim; the extent,
          if any, to which the coach has offered
          guidance and advice to the alleged victim on
          questions and issues outside the athletic
          arena; and the power or ability of the coach
          to affect future athletic participation or
          success.

          [Id. at 362.]

We noted the questions for the jury's consideration should be

structured "with particular reference to the evidence presented

during the course of the trial."        Ibid.   The judge included these

considerations in his jury charge.

     David,    Joey   and   Wyatt   testified   extensively    about     their

relationship with defendant.         Defendant was significantly older



                                27                                     A-5025-13T2
and more mature than all three boys and was often in charge of

their physical wellbeing.

     Defendant met David through his role as assistant scoutmaster

at a Boy Scout meeting.     David testified that he went to weekly

meetings and monthly overnight camping trips where defendant was

present "[n]inety-nine point 9 percent of the time."          David

testified that he saw defendant as a role model.         Defendant

ultimately parlayed their common interest in camping and the

wilderness into a sexual relationship with David, where they spent

a great deal of time together at their homes.    Defendant's focus

on David's physical growth and sexual maturity also contributed

to his parent-like, supervisory role.

     Besides camping with the Boy Scouts, David and defendant went

camping together in New Jersey, Pennsylvania, and Delaware while

David was still in high school.   During these trips, defendant was

the only adult and David testified he put his trust in defendant.

Viewing the State's evidence in its most favorable light, the jury

could have found beyond a reasonable doubt that defendant had the

statutorily required supervisory power over David by virtue of

their relationship and defendant's occupational status as David's

assistant scoutmaster.

     As detailed above, "the nature of the relationship" between

defendant and Joey and Wyatt demonstrates a similar supervisory


                             28                             A-5025-13T2
power.    Defendant took them on trips and engaged in sleepovers

while overseeing their wellbeing.      Buscham, supra, 360 N.J. Super.

at 362.   However, having supervisory power is not enough; N.J.S.A.

2C:14-2(a)(2)(b) requires that the defendant have such power "by

virtue of . . . legal, professional, or occupational status."

(Emphasis added).      The plain meaning of this requirement is that

defendant acquired his supervisory power through his status, which

invested additional responsibility in defendant.           See State v.

Rangel, 213 N.J. 500, 508-08 (2013) (stating that interpretation

of legislative intent begins with an analysis of the statute's

"ordinary meaning").

     This   standard    can   be    contrasted   with   N.J.S.A.    2C:14-

2(c)(3)(b), second-degree sexual assault, which states the actor

must have "supervisory or disciplinary power of any nature or in

any capacity over the victim," who is at least sixteen years old

but less than eighteen years old.        (Emphasis added).     According

to our Supreme Court "[w]ords make a difference."         Rangel, supra,

213 N.J. at 514.        "'[W]hen the Legislature includes limiting

language in one part of a statute, but leaves it out of another,'

a court should assume that it intended a different meaning." Ibid.

(quoting Ryan v. Renny, 203 N.J. 37, 58 (2010)).        Furthermore, "we

must try to read the various parts of N.J.S.A. 2C:14-2 so that

none are rendered meaningless."         Id. at 512.     The language of


                               29                                  A-5025-13T2
N.J.S.A. 2C:14-2(a)(2)(b), which defines an element of first-

degree    aggravated     sexual   assault    and    third-degree       aggravated

sexual contact, is intended to identify those defendants who should

be subjected to harsher penalties.                 Defendant, who met Wyatt

through    shared     band    activity,     where    defendant      was    not     an

instructor, and met Joey through Joey's family, does not meet this

requirement with regard to his sexual assaults on Wyatt or Joey.

       This is not to suggest that an offending party must be part

of a formal activity in order to be subject to N.J.S.A. 2C:14-

2(a)(2)(b).      In Buscham, the court declined to restrict the

"supervisory     or     disciplinary"     relationship         to   leaders      and

participants in institutional activities.                Buscham, supra, 360

N.J.   Super.    at     361-62.    In     this   case,    however,        the    only

relationship the State alleges is one of "caregiver."                     Defendant

was not a childcare provider.

       Count   twelve    is   therefore   dismissed      and   count      thirteen,

charging the lesser-included crime of second-degree sexual assault

on Wyatt, N.J.S.A. 2C:14-2(c)(4), should be resurrected. We remand

for sentencing on count thirteen, and also remand on count twenty-

seven, for sentencing on the lesser-included crime.                 Defendant was

convicted of count twenty-seven, third-degree aggravated criminal

sexual contact against Joey, when the jury checked the verdict

sheet to answer that he was guilty of the lesser-included crime


                                  30                                        A-5025-13T2
of   fourth-degree    criminal     sexual   contact.      The   jury    also

affirmatively answered that he had the supervisory power over Joey

necessary    to   convict   him   of   third-degree   aggravated   criminal

contact.      That finding of supervisory power based on "legal,

professional or occupational status" was not supported by the

evidence, thus we remand for resentencing on the lesser crime of

fourth-degree sexual contact.

                                       V

     In Point III, defendant argues as plain error that the judge

erred by not charging the lesser-included offense of second-degree

child endangerment, N.J.S.A. 2C:24-4(a).         "No defendant should be

convicted of a greater crime or acquitted merely because the jury

was precluded from considering a lesser offense that is clearly

indicated in the record."         State v. Garron, 177 N.J. 147, 180

(2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed.

2d (2004).

     The judge charged the jury:

             Now, you'll have back there with you when you
             begin your deliberations what we call a jury
             verdict sheet. It sets forth the counts of
             the indictment that you're to consider. It's
             not evidence; It's to assist you in recording
             your verdict, whatever it may be, and to
             report it back to the Court . . . You'll
             notice, however, that some of the counts,
             you'll see they're set forth with boldface
             type, have additional questions and that
             really just helps you in deciding what
             happened in each of the cases, so you'll read

                                  31                                A-5025-13T2
              the count in the indictment, for example, the
              endangering   counts   have  the   additional
              question. It sets forth the allegations and
              then you decide not guilty or guilty. If you
              find the defendant guilty, then you consider
              the additional question and that regards his
              supervisory power, whether you believe he had
              supervisory power, you answer it yes or no.

       The trial judge did not specifically explain to the jury that

answering the additional question in the negative meant convicting

defendant of a lesser-included offense.                  However, the trial judge

gave the jury the option of finding that defendant did not have a

caretaking role over the children.                  If the jury answered the

subsequent question "no," defendant would not have been convicted

of the more serious charge.                  Thus, the jury had the option of

finding defendant guilty of lesser-included crimes.

                                             VI

       In Point IV, defendant argues that counts nine, ten, fifteen,

and sixteen should be dismissed because a detective failed to tell

the grand jury about the first interview he had with Wyatt in

which Wyatt told the detective he was thirteen or fourteen when

he met defendant.          Later Wyatt disclosed he was actually younger

when   he    met    defendant.         Our    Supreme    Court     has   held    that    a

prosecutor must disclose exculpatory evidence to a grand jury

"only if the evidence satisfies two requirements: it must directly

negate guilt and must also be clearly exculpatory."                             State v.

Hogan,      144    N.J.   216,   237    (1996).         Evidence    undermining       the

                                       32                                        A-5025-13T2
credibility of a witness need not be presented.              Ibid.   Thus the

State did not err in failing to mention Wyatt's initial conflicting

statement.

                                        VII

      In Point V, defendant also argues counts thirty-two, thirty-

three and thirty-five of the indictment should be dismissed because

the charge failed to inform the jury of the place where the

assaults occurred.        In fact, in the verdict sheets the incidents

were alleged to have occurred in Absecon or Brigantine in Atlantic

County.

                                        VIII

      With regard to sentencing, the findings of fact concerning

aggravating and mitigating factors were based on competent and

credible evidence in the record, the court correctly applied the

sentencing guidelines enunciated in the Code of Criminal Justice,

and   the   court   did   not   abuse    its   discretion   in   imposing   the

aggregate sentence.         It is not manifestly excessive or unduly

punitive and does not constitute an abuse of discretion.                State

v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J.

334, 364-65 (1984). We are also satisfied that the court correctly

applied the guidelines for imposing consecutive terms.               State v.

Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S.




                                  33                                  A-5025-13T2
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), amended by N.J.S.A.

2C:44-5(a) (L. 1993, c. 223).

      Defendant was convicted in counts thirty-two, thirty-three

and   thirty-five,   of   first-degree      aggravated      sexual   assault,

N.J.S.A. 2C:14-2(a), that occurred between April 1, 1997 and

September 17, 1999.    He was sentenced to a ten-year NERA sentence

on each count.    The version of NERA in effect at the time of the

crimes must be applied in sentencing.         State v. Parolin, 171 N.J.

223, 233 (2002). At the time of these crimes, the statute required

the jury to determine whether or not the crimes were "violent" for

the purpose of imposing NERA.          State v. Mosley, 335 N.J. Super.

144, 159 n.4 (2000), certif. denied, 167 N.J. 633 (2001).             Because

the jury was not asked that question, the State concedes we must

remand for re-sentencing without the imposition of NERA on those

three counts.

      The remaining issues raised by defendant in his counsel's

brief and his pro se brief are without sufficient merit to require

discussion in this opinion.          R. 2:11-3(e)(2).       We add only that

the State's comments in summation that defendant's argument at one

point was "ridiculous" and that the jury should not let the defense

"hijack" the case, came nowhere close to "misconduct [that] was

'clearly   and   unmistakably   improper,    and   .    .   .   substantially

prejudiced defendant's fundamental right to have a jury fairly


                                34                                    A-5025-13T2
evaluate the merits of his defense.'"           State v. Koskovich, 168

N.J. 448, 488 (2001) (quoting Timmendequas, supra, 161 N.J. at

575).

       We also note that some counts in the indictment overlap,

charging generally the same conduct during overlapping timeframes

against the same victim.       After discussion, the judge cleared up

this    problem   by   distinguishing   the   behavior   charged,   or   the

location, or the time frames in the verdict sheet to the apparent

satisfaction of both counsel. Counts seventeen and twenty-two

overlap, however, and the verdict sheet for those two counts

seemingly fails to distinguish sufficiently between them.                The

verdict sheet for count seventeen reads:

            The Defendant, Brian E. Killion, on and
            between October 8, 2004 through October 7,
            2006, in the City of Fairview, County of
            Camden, and within jurisdiction of this Court,
            did engage in sexual conduct which would
            impair and debauch the morals of [Wyatt].

Count twenty-two reads:

            The Defendant, Brian E. Killion, on and
            between October 8, 2004 through October 7,
            2008, in the City Absecon and the City of
            Fairview, Counties of Atlantic and Camden, and
            within jurisdiction of this Court, did engage
            in sexual conduct which would impair and
            debauch the morals of [Wyatt].

            [(Emphasis added).]

       The additional language in the verdict sheet for count twenty-

two, unfortunately, does not solve the overlap between the charges

                                35                                  A-5025-13T2
because if the jury found that defendant committed the sexual

conduct in 2005 in Fairview, it might have convicted defendant of

both   counts    seventeen   and    twenty-two    for    the   same   conduct.

Although defendant does not raise this issue on appeal, in the

interest of justice, we direct the court on remand to entertain

argument as to whether one of these counts must be dismissed to

ensure defendant was not convicted twice for the same crime.                  R.

2:10-2.

       We dismiss the conviction on count twelve for aggravated

sexual assault, N.J.S.A. 2C:14-2(a), and remand for resentencing

on count thirteen, second-degree sexual assault under N.J.S.A.

2C:14-2(c)(4),     which   had   been   merged    into   the   now-dismissed

aggravated sexual assault conviction.            We also amend defendant's

conviction on count twenty-seven to a conviction of the lesser

crime of fourth-degree criminal sexual contact and remand for

resentencing on this lesser crime.          The NERA provision of the

sentences   on   counts    thirty-two,   thirty-three      and   thirty-five

should be removed, and we remand for that purpose also.

       Affirmed in part and reversed and remanded in part.               We do

not retain jurisdiction.




                                   36                                  A-5025-13T2
