Opinion
DOCKET NO. A-2592-09T2
03-28-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS ZOWASKY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1179.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
This is defendant Thomas Zowasky's second appeal. We reversed defendant's first conviction and remanded for a new trial, concluding, in part, that the jury's unrestricted private replay of his pre-trial videotaped statement outside of his presence and without receiving any of the precautionary measures required by State v. Burr, 195 N.J. 119, 135 (2008), constituted reversible error. State v. Zowasky, No. A-1089-06 (App. Div. January 15, 2009) (slip op. at 9-10).
On this appeal, defendant's assigned counsel raises the following contentions:
POINT IDefendant raises the following contentions in his pro se supplemental brief:
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT FAILED TO FOLLOW THE PRESCRIBED CAUTIONARY PROCEDURES WHEN THE DELIBERATING JURY REQUESTED A PLAYBACK OF DEFENDANT'S CONFESSION. (Not Raised Below.)POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE HIS CONFESSION.POINT III
THE TRIAL JUDGE EXPRESSED SUCH STRONG BIAS AGAINST DEFENDANT IN HIS COMMENTS DURING THE FIRST SENTENCING PROCEEDING THAT HE SHOULD HAVE BEEN PRECLUDED FROM PRESIDING OVER THE RETRIAL. THE SENTENCE IMPOSED AFTER RETRIAL NOT ONLY MUST BE PRESUMED TO HAVE BEEN TAINTED BY THAT BIAS, BUT ALSO VIOLATES LEGAL PRINCIPLES, AND, CONSEQUENTLY, MUST BE VACATED. (Not Raised Below.)
POINT IFinding no merit in any of these arguments, we affirm.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE HIS CONFESSION/BLURRING THE SEPARATE LINES OF ANALYSIS THAT ARE FOLLOWED IN RESPECT OF THE "SCRUPULOUSLY HONOR" REQUIREMENT VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS ACCORDED HIM BY THE [U.S. CONST., AMEND. XIV AND THE N.J. CONST. ART. 1, PARA. 10.]POINT II
THE TRIAL COURT'S ALLOWANCE OF A READ-BACK OF REDACTED PORTIONS OF DEFENDANT'S STATEMENT TO POLICE WAS HIGHLY PREJUDICIAL VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS ACCORDED HIM
BY THE [U.S. CONST., AMEND. XIV AND THE N.J. CONST. ART. 1, PARA. 10.]
Following a second trial, defendant was convicted of five counts of first-degree aggravated sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-2a(1) (counts one through five); second-degree sexual assault, N.J.S.A. 2C:14-2b (count six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven). The trial judge imposed a fifteen-year term of imprisonment on counts one, three and four, to be served consecutively to each other, and a concurrent fifteen-year term of imprisonment on counts two and five. All of these sentences were subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent five-year term of imprisonment on counts six and seven, and imposed the appropriate assessments, fines and penalties. The terms of Megan's Law apply.
N.J.S.A. 2C:7-1 to -23.
Defendant's convictions stem from his repeated sexual assault of S.P., a twelve-year-old girl he had befriended, from December 2003 to September 2004. Defendant was forty-five years old at the time. On September 20, 2004, defendant gave a videotaped statement to Detective Brian Weisbrot (Det. Weisbrot) from the Burlington County Prosecutor's Office's Sexual Assault/Child Abuse Unit. Defendant acknowledged on the videotape that he voluntarily came to the Prosecutor's Office, and, prior to giving the videotaped statement, received and understood his Miranda rights, and initialed and signed a Miranda card. He said that he and S.P. were boyfriend and girlfriend, they had a sexual relationship that began in December 2003, when she was twelve years old, he loved her, and he wanted to marry her. He described the various sexual acts in which they had engaged "countless times" including vaginal intercourse, anal penetration, cunnilingus, fellatio, and digital penetration of the vagina, and the various locations where the sexual acts occurred. Defendant also said that he met with S.P. after the police began investigating the sexual assaults, he told her that he loved and missed her, and she told him she was pregnant and having a miscarriage.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
S.P. testified at the second trial that her sexual relationship with defendant began in December 2003, when she was twelve years old. She said they had engaged in various sexual acts, including sexual intercourse, fellatio, and cunnilingus, and their relationship was "[l]ike boyfriend and girlfriend."
S.P. also testified that she had received greeting cards from defendant. In some cards defendant wrote "for my loving wife," "I love you," "I miss you," "thinking of you because I love you," "was up all night thinking of you," "I need you," and "Love you, Thomas." S.P. also received a handwritten letter from defendant, addressed "To my loving girlfriend," wherein defendant wrote:
The police retrieved the cards and letters from defendant's car and motel room pursuant to a consent search. Defendant was present during the searches and directed the police to the location of these items.
I love you, baby, babe, more than anything. I also miss you too. More than anything. I want you, babe, more than anything. Most of all, I honestly need you, babe, more than anything ever. Babe, I wanted to tell you this a long time ago but I didn't.In another letter to S.P., defendant wrote:
I told you I love you, I told you I miss you, I told you I want you but I didn't tell you I need you, baby, I need you like the flowers need the rain. You know I need you, [S.P.]. I'm crazy in love with you. You know like the morning needs the sun. Well, I need you, [S.P.], baby. Things aren't always going to be like they are now. Me and you finding it hard to see each other alone. Yes, you have said many of times you wish things would get better or get back to the way we had been. You and me sleeping in each other's arms all night. We really started making some good love --- loving, baby. Oh, how I miss it too. But what loving you give me I cherish and hold as a greatest love, babe. You're my only love and I need you. I hope you need me as well.
[S.P.], I can't stand you saying you're going to hurt yourself, baby. I would go nuts if you did. I think, I think you know this too. Like the morning needs the sun, I need you every morning and every day, without you I'm lost. First, I would like -- first I would walk out -- at first, I would walk out to go to work and, well, my heart was broken cause I didn't see you not waking up -- me up or coming inside surprising me in the morning, kissing before you went to school and me to work. Hey, even some love making. No, but as I walked out to go to work, [there was], no [S.P.] with me. As I stand there by myself looking, no [S.P.].
One minute, one mother fucking minute before your bus come, I get to see you. And I can't even talk to you. This baby hurts me bad. I'm lost without you.
If I could cry without everyone seeing, I would. This, baby, is why I talk to you -- or this is why I talk to myself at work as if I'm talking to you and, believe it or not, I hear you talking back to me in my spirit. That's my heart, babe. [S.P.], I love you more than anything ever before and in time you'll see everything fall into place and you're in everything I do, babe. That's why I keep saying I can't wait until my car, then a house, your house, babe. [S.P], it's getting closer than ever each day that passes.
[S.P.], my love, may I be your knight in shining armor as you have been my princess to me. I love you dearly and from the bottom of my heart may our lives be full of an eternal desire to hold and cherish one another as a gift from a higher power above who has blessed us by showering us with a love that will endure life itself. Above that never dies -- a love that never dies, a love that goes on forever.
With these swords, with these swords we shall conquer the mightiest, against our love for each other and with these shields to protect our hearts for this is where our love is stored, upon the tables of our hearts forever. And with these helmets, they're to be placed upon our heads for the wicked cannot penetrate nor deceive our minds when apart or together. Surely, my princess, may I bow down and kneel and kiss those precious hands of yours all the days of my life. XX, Thomas.
Prior to playing defendant's videotaped statement to the jury, the State and defendant agreed to mute the parts of the tape in which defendant made racial references, redact those references from the transcript, and have Det. Weisbrot read the redacted transcript of the muted parts to the jury. Defense counsel confirmed that he had reviewed the videotape and the redacted transcript, and that the transcript was accurate. After the videotape was played to the jury, Det. Weisbrot read the redacted transcript of the muted parts as follows:
Okay. Why, what, what you said, you were feeling guilty, what were you feeling guilty about? Answer: I was feeling guilty because, number one, is [S.P.]'s, [S.P.] is a very beautiful girl. My response: Okay. Mr. Zowasky responded: And [S.P.] starting loving me and I started loving her and I just thought that whatever would happen would happen. If I ended up getting arrested, I ended up getting arrested. I didn't want to see anything bad ever happen to [S.P.]. I know a lot of bad stuff about [S.P.]'s past so I told [S.P.] I didn't want her to have a baby until she was old enough. This was one of the reasons why I did date her because everybody, her sister, [L.], she had a child now. She's pregnant a second time. I responded: Okay. Mr. Zowasky responded: With another child. Her sister [M.], all she talks about is her man. She's 10 years old. Her sister [H.], all she talks about is her man. With kids, of course, all the kids. They're kids, you know, have babies. This all wasn't reflected, also what my opinion was about [S.P.] because as I got to know her, I didn't want [S.P.] getting pregnant and having these kids just because of the
purposes. My response: At the beginning of your relationship with her, you were wearing a condom, is that correct? His response: Yes.
Defendant testified that he only had a father-daughter-type relationship with S.P., and never had any sexual contact with her. He explained that S.P. was pressured into saying that they had engaged in sexual acts in order to protect her drug-addicted mother from the Division of Youth and Family Services (DYFS), who was conducting an investigation, and to avoid placement into foster care.
Much of defendant's remaining testimony focused on explaining the meaning of what he wrote in his cards and letters to S.P., and attacking the credibility of Det. Weisbrot and the videotaped statement. Defendant testified at length about alleged discrepancies in the videotape to prove his theories: (1) that someone had tampered with and spliced it to remove certain parts, including where he denied any sexual contact with S.P., and said he did not understand his Miranda rights and could not read the Miranda card because he did not have his eyeglasses; and (2) that his demeanor and behavior on the videotape showed that Det. Weisbrot had coerced or forced him into changing his story, and that he had "made up" everything he said because of certain promises Det. Weisbrot had made to him. In addition, in summation, defense counsel attacked the credibility of the videotape, and urged the jury to consider that defendant's demeanor indicated he was led into fabricating the incriminating statements.
I.
During jury deliberations, the jury requested a replay of the videotape. Defendant contends for the first time on appeal that the trial judge failed to follow the cautionary procedures set forth in Burr, supra, before permitting the replay. We review this contention under the plain error standard of review to determine whether the replay was clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
During deliberations, a jury may request a replay of a pre-trial videotaped statement that had been entered into evidence at trial. Burr, supra, 195 N.J. at 134; State v. Michaels, 264 N.J. Super. 579, 643-44 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994). "If the request for a replay appears reasonably necessary to the jury's deliberations, the trial court should then exercise its discretion to balance that need against any possible prejudice to the defendant." Burr, supra, 195 N.J. at 133. Before determining whether or not to permit a replay, the trial judge must follow this procedure:
First, the jury should be asked if a readback of the statement would suffice. IfThe essence of the precautionary measures is to assure that the replay does not unduly prejudice the defendant's right to a fair trial. Burr, supra, 195 N.J. at 134; see also State v. Miller, 205 N.J. 109, 125-26 (2011).
the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. Second, the court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Third, the trial judge must permit the defendant to demonstrate that consequential prejudice from the playback could not be ameliorated through other means. Fourth, the playback must occur in open court.
rState v. W.B., 205 N.J. 588, 622 (2011) (internal citations and quotation marks omitted); see also Burr, supra, 195 N.J. at 135.]
Here, the following colloquy occurred between the judge, jury, and defense counsel regarding the replay of the videotape:
THE COURT: You would like a replaying of the video of the interview of the defendant; is that right?The judge also confirmed that the jury did not want a readback of any testimony, but determined that a readback of Det. Weisbrot's testimony, in which he read the redacted transcript of the muted parts of the videotape was necessary to the replay. In open court in defendant's presence, the judge replayed the videotape to the jury, and had the court reporter read back Det. Weisbrot's testimony.
THE JURY: Yes.
THE COURT: Let me ask you, of course, I'm required to ask you these questions, are you certain that's what you want to see? That's the first question.
THE JURY: Yes.
THE COURT: All of you want to see it?
THE JURY: Yes.
THE COURT: Do any of you have any questions about any of the direct testimony or any of the cross examination testimony that relates to the playing of that tape?
THE JURY: (Indicating.)
THE COURT: You're shaking your heads no?
THE JURY: No.
THE COURT: Any of you?
THE JURY: No.
THE COURT: All in unison are saying no. Any comments from counsel, either of you?
[DEFENSE COUNSEL]: No, Your Honor.
We are satisfied that the judge complied with Burr's precautionary measures in replaying the videotape. The judge's questions and the jury's answers clearly indicate that the jury wanted a replay of the videotape, not a readback of the transcript. The judge correctly determined that a readback of Det. Weisbrot's testimony of the redacted transcript was necessary in order to provide the proper context for the replay. In addition, the replay and readback occurred in open court in defendant's presence.
More importantly, defendant claimed no prejudice from the replay and consented to it. He no doubt wanted the jury to again see his demeanor and behavior in order to prove his theory that someone had tampered with and spliced the videotape to eliminate his exculpatory statements, and coerced him into changing his story and fabricating everything he said. A readback of the transcript clearly would not have accomplished this goal. Defendant cannot seek to benefit from the replay of the videotape, and then claim that the replay led to an unjust result. See State v. Jenkins, 178 N.J. 347, 358-60 (2004) (discussing the doctrine of invited error). We conclude that no error, let alone plain error, occurred in the replay of the videotape.
For this reason, we reject defendant's contention that trial counsel rendered ineffective assistance by failing to object to the replay. In making this argument, defendant does not even cite Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), let alone explain how he has satisfied either prong of the Strickland test.
II.
Defendant contends that the judge erred in failing to grant his motion to suppress the videotaped statement. He argues that he did not fully understand his Miranda rights, and was coerced into making the statements.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we afford deference to a trial judge's findings "'which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." Johnson, supra, 42 N.J. at 162. Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (citations omitted). Applying these standards, we discern no reason to disturb the judge's ruling.
A defendant's waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J. 123, 134 (1988). In order to survive a motion to suppress a statement on Miranda grounds, the State must prove beyond a reasonable doubt that the defendant provided a voluntary and uncoerced waiver of his right to remain silent. State v. Knight, 183 N.J. 449, 462 (2005). In determining whether a statement is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Ibid.; Bey, supra, 112 N.J. at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement, and the period of time between [the] 'administration of the [Miranda] warnings and the volunteered statement[,]'" Knight, supra, 183 N.J. at 463 (last alteration in original) (citation omitted).
Here, following a Miranda hearing prior to the first trial, the judge found that defendant admitted on the videotape that Det. Weisbrot had read to him and showed him each Miranda right on a Miranda card, he told the detective several times that he understood his rights, he initialed each right on the card and signed it, and he was able to read the Miranda card during the videotaped statement without eyeglasses. The judge found lacking in credibility defendant's claim that his videotaped statement was scripted by Det. Weisbrot or rehearsed. The judge also found that the police did not psychologically pressure or coerce defendant into making the incriminating statements on the videotape; rather, defendant was very cooperative, emphasized his love for S.P., and "consistently tried to demonstrate the depth of that feeling and love by volunteering information." The judge concluded that the State had proved beyond a reasonable doubt that defendant made his videotaped statements voluntarily, freely and consensually.
Defendant testified at the Miranda hearing.
Defendant abandoned this claim at the second trial. Instead, he claimed that he "made up" everything he said based on promises Det. Weisbrot had made.
Based on our review of the videotaped statement and transcript of the Miranda hearing, we are satisfied that the record amply supports the judge's factual and credibility findings and legal conclusion. The record lacks credible evidence showing that defendant did not understand his Miranda rights and was forced or coerced into making the videotaped statement. To the contrary, defendant clearly understood his Miranda rights and voluntarily gave the videotaped statement. Accordingly, the motion to suppress was properly denied.
III.
Defendant contends for the first time on appeal that the judge should have recused himself from presiding over the retrial because of statements the judge made at defendant's first sentencing that "this is about as perverse and serious a crime as one could commit[,]" and that the evidence against defendant was overwhelming. Defendant argues that these comments indicate personal bias requiring recusal.
Defendant also argues that the judge improperly commented at the first sentencing about the impact of the crimes on S.P.'s ability to have a normal life or any degree of intimacy with anybody. Defendant does not allege these comments prove bias; rather, he argues that the judge improperly relied on his own presumption of S.P.'s capacity for a normal future in determining an appropriate sentence. However, defendant has not shown that these comments impacted the second trial or his current sentence, which the judge imposed after a second sentencing hearing where the judge made no such comments.
We "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); Robinson, supra, 200 N.J. at 20 (reiterating the principle that an appellate court will not consider an issue raised for the first time on appeal absent an exception). No exception applies here.
Nonetheless, we will briefly address defendant's contention, as we conclude it utterly lacks merit. We consider the entire record when reviewing a trial judge's alleged prejudicial actions. State v. J.J., 397 N.J. Super. 91, 103 (App. Div. 2007). The entire record here, including the sentencing transcript, reveals no judicial bias or prejudice whatsoever. See id. at 103 (finding that a trial judge did not need to recuse himself because "although the trial judge's comments were sometimes stern, they do not reveal bias or prejudice"). To the contrary, the record reveals that defendant received a fair trial and a proper sentence by a fair and impartial judge.
For this reason, we reject defendant's contention that trial counsel rendered ineffective assistance by failing to seek the judge's recusal.
IV.
Defendant contends that the judge failed to consider the Yarbough factors in imposing three consecutive sentences. He also contends that the judge erred in finding and applying certain aggravating factors, and failing to find and apply certain mitigating factors. We disagree.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Our review of a sentence is limited. Miller, supra, 2 05 N.J. at 127. Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
"When multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5a. "'[I]n fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing.'" State v. Friedman, 209 N.J. 102, 122 (2012) (quoting Yarbough, supra, 100 N.J. at 630). Sentencing judges must state their reasons for imposing a consecutive sentence, and should consider the following factors:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims; [and]
(e) the convictions for which the sentences are to be imposed are numerous[.]
[Yarbough, supra, 100 N.J. at 643-44.]
Here, defendant was convicted on five counts of first-degree aggravated sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-2a(1) (counts one through five). The judge imposed consecutive sentences on counts one, three and four. Those counts referred to separate and distinct types of sexual assault: count one - vaginal intercourse; count three - cunnilingus; and count four - fellatio. The judge found that these sexual assaults were predominantly independent of each other, they involved numerous separate and distinct acts that were committed at different times and places over a long period of time, and they were separate and distinct indignities that defendant imposed on a twelve-year-old victim. The judge also found that the convictions were numerous. These findings satisfy Yarbough factors a, b, c, and e, and the record supports them. Factor d does not apply because S.P. was the only victim. Accordingly, the judge properly imposed consecutive sentences on counts one, three, and four.
We reject defendant's argument that the judge's citation to State v. Fraction, 206 N.J. Super. 532 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986), represents a misapplication of the law or a confusion about the legal issue involved here. Although defendant is correct that Fraction involves merger, not consecutive sentences, its holding applies here: "the victim suffered separate and distinct insults to her dignity and defendant may be punished separately for each of the offenses committed." Id. at 536.
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After concluding that consecutive sentences were appropriate, the judge then analyzed the aggravating and mitigating factors. The judge found and applied aggravating factor one, "[t]he nature and circumstances of the offense, and the role of the actor therein[,]" N.J.S.A. 2C:44-1a(1); factor two, "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim . . . was particularly vulnerable or incapable of resistance due to . . . extreme youth[,]" N.J.S.A. 2C:44-1a(2); factor four, "[a] lesser sentence will depreciate the seriousness of the defendant's offense because . . . the defendant took advantage of a position of trust or confidence to commit the offense[,]" N.J.S.A. 2C:44-1a(4); and factor nine, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9). In so doing, the judge found that defendant was a father-figure to S.P.; S.P. and her mother placed their trust in him; he caused a "grave potential harm to [S.P.]" by exposing her to pregnancy and sexually transmitted diseases; he imposed himself on a twelve-year-old victim for his own sexual gratification; the sexual assaults continued even after DYFS became involved; he was in love with S.P. and there was a risk that he would do anything to contact her; he continued to deny guilt despite overwhelming direct and circumstantial evidence; and he needs "significant deterrence."
The judge found and applied mitigating factor seven, "[t]he defendant has no history of prior delinquency or criminal activity[,]" N.J.S.A. 2C:44-1b(7). The record supports this mitigating factor because at the time of the sexual assaults, defendant was forty-five years old and had no criminal history other than a minor municipal matter.
On appeal, defendant contends that aggravating factor two does not apply because there was no evidence that S.P. was psychologically harmed, and aggravating factor four does not apply to sexual assault cases. Defendant also contends that the judge should have found and applied mitigating factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur[,]" N.J.S.A. 2C:44-1b(8), because he was not found to be a compulsive sexual offender. We reject these contentions.
In weighing aggravating factor two, the court may consider the victim's particular vulnerability to the perpetrator. See State v. O'Donnell, 117 N.J. 210, 219 (1989); State v. Martin, 235 N.J. Super. 47, 58-59 (App. Div.), certif. denied, 117 N.J. 669 (1989). The statutory language itself directs the court to consider "whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable . . . due to . . . extreme youth[.]" N.J.S.A. 2C:44-1a(2). The judge did not err in applying aggravating factor two because defendant, a forty-five-year-old man, reasonably should have known that his sexual assaults of a twelve-year-old child left her particularly vulnerable to him, and susceptible to a grave potential harm.
In addition, we have held that the position of trust language of N.J.S.A. 2C:44-1a(4) applies when a teacher and camp director sexually assaulted an eleven-year-old boy, State v. Hess, 198 N.J. Super. 322, 326, 330 (App. Div. 1984), or when a supervisor in a juvenile shelter engages in sexual contact with a juvenile resident, Martin, supra, 235 N.J. Super. at 49, 59 n.8. Accordingly, the judge appropriately considered the "position of trust or confidence" defendant possessed with S.P. in finding and applying aggravating factor four. See N.J.S.A. 2C:44-1a(4).
Finally, although defendant was not found to be a compulsive sexual offender, this does not equate to a finding that his conduct "was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1b(8). Defendant had a lengthy sexual relationship with S.P., which continued despite DYFS's investigation. He also continued to contact S.P. after the police began their investigation. Defendant was deeply in love with S.P. and wanted to marry her. These facts clearly indicate that defendant's sexual assault of S.P. would likely recur.
V.
Defendant contends for the first time on appeal in his pro se supplemental brief that the judge erred by permitting Det. Weisbrot to read the redacted transcript of the muted portions of the videotaped statement during the State's case. Defendant incorrectly equates a readback of testimony during trial with a readback during jury deliberations. The Burr precautionary measures do not apply to a readback during the trial. See Burr, supra, 195 N.J. at 134; Michaels, supra, 264 N.J. Super. at 643. Thus, Det. Weisbrot's reading of the redacted transcript during the State's case was not plainly erroneous.
The replay of Det. Weisbrot's reading of the redacted transcript during jury deliberations was also not plainly erroneous. As previously discussed, trial judges have broad discretion in permitting replays of trial testimony. Miller, supra, 205 N.J. at 122. Trial judges also must, however, ensure that juries do not overemphasize testimony that is replayed during deliberations. Id. at 123. To that end, when a jury requests a replay, "the entire testimony requested should be played back — including direct and cross-examination — so that evidence may be considered in its proper context." Id. at 122. In this case, the judge properly allowed the replay of defendant's videotaped statement. A readback of Det. Weibrot's reading of the redacted transcript was necessary in order for the jury to consider the entire videotaped statement in the proper context.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION