STATE OF NEW JERSEY v. A.A., Defendant–Appellant.

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. A.A., Defendant–Appellant.

DOCKET NO. A–2499–11T1

Decided: April 23, 2014

Before Judges Espinosa, Koblitz and O'Connor. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

A jury convicted defendant A.A. of sexually abusing his daughter, O.A. (Opal 1 ), for over a decade.   Defendant was sentenced to an aggregate term of forty years in prison, with twenty-five years and six months parole ineligibility.   Defendant appeals from the November 30, 2011 amended judgment of conviction, arguing improper conduct by the State and errors in the judge's rulings as well as the length of the sentence.   We affirm.

Defendant was indicted, in twenty-seven counts, with sexual offenses against five of his daughters, including Opal. As to Opal, defendant was charged with first-degree aggravated sexual assault by committing acts of penetration upon a child less than thirteen years of age between 1989 and 1999, N.J.S.A. 2C:14–2(a)(1) (count seven);  second-degree sexual assault by committing acts of sexual contact upon a child less than thirteen years of age while defendant was at least four years older between 1989 and 1999, N.J.S.A. 2C:14–2(b) (count eight);  fourth-degree lewdness, N.J.S.A. 2C:14–4(b)(1) (count nine);  second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a) (count ten);  first-degree aggravated sexual assault by committing acts of sexual penetration upon a blood-relative at least thirteen but less than sixteen years of age between 1999 and 2002, N.J.S.A. 2C:14–2(a)(2)(a) (count eleven);  second-degree sexual assault by committing acts of sexual penetration upon a child of at least thirteen but less than sixteen years of age while defendant was at least four years older between 1999 and 2002, N.J.S.A. 2C:14–2(c)(4) (count twelve);  third-degree aggravated criminal sexual contact by committing acts of sexual contact upon a blood-relative of at least thirteen but less than sixteen years of age between 1999 and 2002, N.J.S.A. 2C:14–3(a) (count thirteen);  and third-degree criminal sexual contact by committing an act of sexual contact upon a child of at least thirteen but less than sixteen years of age while defendant was at least four years older between the years 1999 and 2002, N.J.S.A. 2C:14–3(a) (count fourteen).   A.M., a woman who lived with the family for a time, was also charged in four counts of the indictment.

Prior to trial, the State consented to defendant's motion to sever the counts relating to each victim.   Defendant also successfully moved to suppress pre-trial statements he made to the police.2

I Pre-trial hearing

The State filed a motion to admit evidence of defendant's bad behavior towards members of his family other than Opal. A pre-trial hearing was held after which the trial judge issued a written decision admitting some of the evidence pursuant to N.J.R.E. 404(b).

At the hearing, B.A. (Betty), defendant's wife and Opal's mother, testified to the following facts.   She and defendant were married in 1977, when their first child, A. (Ariana), was six years old.   When pregnant with Ariana, Betty learned that defendant had given her multiple venereal diseases.   When they were dating, Betty said that defendant would punch her in the arm playfully.

Early in their marriage, they had a fight over defendant's infidelity.   After Betty took off her wedding ring in anger, defendant crushed it and threw it out the window.   When she was five months pregnant with her next eldest daughter, N. (Nancy), defendant hit her and knocked her to the ground.

Defendant began bringing other women home.   When he did so, he would tell Betty to get out of the bed and she would sleep on the floor of the children's room.   On one occasion, defendant directed her to engage in anal sex with another man while defendant watched.

If defendant thought she was being disrespectful, he punched or kicked her.   Betty suffered regular beatings, either by a blow to the head or a punch to the face.   Defendant also hit the children, and she once noticed that Opal had a black eye.   Defendant once told her that he could kill their children and no one would know because they did not have birth certificates.   He also threatened to kill her and bury her body parts where no one would ever find them.   In one incident before Opal was born, defendant kicked Betty in her stomach when she was pregnant causing her to lose twins.   Defendant buried the fetuses in the front yard of their house.

Defendant bought a house in East Orange in 1993 that had experienced a fire and did not have heat, water, a kitchen or a bathroom, and moved the family there to live.   Betty learned that defendant had had sex with another of their daughters, Ariana, when she found out that Ariana was pregnant at age fifteen.   When Betty expressed her outrage, defendant beat her with a belt.   Defendant delivered the baby at home.   Ariana again became pregnant with defendant's baby when she was nineteen, and again a year or so later.

Defendant engaged in sexual acts with Opal starting in 1998 when Opal was twelve.   At fifteen, Opal became pregnant with defendant's child.   Opal gave birth to a girl named D. (Diane) near the end of 2001.

Nancy was about twelve when Betty learned that defendant had been sexually abusing her.   Similarly, Betty learned that defendant was sexually abusing her next oldest daughter, A. (Alice), when Alice was twelve.   Alice became pregnant with defendant's child when she was fifteen.

Defendant brought another woman, co-defendant A.M., to live in the house.   A.M. became pregnant with defendant's child.   The child died four to six months after birth.   Defendant buried the child in the backyard.

Defendant did not believe in going to the doctor, even for the birth of a baby.   He also believed in home-schooling, so the children did not attend public school.   Defendant believed that the world was going to end and that only he and his offspring would survive.   He described himself as a prophet and compared himself to Jesus Christ.   As a “chosen one,” it was his responsibility to procreate as much as possible.   He also considered himself married to his daughters.

Defendant's daughter, Nancy, testified to the following facts.   When she was growing up, she saw her father punch Betty in the face and beat her with a belt numerous times.   She also witnessed defendant put his hands down the underwear of Opal, who was nine at the time.   Approximately three or four years after that incident, when Nancy was eighteen or nineteen, defendant asked her to decide if she or Opal would have anal sex with him.   Nancy agreed to do so in order to spare her younger sister.

At about this time, Opal told Nancy that defendant had beaten her up and then had sex with her.   Nancy saw bruises on Opal. Defendant beat her and Opal with extension cords, wooden slats and belt buckles as punishment when they were growing up.   Another punishment was to deprive the children of food.

The trial judge focused on the admissibility of the prior bad acts evidence under the doctrine of res gestae and N.J.R.E. 404(b).  He ruled that sexual assaults upon the children other than Opal were inadmissible in light of the prior severance ruling and because such testimony would be highly prejudicial.

The judge permitted the State to introduce evidence “to establish the unusual living rituals, chores and arrangements” that went on in the home as “part of the mosaic of the case.”   He added:

[T]he alleged crime of penetrating [Opal] did not begin at the point of the initial penetration․  It began when defendant created an atmosphere of total control and fear in the house.   The jury needs to be permitted to see the entire mosaic which [led] to this alleged activity.   The jury [cannot] and should not decide this case in a vacuum.

Defendant did not come home one day and suddenly, without any preparation or warning, decide to rape his young daughter.   Nor was it the [conscious] desire of [Opal] to inexplicably consent to the sexual advances of Defendant ․ and keep it hidden from the rest of the world.   Without the preliminary background evidence leading up [to] the alleged sexual assaults ․ the jury would be dum [b]founded as to why [Opal] would submit to and not tell anyone about the actions of Defendant.

The sexual penetration is the ending event.   To preclude the evidence which [led] to and gave rise to these allegations could result in a total miscarriage of justice and distortion of the truth.

The trial judge also permitted evidence of the beatings, punishments and threats defendant allegedly made to the children and to Betty:

This evidence is crucial for the jury to understand the state of mind of [Opal] and any other family members that may testify on behalf of the State.   Without such evidence, the jury could falsely conclude that the sexual abuse did not occur or that [Opal] didn't object to these acts.   The State argues correctly that this evidence, if believed, proves that she didn't have a choice to say no.

The judge found that although the evidence was prejudicial, the prejudice was created by defendant's intentional acts, and that the prejudice did not outweigh the probative value of the evidence.

The court also analyzed the admissibility of the evidence under N.J.R.E. 404(b).  Applying the applicable four-prong test, the court found the evidence to be relevant to the material issue of whether defendant assaulted Opal:

[T]he jury will need to consider how these bizarre allegations could be true.   How could this occur?   How could [Opal] not tell anyone?․   The proffered evidence may prove how Defendant had the opportunity to commit these crimes.   It may also be highly probative of defendant's intent, state of mind, motive and plan.   The jury will need to consider this evidence to decide if the sexual assaults actually took place.

As to the second prong, the judge found that the evidence was similar in kind and close in time to the charged offense:

[T]he prior bad acts ․ are similar to the sexual assaults in that Defendant used physical and emotional abuse to manipulate his family into following his orders, as Defendant also did with the alleged sexual assaults on [Opal]. As with the alleged statutory assaults, the prior bad acts of Defendant were an exercise of disciplinary power and punishment upon his family.   Further, the timing of these incidents in relation to the alleged sexual assaults occurred immediately prior to, during and between the various sexual assaults on [Opal].

The judge also found that there was clear and convincing evidence that the prior bad acts had occurred, and that the prejudicial effect of the evidence did not outweigh its probative value.

The judge limited the evidence to prevent any undue prejudice to defendant.   He barred evidence of the living conditions while the East Orange house was being rebuilt after it was damaged in a fire;  the burial of the fetuses;  defendant bringing other women into the home and forcing Betty to have anal sex with another man while defendant watched;  venereal diseases suffered by Betty;  defendant's extra-marital affairs;  defendant kicking Betty in the stomach causing her to have a miscarriage;  the incident when Nancy saw defendant touch Opal on the vagina, and the incident when defendant asked Nancy and Opal to choose which one of them would have anal sex with him.

The judge found the following evidence to be admissible:  home-schooling and the lack of medical care;  threats made by defendant to Betty about their children;  Opal not having a birth certificate;  Opal being beaten for trivial matters;  Opal's observation of Betty being beaten by defendant;  Opal's lack of friends;  defendant's beating of Opal when she was twelve, giving her a black eye;  defendant's beating his children with objects;  defendant's physical abuse of Betty;  defendant's household rules and punishment;  the wedding ring incident;  statements defendant made regarding his claim that he was a prophet;  and his statement to Betty that he could kill their children and no one would know because they were born without birth certificates.

II Trial

Betty testified to the events the trial judge had deemed admissible at the pre-trial hearing.   Betty also testified that she had nine children with defendant.   Opal was the fifth child and was born at home in 1986.   Opal did not have a birth certificate or social security number.

Opal testified to the following facts.   She first remembered being beaten by defendant with a belt when she was three years old as punishment either for lying or for wetting the bed.   When she got older, defendant would use wooden slats.   The first time defendant sexually assaulted her was when she was eight.   He put his fingers and his mouth on her vagina.   He had Opal place her hand and mouth on his penis and he ejaculated in her mouth.   This occurred five or six times between 1993 and 1995.

When she was thirteen, in 1999, defendant began having vaginal intercourse with her.   Defendant told her that if she had his child, the child would be superior to other people.   He began having anal intercourse with her in 2000 when she was fourteen.   After 2001, the anal intercourse became more frequent, occurring “over a hundred times.”   Defendant threatened to make her have sex with other men if she did not comply with his requests.

When Opal was seven months pregnant, she moved with Betty and the other children to Brooklyn, without defendant.   It was there that Opal gave birth to Diane on December 29, 2001.   A DNA test was performed to determine Diane's paternity.   The results were analyzed by Lynn Crutchley, a New Jersey State Police forensic scientist, who opined that defendant was Diane's father.

Meghan Clement, director of Lab Corps' forensic identity testing department, testified for the State as an expert in forensic biology.   She concluded that defendant was 1.18 million times more likely to be Diane's biological father than an untested, unrelated individual.

Defendant testified and denied punching Betty in a playful manner when they first started going out.   He said that he and Betty agreed on having lots of children and did not believe in birth control.

As to the wedding ring incident, defendant testified that Betty scratched him with the ring when he told her of meeting another woman at a get-together Betty did not want to attend.   He grabbed the ring and threw it out of the window.   He denied that he gave Betty bruises on the face.

Defendant claimed that both of them agreed that Betty should deliver at home because they read that babies born at home were more intelligent and less prone to crime.   He also home-schooled the children because he did not believe the public school system was good enough for them and because he hoped home-schooling would help bond them together as a family.   He said that Betty also did not believe in vaccinations for the children.   He maintained that the children should have had birth certificates because a nurse from the municipal board of health came to visit after the births and took the relevant information.

He testified that as part of their study of African culture and mores, defendant and Betty attended seminars on polygamy and they agreed to live a polygamist lifestyle.   He testified that the two women became “co-wives.”

Defendant denied beating the children, describing Betty's testimony as a fabrication.   He claimed that Betty would discipline the children by hitting them with a ruler or a belt.   He denied exposing his genitalia to any of his children and denied ever saying that he was a prophet or Jesus Christ.

Defendant denied sexually molesting or abusing Opal;  he described the allegations as lies.   He also denied ever beating her or threatening her with beatings or rape.   He maintained that these charges related to his separation from Betty, and various disagreements they had, as well as Betty's participation in a cult.

On appeal defendant raises the following issues:

POINT I:  THE DETAILED AND EXCESSIVE TESTIMONY ABOUT VARIOUS OTHER WRONGS AND CRIMES DEFENDANT ALLEGEDLY COMMITTED AGAINST HIS EX–WIFE AND OTHER CHILDREN — MUCH OF WHICH OCCURRED BEFORE O.A. WAS EVEN BORN — OVERWHELMED THE PRESENTATION OF PROOFS ABOUT THE CRIMES AGAINST O.A. IN QUESTION AND CAUSED AN UNFAIR TRIAL FOR DEFENDANT ON THESE CHARGES AT TRIAL BELOW, WARRANTING REVERSAL FOR A NEW TRIAL HERE.

POINT II:  IMPROPER COMMENT BY THE PROSECUTOR CAUSED AN UNFAIR TRIAL (PLAIN ERROR).

POINT III:  THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S STATEMENTS COULD BE USED AGAINST HIM FOR IMPEACHMENT.

POINT IV:  THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTION ADMISSIBLE AGAINST HIM AT TRIAL.

POINT V:  DISCOVERY VIOLATIONS BY THE STATE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT VI:  THE TRIAL COURT ERRED IN PERMITTING PHYSICAL EVIDENCE WITHOUT SUFFICIENT CHAIN OF CUSTODY.

POINT VII:  MEDIA REPORTS HEARD BY JURORS WARRANTS REMAND FOR FURTHER CONSIDERATION OF WHETHER DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY TRIAL WAS INFRINGED BELOW (PLAIN ERROR).

POINT VIII:  DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

III

We affirm the admission of bad acts for the reasons expressed by the trial judge in his thorough written opinion of March 12, 2010.   We add only the following comments.   A trial court's ruling on the admissibility of other crime or bad acts evidence is reviewed for abuse of discretion.  State v. Rose, 206 N.J. 141, 157 (2011).   Only when there is a clear error of judgment should that determination be reversed.  Id. at 158.

Subsequent to the trial court's ruling in this case,3 the New Jersey Supreme Court held that the doctrine of res gestae, which was relied on in part by the trial judge here, is no longer the doctrine courts should use to examine the admissibility of misconduct evidence, and that such evidence should be examined under Rule 404(b).  Rose, supra, 206 N.J. at 179–82.

The Rose Court stated that a “threshold determination” should be made as to whether the proffered bad acts evidence is subject to a Rule 404(b) analysis to see whether the proofs are other-crime evidence or evidence “intrinsic to the charged crime.”  Id. at 180.  “[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not evidence of “other crimes, wrongs, or acts.”   Id. at 177 (internal citation and quotation marks omitted).   Evidence is considered intrinsic if it “directly proves” the crime charged or if the acts in question are performed contemporaneously with, and facilitate, the commission of the crime charged.  Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248–49 (3d Cir.2010)).   Courts have utilized a case-by-case approach in making this determination.  Id. at 179.

The concept of “intrinsic evidence” has replaced res gestae.  Green, supra, 617 F.3d at 245.   Intrinsic evidence is admissible because it helps the factfinder evaluate all the circumstances under which the defendant has acted.  Ibid. Although the trial judge used the term “res gestae,” the bad acts admitted were intrinsic evidence as they largely occurred over the same time period and facilitated the crimes charged.

In addition, our Supreme Court noted that “other crimes evidence may be admissible if offered for any non-propensity purpose,” including the need to provide “necessary background information about the relationship among the players” involved.  Rose, supra, 206 N.J. at 180–81 (quoting Green, supra, 617 F.3d at 249).   Such background evidence is admissible “outside the framework of Rule 404(b).”  Id. at 181 (quoting Green, supra, 617 F.3d at 249).   When admissible for this purpose, the evidence is subject to the probative value/prejudice balancing test under N.J.R.E. 403, not prong four of Rule 404(b).  Id. at 177–78, 181.

The other bad acts evidence here was used to provide the necessary background information to avoid the likely jury concern regarding how it was possible for defendant to have sexually assaulted and abused Opal over a thirteen-year period without anything being done to stop it.   It was necessary for the State to demonstrate that defendant controlled the family through isolation and threats.

The trial judge correctly concluded that the evidence in question was admissible without having to undertake the four-prong Rule 404(b) analysis.   Nonetheless, he did analyze the evidence under the four-prong test and found it admissible after that review also.

IV

Defendant argues as plain error in Point II of his brief that the prosecutor's summation included improper comments which were “clearly capable of producing an unjust result.”  R. 2:10–2.   Specifically, he points to remarks regarding Opal's date of birth in which the prosecutor claimed that the defense sought to make it appear that she was two years older than she actually was, for the purpose of defeating some of the charges.

We review a claim of prosecutorial misconduct with respect to remarks in summation de novo.  State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, _ U.S. 1504, 133 S.Ct. 1504, 185 L. Ed.2d 558 (2013).   Prosecutors are entitled to argue the merits of the State's case “graphically and forcefully.”  State v. Feaster, 156 N.J. 1, 58 (1998).

A prosecutor is permitted to respond to an argument raised by the defense.   State v. Munoz, 340 N.J.Super. 204, 216 (App.Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001).   Here, the prosecutor's remarks were fair comment in response to defense counsel's summation and were based on the evidence introduced at trial.

V

Defendant's arguments raised in Point III, regarding the use of defendant's pre-trial statement to the police;  Point IV, regarding the impeachment use of defendant's prior conviction for endangering the welfare of a child, N.J.S.A. 2C:24–4(a);  Point V, regarding a claimed discovery violation;  and Point VI, regarding the chain of custody of the DNA evidence, are without sufficient merit to require discussion in a written opinion.  R. 2:11–3(e)(2).   We note that the State did not use at trial defendant's statements to the police or Opal's testimony of further bad acts that defendant claimed was not provided to him in discovery.   The trial judge also did not abuse his discretion by allowing defendant to be impeached with a sanitized conviction from only seven years before.   See N.J.R.E. 609 (allowing impeachment by evidence of conviction of a crime).

VI

As plain error, defendant urges us in Point VII of his brief to remand to the trial court for further inquiry as to the exposure of the jury to media reports.   The sheriff's officer reported to the trial judge that while the jurors were in the jury assembly room, they saw a news report on television that the case was resuming that day.   The jurors were unable to turn off the television.   The officer told the judge that the jurors put their hands over their ears and walked out of the room.

After the trial judge polled the jury, five jurors said they saw the news report.   The judge then questioned the five outside the presence of the other jurors.   One juror said she heard reference to a case from Paterson, and then saw defendant's name at the bottom of the screen.   She then walked out of the room.   Another juror heard someone say, “oh, my God,” turned and looked at the television and saw defendant's face on the screen and mention of a Paterson case.   She then turned away and put her hands over her ears.

A third juror told the court that she heard, “Paterson jury trial resumes today,” and then got up and moved away.   Another juror said she saw a caption on the screen stating that a New Jersey man's rape trial was resuming.   The fifth juror stated that she heard the announcer say that testimony was continuing in a trial about a father allegedly raping his daughter.   All five jurors told the judge that they moved away from the television when they heard or saw the report and then told the court officer what had happened, and that nothing they saw or heard would prevent them from being fair and impartial or from deciding the case solely based on the evidence.   The judge observed that the jurors at worst saw only “a minimal non-factual account of the case” that included no prejudicial information.

The judge then gave the jury a curative instruction, telling the entire jury that outside information was not evidence, that evidence came from witnesses and tangible items of evidence, and that they should decide the case solely on the facts and the law as well as the arguments of counsel.

Whether to grant a mistrial, or a new trial, based on the jury having received information with the capacity to prejudice the defendant's right to a fair trial rests in the discretion of the trial court.  State v. R.D., 169 N.J. 551, 558 (2001).   The trial judge exercised his discretion appropriately by giving a curative instruction after this inadvertent exposure of the jury to a brief, non-prejudicial news report.

VII

Finally, in Point VIII of his brief defendant argues that in sentencing him, the court erred in proceeding without a defense report evaluating his eligibility for sentencing under the Sex Offender Act, N.J.S.A. 2C:47–1 to –10;  failing to merge his conviction for sexual assault in count eight into his conviction for aggravated sexual assault in count seven;  imposing consecutive sentences on the aggravated sexual assault convictions;  and improperly weighing the aggravating and mitigating factors.

At defendant's sentencing hearing, defense counsel agreed to reserve the right to retain a defense expert to refute the adult diagnostic and treatment center referral report (Avenel report) 4 , and hold a hearing if necessary.   The Avenel report found defendant not to be eligible for sentencing pursuant to the Sex Offender Act. The record reveals no defense request for a hearing, nor was a defense report submitted at a later date.

Defendant also argues that the judge should have merged count eight into count seven.   Count seven charged defendant with aggravated sexual assault upon a child under thirteen years old between 1989 and 1999;  count eight charged sexual assault upon a child under thirteen years old for that same time period.

The judge stated that he would have merged count eight into count seven, but for the fact that the lesser crime, count eight, was subject to an eighty-five percent parole disqualification pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, because the jury found that count eight was committed with physical force.   That finding was not a part of the verdict for count seven, which also alleged conduct prior to 2001 when NERA was amended.5  The judge imposed concurrent sentences on counts seven and eight with a NERA parole disqualifier imposed on the lesser charge.   We agree with the judge's initial observation that factually the greater charge encompasses the lesser one, but disagree that they do not merge because the lesser charge is subject to NERA and the greater is not.   In an analogous situation, where the lesser drug crime contained a parole disqualifier while the greater did not, we merged the two crimes and determined that the parole disqualifier on the lesser crime survived the merger into the greater.  State v. Parker, 335 N.J.Super. 415, 426 (App.Div.2000).   Thus, we remand to correct the record to merge the two counts while maintaining the parole disqualifier imposed on count eight.

Defendant also argues that the judge should not have imposed consecutive sentences on count seven and eleven.   Pursuant to State v. Yarbough, 100 N.J. 627, 643–44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986), because the two counts cover different time frames the imposition of consecutive sentences was well within the judge's discretion.

The trial judge carefully analyzed the aggravating and mitigating factors, finding only two aggravating factors applicable:  the risk that defendant will commit another offense, N.J.S.A. 2C:44–1(a)(3), and the need to deter defendant and others, N.J.S.A. 2C:44–1(a)(9).   An appellate court should not second guess the application of an aggravating factor if, as here, it is supported by substantial evidence in the record.  State v. O'Donnell, 117 N.J. 210, 216 (1989).   Although defendant claims that the judge should have found mitigating factor seven, that he has a limited history of criminal activity, defendant has a prior conviction for child endangerment and had not led a law-abiding life for a substantial period of time.   The judge appropriately found no mitigating factors.

The trial judge handled this difficult trial with great sensitivity to defendant's rights.   We affirm on all points, remanding only to correct the judgment of conviction.

Affirmed. Remanded only for a correction of the judgment of conviction to reflect a merger of count eight into count seven with no change in the term of parole disqualification.

FOOTNOTES

1.  FN1. We use fictitious names.

2.  FN2. The motion judge ruled that the statements could not be admitted in the State's case-in-chief, but could be admitted for impeachment purposes if defendant chose to testify.   The trial judge ruled that the statements were not admissible for any purpose.

3.  FN3. The trial judge's pre-trial written opinion was filed on March 12, 2010.   Trial concluded on October 20, 2010.  Rose was decided on June 6, 2011.

4.  FN4. N.J.S.A. 2C:47–1 provides that whenever a defendant is convicted of certain sexual assault crimes “the judge shall order the Department of Corrections to complete a psychological examination” to determine if the defendant's conduct “was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of the offender's amenability to sex offender treatment and willingness to participate in such treatment.”

5.  FN5. NERA was amended to specifically apply to the crimes charged in counts seven and eight in response to State v. Mosley, 335 N.J.Super.   144 (App.Div.2000), certif. denied, 167 N.J. 633 (2001) and State v. Thomas, 166 N.J. 560 (2001) which held that NERA did not apply to sexual assault convictions that did not involve a finding that force was used.   L. 2001, c. 129, § 1;  N.J.S.A. 2C:43–7.2(d)(7), (8).

PER CURIAM

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