STATE OF NEW JERSEY v. VICTOR MATUTE (2010)

Defendant was convicted of second-degree sexual assault (as a lesser included offense on count one) by committing an act of sexual contact on a victim less than thirteen while being at least four years older than the victim, and of the same offense on count two, and of endangering the welfare of a child, and child abuse.¹  He received concurrent sentences on all counts, the aggregate totaling eight years, the specific terms imposed on counts one and two.   An eighty-five percent parole ineligibility term was imposed under the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second degree sexual assaults.   Megan's Law, N.J.S.A. 2C:7-1 to -19, requirements, including parole supervision for life ² were also imposed.   On this appeal, defendant argues:

POINT I THE STATE ELICITED DETAILED “FRESH COMPLAINT” TESTIMONY, AND THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH THE PROPER LIMITING INSTRUCTION AT THE TIME OF THE TESTIMONY, DENYING THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.   U.S. CONST.   AMENDS.  V, VI AND XIV;  N.J. CONST., ART. I, ¶¶ 1, 9 AND 10.

POINT II THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN SHE BOLSTERED THE STATE'S CRITICAL WITNESS' TESTIMONY AND APPEALED TO JURORS' EMOTIONS.   MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION.   U.S. CONST.   AMEND.  XIV;  N.J. CONST.   ART. I, ¶ 10.

POINT III THE ADMISSION OF V.M.'S SELECTIVELY RECORDED STATEMENT, WHICH HAD BEEN PRECEDED BY A DELIBERATELY UNRECORDED INTERROGATION, DEPRIVED V.M. OF A FAIR TRIAL.   U.S. CONST.   AMENDS.  V, XIV;  N.J. CONST., ART I, ¶ 1.

POINT IV THE TRIAL COURT FAILED TO INSTRUCT THE JURY HOW TO EVALUATE THE STATE'S EVIDENCE OF V.M.'S UNRECORDED INTERROGATION, THEREBY DEPRIVING HIM OF A FAIR TRIAL.

POINT V THE SENTENCE OF EIGHT YEARS' IMPRISONMENT SUBJECT TO THE NO EARLY RELASE ACT IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

We reject these contentions and find that only the following discussion is warranted in a written opinion.   R. 2:11-3(e)(2)

I

F.S., age six at the time of the incident, lived with his mother, P., her husband, and his younger brother.   Defendant and his girlfriend, D., were their neighbors, and F.S. was a friend of defendant's son.  “[F.S.] would go there to their house everyday.”   Defendant's girlfriend or her daughters would watch F.S. after school “all the time.”   D. was listed as an “emergency person” for F.S. at his school.

On Friday, February 24, 2006, F.S. became sick at school.   F.S. testified that defendant picked him up and took him to defendant's home.

F.S. further testified that was lying down on the couch in defendant's living room when defendant came in and said that “he was going to lick my butt.”   F.S. said “no” and “got tired of saying no” despite the fact defendant promised to give F.S. a toy car or a toy motorcycle.   Defendant “pulled down” F.S.'s pants, and licked the inside of his butt while F.S. was still lying on the couch.   F.S. told defendant “[n]ever do that again.”   Defendant also took his (defendant's) penis out from his open zipper and put it “on” F.S.'s butt.   F.S. further testified that defendant “took his teeth out on the top” but did not do anything with them.

F.S.'s mother picked him up from defendant's house between 3:00 and 4:00 in the afternoon.   He did not exhibit illness or look very different than usual to her.   Within two or three hours, F.S.'s father picked him up for the weekend.   He returned home on Tuesday, February 28.

On the day of F.S's return, P. was sitting on a sofa in the family room and F.S. was eating cereal at a table next to the sofa.   Moving to his mother's side on the couch, F.S. said “he had something to tell her,” and proceeded to say that defendant “placed his tongue in his butt.” ³  She asked F.S. to relate what had happened, and he said that

he [defendant] placed his tongue in his butt and he had gone to the bathroom and he lie down on the sofa because he was tired and he was sleepy and [defendant] went there and rolled his pants down and he had placed his tongue in his butt and he said don't do that.

The mother further testified that F.S. said he told defendant

not to do that and [defendant] replied allow me to do it because I'm going to give you a gift, a car and a motorcycle.   And then he said not to do that.   He didn't want him to do that and he did not care about a car or a motorcycle.   And that he [defendant] continued to insist.

․  Then after that he took his dentures out and he bit his butt.

F.S. did not tell his mother anything else that happened that day, with the exception that while he remained on the sofa, defendant went upstairs to fix something, and that defendant “did not give him the car or the motorcycle.”

After speaking to her husband, P. telephoned defendant's girlfriend D. and related what F.S. had told her.   She then went to defendant's house, and sat down with defendant and D. Defendant denied that he had done anything.   F.S. was then asked to join his mother at defendant's house where he repeated that defendant “had touched his butt and that he had placed his tongue in his butt.”   Defendant appeared “worried and nervous” to F.S.'s mother, who had known him well for several years.   In response to questions by defendant and D., F.S. continued to maintain “[you] did that to me.   I did not dream it.   And it was the first time it happened.”

While giving F.S. a bath that night his mother noticed “a small mark on his butt cheek,” and asked him where the mark came from.   He stated that “[defendant] had taken out his teeth and he had bit him.”   P. thereafter spoke with F.S.'s father, who told P. to “go to the police and file charges.”

The Ridgefield Park Police Department contacted Diane Armbruster of the Sex Crimes and Child Abuse Squad of the Prosecutor's Office.   Arrangements were made for F.S. to be interviewed at the Audrey Hepburn Children's House, “a medical center that caters to children that are victims of abuse, sexual or child abuse.”

Detectives Armbruster and Cora Taylor met F.S. and his mother at the Audrey Hepburn House at 8:30 p.m. on March 1, 2006.   Taylor, who was specially trained in conducting forensic interviews of abused children, interviewed F.S. Armbruster and Ridgefield Park Detective Albert Baker viewed the interview from a nearby room.   The interview, which began at 9:00 p.m., lasted fifty minutes and was videotaped in its entirety.   The tape was played for the jury.⁴

At 3:15 p.m. on Friday March 3, 2006, Armbruster, Baker and Prosecutor's Office Detective Frank Cilento went to defendant's home to speak to him.⁵  Since defendant was not at home at that time or when the officers returned an hour later, D. contacted defendant on his cell phone.   Defendant “voluntarily” met the three officers at the Ridgefield Park Police Department at 5:30 p.m. Defendant agreed to accompany the officers to the Bergen County Prosecutor's Office in Paramus for an interview.

When they arrived in Paramus at approximately 6:00 p.m., Armbruster read defendant his Miranda ⁶ rights prior to interviewing him.   Defendant had no questions about those rights.   He acknowledged his understanding of each right by writing the word “yes” and his initials next to each right.   Defendant signed the waiver form after Armbruster read it to him and he read it to himself.   The form was completed at 6:07 p.m. and was signed by Armbruster and Baker.

Proceeding with the interview, defendant was first asked basic pedigree information.   During the interview defendant was calm and polite;  he never asked to stop the interview or for an attorney.

Defendant initially denied that he had licked and bit F.S.'s butt, but said that he had played a “dog game” with F.S. Defendant acknowledged that he bit F.S. on his arms and legs.   When asked if he had pulled F.S.'s pants down, defendant stated that he did not know, and then denied doing so.   When told that F.S. said that defendant took his “weiner” out and put it on his butt, defendant replied “[i]t could be maybe he felt it,” and that “I think I had an erection.”   When asked if he in fact had an erection, defendant stated “I'm admitting, yes.”   Defendant stated that he was wearing loose gray shorts and a shirt.   Asked whether his penis contacted F.S.'s buttocks, defendant replied, “[p]erhaps my penis rubbed against his butt.”

Cilento, Armbruster's superior, watched the interview through a two-way mirror.   When Cilento entered the interview room, Armbruster and Baker left and watched Cilento's five-minute conversation with defendant through the mirror.⁷

After Cilento left, Armbruster re-entered, and defendant told her that he “lowered [F.S.'s] pants a little bit” and “licked [his] butt cheek.”   Continuing to respond to Ambruster's questions, defendant said that his penis slipped out, that he was on top of F.S., and that he “rubbed his penis in between [F.S.'s] buttocks but said he didn't intend to penetrate him.”   Armbruster testified that at this point during the interview, defendant apologized saying:  “I know I did a mistake.   I just want to apologize to everyone, everybody is hurt.   I don't know what happened to me that day.   I know I did something wrong.”

Defendant agreed to give a stenographic statement as a backup to the video.   Armbruster explained what a stenographic statement was, and reviewed the questions that she would ask defendant so that there would be no surprises.⁸

Armbruster reminded defendant of his rights, showed him the executed Miranda form, and asked him if he understood that these rights were still in effect.   In addition to a stenographic transcription, defendant's statement was also videotaped.   Armbruster explained that at that time, the Attorney General's Office issued a new policy requiring the videotaping of a defendant's statement in cases involving first and second degree crimes.   Armbruster and Cilento agreed that a stenographer should be present as a backup.   Defendant's recorded statement began at 9:13 p.m. and concluded at 9:25 p.m.

On cross-examination, Armbruster acknowledged that defendant was questioned for approximately three hours before his statement was stenographically taken and videotaped.   Armbruster generated her report of the interview from written notes three days after the interview.

On May 11, 2006, Dr. Nina Agrawal, a pediatrician, examined F.S. at the Audrey Hepburn facility.   She concluded in a report that while her examination did not “confirm or deny the possibility of sexual abuse,” her “examination should not discredit [F.S.'s] disclosure.”

Defendant testified both at the N.J.R.E. 104 hearing and trial.   He voluntarily went to the Prosecutor's Office for the interview.   As he saw a camera in the corner of the interview room he was “pretty sure” that it was “recording that whole thing.”   Armbruster read defendant his Miranda rights which he understood and voluntarily waived.   Over the course of about three hours, defendant responded to Armbruster's questions by denying the allegations of his sexual involvement with F.S.

At approximately 9:00 p.m., Armbruster and Baker left the room, and Detective Frank Cilento entered.   At the hearing, defendant testified that Cilento threatened him and cursed.   Responding to his counsel's questions at the Miranda hearing, defendant further stated:

He [Cilento] threat [sic] me.   He curse [sic] me․  He threat [sic] me, telling me I was done.   I was finished if I wouldn't say the truth.   He cruse [sic] me out as well․  Very disrespectful curse.   I remember he approached me very close and I was sitting in the chair and he suddenly move my chair and I'm pretty sure that's why I notice the cameras.   I'm pretty sure it was recorded, there must be a recording about that incident․  He said if I don't tell the truth I'm going to be finished.   I'm going to be done and “I'll take care of you” which sounds to me like a threat either he will kill me or put me in jail for a long time.

Defendant gave similar testimony at trial.

According to defendant, Armbruster and Baker reentered the room.   Armbruster said she was “going to help [him] out of this problem,” and that he had to answer “yes” to all her questions.   After Armbruster told defendant that she had to charge him with something, and defendant answered her questions.   At trial, defendant testified that he also thought the stenographer had a gun, which further intimidated him, and that he said what Armbruster wanted to hear because of the “pressure” and “stress.”

Defendant gave the following trial testimony about the incident.   When the school called defendant's home that F.S. was sick, defendant's step-daughter picked him up and brought him home.   F.S. remained in the living room while defendant was upstairs fixing a bed.   When he came downstairs to get a tool, defendant saw that F.S. was upset because he “miss[ed]” his mother.   Defendant told F.S. to “be cool” and that his mother would arrive shortly.   When defendant came down again, F.S. once again said that he missed his mother and that he did not feel well.   Defendant began to play with F.S., “pinching him” and “giving [him] some bites,” just the way defendant would play with his son.   He called it “very respectful.”   During this time, defendant's step-daughter was upstairs with her door open.   Defendant denied biting F.S. on the butt or showing his penis.

Defendant's girlfriend D. testified at trial that she had a five-month lesbian relationship with F.S.'s mother beginning in 2005 and ending “approximately a week before she said what had happened with her son.”   According to D., F.S.'s mother became very “angry” because she wanted to continue the relationship.   The girlfriend felt that F.S.'s mother caused her son to charge defendant because she was “jealous” of D.'s relationship with defendant.

Cilento testified in rebuttal that he walked into the interview room because he was “observing the performance” of Arbruster, and defendant was being evasive.   In Cilento's words:  “I stepped into the interview room.   I spoke with [defendant] directly.   I sat in front of him and told him that it was my opinion that he was lying.   He was not coming forward with the information, that he needed to tell the truth.”   Cilento added that he sat directly in front of defendant because that technique was part of his training.   According to Cilento:

[W]hen you're conducting an interview ․ you want the defendant's complete attention.   I want to be right in front of him.   I want to be looking at him.   I want him to be looking at me.   I'm observing his body language.   I'm observing his answers as he's giving them to me.

Cilento insisted that he did not have his gun with him or threaten defendant during the interview.

II

Defendant complains that the State improperly elicited detailed “fresh complaint” testimony from F.S.'s mother which closely tracked F.S.'s later testimony, thereby permitting “the jury to hear his version of the incident a second time.”   Defendant further contends that the judge improperly “failed to provide the jury with a fresh complaint limiting instruction until the end of the trial.”

“The present rule in New Jersey is that to qualify as fresh complaint, the victim's statements to someone [he or] she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary.”  State v. Hill, 121 N.J. 150, 163 (1990):

At trial, fresh-complaint evidence serves a narrow purpose.   It allows the State to negate the inference that the victim was not sexually assaulted because of [his or] her silence ․ Only the fact of the complaint, not the details, is admissible․  In addition, the victim must be a witness in order for the State to introduce fresh-complaint evidence.

[Ibid. (citations omitted).]

While “only the fact of the complaint is admissible” and “[e]xcessive details should be excluded at trial,” State v. Bethune, 121 N.J. 137, 149 (1990), “detail would be permissible under the tender-years exception to the hearsay rule.”  Id. at 147.   Even where error is committed in allowing detailed testimony about an out-of-court assertion, such error could be harmless where a victim gives detailed and substantially identical testimony at the trial.   State v. Queen, 221 N.J.Super. 601, 608-09 (App.Div.), certif. denied, 110 N.J. 506 (1988).

As to the fresh-complaint instruction, the Supreme Court has stated:

Trial courts should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case.   The trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent.

[State v. Bethune, supra, 121 N.J. at 148.]

In this case, F.S. approached his mother four days after the incident.   It appears that he initiated the conversation and that she asked him open-ended and non-coercive questions.   Although she testified that F.S. told her that defendant lowered his pants and licked his butt, she disclosed few other details.   She did not mention anything about defendant placing his penis on or in F.S.'s buttocks.   No defense objection was made to this testimony.   Even assuming that this fresh-complaint testimony was overly detailed, its admission resulted in harmless error because F.S. fully testified at trial about the same subject matters and was subject to full cross-examination.

In addition, defense counsel did not request a limiting instruction at the time of the fresh-complaint testimony.   Moreover, the judge in his final instructions to the jury extensively stressed the limited purpose of fresh-complaint testimony:

In this case you heard testimony that sometime after the alleged sexual offense F.S. complained to [his mother] about what had taken place between himself and the defendant.

The law recognizes that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone whom he would ordinarily turn for sympathy, protection or advice.   If there was no evidence that F.S. made such a complaint, some might conclude that no sexual offense occurred.

As a result, in cases involving an allegation of a sexual offense, the State is permitted to introduce evidence of the complaint.   The only reason that the evidence is permitted is to negate the inference that F.S. failed to confide in anyone about the sexual offense.

In other words, the narrow purpose of the fresh complaint rule is to allow the State to introduce such evidence to negate any inference that F.S. failed to tell anyone about the sexual offense and that, therefore, his later assertion could not be believed.

A fresh complaint is not evidence that the sexual offense actually occurred, or that F.S. is credible.   It merely serves to negate any inference that because of his assumed silence the offense did not occur.   It does not strengthen his credibility.   It does not prove the underlying truth of the sexual offense.   A fresh complaint only dispels any negative inference that might be made from his assumed silence.

In determining whether a complaint was in fact made you may consider all the relevant factors in evidence.   You may consider your observations of the age and demeanor of F.S., your evaluation of his background including his relationship, if any, with the defendant and the nature of his relationship with [his mother].   In this context you may consider the timeliness of the complaint and the likelihood that F.S. would complain under the circumstances described.

If there was a delay in making the complaint you may consider whether any circumstances existed which would explain the delay.   You may consider the conduct and demeanor of F.S. at the time of the complaint as well as his physical or mental condition.

You may also consider whether the complaint was volunteered by F.S. or whether it was the result of interrogation.   If you find that F.S. made the complaint after being questioned, you may consider what prompted the questioning, whether the questions were in response to some conduct, emotional or physical condition, statement or pattern of behavior of F.S., or whether they were initiated by the questioner without any provocation.

You may also consider the nature and extent of the questions themselves and any motive on the part of the person who asked them in determining whether the complaint was truly that of F.S. or was the product of suggestion by others.

It is, of course, up to you to determine what the facts are with regard to the circumstances of the complaint and what weight to give to these facts in determining whether or not a complaint was made.

As I have indicated earlier, this testimony was permitted for a limited purpose.   The making of a complaint is not an element of the offense.   Proof that ․ a complaint was made is neither proof that the sexual offense occurred nor prove [sic] that F.S. was truthful.   It merely dispels any negative inference that might arise from his assumed silence.   It eliminates any negative inference that his claims of having been sexually assaulted are false because of his assumed failure to have confided in anyone about the sexual offense.

[ (Emphasis added).]

The fresh-complaint charge overcame any impropriety in the admission of P.'s testimony.⁹

III

Defendant contends for the first time on appeal that the admission of his selectively recorded statement, preceded by a three-hour deliberately unrecorded interrogation, violated his constitutional rights.   This contention lacks merit.

Rule 3:17 (Electronic recordation) provides in part:

(a) Unless one of the exceptions set forth in paragraph (b) are present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, burglary, violations of Chapter 35 of Title 2C that constitute first or second degree crimes, any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes.   For purposes of this rule, a “place of detention” means a building or a police station or barracks that is a place of operation for a municipal or state police department, county prosecutor, sheriff or other law enforcement agency, that is owned or operated by a law enforcement agency at which persons are or may be detained in connection with criminal charges against those persons.   Place of detention shall also include a county jail, county workhouse, county penitentiary, state prison or institution of involuntary confinement where a custodial interrogation may occur.

․

(d) The failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement.

(e) In the absence of an electronic recordation required under paragraph (a), the court shall, upon request of the defendant, provide the jury with a cautionary instruction.

“[T]he Supreme Court adopted this rule, effective January 1, 2006 in respect of homicide offenses and January 1, 2007 in respect of all other offenses encompassed by the rule.”   Pressler, Current N.J. Court Rules, Comment on Rule 3:17, p. 953 (2010).   See also source note at p. 952.   Since defendant's interrogation took place on March 3, 2006, the recording requirements were not then in effect in the respect to sex crimes.   See State v. Cook, 179 N.J. 533, 559-62 (2004).

Defendant makes a related claim for the first time on appeal that the judge failed to instruct the jury how to evaluate the State's evidence of defendant's unrecorded interrogation.   He argues that since Rule 3:17 had been adopted on October 14, 2005, and a model jury charge pertaining to the inexcusable failure of the police to record a defendant's in-custody statement, had been adopted November 7, 2005, “[a] proper and adequate charge in this case might ․ have looked to the language of the model charge, while also including language addressing the specific facts of the case at bar.”   Defendant did not request such a charge at trial, and asserting defendant's argument would give the Rule an effective date prior to the one selected by the Supreme Court.

However, State v. Hampton, 61 N.J. 250, 272 (1972), “requires that a jury be instructed to view all the circumstances to determine whether a defendant's written, oral or recorded statement is true.   If it finds it is not true, it must treat it as inadmissible and disregard it.”  State v. Jackson, 289 N.J.Super. 43, 51 (App.Div.1996), certif. denied, 148 N.J. 462 (1997).   Here, a Hampton charge was not requested, and the absence of an unrequested Hampton charge has been found to be harmless error in some cases.  Id. at 53.   Assuming that the judge was required to give a charge as now urged by defendant, the failure to do so was harmless.  State v. Jordan, 117 N.J. 409, 425-26 (1997).   Independent of defendant's statement, F.S.'s trial testimony directly implicated defendant, and was supported by his mother's fresh complaint testimony and testimony about the follow-up confrontation at defendant's house.

IV

Defendant contends that the prosecutor's summation improperly bolstered the critical testimony of several witnesses and appealed to the jury's emotional reaction to child abuse.   He further urges that the judge failed to give curative instructions.

Defendant first argues that the prosecutor improperly vouched for the law enforcement officer witnesses when she stressed in summation that they followed proper “protocol” and “follow[ed] the rules.”

Defendant further argues that the prosecutor also bolstered the testimony of F.S. and his mother when the prosecutor argued in summation:

Think about you talking to a detective about the most humiliating, disgusting thing that has ever happened to you.   You're an adult.   Now put yourself in his shoes.   He's six years old and he's not sexualized so he doesn't know what happened.   He understands that it's dirty.   Does that make sense that he would say he did something to me that was dirty.   Well, yeah because to this child the defendant putting his erect penis in his butt felt dirty.

․

And his inconsistencies on the stand actually support his credibility and they support [P.'s] credibility.

What we do know is that when [P.] speaks to her son he's clear and he tells her, “He touched me.   He licked me.   He put his penis in my butt.   He bit me.   He took his teeth out.”

With respect to the last segment, defendant further argues that the prosecutor misstated the facts because F.S. did not tell his mother that defendant put his penis in his butt.

Defendant made no objection to the prosecutor's remarks concerning protocol and policy.   Further defense counsel, in the course of his summation, spoke in terms of policy:

You heard Detective Armbruster say when she testified on cross “just flick the switch up.”

And we got something better, even better than her destroyed notes.   We have a videotape.

So, does she flip the switch?   No.

Why not.   Because she tells us it's not policy.   A man's freedom is at stake here and we can't see the critical tape of three hours of testimony because it's not policy.

And to add insult to this it turns out that now it is policy.   The policy changed since [defendant] sat in that room.

Defense counsel further argued in summation that “[t]here was no videotape running for a reason.   That was no matter of policy.   Those detectives don't want you to see what went on during those three hours.”   Rather than actually vouching for the police witnesses, the prosecutor properly responded to defense counsel's arguments.

Similarly, no timely objection was made to the portions of the prosecutor's summation dealing with the credibility of her witnesses.   The prosecutor did not say that she personally believed the witnesses to be credible, but proffered reasons why their testimony was credible, including her assertion that F.S.'s testimony would have been “perfect” if P. had coached him.

In any event, the judge instructed the jury that it must apply the law as given in the charge and that “any statements by the attorneys as to what the law may be must be disregarded ․ if they are in conflict with ․ [the] charge.”   The judge also told that jury that “[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence,” and that “[a]lthough the attorneys may point out what they think important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial.”

After the prosecutor's summation, defense counsel objected to portions of the summation, among other assertions, the prosecutor unintentionally “vouch[ed]” for her witnesses and indicated that she was a mother by saying “[w]e are constantly doing their wash” as an explanation of why there was no DNA evidence.   The judge noted counsel's objection, but suggested that the court's silence on this point might be more beneficial to the defense so as to not draw undue attention to the prosecutor's remarks.   The judge allowed defense counsel to weigh his choices until after the lunch break.   After the break, defense counsel stated:

I think that while I still hold the opinion what the Prosecutor said, and I still believe it's unintentional, is nevertheless vouching and not permitted by counsel.   I think any curative instruction from the Court would only exacerbate what has been done.   If there is not damage then there's no damage.   Perhaps just let it ride over their heads.

We see nothing in the jury charge and the proceedings, considered as a whole, to warrant reversal.

V

Defendant contends that his sentence to eight years' imprisonment subject to the No Early Release Act is “excessive” and “unduly punitive.”   He argues that the “judge abused his discretion in his qualitative assessment of both the aggravating and mitigating factors,” and notes he “has a spotless prior record, and will be subject to Megan's Law and parole supervision for life.”   As a result he seeks a “reduced” sentence or a remand for resentencing.

In sentencing defendant, the judge found:

Aggravating and mitigating circumstances.   Aggravating factor three, there's a risk the defendant will commit another offense.   Four, a lesser sentence would depreciate the seriousness because defendant took advantage of a position of trust.   And nine, the need to deter this defendant and others.

Mitigating factor seven, there's been no history of crime or delinquency.   And eleven, imprisonment will entail excessive hardship to this defendant and his dependent family.

I find the aggravating factors substantially outweigh the mitigating factors.

The jury found defendant not guilty of first degree aggravated sexual assault (Count I of the indictment), and guilty of the lesser-included offense of second degree sexual assault.  N.J.S.A. 2C:14-2(b).  The jury also found defendant guilty of the same charge with respect to the second count of the indictment.

We find no basis for modifying the sentence on any count, see State v. Bienick, 200 N.J. 601, 608-09 (2010).   We nevertheless order that the convictions on counts one and two be merged, and we do so notwithstanding the concurrent sentences imposed.   Count one alleged “penile/anal penetration upon the victim,” in violation of N.J.S.A. 2C:14-2a(1).   Count two alleged intentional “touching the victim's buttocks ․,” contrary to N.J.S.A. 2C:14-2b.   The jury found defendant not guilty of “performing an act of sexual penetration” as alleged in count one, but guilty of committing “an act of sexual contact with someone who is less than thirteen years old, and at the time, the defendant was at least four years older.”   That was the precise finding under count two.   In fact, when asked by the jury during deliberations whether charges (lesser included on count one) 1a and count 2 in the verdict sheet were “identical,” the judge stated

Is this difference in language directly from the statute, or is it judge's words to explain the statute with relation to the charges? (or, what is the difference between charges 1a and 2?)

The answer is simple.   The answer is that la and 2 are identical.   There is no statutory difference between charges 1a and charge 2. The jury charge for count two simply delineates what intimate parts are in greater detail.   Intimate parts means sexual organs, genital area, anal area, inner thigh, groin, buttock or breast.

The jury appears to have found defendant guilty on both counts based on the very same act, and we cannot say otherwise.   Accordingly, the convictions on the two counts must be merged.  State v. Hill, 182 N.J. 532, 548-51 (2005);  State v. Davis, 68 N.J. 69, 77 (1975).

We affirm the conviction but remand for correction of the judgment of conviction, to merge counts one and two and to correct the noted conviction on count one.   Simultaneously, the judge may permit defendant to also seek the merger of counts three and four.¹⁰

Affirmed and remanded.

FOOTNOTES

FN1. The judgment incorrectly reflects that the conviction on count one was for a first degree crime.   The reference to a three year period of parole supervision under NERA is correct..  FN1. The judgment incorrectly reflects that the conviction on count one was for a first degree crime.   The reference to a three year period of parole supervision under NERA is correct.

FN2. The judgment also refers to “community supervision for life,” as opposed to “parole supervision for life” as stated at sentencing..  FN2. The judgment also refers to “community supervision for life,” as opposed to “parole supervision for life” as stated at sentencing.

FN3. At trial, defense counsel stated that he had “no objection,” after the prosecutor told the judge during her direct examination that she wanted to “elicit testimony by way of fresh complaint.”.  FN3. At trial, defense counsel stated that he had “no objection,” after the prosecutor told the judge during her direct examination that she wanted to “elicit testimony by way of fresh complaint.”

FN4. A hearing was held out of the jury's presence prior to Taylor's direct testimony and the showing of the tape to the jury, to determine the admissibility of the taped interview..  FN4. A hearing was held out of the jury's presence prior to Taylor's direct testimony and the showing of the tape to the jury, to determine the admissibility of the taped interview.

FN5. At trial Armbruster mistakenly testified that she went to defendant's home on March 1, 2006..  FN5. At trial Armbruster mistakenly testified that she went to defendant's home on March 1, 2006.

FN6. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706-07 (1966)..  FN6. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706-07 (1966).

FN7. Armbruster testified at the N.J.R.E. 104 hearing that supervisors frequently view interviews, and sometimes step in to ask for clarification or to remind suspects to tell the truth..  FN7. Armbruster testified at the N.J.R.E. 104 hearing that supervisors frequently view interviews, and sometimes step in to ask for clarification or to remind suspects to tell the truth.

FN8. At the N.J.R.E. 104 hearing it was developed that defendant did not indicate that he wanted to end the interview or that he did not want to give a stenographic statement.   A stenographer had to be called who arrived a half-hour to forty-five minutes later..  FN8. At the N.J.R.E. 104 hearing it was developed that defendant did not indicate that he wanted to end the interview or that he did not want to give a stenographic statement.   A stenographer had to be called who arrived a half-hour to forty-five minutes later.

FN9. There is no contention that the introduction of Dr. Agrawal's testimony that F.S. told her during her examination that defendant was the perpetrator of the abuse was “fresh complaint” evidence.   Nor could such a contention be sustained, as F.S.'s report to the doctor was significant towards the reaching of Dr. Agrawal's medical conclusion.   See also N.J.R.E. 803(c)(4) (statements for purposes of medical diagnosis or treatment);  N.J.R.E. 703 (facts or data relied upon by an expert witness)..  FN9. There is no contention that the introduction of Dr. Agrawal's testimony that F.S. told her during her examination that defendant was the perpetrator of the abuse was “fresh complaint” evidence.   Nor could such a contention be sustained, as F.S.'s report to the doctor was significant towards the reaching of Dr. Agrawal's medical conclusion.   See also N.J.R.E. 803(c)(4) (statements for purposes of medical diagnosis or treatment);  N.J.R.E. 703 (facts or data relied upon by an expert witness).

FN10. There was no allegation of supervisory responsibility.   Cf. State v. Miller, 108 N.J. 112, 120-21 (1987);  State v. Still, 257 N.J.Super. 255, 259-60 (App.Div.1992)..  FN10. There was no allegation of supervisory responsibility.   Cf. State v. Miller, 108 N.J. 112, 120-21 (1987);  State v. Still, 257 N.J.Super. 255, 259-60 (App.Div.1992).

PER CURIAM