RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1548-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
S.G.-R.,
Defendant-Appellant.
_____________________________
Submitted January 29, 2020 – Decided February 10, 2020
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 16-01-
0161.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa Sarnoff
Gochman, of counsel and on the brief).
PER CURIAM
Tried before a jury on a three-count indictment, defendant was convicted
of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one);
second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). The
trial judge sentenced defendant to an aggregate twenty-five year term, with a
twenty-five year period of parole ineligibility. 1
On appeal, defendant raises the following contentions:
POINT I
DEFENDANT'S STATEMENT TO [DETECTIVE]
MORENO SHOULD HAVE BEEN SUPPRESSED
BECAUSE THE STATE FAILED TO PROVE THAT
DEFENDANT WAS FULLY AWARE THAT AN
ARREST WARRANT WAS IN HAND.
POINT II
THE VICTIM'S STATEMENT TO DETECTIVES
ENTERED INTO EVIDENCE AT TRIAL WAS
CUMULATIVE, SHOULD NOT HAVE BEEN
ADMITTED, AND ITS ADMISSION INTO
EVIDENCE DEPRIVED THE DEFENDANT OF A
FAIR TRIAL. (Not Raised Below).
1
We decline to consider the State's contention, made without cross-appealing
from the sentence, that the judgment of conviction incorrectly refers to the No
Early Release Act, N.J.S.A. 2C:43-7.2., which the State asserts is not applicable
in this matter. The State may raise this argument before the trial court. See R.
3:21-10(b)(5).
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2
POINT III
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL BY THE REPEATED REFERENCES
TO THE DEFENDANT BEING A FUGITIVE FROM
JUSTICE. (Not Raised Below).
POINT IV
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL WHEN THE JURY'S REQUEST FOR
A READBACK OF TESTIMONY WENT
UNANSWERED. (Not Raised Below).
After reviewing the record in light of these contentions, we affirm.
I.
We begin by reciting the salient facts. When the victim was eight-years
old, her mother left her in the care of her grandparents on the weekends.
Defendant and several other adults lived in the grandparents' home. About two
months into this arrangement, the child began to balk at going to the home and
cried each time her mother dropped her off.
The child eventually told her mother that defendant had been sexually
abusing her for over a year. When the grandparents were at work, defendant
would tell the child to sit on his lap. He would put a blanket across their laps,
place his hand underneath her clothing, and touch her vagina. On other
occasions, defendant kissed the victim, thrust his tongue into her mouth, and
A-1548-17T1
3
grabbed her vagina "really hard." Defendant also groped the child's breasts and
buttocks.
The victim's mother sought assistance from a community group, which
contacted the Division of Child Protection and Permanency (Division). In turn,
the Division alerted the police, and Detective Carolina Moreno was assigned to
investigate the matter. Detective Moreno interviewed 2 the child, who disclosed
the abuse.
Detective Moreno thereafter attempted to contact defendant at the
grandparents' home, but the victim's grandmother told her that defendant no
longer lived there. Detective Moreno testified that by this time, the grandmother
had learned of the allegations against defendant and stated she was unable to
give the detective any contact information for him. Shortly thereafter, formal
charges and an arrest warrant were lodged against defendant, and the United
States Marshals Regional Task Force began to assist Detective Moreno in
locating defendant.
About a month later, defendant was found in New York. Accompanied
by other officers, Detective Moreno arrested defendant in New York, advised
2
Detective Moreno videotaped the interview, and it was played to the jury at
the trial.
A-1548-17T1
4
him of the charges, and escorted him to a local police station. At the station,
Detective Moreno again advised defendant of the charges he faced, read him his
Miranda3 rights, and interviewed him after he waived his right to counsel.
During the interview, defendant made a series of incriminating statements.
For example, although defendant denied the charges against him, he admitted
that it was possible that he touched the child "in a careless moment" when his
"hand slipped and passed by her . . . her . . . her part." Defendant also stated he
might have touched the child's vagina when he accidently dropped a television
remote between her legs while the child was sitting on his lap.
Defendant did not testify and did not present any witnesses on his behalf.
II.
In Point I of his brief, defendant asserts that Detective Moreno failed to
advise him that she had a warrant for his arrest prior to her interview with him
and, as a result, the trial judge erred by denying his motion to suppress the
incriminating statements he made to her. Because there is no factual support in
the record for this claim, we reject defendant's contention.
In State v. A.G.D., detectives questioned the defendant at his home about
allegations of sexual abuse, but did not tell him that an arrest warrant had already
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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5
been issued. 178 N.J. 56, 59 (2003). After the defendant agreed to accompany
the detectives to the prosecutor's office, he confessed to the abuse. Id. at 60-61.
In determining that the defendant's confession should have been suppressed, the
Supreme Court held that the State's "failure to inform a suspect that a criminal
complaint or arrest warrant has been filed or issued deprives that person of
information indispensable to a knowing and intelligent waiver of rights." Id. at
68. The Court ruled that in future cases, law enforcement officers conducting
similar interviews must
make a simple declaratory statement at the outset of an
interrogation that informs a defendant of the essence of
the charges filed against him. That information should
not be woven into accusatory questions posed during
the interview. The State may choose to notify
defendants immediately before or after administering
Miranda warnings, so long as defendants are aware of
the charges pending against them before they are asked
to waive the right to self-incrimination.
[State v. Vincenty, 237 N.J. 122, 134 (2019) (citing
A.G.D., 178 N.J. at 68-69).]
Contrary to defendant's argument, Detective Moreno scrupulously
complied with these requirements before and during her interview with
defendant in New York. As discussed above, the State obtained an arrest
warrant for defendant, which enabled it to enlist federal authorities to assist in
the search for him. After defendant was located, the detective went to the house
A-1548-17T1
6
where he was staying. As Detective Moreno and other officers approached the
house, defendant came outside.
As detailed in her testimony at the suppression hearing, Detective Moreno
then "personally walked up to [defendant] and advised him that he . . . was under
arrest and he was charged with three charges from New Jersey, the aggravated
sexual assault, sexual assault and endangering." Defendant was handcuffed,
searched, transported to a local police station in a marked patrol car, and placed
in a holding cell. In addition, the transcript of defendant's subsequent interview
demonstrates that before any questioning again, Detective Moreno again told
defendant that he was "under arrest" and had been charged with two counts of
sexual assault and with endangering the welfare of a child.
Under these circumstances, defendant's present claim that he was not
aware he had been arrested or the nature of the charges against him strains all
credulity. Detective Moreno complied with the requirements of A.G.D. and
defendant's unsupported contention to the contrary lacks any merit.
III.
In Point II of his brief, defendant contends for the first time that the trial
judge should have sua sponte barred the State from introducing the videotape of
the victim's interview in evidence. Defendant asserts that because the child also
A-1548-17T1
7
testified at the trial, the video was "cumulative evidence" that should have been
excluded under N.J.R.E. 403.
We find insufficient merit in this contention to warrant discussion in a
written opinion. R. 2:11-3(e)(2). While the child obviously discussed examples
of defendant's abuse in both her videotaped and trial testimony, the incidents she
described, and the manner in how she described them, 4 were sufficiently
different to clearly permit the introduction of the video. Thus, defendant's
argument lacks merit.
IV.
Defendant next argues in Point III of his brief that the judge should have
made a sua sponte ruling striking Detective Moreno's brief references to the fact
that the State had treated defendant as a "fugitive" on the charges against him
because he left the State and would have to be extradited back to New Jersey.
Again, we disagree.
"A trial court's ruling on the admissibility of evidence is reviewed on
appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011).
"However, if the party appealing did not make its objection to [the] admission
4
For example, the child used anatomically-correct dolls to illustrate defendant's
groping of her vagina during the video, but did not repeat this testimony using
the dolls at trial.
A-1548-17T1
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known to the trial court, the reviewing court will review for plain error, only
reversing if the error is 'clearly capable of producing an unjust result.'" Ibid.
(quoting R. 2:10-2).
Plain error does not exist on this record. Evidence of defendant's fugitive
status was relevant to explain why he was arrested and interviewed in New York.
However, even if this were not the case, the detective's comments concerning
defendant's status were fleeting and were not thereafter highlighted by the State.
Defendant explained during his interview that he left New Jersey to seek
employment after the child disclosed he had been abusing her. This explanation
was presented to the jury as part of defendant's recorded interview, and the State
did nothing to question defendant's account at trial.
Under these circumstances, we discern no basis for disturbing defendant's
convictions for abusing the child victim in this case.
V.
Finally, defendant argues in Point IV of his brief that the judge improperly
failed to answer the jury's request for a readback of testimony. However, this
argument also lacks support in the record.
During its deliberations, the jury sent a cryptic note to the judge that said,
"court testimony of [the victim] and her mother, transcript." After bringing the
A-1548-17T1
9
jury into the court room, the judge explained that the only transcripts of
testimony that had been marked in evidence were the transcript of defendant's
interview, and the transcript of the victim's videotaped interview with Detective
Moreno. The judge stated that he could not be sure whether the jurors wanted
the written transcript of the videotaped interview, or to have the trial testimony
read to them. After fully explaining these options, the judge asked the jurors to
return to the jury room and provide "some additional clarification precisely what
it is that you're looking for. So if you can return to the jury room, discuss this a
little bit and get back to us[,] I would appreciate it." 5
Defendant does not quote any of the judge's extended colloquy with the
jury in his brief. Instead, he argues for the first time on appeal that the judge
should have not asked for clarification of the jury's obviously ambiguous request
and "should have had the testimony played back for the jury as requested." This
argument lacks merit.
When, as here, a jury's question is ambiguous, the judge is obliged to clear
the confusion by asking the jury the meaning of its request.
A question from a jury during its deliberations means
that one or more jurors need help and that the matter is
of sufficient importance that the jury is unable to
5
The jury did not respond to the request for clarification and less than an hour
later, returned with its unanimous guilty verdict on all counts.
A-1548-17T1
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continue its deliberations until the judge furnishes that
help. An appropriate judicial response requires the
judge to read the question with care to determine
precisely what help is needed.
[State v. Parsons, 270 N.J. Super. 213, 221 (App. Div.
1994).]
The trial judge fully complied with this requirement. It was not clear
whether the jury wanted to review the transcript of the victim's videotaped
testimony or have a readback of the child's trial testimony. Thus, the judge
properly asked the jury to clarify its request. Indeed, defendant did not object
to the prudent manner in which the judge handled the request. Therefore, we
reject defendant's newly-minted contention on this point.
Affirmed.
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