RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4928-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

____________________________

Argued July 2, 2018 – Decided July 30, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 13-05-

0673.

John W. Douard, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; John W. Douard, of 

counsel and on the brief).

Joie D. Piderit, Assistant Prosecutor, argued the 

cause for respondent (Andrew C. Carey, Middlesex 

County Prosecutor, attorney; Joie D. Piderit, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4928-15T2

Following a jury trial, defendant M.S.1 appeals from his 

convictions and sentence for sexually assaulting his nineteenyear-old stepdaughter, J.S. Based on our review of the evidence 

in light of the applicable law, we affirm defendant's convictions, 

vacate his sentence, and remand for resentencing. 

I.

We summarize the facts and procedural history pertinent to 

this appeal from the trial record. Defendant was indicted by a 

Middlesex County Grand Jury for first-degree aggravated sexual 

assault, N.J.S.A. 2C:14-2(a)(7) (count one), and third-degree 

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count 

two). Defendant was found guilty of the lesser-included charge 

of second-degree sexual assault by physical force, N.J.S.A. 2C:14-

2(c)(1) on count one, and count two as charged. The trial court 

sentenced defendant to an eight-year prison term with an eightyfive percent parole ineligibility period pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant is also subject 

to Megan's Law reporting requirements, N.J.S.A. 2C:7-1 to -23, and 

parole supervision for life, N.J.S.A. 2C:43-6.4. 

 

1 Because defendant and the victim are related, we use initials to 

protect the victim's privacy. 
3 A-4928-15T2

The evidence adduced at trial established that in October 

2010, defendant and J.S.'s mother had been married for seventeen 

years, but had separated recently. On October 14, 2010, J.S. 

attended a family party at a restaurant in Woodbridge. Defendant 

was in attendance. Having consumed several shots of hard liquor 

within one hour prior to the party, and another two alcoholic 

beverages at the party, J.S. was so intoxicated that she vomited. 

J.S. told defendant she did not want her mother to see her in that 

condition, so he took her to his home. 

J.S. was "blacking in and out[,]" and needed defendant's 

assistance to walk. She told the jury:

I remember being placed on the bed in the 

middle of the bed. And then I remember my 

dress coming up over me and my hands going up 

and then falling . . . like just dead weight. 

They just fell. And then I remember his hand 

coming up from the back and unclasping my bra. 

. . . .

I felt hands and my dress coming up over my 

head and my arms, . . . my dress was being 

taken off of me.

. . . .

At first [defendant's arms] were hugging me, 

and then as time went on, they got tighter and 

I remember trying to fight out of it And then 

all of [a] sudden, . . . I felt a penis, felt 

a penis head searching and that's when I 

started squirming. And then . . . I felt it 

go in, I felt half of it go in.
4 A-4928-15T2

And that's when I started fighting and I 

started screaming ["]no, no,["] and I kept 

pushing back my elbow to try to loose[n] 

myself from the arms, and finally, like, when 

I felt it go in, . . . I hit it once, that 

last time, . . . and then it all went away. 

Upon awakening the following morning, J.S. was naked, alone 

in defendant's bed. She noticed her clothing was "folded neatly 

and nicely," which is not something she would have done in her 

drunken state. Because J.S. did not feel sore, she was not sure 

whether "what [she] felt happened to [her] the night prior was 

. . . a dream or if it really happened." Defendant entered the 

bedroom and, although J.S. did not question him about the 

encounter, defendant volunteered that she had been "fighting with 

the sheets and . . . kept saying [']no.[']" 

When J.S. returned home, she called her best friend and told 

her what happened. J.S. then told her mother. On October 17, 

2010, the incident was reported to the Woodbridge Police 

Department, and J.S. was examined by Danielle Peloquin, a sexual 

assault nurse examiner with the Middlesex County Rape Crisis 

Intervention Center. The swab taken from J.S.'s vagina tested 

positive for the presence of semen. That specimen and a buccal 

swab taken from defendant were submitted for DNA testing. 

Lynn Crutchley testified on behalf of the State as an expert 

in forensic DNA testing and analysis. In addition to performing 
5 A-4928-15T2

traditional "STR DNA testing," on the samples obtained from 

defendant and J.S., Crutchley performed "Y-STR testing[,]" which 

focuses "strictly on male DNA." Y-STR testing is useful where, 

as here, there is a prevalence of female DNA in the vaginal 

samples. 

The results of the traditional STR testing were inconclusive 

as to the presence of defendant's DNA. However, Crutchley 

testified defendant and "all of his paternal male relatives cannot 

be excluded as possible contributors to the Y-STR DNA profile 

obtained." Crutchley also indicated that profile "is expected to 

occur no more frequently than . . . 1 in 1,444 of the Hispanic 

population." 

Peloquin testified that sexual assault examinations are 

generally conducted "within five days" of the incident "[b]ecause 

evidence will disappear just by natural body functions[,]" 

including showering and urination. J.S. testified she did not 

have consensual sex with defendant. Nor did she have sex with 

anyone else between the day of the incident and the day she 

reported it to the police. 

Defendant testified and claimed he removed J.S.'s dress,

because it was soaked in vomit, before helping her into his bed. 

He denied sexually assaulting J.S. Following his conviction, he 

maintained his innocence during his evaluation, at the Adult 
6 A-4928-15T2

Diagnostic Treatment Center in Avenel, to determine whether he was 

eligible for sentencing pursuant to N.J.S.A. 2C:47-1 (Avenel 

report). 

On appeal, defendant raises the following points for our 

consideration: 

POINT I

THE PROSECUTOR FALSELY AND REPEATEDLY CLAIMED, 

OVER OBJECTION, THAT M.S.'S SEMEN WAS FOUND 

CONCLUSIVELY IN J.S.'S VAGINA, DESPITE THE 

STATE'S EXPERT'S TESTIMONY THAT M.S. COULD NOT 

BE EXCLUDED AS THE SOURCE OF THE SEMEN, 

THEREBY COMMITTING EGREGIOUS PROSECUTORIAL 

MISCONDUCT. THE JUDGE DENIED M.S.'S MOTION 

FOR A MISTRIAL, THEREBY VIOLATING HIS 

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE 

PROCESS. U.S. CONST. AMEND. VI, XIV; N.J. 

CONST. ART. [I], ¶[¶] 1, 10.

POINT II 

THE EIGHT-YEAR SENTENCE, WITH AN [EIGHTY-FIVE 

PERCENT] PERIOD OF PAROLE INELIGIBILITY WAS 

MANIFESTLY EXCESSIVE, IN LIGHT OF M.S.'S CLEAN 

PRIOR RECORD, CLOSE FAMILY TIES, AND STABLE 

EMPLOYMENT RECORD. 

II.

A.

We view prosecutorial misconduct under the harmless error 

standard. State v. R.B., 183 N.J. 308, 330 (2005). To determine 

whether a prosecutor's improper comments in summation warrant 

reversal, we assess whether the impropriety was "so egregious that 

it deprived the defendant of a fair trial." State v. Jackson, 211 
7 A-4928-15T2

N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 

(1999)). In making this assessment, we "consider[] 'the tenor of 

the trial and the responsiveness of counsel and the court to the 

improprieties when they occurred.'" Ibid. (quoting State v. 

Timmendequas, 161 N.J. 515, 575 (1999).

However, the prosecution's duty to achieve justice does not 

forbid a prosecutor from presenting the State's case in a "vigorous 

and forceful" manner. R.B., 183 N.J. at 332 (quoting Frost, 158 

N.J. at 82). "Prosecutors are afforded considerable leeway in 

closing arguments as long as their comments are reasonably related 

to the scope of the evidence presented." Ibid. (quoting Frost, 

158 N.J. at 82); see also State v. Mayberry, 52 N.J. 413, 437

(1968) ("So long as he stays within the evidence and the legitimate 

inferences therefrom the Prosecutor is entitled to wide latitude 

in his summation."). 

"Thus, '[t]o justify reversal, the prosecutor's conduct must 

have been "clearly and unmistakably improper," and must have 

substantially prejudiced defendant's fundamental right to have a 

jury fairly evaluate the merits of his defense.'" State v.

Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) 

(quoting State v. Papasavvas (I), 163 N.J. 565, 625 (2000)). 

Here, during cross-examination of defendant, the prosecutor 

suggested J.S. had stopped communicating with him because of "the 
8 A-4928-15T2

fact that [his] semen was found in her vagina." Defense counsel 

made a timely objection, and the prosecutor withdrew the question. 

Nonetheless, at the conclusion of defendant's testimony, and again 

following the close of evidence, defendant moved for a mistrial, 

claiming the prosecutor's comment was contrary to the evidence and 

"scientifically inaccurate." When that motion was denied, 

defendant sought to preclude the prosecutor from arguing in 

summation that defendant's semen was found in J.S.'s vagina. The 

trial judge denied the applications, finding the prosecutor's 

anticipatory comment was a "fair inference in the testimony." We 

agree. 

As he did before the trial judge, defendant now argues the 

prosecutor improperly drew inferences for the jury through her 

repeated comments misconstruing the scientific evidence presented. 

Initially, he cites her statement: "Semen, semen, semen, which 

matched defendant, was found in her vagina." However, defendant 

fails to cite the prosecutor's comment immediately preceding that 

snippet, i.e., "The DNA evidence in this case is overwhelming 

corroboration that what [J.S.] remembered about this sexual 

assault actually happened." Defendant also claims the prosecutor 

improperly "drew the inference for the jury: that even the 

statistically correct way to describe the DNA test results were 
9 A-4928-15T2

of no matter because nobody else could have been the semen donor." 

We disagree.

The prosecutor's comments, when read together, are 

"legitimate inferences" from the evidence in the record. See

Wakefield, 190 N.J. at 457 (recognizing reviewing court's consider 

the prosecutor's summation in its entirety in order to ascertain 

its "fair import"). Specifically, J.S. testified she did not have 

sex with anyone other than defendant on the date of the incident 

or throughout the three days prior to her examination by Peloquin. 

That testimony is consistent with Peloquin's five-day window for 

the viability of forensic evidence after sexual conduct, and 

Crutchley's testimony that defendant was a possible source of the 

semen present in J.S.'s vagina. Thus, the scientific evidence 

presented by the State, together with J.S.'s statements that 

defendant was the only person she had sex with during the period 

of time at issue, support the inference that defendant's sperm was 

present in J.S's vagina. 

In sum, the snippets quoted by defendant in his merits brief 

do not allow a full appraisal of the State's summation, which 

properly drew "legitimate inferences" from the evidence adduced 

at trial. Mayberry, 52 N.J. at 437. We, therefore, disagree with 

defendant that the prosecutor's comments warranted reversal where, 
10 A-4928-15T2

as here, they were not "clearly and unmistakably improper." 

Papasavvas (I), 163 N.J. at 625.

B.

We review a "trial court's 'sentencing determination under a 

deferential [abuse of discretion] standard of review.'" State v. 

Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 

N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155, 

169-70 (2006) ("On appellate review, the court will apply an abuse 

of discretion standard to the sentencing court's explanation for 

its sentencing decision within the entire range."). We affirm a 

sentence if: (1) the trial court followed the sentencing 

guidelines; (2) its findings of fact and application of aggravating 

and mitigating factors were based on competent, credible evidence 

in the record; and (3) the application of the law to the facts 

does not "shock[] the judicial conscience." State v. Bolvito, 217 

N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)). When reviewing a trial court's sentencing decision, we 

will not "substitute [our] judgment for that of the sentencing 

court." State v. Fuentes, 217 N.J. 57, 70 (2014). 

At sentencing, the court found aggravating factors two, 

N.J.S.A. 2C:44-1(a)(2) ("the victim of the offense was 

particularly vulnerable"); three, N.J.S.A. 2C:44-1(a)(3) (risk of 

committing another offense); four, N.J.S.A. 2C:44-1(a)(4) 
11 A-4928-15T2

("defendant took advantage of a position of trust"); and nine, 

N.J.S.A. 2C:44-1(a)(9)2 (specific and general deterrence). The 

court found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (the 

absence of a prior criminal record), and nine, N.J.S.A. 2C:44-

1(b)(9) (defendant's character and attitude "indicate that he is 

unlikely to commit another offense"). The court found, generally, 

the aggravating factors outweighed the mitigating factors, and 

rejected defendant's request that the court impose a sentence in 

the range one degree lower than the second-degree range for sexual 

assault. 

In sum, defendant argues his eight-year sentence is 

excessive, and the court should have found mitigating factors 

seven and nine outweigh aggravating factor nine, thereby 

supporting a five-year term of imprisonment, subject to NERA. 

Defendant also claims the court should have found and weighed in 

his favor, mitigating factors eight, N.J.S.A. 2C:44-1(b)(8)

("defendant's conduct was the result of circumstances unlikely to 

recur"), and eleven N.J.S.A. 2C:44-1(b)(11) (defendant's 

 

2 In his merits brief, defendant did not include aggravating factor 

nine in the court's findings. We note the judge amended the 

judgment of conviction (JOC) on October 26, 2015 to address, among 

other things, the omission of aggravating factor nine from 

defendant's initial JOC. 
12 A-4928-15T2

imprisonment "would entail excessive hardship to himself or his 

dependents"), further supporting a five-year sentence. 

We first address defendant's argument that the court 

inadequately justified finding aggravating factor two on the 

sexual assault conviction. In finding this factor, the judge 

recounted J.S.'s testimony that

she was physically incapable of moving. She 

was physically incapacitated. And it was in 

that situation that this defendant took her 

to his apartment and took advantage of her. 

He knew she was drunk. He knew she was young. 

He knew that her consciousness was going in 

and out during that night. 

"[Aggravating factor two] compels 'a pragmatic assessment of 

the totality of harm inflicted by the offender on the victim.'" 

State v. Anthony, 443 N.J. Super. 553, 575-76 (App. Div. 2016) 

(alteration in original) (quoting Lawless, 214 N.J. at 610.) "It 

focuses on the setting of the offense itself with particular 

attention to any factors that rendered the victim vulnerable or 

incapable of resistance at the time of the crime." Ibid. (quoting 

Lawless, 214 N.J. at 611). 

In our view, the record supports a finding of aggravating 

factor two as to defendant's sexual assault conviction where, as 

here, J.S. not only was drunk and young, but also, as defendant's 

stepdaughter, she trusted him to take care of her in that 
13 A-4928-15T2

intoxicated state. As the trial judge stated, there was 

"overwhelming" trial testimony that J.S. was "severely, severely 

intoxicated. And that warrants the finding of aggravating factor 

number two." We agree.

We part company with the trial court, however, to the extent 

aggravating factor two was applied to the aggravated criminal 

sexual contact conviction. In that respect, the court "doublecounted."

A sentencing court may not base its finding of aggravating 

factor two solely on the fact that the harm contemplated by the 

statute proscribing the criminal conduct occurred. See State v. 

Kromphold, 162 N.J. 345, 356-58 (2000). A court engages in 

impermissible double counting when "elements of a crime for which 

a defendant is being sentenced" are "considered as aggravating 

circumstances in determining that sentence." Id. at 353 (citing 

State v. Yarbough, 100 N.J. 627, 633 (1985)). "[A] sentencing 

court must scrupulously avoid 'double-counting' facts that 

establish the elements of the relevant offense." Fuentes, 217 

N.J. at 74-75 (citing Yarbough, 100 N.J. at 645). 

Here, with consent of counsel, the trial judge instructed the 

jury that the elements of aggravated criminal sexual contact 

included: "at the time of the sexual contact, the victim was 

physically helpless," and that defendant "knew or should have 
14 A-4928-15T2

known that under the circumstances [she] was physically helpless." 

Because physical helplessness is both an element of the offense 

for which defendant was sentenced, and the basis for the court's 

determination that aggravating factor two applied, the court 

impermissibly double-counted. 

We have considered and reject defendant's contention that the 

court erred in finding aggravating factor four. We are satisfied 

that the court's finding of aggravating factor four is supported 

here, where defendant raised J.S. as his daughter for seventeen 

years and violated that "position of trust" at a time when she was 

too incapacitated to resist his advances. Contrary to defendant's 

contention, aggravating factor four is not limited to a violation 

of a public trust. Cf. State v. Mosch, 214 N.J. Super. 457, 463 

(App. Div. 1986) (recognizing aggravating factor four was 

inapplicable in the apparent stranger-to-stranger burglary and 

sexual assault offense for which the defendant was convicted).

We next consider defendant's argument that the court's 

findings of aggravating factor three and mitigating factor nine 

are "mutually exclusive." If the two factors are based on 

different criteria, they are not logically exclusive of each other. 

Here, however, the court determined both factors "essentially 

cancel each other out." In reaching that conclusion, the court 

found: 
15 A-4928-15T2

I think this was a crime of opportunity. He 

would take that opportunity if presented 

again. So that would militate for me to find 

aggravating factor number three, the risk that 

the defendant would commit another offense. 

But I also believe if the opportunity does not 

present itself, that this person would not go 

out of his way to commit crime. So in the 

[c]ourt's mind it's kind of an equipoise, 

aggravating factor three and mitigating factor 

nine, they almost cancel each other out. 

While it is possible to find contradictory factors, the trial 

judge used the flip-side of the same criteria to find both factors. 

Further, aggravating factor three is not supported by the evidence 

here, where the present offense was an isolated incident and the 

Avenel report indicates "the absence of a clear finding of 

repetitive and compulsive sexual behavior." In light of the 

record, including defendant's lack of prior criminal history,3 the 

court improperly found aggravating factor three. 

Based upon the court's improper finding of aggravating factor 

two on the aggravated criminal sexual contact conviction, and 

aggravating factor three on both convictions, we are constrained 

to vacate defendant's sentence and remand for resentencing without 

consideration of those aggravating factors. Further, on remand, 

the court should set forth the aggravating and mitigating factors 

 

3 Subsequent to his arrest for the present offense, defendant was 

arrested on separate charges resulting in: (1) a dismissed 

temporary restraining order; and (2) the imposition of a fine for 

a simple assault conviction.
16 A-4928-15T2

that apply on the sexual assault conviction, and those that apply 

on the aggravated criminal sexual contact conviction. Because we 

are remanding for resentencing, it is unnecessary to address 

defendant's contention that the sentence imposed was excessive and 

we express no opinion regarding it. 

Defendant's remaining arguments are without sufficient merit 

to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed in part, reversed in part, and remanded for further 

proceedings consistent with this opinion. We do not retain 

jurisdiction.