RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4144-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.P.T.,

1

Defendant-Appellant.

_____________________________

Argued telephonically May 28, 2020 –

Decided June 26, 2020

Before Judges Fuentes, Haas and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Warren County, Indictment No. 16-06-0259.

Peter Anthony Gaudioso, Designated Counsel, argued 

the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Peter Anthony Gaudioso, on the 

briefs).

Dit Mosco, Special Deputy Attorney General/Acting 

Assistant Prosecutor, argued the cause for respondent 

 

1

 We use initials to protect the privacy of the victim. R. 1:38-3(c)(12).

NOT FOR PUBLICATION WITHOUT THE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-4144-17T1

(James L. Pfeiffer, Acting Warren County Prosecutor, 

attorney; Dit Mosco, of counsel and on the brief).

PER CURIAM

Defendant G.P.T. appeals from his conviction for second-degree 

endangering involving sexual conduct with a child by a caretaker, N.J.S.A. 

2C:24-4A(1) (count one), second-degree endangering involving abuse or neglect 

of a child by a caretaker, N.J.S.A. 2C:24-4A(2) (counts two), and fourth-degree 

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

2

 He also challenges 

his April 12, 2018 sentence as excessive. The victim of the sexual abuse was 

defendant's biological daughter. We affirm defendant's conviction and sentence.

On September 12, 2015, defendant's sixteen-year-old daughter, E.T., was 

at his home for a visit. She asked for a cigarette and then asked for marijuana. 

At first defendant refused E.T.'s request for marijuana but when she asked a 

second time, defendant offered her marijuana in exchange for her performing 

fellatio on him. According to E.T.'s testimony, defendant "mentioned something 

about giving [E.T.] oral sex too." E.T. further testified that her father had "said 

 

2

 Defendant also was charged with the disorderly persons offenses of possession 

of under fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4) and possession of 

drug paraphernalia, N.J.S.A. 2C:36-2. The State dismissed the marijuana 

possession charge at trial and defendant was found guilty of the paraphernalia 

charge during a contemporaneous bench trial. The paraphernalia conviction is 

not challenged in the instant appeal.
3

A-4144-17T1

something about [fellatio] before, but this time it was different," because "[h]e 

was really persistent." When asked by the prosecutor to explain how defendant 

was persistent, E.T. affirmed:

He said you don't have to look at me. You don't have 

to think of me as your dad. And he mentioned I could 

put on a porn video to like make myself comfortable. 

And he said that if I did it he would give me weed and 

we would smoke before and after.

E.T. also testified that defendant gave her an alcoholic drink consisting of 

coconut rum and cranberry juice. After she drank the cocktail, she told her father 

she would "go through with it." Defendant retrieved his laptop computer and 

E.T. followed her father upstairs to his bedroom. Defendant put the laptop on 

his bed, filled a pipe with marijuana and gave it to E.T. He also entered a 

password on his laptop so E.T. could access a pornographic website and

download a video. E.T. testified that she smoked the marijuana, downloaded a 

video titled, "'Step[-]Dad Teaches Daughter Sex' or something," and defendant 

laid down next to her on the bed. E.T. felt her father's "hard" penis touching her 

buttocks. Additionally, she affirmed he touched her breast and buttocks with 

his hands but when he tried to place his hands down her pants, she told him she 

"could not go through with it." Defendant then got up and left the bedroom. 
4

A-4144-17T1

E.T. remained in her father's bedroom and again smoked marijuana but 

"tried to stay away" from her father until her mother picked her up the next day. 

She admitted she stayed overnight at her father's home because she "didn't want 

to get the cops involved," and was scared to tell her mother. However, E.T. used 

Facebook Messenger on September 12, 2015 to tell a social media acquaintance 

about the incident. The next day, she told her mother and her friend, T.F., about 

what happened. 

E.T. was interviewed by the local prosecutor's office on September 14, 

2015. Thereafter, a detective obtained a search warrant for defendant's 

residence. When the search warrant was executed, the police found and seized 

two laptops, an open can of cranberry juice, a metal smoking pipe, a grinder, 

flakes and residue of a green vegetation. 

Following the execution of the search warrant, defendant was interviewed 

by the police. He denied watching any pornographic materials on his computer 

on September 12, 2015 and stated he did not provide marijuana to his daughter. 

He also denied directing E.T. to watch a pornographic video, asking her to 

perform fellatio, or touching her inappropriately.

The State obtained a Communications Data Warrant and arranged for a 

forensic analysis to be conducted on defendant's two laptops. The analysis 
5

A-4144-17T1

established that one of the laptops was used to access a pornographic website on 

September 12, 2015 and that the video, "Stepdad Gives Sex Lessons to 

Stepdaughter" was accessed with a password, as well as a username identical to 

defendant's first name. 

Prior to trial, the State moved to admit the statements E.T. made to her 

Facebook Messenger acquaintance and to T.F. At the testimonial hearing, 

defense counsel objected to the admissibility of these statements but 

acknowledged, "[w]ith respect to [T.F.], I would concede that . . . was more 

indicative of a relationship of a confidant[e] to the extent that [T.F.] indicated 

that she was more comfortable driving to [E.T.'s] home to have a personal 

communication with [E.T.] because of the nature and sensitivity of the 

information being disclosed." Similarly, T.F. testified she and E.T. regularly 

communicated on Facebook, talked on the phone and would "hang out" together. 

The motion judge deemed the statement to the Facebook Messenger 

acquaintance inadmissible but found E.T.'s statement to T.F. was admissible

because it was made voluntarily, spontaneously, within a reasonable time after 

the alleged assault and to a person who qualified as a "natural confidante."

At trial, T.F. testified that on September 13, 2015, E.T. reached out to her 

through a private message on Facebook and told her "something bad had 
6

A-4144-17T1

happened and she wanted to talk about it." When asked on direct examination 

to recall what E.T. told T.F., T.F. stated she "need[ed] a second to like look at 

this," referring to a statement left on the witness stand. The prosecutor 

apologized for inadvertently leaving another witness's statement on the stand 

and asked, "are you having a hard time remembering exactly what [E.T.] said?" 

T.F. responded, "[y]eah, it was so long ago." T.F. was given a copy of her own 

statement to a detective and confirmed it helped to refresh her recollection. 

Immediately thereafter T.F. testified that E.T. 

told me that she had gone to her dad's the night before 

and that he had asked her to perform oral sex on him. 

And I said okay. . . . And she just - - I don't really 

remember what you know she said after that. There 

might have been like a pause. And then she said that 

you know I want to tell something that like I didn't tell 

anybody else. Because she had said that she had told 

her mom and that you know that it was going to be taken 

care of. But she said you know I need to tell you more. 

And she had said that like when he asked she didn't 

want to upset him so she did go upstairs with him. And 

he told her to put on porn. And that she like laid down 

with him. And then it stopped after that. Soon after 

that. 

Without objection from defense counsel, T.F. was asked if E.T. told her 

defendant touched her inappropriately. T.F. responded, "[t]hat he had put like 

his hand on her breasts." Next, the prosecutor asked if E.T. told T.F. "anything 

about cigarettes and alcohol." T.F. replied, "[y]es. So she had told him to stop, 
7

A-4144-17T1

and the interaction did stop. But she said that he'd . . . tried to bribe her with 

like cigarettes and alcohol if she . . . wanted whenever she would come see him, 

because she was only sixteen then."

Once the trial concluded, the jury was excused for deliberations. A little 

over an hour into deliberations, the jury advised the trial court it had a number 

of questions, including questions about T.F.'s testimony. The jurors were

dismissed for the day. When the trial resumed, one of the jurors did not appear 

due to illness, so both attorneys agreed to excuse the sick juror and replace her 

with an alternate. Since a new jury was empaneled, the trial judge and counsel 

agreed the first jury's pending questions need not be addressed. 

During discussions with counsel, the judge realized he did not instruct the 

jurors about how they should consider T.F.'s fresh complaint testimony. 

Counsel offered their input as to how to handle this new instruction. Both 

attorneys expressed concern that the newly-formed jury might pay "inordinate 

attention" to the isolated instruction. The judge agreed this was a "legitimate 

concern" and advised he would caution jurors not to "single [the instruction] out

for emphasis." Counsel assented to the judge reading the fresh complaint 

instruction to the jurors without having to re-read all the instructions they heard 

after testimony had concluded.
8

A-4144-17T1

The judge subsequently explained to the jury that a juror had been excused 

for reasons "personal to her." He then provided the fresh complaint instruction 

to the newly-formed jury, which included the following prefatory comments:

I realized through inadvertence . . . on my part as I was 

reading the jury instructions for you . . . I skipped over 

one of the instructions. That's a big whoops.

But it is one which can be remedied now because we 

have a new jury panel. 

. . . .

A fresh complaint is not evidence that the sexual 

offense actually occurred. That may sound 

counterintuitive but that's the rule. That's the rule of 

law.

A fresh complaint is not evidence that the sexual 

offense actually occurred or that [E.T.] is credible. It 

merely serves to negate any inference that because of 

her assumed silence the offense didn't occur.

It does not strengthen her credibility. It does not prove 

the underlying offense or the underlying truth of the 

sexual offense. A fresh complaint only goes to dispel 

any negative inference that might be drawn from her 

assumed silence.

. . . .

In this context you may consider the timeliness of the 

complaint and the likelihood that [E.T.] would 

complain under the circumstances described.
9

A-4144-17T1

If there was a delay in making the complaint, you may 

consider whether any circumstances existed which 

would explain the delay.

. . . .

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 these facts in determining whether 

or not a complaint was made.

. . . .

Now important, because I gave you the fresh complaint 

instruction separately . . . does not mean it is more 

important than the other instructions.

[(Emphasis added).]

The jurors commenced deliberations thereafter and continued deliberating 

throughout the day on Friday, December 8, 2017. When the trial court 

reconvened on Monday, December 11, 2018 to resume jury deliberations, 

defense counsel advised the judge that "having had the benefit of the weekend 

to consider the effect of isolating the jury instruction as it pertains to [the] fresh 

complaint witness, I believe that it is prejudicial to the defense." Defense 

counsel added that "timeliness of [E.T.'s] reported abuse was never disputed

because . . . we're not talking about a week or a month later, we're talking about 

the very next day." Based solely on these belated concerns, defense counsel 
10 A-4144-17T1

moved for a mistrial. His application was denied. Later that day, defendant was 

convicted on all three counts. 

At sentencing, defendant received concurrent six-year prison terms on 

counts one and two, and an eighteen-month sentence on count three, concurrent 

to counts one and two. The judge found that aggravating factors two, N.J.S.A. 

2C:44-1(a)(2) (the gravity of the harm to the victim) and nine, N.J.S.A. 2C:44-

1(a)(9) (the need to deter) applied. Additionally, the judge found mitigating 

factors four, N.J.S.A. 2C:44-1(b)(4) (defendant suffered from a "chemical 

dependency," which failed to establish a defense, but tended to excuse his 

conduct) and seven, N.J.S.A. 2C:44-1(b)(7) (defendant had no significant 

criminal history). 

On appeal, defendant presents the following arguments for our 

consideration: 

 POINT I

THE TRIAL COURT'S ADMISSION OF THE 

SUBSTANCE OF [T.F.'s] FRESH[]COMPLAINT 

EVIDENCE WAS ERRONEOUS AND WARRANTS 

REVERSAL.

A. The Trial Court Should Not Have 

Permitted Any Fresh[]Complaint 

Evidence[.] (Raised Below).
11 A-4144-17T1

B. The Trial Court Erred When It 

Concluded T.F. Was a Proper 

Fresh[]Complaint Witness[.] (Raised 

Below).

C. The Trial Court Committed Plain 

Error When It Permitted T.F. To Give 

Improper Hearsay Testimony About 

The Details Of The Alleged 

Incident[.] (Not Raised Below).

POINT II

THE MANNER IN WHICH THE TRIAL COURT 

GAVE THE FRESH[]COMPLAINT CHARGE 

CONSTITUTES PLAIN ERROR[.] (Not Raised 

Below).

POINT III

THE TRIAL COURT ERRED BECAUSE 

[DEFENDANT'S] OFFENSES ALREADY 

ENCOMPASSED THE AGGRAVATING FACTORS 

THAT THE COURT APPLIED[.] (Not Raised Below).

POINT IV

THE APPLICATION OF AGGRAVATING FACTOR 

9 WAS ERRONEOUS BECAUSE THE MANDATE 

TO REGISTER UNDER MEGAN'S LAW3 ALREADY 

ENCOMPASSES THE NEED FOR DETERRING 

[DEFENDANT] AND OTHERS FROM VIOLATING 

THE LAW[.] (Not Raised Below).

 

3

 N.J.S.A. 2C:7-1.
12 A-4144-17T1

"Trial judges are entrusted with broad discretion in making evidence

rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003). As

such, "[a] reviewing court should overrule a trial court's evidentiary ruling only

where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295,

357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)). Thus, we

review a trial court's decision to introduce fresh complaint testimony for an

abuse of discretion. See State v. Bethune, 121 N.J. 137, 145-48 (1990).

Fresh complaint testimony involving a victim's statement about a sexual

offense is admissible for the narrow purpose of "negat[ing] the inference that

the victim's initial silence or delay indicates that the charge is fabricated." State

v. R.K., 220 N.J. 444, 455 (2015). "[T]o qualify as fresh[]complaint evidence,

the victim's statement must have been made spontaneously and voluntarily,

within a reasonable time after the alleged assault, [and] to a person the victim

would ordinarily turn to for support." Ibid. "A witness may testify only to the

general nature of the complaint, and unnecessary details of what happened

should not be repeated." State v. W.B., 205 N.J. 588, 617 (2011). The fresh

complaint testimony should not be used to corroborate the victim's testimony

about the offense. R.K., 220 N.J. at 456.
13 A-4144-17T1

Defendant argues T.F.'s testimony was unnecessary because E.T. did not 

delay reporting defendant's offenses to her mother. Additionally, defendant 

contends T.F. did not qualify as a fresh complaint witness and her testimony 

constituted impermissible hearsay. We find these arguments unpersuasive.

Here, E.T. did not promptly report her father's offenses to law 

enforcement. Instead, according to her testimony, she stayed in her father's 

bedroom, "took another hit" of marijuana and slept overnight at her father's 

home. Moreover, she testified she was afraid to tell her mother what happened 

and "didn't want to get the cops involved." E.T. disclosed the incident to an 

acquaintance on Facebook who told her to call the police. She did not follow 

this advice and it was not until September 13, 2015 that E.T. disclosed to her 

mother and T.F. what occurred. 

The motion judge deemed T.F.'s fresh complaint testimony admissible 

because he found E.T. spontaneously and voluntarily initiated contact with T.F.

and that T.F. was E.T.'s natural confidante. Moreover, the motion judge was 

satisfied E.T.'s disclosures were made within a "reasonable time." Given the 

timing and circumstances of E.T.'s disclosures, as well as her friendship with 

T.F., we decline to find the motion judge erred in deeming T.F.'s fresh complaint 
14 A-4144-17T1

testimony admissible. Indeed, the judge's evidentiary rulings in this regard are

amply supported by the record.

In Point I.C., defendant cites to R.K. to argue the trial judge plainly erred

by permitting T.F. to provide fresh complaint testimony which "was highly 

detailed and contained the graphic details that E.T. had provided to the jury." 

Further, defendant contends it was plain error for the judge to allow the State to 

lead T.F. in her testimony and to refresh her recollection with her prior statement 

to law enforcement. We are not convinced. 

"[W]hen counsel does not make a timely objection at trial, it is a sign 'that 

defense counsel did not believe the remarks were prejudicial' when they were 

made." State v. Pressley, 232 N.J. 587, 594 (2018) (quoting State v. Echols, 199 

N.J. 344, 360 (2009)). Accordingly, a "[d]efendant's lack of objections . . . 

weighs against [a] defendant's claim that errors were 'clear' or 'obvious.' Indeed, 

'[i]t [is] fair to infer from the failure to object below that in the context of the 

trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 

(2002) (second and third alterations in original) (quoting State v. Macon, 57 N.J. 

325, 333 (1971)). "The failure to object also deprives the court of an opportunity 

to take curative action." State v. Frost, 158 N.J. 76, 84 (1999).
15 A-4144-17T1

Because defendant failed to object to T.F.'s direct testimony at trial, we 

review the admissibility of her statements under the "plain error" standard. 

Pressley, 232 N.J. at 593. Under this standard, reversal is appropriate only if an 

error was "clearly capable of producing an unjust result." R. 2:10-2. 

When a witness's memory is impaired and a foundation has been laid, he 

or she may view a document to refresh memory. State v. Carter, 91 N.J. 86, 122 

(1982); N.J.R.E. 612. If the witness's memory has been refreshed after viewing 

the document, he or she may testify according to that refreshed recollection. 

State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988). Here, when T.F. 

began to testify, she admitted to the prosecutor she was "having a hard time 

remembering what [the victim] said." Since T.F. recalled giving a statement to 

the police shortly after E.T.'s disclosure of her father's offenses, T.F. was 

permitted to review the statement from her police interview. T.F. then testified 

the recorded statement helped refresh her memory. Under these circumstances, 

it was not error, let alone plain error, to allow T.F. to testify about her refreshed 

recollection.

After T.F.'s recollection was refreshed, she testified that E.T. disclosed 

that her father had asked her to "perform oral sex on him," "told her to put on 

porn," and that she "laid down with him." T.F. also testified E.T. revealed her 
16 A-4144-17T1

father "had put his hand on her breasts" and "tried to bribe her with . . . cigarettes 

and alcohol." 

Defendant argues the facts of this case are similar to those in R.K. because 

of T.F.'s "highly detailed" and "graphic" fresh complaint testimony, which 

included details E.T. had provided to the jury. He further contends that just "as 

in R.K., no physical evidence of an assault existed." 

We find defendant's reliance on R.K. is misplaced. In R.K., the State had 

no physical evidence to support its case and defendant denied the allegations 

against him when he testified. Therefore, the State was permitted to bolster its 

case with several fresh complaint witnesses. Id. at 448-49. But here, there was 

overwhelming evidence of defendant's guilt. The record reflects that after the 

police obtained a search warrant, they recovered drug paraphernalia, two 

laptops, an open can of cranberry juice and residue from green vegetation in his 

home. Such physical evidence was consistent with the incident E.T. described 

had occurred at her father's home on September 12, 2015. Defendant also denied 

to police that he molested his daughter or allowed her to watch a pornographic 

movie. But the State conducted a forensic analysis of his laptop computers

which confirmed that on September 12, 2015, a pornographic movie was 

accessed from one of defendant's laptops with a username identical to his first 
17 A-4144-17T1

name. The title of the pornographic movie was remarkably similar to that 

recalled by E.T. on the stand. Accordingly, even if some of T.F.'s testimony 

should have been excluded, we find no plain error occurred by virtue of its 

admission. See R. 2:10-2; R.K., 220 N.J. at 456-57.

As to defendant's newly-minted argument that T.F.'s testimony constitutes

impermissible hearsay, this argument is unavailing. The fresh complaint 

doctrine specifically allows "evidence of a victim's complaint of sexual abuse, 

otherwise inadmissible as hearsay, to negate the inference that the victim's initial 

silence or delay indicates that the charge is fabricated." Id. at 455. 

In Point II, defendant argues that the "manner in which the trial court gave 

the fresh[] complaint charge constitutes plain error." He specifically takes issue 

with the judge's remarks that "[a] fresh complaint is not evidence that the sexual 

offense actually occurred. That may sound counterintuitive but that's the rule ." 

Defendant claims such comments "introduced the possibility that a fresh 

complaint ordinarily could be viewed as evidence that the assault actually 

occurred, but for the legalistic construct our courts have imposed." Again, we 

are not convinced. 

"[P]roper jury instructions are essential to ensuring a fair trial." State v. 

Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287 
18 A-4144-17T1

(1981)). "A trial court is vested with discretion in delivering the jury 

instructions that are most applicable to the criminal matter before it." State v. 

Funderburg, 225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 

(1960)). To assess the soundness of the jury instruction, an appellate court 

considers "how and in what sense, under the evidence before them, and the 

circumstances of the trial, would ordinary . . . jurors understand the instructions 

as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) 

(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)). 

"When a defendant fails to object to an erroneous or omitted limiting 

instruction, it is viewed under the plain-error rule, Rule 2:10-2." R.K., 220 N.J. 

at 456. "Thus, the error will be disregarded unless a reasonable doubt has been 

raised whether the jury came to a result that it otherwise might not have 

reached." Ibid. (citing State v. Daniels, 182 N.J. 80, 95 (2004)). If "the State's 

case is particularly strong, any fresh[]complaint instruction errors may be 

deemed harmless." Ibid. (citing State v. Tirone, 64 N.J. 222, 227 (1974)). 

A trial court is required to explain to a jury that fresh complaint testimony 

is not to be considered as substantive evidence of guilt, or as bolstering the 

credibility of the victim and that such testimony may only be considered for the 

limited purpose of confirming that a complaint was made. Bethune, 121 N.J. at 
19 A-4144-17T1

147-48; State v. P.H., 178 N.J. 378, 393 (2004). Jurors are presumed to follow 

such instructions. Nelson, 173 N.J. at 469 (citing State v. Manley, 54 N.J. 259, 

270 (1969)).

Here, the trial judge's fresh complaint instruction conveyed that T.F.'s 

testimony was permitted for a "limited purpose," i.e., "to negate any inference 

that [E.T.] failed to tell anyone about the sexual offense and therefore her later 

assertion could not be believed." It is evident the judge's instruction in this 

regard was based largely on the applicable model jury charge. See Model Jury 

Charge (Criminal), "Fresh Complaint" (2007); see also Bethune, 121 N.J. 137. 

Although the judge took the liberty of adding some phrasing to the model jury 

charge by letting the jurors know what he said might "sound counterintuitive," 

he also made clear that "[a] fresh complaint is not evidence that the sexual 

offense actually occurred or that [E.T.] is credible . . . . It does not strengthen 

her credibility. It does not prove the underlying offense or the underlying truth 

of the sexual offense." While we acknowledge the challenged extraneous 

comments4should not have been included in the judge's fresh complaint 

 

4 As part of his announcement to the jurors that he had inadvertently neglected 

to provide them with instructions on how to consider T.F.'s "fresh complaint" 

testimony, the judge said: "That's a big whoops." This may have been intended 

by the judge as nothing more than a lighthearted, innocuous comment. 
20 A-4144-17T1

instruction, we also consider the totality of the judge's charge, including the 

cautionary directive that jurors should not give the fresh complaint instruction

undue weight. Given the entirety of the judge's instructions, coupled with the 

overwhelming evidence of defendant's guilt, we are satisfied the judge's error 

was not "of such a nature as to have been clearly capable of producing an unjust 

result." R. 2:10-2.

Defendant argues in Points III and IV that if his conviction stands, his 

sentence must be vacated to allow him to receive concurrent five-year prison 

terms for his second-degree offenses. He further contends the trial court should 

not have found aggravating factor two applied to his endangering offenses 

because they already encompass this aggravating factor and should not be 

"double counted." Additionally, defendant argues the trial judge erred by 

finding aggravating factor nine, since his endangering convictions already 

 

However, "a trial judge's interactions with the jury must be 'guided by a concern 

for the weighty role that the judge plays in the dynamics of the courtroom.'" 

State v. Gleaton, 446 N.J. Super. 478, 523 (App. Div. 2016) (quoting State v. 

Ross, 218 N.J. 130, 145 (2014)). Anything a judge says or does in a jury trial 

may have profound unintended consequences. Thus, this innocuous comment,

coupled with the judge's characterization of the fresh complaint instructions as

being "counterintuitive," may be viewed as belittling the importance of these 

instructions. We thus caution our colleagues at the trial level to be mindful of 

the Supreme Court's admonition in Ross. 
21 A-4144-17T1

"subject him to all registration and notification requirements pursuant to 

Megan's Law." Again, we disagree. 

Trial judges have broad sentencing discretion as long as the sentence is 

based on competent credible evidence and fits within the statutory framework. 

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider 

"any relevant aggravating and mitigating factors" that "are called to the court's 

attention" and "explain how they arrived at a particular sentence." State v. Case, 

220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid 

substituting our judgment for the judgment of the trial court. Id. at 65; State v. 

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

Aggravating factor two "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." State v. Lawless, 214 N.J. 594, 

608 (2013). The trial court "must engage in a pragmatic assessment of the 

totality of harm inflicted by the offender on the victim, to the end that defendants 

who purposely or recklessly inflict substantial harm receive more severe 

sentences than other defendants." State v. Kromphold, 162 N.J. 345, 358 (2000). 
22 A-4144-17T1

Here, E.T. testified defendant had "said something about [fellatio] before 

[the incident] but this time it was different" because he persisted in his efforts 

to have her engage in this act. He told her she did not have to look at him or 

"think of [him] as [her] dad." Further, defendant gave E.T. an alcoholic drink, 

provided a password on his laptop so she could watch a pornographic movie to 

make herself "comfortable," and offered her marijuana. Additionally, although 

E.T. did not appear at defendant's sentencing "for the sheer reason of really not 

wanting to see her father," she provided "bullet points" for the prosecutor to 

convey to the court. Those points confirmed that E.T. was embarrassed others 

knew what had happened to her, was "scared of other men to some extent and 

the whole situation has made her depressed." 

Under these circumstances, there was ample support for the sentencing 

judge to find aggravating factors two and nine. Moreover, to the extent 

defendant argues it is impermissible to find aggravating factor nine in a Megan's 

Law case, he is mistaken. See Case, 220 N.J. at 68. Additionally, we are 

satisfied the sentencing judge correctly applied the sentencing guidelines 

enunciated in the Code when he found "the aggravating and mitigating factors

are in equipoise." Finally, the concurrent sentence imposed for defendant's 
23 A-4144-17T1

second-degree offenses does not shock our judicial conscience. Accordingly, 

we discern no basis to second-guess the sentence. 

Defendant's remaining arguments are without sufficient merit to 

warrant further discussion. R. 2:11-3(e)(2). 

Affirmed.