RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4381-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE D. STERLING,

Defendant-Appellant.

________________________________

Submitted December 19, 2016 – Decided

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior of New Jersey, Law 

Division, Middlesex County, Indictment No. 05-

10-1410. 

Joseph E. Krakora, Public Defender, attorney 

for appellant (John V. Molitor, Designated 

Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Joie Piderit, 

Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

Defendant Bruce D. Sterling appeals from a May 5, 2015 

judgment of conviction entered after his second jury trial. The 

NOT FOR PUBLICATION WITHOUT THE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.

June 19, 2017
2 A-4381-14T4

jury found defendant guilty of second-degree burglary, firstdegree aggravated sexual assault, second-degree sexual assault, 

third-degree aggravated assault with a deadly weapon, seconddegree possession of a weapon for an unlawful purpose, and thirddegree terroristic threats. For these offenses, a judge sentenced 

defendant to an aggregate twenty-year custodial term subject to 

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

On appeal, defendant argues:

POINT I

THE TRIAL COURT'S FAILURE TO FOLLOW THE 

APPELLATE DIVISION'S DECISION MANDATES 

REVERSAL OF THE DEFENDANT'S CONVICTIONS. (NOT 

RAISED BELOW).

POINT II

THE STATE VIOLATED THE DEFENDANT'S 

CONFRONTATION RIGHTS. (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Finding no merit in defendant's arguments, we affirm.

This action's lengthy procedural history is detailed in State 

v. Sterling, 215 N.J. 65 (2013), and need not be repeated in its 

entirety. Pertinent to this appeal, in 2005, a Middlesex County 

grand jury charged defendant in a twenty-four-count indictment 

with multiple offenses committed against five women during five 

separate incidents that occurred between 2002 and 2005. The first 
3 A-4381-14T4

seven counts of the indictment stem from the first incident, in 

which the victim was sexually assaulted in her residence in July 

2002. These seven counts and this incident are the subject of 

this appeal. 

The first seven counts are: second-degree burglary, N.J.S.A.

2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); thirddegree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree 

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); seconddegree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a); and third-degree terroristic threats, N.J.S.A. 2C:12-

3(b). Defendant was tried on all but the unlawful possession of 

a handgun offense, and a jury found him guilty on all counts. 

Defendant appealed.

1 

On appeal, a panel of this court reversed and remanded for a 

new trial. State v. Sterling, No. A-5579-06 (App. Div. Aug. 15, 

2011). The panel held the trial court erred by allowing the State 

to present unduly prejudicial other crimes evidence. Id. (slip 

op. at 56-57). Although the Supreme Court reversed in part the 

panel's decision on charges stemming from some of the other 

incidents, the Court affirmed the panel's reversal of defendant's 

 

1 The unlawful possession of a handgun count was dismissed before 

the first trial.
4 A-4381-14T4

conviction on the indictment's first seven counts. Sterling, 

supra, 215 N.J. at 107-08. 

The new trial on the first seven counts took place in 2014. 

The State developed the following proofs.

In 2002, the victim, her boyfriend, and three others lived 

in a single family home in New Brunswick. The victim's bedroom 

was located on the first floor "immediately when you walk in." On 

the day of the incident, the victim returned home after running 

errands in preparation for a trip to the mountains. She parked 

her car in a neighbor's driveway because there was no available 

parking, she was running late, and she only needed to grab a few 

things from inside the house. She shut the screen door after she 

entered the house, but did not lock the front door as she planned 

to be inside "less than five minutes."

After packing toiletries from the upstairs bathroom, the 

victim went downstairs into her bedroom. She heard the screen 

door shut, turned around, and saw defendant standing in her bedroom 

doorway. She did not know defendant and had never seen him before.

The victim's boyfriend and roommates were not home, and the 

victim asked if she could help defendant. He replied, "[t]ake 

your clothes off or I'll shoot you." He held a silver gun in his 

left hand. When the victim screamed for help, defendant went
5 A-4381-14T4

behind her, put one hand around her waist and one hand over her 

mouth, and said "[s]hut up or I'll shoot you." 

The victim began to cry. Defendant pushed her onto her bed 

face first, repeatedly told her to shut up or he would shoot her, 

closed and dead-bolted the bedroom door, and looked out the window. 

The victim offered defendant $600 and asked him not to hurt her. 

Defendant did not respond, but reached underneath the victim and 

removed her pants, underwear and shoes.

When the victim attempted to look at defendant, he hit her 

in the jaw with his gun and told her not to look at him. He 

proceeded to have vaginal intercourse with the victim while she 

laid with her head down and eyes closed. The gun remained in his

hand the entire time.

The victim cannot recall the incident's duration, but 

eventually defendant "just stopped," and pulled up his pants, and 

the victim "curled up in a ball on the bed." Defendant asked the 

victim where her money was and she said it was in her car. 

Defendant instructed the victim to wait five minutes before exiting 

her house or he would shoot her. The victim waited five minutes 

and then drove herself to the hospital. 

Hospital staff called the police, who transported the victim 

to a rape crisis center where she underwent a sexual assault 

examination. The nurse created a "sexual assault kit" with 
6 A-4381-14T4

evidence collected during the exam and gave it to the police, who 

submitted it to their lab.

Senior Forensic Scientist Marlene Strauss conducted an 

analysis of the DNA taken from the victim's sexual assault kit and 

prepared a report detailing her findings. Chief Forensic Scientist 

Joseph Petersack peer reviewed Strauss's report. The report 

indicated the presence of male DNA on the victim's cervical swab. 

When Strauss prepared the report, however, there was no suspect. 

When a separate investigation of defendant began in 2005, 

three years later, police searched his apartment and found a silver 

gun. Police took a DNA swab from defendant's cheek, and 

Investigator Virgil Angelini requested a comparison of defendant's 

DNA and the male DNA profile recovered from the victim. Forensic 

Scientists Jennifer Banaag and Frank Basile conducted comparisons

and concluded defendant was the source of the DNA recovered from

the victim.

Police asked the victim to participate in a lineup, but she 

was unable to make an identification. She explained she did not

"get a good look" at defendant because she was afraid he was going 

to shoot her and he wore "big reflective sunglasses" that she 

could not see through. When the victim saw defendant at trial,

she testified she did not know him, did not give him permission 
7 A-4381-14T4

to enter her home, and did not give him permission to have 

intercourse with her.

As previously noted, the jury found defendant guilty as 

charged. A judge sentenced defendant to an aggregate custodial 

term of twenty years. At sentencing, the judge found the following 

aggravating factors: one, the nature and circumstances of the act

and the actor's role therein, including whether it was committed 

in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-

1(a)(1); three, the risk defendant will commit another offense, 

N.J.S.A. 2C:44-1(a)(3); six, defendant's prior record and the 

seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and nine, the 

need for deterring defendant and others from violating the law, 

N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. 

The judge found aggravating factor one because:

[s]tranger rape of this type and involving the 

violence that was involved in this case, 

striking her with the handgun, display of the 

handgun, putting her at fear of her life if 

she did not submit to what the [Adult 

Diagnostic Center] called [defendant's] 

"hedonistic tendencies" warrants a finding 

that aggravating factor one should apply. 

The judge found aggravating factor three because defendant "has a 

history of proclivity and inclination to engage in this sort of 

crime." The judge based aggravating factor six on defendant's 
8 A-4381-14T4

extensive and serious criminal record, which includes additional 

sexual assaults. 

The judge imposed the maximum sentence because he determined 

defendant "needs to be locked up for as long as possible in order 

for women . . . to be safe. Because if he's out on the street, 

women are at risk." 

On appeal, defendant first contends the trial court erred by 

failing to follow the Appellate Division panel's instructions to 

provide the jury with an identification charge at the new trial. 

Although the Appellate Division panel reversed defendant's first 

conviction based on the wrongful admission of other crimes 

evidence, the panel discussed other issues defendant raised. One 

issue involved the trial court's refusal to give the identification 

instruction defendant expressly requested. The panel explained:

 On appeal, defendant argues that the court 

should have instructed the jury in accordance 

with the introductory paragraph to the model 

charge pertaining to in-court and out-of-court 

identifications as follows:

(Defendant) as part of [his/her] 

general denial of guilt contends 

that the State has no[t] presented 

sufficient reliable evidence to 

establish beyond a reasonable doubt 

that [he/she] is the person who 

committed the alleged offense. The 

burden of proving the identity of 

the person who committed the crime 

is upon the State. For you to find 

this defendant guilty, the State 
9 A-4381-14T4

must prove beyond a reasonable doubt 

that this defendant is the person 

who committed the crime. The 

defendant has neither the burden nor 

the duty to show that the crime, if 

committed, was committed by someone 

else, or to prove the identity of 

that other person. You must 

determine, therefore, not only 

whether the State has proved each 

and every element of the offense 

charged beyond a reasonable doubt, 

but also whether the State has 

proved beyond a reasonable doubt 

that this defendant is the person 

who committed it.

[Model Jury Charge (Criminal), 

"Identification: In-Court and OutOf-Court Identifications" (2007).]

We agree with defendant that this would have 

been an appropriate instruction in defendant's 

second trial. Upon retrial, an instruction 

along these lines should be given. This 

suggestion is tempered, of course, by the 

recognition that the evidence might be 

different, counsel may request different 

charges, and the trial court retains 

discretion in fashioning an appropriate 

instruction.

[Sterling, supra, No. A-5579-06 (slip op. at 

83-84).]

Defendant did not request this instruction during his second trial, 

nor did the court give it. Defendant now claims the trial court's 

failure to give the instruction constitutes a reversible error.

Because clear and correct jury charges are essential to a 

fair trial, State v. Adams, 194 N.J. 186, 207 (2008), "erroneous 
10 A-4381-14T4

instructions on material points are presumed to possess the 

capacity to unfairly prejudice the defendant." State v. McKinney, 

223 N.J. 475, 495 (2015) (citations omitted). However, an error 

in the charge that could not have affected the jury's deliberations 

does not amount to reversible error. State v. Docaj, 407 N.J. 

Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009). 

In that regard, "[i]f the defendant does not object to the charge 

at the time it is given, there is a presumption that the charge 

was not error and was unlikely to prejudice the defendant's case." 

State v. Singleton, 211 N.J. 157, 182 (2012).

Here, defendant did not object when the court did not give 

the identification charge he had requested at his first trial, nor 

did he raise the issue he now raises on appeal. Because defendant 

did not object at trial, we review the charge for plain error. R.

1:7-2; R. 2:10-2; McKinney, supra, 223 N.J. at 494. Plain error 

in this context is "[l]egal impropriety in the charge prejudicially 

affecting the substantial rights of the defendant sufficiently 

grievous to justify notice by the reviewing court and to convince 

the court that of itself the error possessed a clear capacity to 

bring about an unjust result." Adams, supra, 194 N.J. at 207 

(alteration in original) (quoting State v. Jordan, 147 N.J. 409, 

422 (1997)). When reviewing a charge for plain error, an appellate 

court must not examine the "portions of the charge alleged to be 
11 A-4381-14T4

erroneous in isolation; rather, 'the charge should be examined as 

a whole to determine its overall effect.'" McKinney, supra, 223 

N.J. at 494 (quoting Jordan, supra, 147 N.J. at 422).

Applying these principles to the case before us, we conclude 

the trial court's omission to give, sua sponte, the charge 

defendant had requested seven years earlier at his first trial,

was not plain error. Significantly, the victim never identified 

defendant. The State presented neither an in-court nor an outof-court identification. Instead, the State established defendant 

was the perpetrator through DNA evidence retrieved by personnel 

at the hospital following the sexual assault, comparison of this 

DNA evidence to DNA swabbed from defendant, and expert testimony 

linking the DNA evidence.

In its charge to the jury, as it had done during the trial, 

the court instructed the jury on expert testimony. The court 

explained that Banaag, Basile, and Petersack had testified as 

experts, but the jury was not bound by their opinions. The court 

further instructed the jury it should give the expert opinions 

"the weight to which you deem it is entitled, whether that be 

great or slight. And if you want to reject it, you have the 

right." Additionally, the trial court's instruction on each

substantive offense included the requirement that the State prove 

beyond a reasonable doubt defendant committed each element. 
12 A-4381-14T4

Examining the charge as a whole to determine its overall 

effect, McKinney, supra, 223 N.J. at 494, we find it inconceivable 

the trial court's omission — to give an identification charge 

neither required by the facts of the case nor requested by 

defendant — either prejudicially affected defendant's substantial 

rights or "possessed a clear capacity to bring about an unjust 

result." Adams, supra, 194 N.J. at 207. Our conclusion is 

fortified not only by defendant's failure to object when the court 

charged the jury, but also by his failure now to articulate in his 

argument how he was even possibly prejudiced. We thus reject 

defendant's argument.

In his second point, defendant argues the trial court erred 

by admitting a report prepared by forensic scientist Strauss 

without calling Strauss as a witness, thus violating defendant's 

right to confront his accusers. Defendant contends the State 

instead called Joseph Petersack, "who read Strauss's conclusions 

and then told the jury he approved of his absent colleague's work." 

We review this issue for plain error because defendant did not 

raise it at trial. R. 2:10-2. 

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 

L. Ed. 2d 177 (2004), the United States Supreme Court held "the 

admission of an out-of-court 'testimonial' statement permitted by 

state hearsay rules" unconstitutional "unless the person who made 
13 A-4381-14T4

the statement is unavailable to testify at trial and the defendant 

had a prior opportunity to cross-examine that person." State ex 

rel. J.A., 195 N.J. 324, 328 (2008). Nonetheless, the Sixth 

Amendment's confrontation clause does not require that "every 

analyst involved in a testing process . . . testify in order to 

satisfy confrontation rights." State v. Roach, 219 N.J. 58, 77 

(2014), cert. denied, __ U.S. __, 135 S. Ct. 2348, 192 L. Ed. 2d

148 (2015).

[A] defendant's confrontation rights are not 

violated if a forensic report is admitted at 

trial and only the supervisor/reviewer 

testifies and is available for crossexamination, when the supervisor is 

knowledgeable about the testing process, 

reviews scientific testing data produced, 

[makes conclusions based on the data], and 

prepares, certifies, and signs a report 

setting forth the results of the testing.

[State v. Michaels, 219 N.J. 1, 6, cert. 

denied, __ U.S. __, 135 S. Ct. 761, 190 L. Ed.

2d 635 (2014).]

Here, though the State did not call Strauss to testify at 

trial, it presented forensic scientist Petersack to testify about 

the conclusions drawn in Strauss's report. Petersack was 

responsible for overseeing and directly supervising five forensic 

laboratories, had extensive familiarity with the DNA testing 

process, and recognized Strauss's report as one he peer reviewed. 

In addition, he had initialed the bottom of each page within the 
14 A-4381-14T4

report, indicating he confirmed the data's accuracy. Because 

Petersack testified and subjected himself to cross-examination, 

defendant's confrontation rights were not violated simply because 

Strauss did not testify too.

Importantly, Petersack's testimony was not the only expert 

testimony the State presented. Forensic scientists Banaag and 

Basile – who conducted independent comparisons of defendant's DNA 

and the DNA recovered from the victim, and concluded the DNA 

recovered from the victim belonged to defendant – testified at 

trial and were subject to cross-examination. Considering this 

testimony, we cannot conclude the admission of Petersack's 

testimony had a clear capacity to produce an unjust result. R.

2:10-2.

Lastly, defendant argues that his sentence is excessive. He 

contends the trial court's finding of aggravating factor one is 

unsupported by the record. In a footnote, he asserts the sexual 

assault count should have been merged with aggravated sexual 

assault for purposes of sentencing, and the sentence the court 

imposed on count four, aggravated assault, appears to violate the 

No Early Release Act, N.J.S.A. 2C:43-7.2(d)(4); but he provides 

no factual basis or legal analysis for either assertion.

When imposing a sentence, a trial court should "identify the 

relevant aggravating and mitigating factors, determine which 
15 A-4381-14T4

factors are supported by a preponderance of the evidence, balance 

the relevant factors, and explain how it arrives at the appropriate 

sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citation 

omitted). We may not substitute our judgment for that of the 

trial court, but are "bound to affirm a sentence, even if [we] 

would have arrived at a different result, as long as the trial 

court properly identifie[d] and balance[d] aggravating and 

mitigating factors that are supported by competent credible 

evidence in the record." Ibid. (citation omitted). "Assuming 

the trial court follow[ed] the sentencing guidelines," we may 

reject the sentence imposed only if it "shocks the judicial 

conscience." Id. at 215-16 (citing State v. Roth, 95 N.J. 334, 

365 (1984)).

Here, the record amply supports the trial court's findings 

of aggravating factors. The trial court's balancing of these 

factors against the absence of mitigating factors is unassailable. 

As to aggravating factor one, "[i]n appropriate cases, a sentencing 

court may justify the application of aggravating factor one, 

without double-counting, by reference to the extraordinary 

brutality involved in an offense." State v. Fuentes, 217 N.J. 57, 

75 (2014) (citing O'Donnell, supra, 117 N.J. at 217). In the case 

now before us, defendant's gratuitous infliction of violence on 

the victim by striking her with his gun, considered in the context 
16 A-4381-14T4

of the horrific crime he committed, supports the court's finding 

of the first aggravating factor. 

We need not consider defendant's remaining assertions 

concerning his sentence because he raised them in a footnote and 

failed to support them with either facts or a legal analysis. Our 

rules require that an appellant identify and fully brief any issue 

raised on appeal. R. 2:6-2(a); see also State v. Hild, 148 N.J.

Super. 294, 296 (App. Div. 1977) (reiterating that attorneys are 

required to support arguments with appropriate record references 

and justify their positions with specific references to legal 

authority). "It is, of course, clear that an issue not briefed 

is deemed waived." Pressler & Verniero, Current N.J. Court Rules, 

comment 5 on R. 2:6-2 (2017).

For the foregoing reasons, we affirm the judgment of 

conviction in its entirety. 

Affirmed.