RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2715-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

W.P., 

 Defendant-Appellant. 

_______________________

Submitted March 19, 2024 – Decided April 5, 2024

Before Judges Paganelli and Whipple. 

On appeal from the Superior Court of New Jersey, 

Law Division, Ocean County, Indictment No. 19-06-

0847.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Laura B. Lasota, Assistant Deputy Public

Defender, of counsel and on the brief). 

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; William Kyle 

Meighan, Supervising Assistant Prosecutor, on the 

brief). 

NOT FOR PUBLICATION WITHOUT THE 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-2715-21

PER CURIAM 

Defendant appeals from a March 3, 2022 amended judgment of 

conviction after a trial for first-degree aggravated sexual assault, N.J.S.A. 

2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and seconddegree endangering, N.J.S.A. 2C:24-4(a)(1). We affirm defendant's 

conviction, but remand for a more detailed sentencing analysis. 

Defendant raises the following issues on appeal: 

I. BECAUSE THE POLICE UNDERMINED THE 

SIGNIFICANCE OF THE MIRANDA1 WARNINGS 

DURING DEFENDANT'S INTERROGATIONS, THE 

TRIAL COURT ERRED WHEN IT RULED THAT 

DEFENDANT'S STATEMENTS WERE 

ADMISSIBLE. 

A. Defendant Was in Custody for 

Purposes of Miranda During Both 

Interrogations. 

B. Defendant's Waiver and Statements 

Were Not Voluntarily Provided Because 

the Detectives Made Comments That 

Undermined His Miranda Warnings. 

II. THE IMPROPER ADMISSION OF J.M.'S 2

UNRELIABLE OUT-OF-COURT STATEMENTS 

REGARDING SEXUAL ABUSE DENIED 

1

 Miranda v. Arizona, 384 U.S. 436, 479 (1966). 

2

 We utilize the parties' initials pursuant to Rule 1:38-3(c)(9). 
3 A-2715-21

DEFENDANT HIS RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL. 

A. The Statements Were Inadmissible 

Under N.J.R.E. 803(c)(27)—The Tender 

Years Exception. 

B. J.M.'s Statements to E.M.R. Were 

Inadmissible as a Present Sense 

Impression Under N.J.R.E. 803(c)(1) or as 

an Excited Utterance Under N.J.R.E. 

803(c)(2). 

III. THE TRIAL COURT ERRED WHEN IT 

IMPOSED A CONSECUTIVE SENTENCE 

WITHOUT FIRST CONDUCTING THE REQUIRED 

ANALYSIS OUTLINED IN STATE V. 

YARBOUGH.3 

 We discern the following facts from the record. On February 5, 2018, 

defendant was at home, helping his eleven-year-old stepdaughter, J.M., with 

her homework at the dining room table while his wife and J.M.'s mother 

worked in the kitchen. When her mother finished in the kitchen, she left to go 

to her bedroom. After ten or fifteen minutes, she realized the voices from the 

dining room had gotten quiet, so she went to investigate. The mother 

discovered that the lights had been turned off, her daughter's chair was turned 

to face away from the table, and defendant was on his knees in front of her 

daughter with his head between her legs. J.M.'s mother verbally confronted 

3

 State v Yarbough,100 N.J. 627, 643-44 (1985). 
4 A-2715-21

defendant and removed her daughter to the bedroom, where she shut and 

locked the door. 

 Once inside the bedroom, the mother asked J.M. "how long has this been 

going on?" and other related questions, eventually gleaning defendant had 

touched J.M. inappropriately during the prior month. According to J.M., 

defendant had touched her genital area twice with his hand over her clothing or 

her underwear and, that evening, had moved her clothing aside to touch her 

bare genital area with his mouth. After a few hours, the mother called 9-1-1, 

and police responded to the house. 

 That night, J.M. and her mother were driven to the Jackson Police 

Department. Defendant drove himself there in his own car. The Jackson 

Police then transported all three—defendant separately from the others—to the 

Ocean County Prosecutor's Office, where they were interviewed. Detective 

Alexander Bromley, assisted by a Spanish-speaking member of the Lakewood 

Township Police Department, led the interviews. Detective Bromley first 

interviewed J.M.'s mother and then defendant. After the mother's interview, 

she and J.M. were transported to Community Medical Center for a forensic 

medical examination. J.M. was forensically interviewed on February 7, 2018, 

by Detective Sandra Rodriguez of the Ocean County Prosecutor's Office. 
5 A-2715-21

 After defendant's recorded interview on February 6, 2018, he was free to 

leave. The detectives advised defendant, however, he was not permitted to 

return home, and he needed to avoid contact with J.M. and her mother. 

Defendant returned to the Jackson Township Police Department on February 9, 

2018, for a scheduled polygraph examination conducted by the New Jersey 

State Police. After being informed he had failed the polygraph, defendant 

admitted that his mouth made skin-to-skin contact with J.M.'s genital area. 

 Defendant was arrested and later indicted. Defendant moved pretrial to 

suppress his statements based on questions of Miranda waiver; the trial court 

held a hearing and denied the motion. The State moved to admit J.M.'s 

recorded statement to a detective under the tender years exception to hearsay, 

N.J.R.E. 803(c)(27), which motion the trial court granted. 

 A jury trial ensued. On the first day of trial, the court granted the State's 

motion to admit J.M.'s statements to her mother, pursuant to N.J.R.E. 

803(c)(27). J.M. and her mother both testified, as did Detectives Bromley, 

Rodriguez, and Jillian Marin. Family nurse practitioner Melinda Moyer and 

New Jersey State Police forensics scientist Allison Lane also testified. 

Defendant did not testify or present any witnesses.
6 A-2715-21

 On October 1, 2021, the jury found defendant guilty of all charges. The 

trial court sentenced defendant to an aggregate forty years in custody. This 

appeal timely followed. 

We review a trial court's denial of a motion to suppress for an abuse of 

discretion. State v. Sims, 250 N.J. 189, 218 (2022). Trial judges are entrusted 

with "a wide latitude of judgment, and, therefore, the trial court's evidentiary 

ruling will not be upset unless there has been a clear error of judgment." Ibid. 

Similarly, "a trial court's factual findings in support of granting or denying a 

motion to suppress must be upheld when 'those findings are supported by 

sufficient credible evidence in the record.'" State v. S.S., 229 N.J. 360, 374 

(2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). We review legal 

questions de novo. State v. L.H., 239 N.J. 22, 47 (2019). 

"When faced with a trial court's admission of police-obtained statements, 

an appellate court should engage in a 'searching and critical' review of the 

record to ensure protection of a defendant's constitutional rights." Ibid. 

(quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). If we then determine 

they "are based on sufficient credible evidence in the record," we generally 

"defer to a trial court's factual findings concerning the voluntariness of a 

confession." Ibid. (citing State v. Elders, 192 N.J. 224, 244 (2007)). 
7 A-2715-21

"Considerable latitude is afforded a trial court in determining whether to 

admit evidence, and that determination will be reversed only if it constitutes an 

abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Specifically, a 

court's 

determination of reliability or trustworthiness 

sufficient to allow admission of evidence [under 

N.J.R.E. 803(c)(27)] should not be disturbed unless, 

after considering the record and giving deference 

owed to the court's credibility findings, it is apparent 

that the finding is "clearly a mistaken one and so 

plainly unwarranted that the interests of justice 

demand intervention and correction." 

[State v. P.S., 202 N.J. 232, 250-51 (2010) (quoting 

State v. Locurto, 157 N.J. 463, 471 (1999)).] 

 

We review a sentence imposed by a trial court narrowly, utilizing an 

abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). 

Defendant argues the statements he made to law enforcement officials on 

February 6, and February 9, 2018, were procured in violation of his right 

against self-incrimination. "The right against self-incrimination is guaranteed 

by the Fifth Amendment to the United States Constitution and this [S]tate's 

common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence 

rule, N.J.R.E. 503." S.S., 229 N.J. at 381-82 (quoting State v. Nyhammer, 197 

N.J. 383, 399 (2009)). The State bears the burden of proving "beyond a 
8 A-2715-21

reasonable doubt that the suspect's waiver was knowing, intelligent, and 

voluntary in light of all the circumstances." State v. A.M., 237 N.J. 384, 397 

(2019). We apply a "totality of the circumstances" analysis in considering 

whether a defendant's statement was "the product of an essentially free and 

unconstrained choice" or whether "the defendant's will [was] overborne and 

[their] capacity for self-determination critically impaired." State v. Dorff, 468 

N.J. Super. 633, 644 (App. Div. 2021) (first alteration in original) (quoting 

State v. P.Z., 152 N.J. 86, 113 (1997)).

We conclude defendant's statements were legally obtained and 

admissible, as defendant was subject to custodial interrogation, and he 

knowingly, intelligently, and voluntarily waived his Miranda rights before 

speaking with officials. 

Defendant asserts, "despite not being under arrest or handcuffed," he 

was in custody and, therefore, subject to custodial interrogation for the 

purposes of Miranda when he made the disputed statements. This point is not 

at issue, however, as the trial court implicitly agreed defendant was in custody 

for purposes of Miranda during his two interviews. 

 Defendant argues several comments made by detectives during each 

interrogation undermined the importance of defendant's Miranda rights such 
9 A-2715-21

that his Miranda waivers and subsequent statements were rendered 

involuntary. Defendant contends that when a detective stated during his 

February 6 interrogation, "what we talk about in here stays in here," the 

detective was suggesting his statements would remain confidential. The trial 

court was correct in finding the officers were, in fact, "inform[ing] defendant 

that anything discussed would not be disclosed to the victim's mother." During 

that same interview, a detective asserted that "[t]hese things aren't the end of 

the world. It's not the crime of the century[.]" Defendant argues such offense 

minimization undermines the voluntariness of his statements. Although the 

L.H. Court relied on the minimization of an offense to support their finding of 

involuntariness, in that case, "the detectives repeatedly minimized the nature 

and gravity of . . . defendant's alleged offenses—intimating that his conduct 

was amenable to counseling and rehabilitation." 239 N.J. at 48. Here, the 

detectives did not repeatedly minimize defendant's offense and did not pair it 

with an implication that it may receive minimal punishment. 

The trial court found "Miranda was complied with in this case and . . . 

defendant was advised of and waived his Constitutional rights . . . prior to 

giving any statement." Having undertaken a "searching and critical" review of 

the record, we discern no abuse of discretion. 
10 A-2715-21

 Defendant next challenges the admission of J.M.'s out-of-court 

statements, claiming they are unreliable hearsay. Hearsay is "a statement that: 

(1) the declarant does not make while testifying at the current trial or hearing; 

and (2) a party offers in evidence to prove the truth of the matter asserted in 

the statement." N.J.R.E. 801. "Hearsay is not admissible except as provided 

by these rules or by other law." N.J.R.E. 802. Certain statutory exceptions to 

the hearsay rule allow the admission of statements made under conditions that 

either suggest their reliability or permit for their reliability to be tested. See 

N.J.R.E. 803. The exceptions at issue in this case include the tender years 

exception, N.J.R.E. 803(c)(27); the exception for a present sense impression, 

N.J.R.E. 803(c)(1); and the excited utterance exception, N.J.R.E. 803(c)(2). 

The tender years exception allows admission of a statement by a child under 

twelve relating to sexual misconduct when the proponent notifies the adverse 

party of their intent to use the statement, the court finds "there is a probability 

that the statement is trustworthy," and either "the child testifies at the 

proceeding" or "the child is unavailable . . . and admissible evidence 

corroborat[es] the act of sexual abuse." N.J.R.E. 803(c)(27). 

Defendant argues J.M.'s out-of-court statements were not sufficiently 

trustworthy to be admissible under the tender years exception. We disagree. 
11 A-2715-21

The trial court found J.M.'s statement to her mother was spontaneous and 

consistent. Additionally, nothing in the record indicated J.M.'s mental state 

led her to mischaracterize defendant's conduct; the terminology J.M. used was 

expected of a child of similar age; and there was no evidence J.M. had any 

motive to fabricate her statement. The trial court also determined J.M. was 

competent to testify at trial, pursuant to N.J.R.E. 601, she understood the 

difference between truth and a lie, she was "well[-]spoken and sure of herself," 

and "[t]here was no indication to the [c]ourt that J.M. was being untruthful." 

Regarding J.M.'s statement to Detective Rodriguez, the trial court found 

it "appeared to be made spontaneously and without prompting or suggestion 

from [Detective] Rodriguez, who asked open-ended questions"; "the account 

was consistently repeated"; "J.M. appeared calm throughout the interview"; 

and "J.M. had nothing to gain in fabricating these incidents and no evidence of 

animus towards defendant has ever been argued." The trial court explicitly 

rejected defendant's assertions that "J.M.'s statement is not trustworthy based 

on time, content, and circumstances" or that "J.M.'s mother told her what to 

say in the time between the incident and the interview with [Detective] 

Rodriguez." The trial court found, based on the totality of the circumstances, 

J.M.'s statement was sufficiently trustworthy to be admitted under the tender 
12 A-2715-21

years hearsay exception, N.J.R.E. 803(c)(27). 

The trial court must "'consider the totality of the circumstances' in 

determining whether the statement is sufficiently trustworthy to warrant its 

admission." State in Int. of A.R., 234 N.J. 82, 103 (2018) (citing P.S., 202 

N.J. at 249). Relying on the United States Supreme Court's decision in Idaho 

v. Wright, 497 U.S. 805, 821-22 (1990), our Supreme Court has identified "a 

non-exclusive list of factors relevant to evaluating the reliability of out-ofcourt statements made by child victims of sexual abuse, including spontaneity, 

consistent repetition, mental state of the declarant, use of terminology 

unexpected of a child of similar age, and lack of motive to fabricate." A.R., 

234 N.J. at 103–04 (quoting P.S., 202 N.J. at 249). "In reviewing a trial 

judge's finding that a child's statement meets the trustworthiness requirement 

of N.J.R.E. 803(c)(27), appellate courts affirm unless the judge's determination 

amounted to an abuse of discretion." P.S., 202 N.J. at 250. 

Based on our review, the trial court appropriately analyzed J.M.'s 

statements for trustworthiness, and sufficient credible evidence exists in the 

record to support the decision to admit J.M.'s statements under the tender years 

hearsay exception. Therefore, we need not reach defendant's hearsay 

arguments under N.J.R.E. 803(c)(1) or (2). 
13 A-2715-21

 Finally, defendant seeks review of his sentence on the basis the 

sentencing court violated "guidelines for sentencing established by . . . the 

courts" in Yarbough and State v. Torres, 246 N.J. 246 (2021). In Yarbough, 

our Supreme Court outlined factors a sentencing court must consider in 

deciding whether sentences will be imposed concurrently or consecutively. 

100 N.J. at 643-44. In Torres, the Court emphasized a sentencing court must 

also provide an "explanation of its evaluation of the fairness of the overall 

sentence." 246 N.J. at 270. 

Here, we agree the trial court did not provide an "explicit statement, 

explaining the overall fairness of [the] sentence imposed." See id. at 268. 

Further, in the brief statement provided, the trial court relied on the care-taking 

relationship defendant had with J.M. when the abuse was perpetrated. The 

trial court found defendant "took care of [J.M.] on a daily basis," he was 

"helping her with her homework[,] which was something [he] routinely did," 

and he had "ingrained [him]self in her life as someone she could depend on 

and would be there to guide her." This closely mirrors the third element of the 

endangerment charge as related to the jury—"defendant had a legal duty for 

the care of the child[] or had assumed responsibility for the care of the child." 

Thus, the trial court improperly justified imposing consecutive sentences using 
14 A-2715-21

"factors relied on to sentence a defendant to the maximum term for [an] 

offense." State v. Miller, 108 N.J. 112,122 (1987). 

Due to the insufficient statement on the overall fairness of imposing 

consecutive sentences and the apparent double-counting of aggravating 

elements already accounted for in the endangerment charge, we are 

constrained to remand to the trial court for further analysis of the Yarbough 

factors and an explicit statement of overall fairness pursuant to Torres. 

Affirmed in part, remanded in part for further proceedings consistent 

with this opinion. We do not retain jurisdiction.