RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3155-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.I.L.,

Defendant-Appellant.

_________________________

Submitted October 31, 2018 – Decided

Before Judges Reisner and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 14-09-0780.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Jay L. Wilensky, Assistant Deputy Public 

Defender, of counsel and on the brief).

Respondent has not filed a 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NOT FOR PUBLICATION WITHOUT THE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.

December 3, 2018
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Defendant J. I. L.

1

appeals from his conviction 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 second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a).

2 He also appeals from the sentence, imposed after merger, of 

nineteen years in prison subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, for first-degree aggravated sexual assault, plus a consecutive nineyear term for endangering the child's welfare. 

In his brief, defendant presents the following points of argument:

POINT I. THE TRIAL COURT ERRED

PREJUDICIALLY IN PERMITTING "FRESHCOMPLAINT" TESTIMONY WHICH FAR 

EXCEEDED THE PERMISSIBLE BOUNDS OF 

SUCH TESTIMONY. U.S. CONST., AMEND. XIV.; 

N.J. CONST. (1947), ART I, PAR. 10. (Not Raised 

Below)

POINT II. THE TRIAL COURT ERRONEOUSLY 

PERMITTED HIGHLY PREJUDICIAL HEARSAY 

IDENTIFICATION TESTIMONY BY A PHYSICIAN, 

TO DEFENDANT'S PREJUDICE. 

 

1 We use defendant's initials to avoid disclosing the victim's identity.

2 The alleged sexual assaults occurred in two different cities, Plainfield and 

Passaic. The jury acquitted defendant of aggravated sexual assault relating to 

acts alleged to have occurred in Passaic, but convicted him of sexual assault 

with respect to those acts. The jury convicted defendant of aggravated sexual 

assault for acts committed in Plainfield. 
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POINT III. THE DEFENDANT WAS PREJUDICED 

BY THE TRIAL COURT'S UNDUE RESTRICTION 

OF THE DEFENDANT'S SUMMATION. 

POINT IV. THE TRIAL COURT IMPOSED AN 

EXCESSIVE SENTENCE, NECESSITATING 

REDUCTION.

A. The Imposition of Consecutive Sentences 

Constituted an Abuse of Discretion. 

B. The Quantum of the Sentence Was Excessive. 

After reviewing the entire record, we reject those arguments and affirm 

the conviction and sentence. 

I

In light of the legal issues raised, a brief summary of the most pertinent

trial evidence will suffice. Defendant was accused of repeatedly molesting his 

stepdaughter, I.C., from the time she was six years old until she was eight years 

old. On May 31, 2014, when I.C. was eight and living in Plainfield, she first

reported defendant's conduct to a close friend, G.N. According to G.N., I.C. 

told her that defendant had been "humping" her. G.N. testified that I.C. was 

very reluctant to tell anyone else about these incidents, but G.N. convinced the 

child to tell her mother. I.C.'s mother immediately confronted defendant and 

kicked him out of her house. However, she waited four days before reporting 

the crimes to the police. 
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On June 5, 2014, a trained detective from the special victims unit (SVU)

conducted a videotaped interviewed with I.C. The detective also asked I.C.'s 

mother to produce some of the child's unwashed clothing for scientific testing. 

DNA analysis established that defendant's semen was present on two pairs of 

the child's underwear. Defendant's DNA material was found on the inside 

portion of the crotch in each garment. 

The State presented brief testimony from G.N., and testimony from the 

SVU detective. The jury then watched the videotape of I.C.'s interview with the 

detective. In the interview, she told the detective that defendant "humped" her 

at her grandmother's house in Passaic and at her mother's house in Plainfield. It 

was clear from her statement that on some of those occasions, he either took her 

pajama pants off or pulled them down. She told the detective that defendant 

rubbed his penis between the cheeks of her buttocks on numerous occasions, and 

on at least one occasion, in Plainfield, he inserted his penis into her vagina "a 

little bit." 

I.C., who was eleven by the time of the trial, testified about the sexual 

assaults she endured while living at her grandmother's house in Passaic, and 

while living with defendant and her mother in Plainfield. Her testimony was 

substantially consistent with what she told the detective. 
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The defense presented brief testimony from two witnesses, defendant's exwife and his daughter with the ex-wife. The two witnesses testified that on the 

occasions that they visited with defendant and I.C., the two of them appeared to 

have an affectionate relationship and she did not appear to be afraid of him. 

II

For the first time on appeal, defendant claims it was plain error for the 

court to let G.N. testify that I.C. told her she was afraid to tell anyone about the 

assault for fear that defendant "would do something to her." We cannot agree. 

There was no objection to that testimony and no request for a curative 

instruction. Instead, defense counsel chose to cross-examine the witness about 

the statement in some detail. 

To give the issue further context, on the first day of the trial, the defense 

and the State stipulated that the jury could consider G.N.'s testimony as 

"substantive evidence" in addition to considering it for fresh complaint 

purposes. This was consistent with the defense strategy to demonstrate that I.C. 

made statements to G.N. that were inconsistent with her later descriptions of 

defendant's conduct. Notably, I.C. told G.N. that defendant did not take her 

clothes off when he molested her, but she later told the SVU detective and the 

jury that defendant sometimes did take her clothes off. G.N.'s statement about 
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I.C.'s asserted fear of defendant was another example of contradictory 

testimony. I.C. testified that she was afraid her mother would punish her for not 

reporting the crime sooner, but she did not mention fear of defendant. That 

played into the defense strategy of emphasizing contradictions in the State's 

evidence. 

Defendant's reliance on State v. R.K., 220 N.J. 444 (2015), is misplaced. 

In R.K., the State had no physical evidence to support its case, defendant

testified and denied the allegations, and the State was permitted to bolster its 

case with several fresh complaint witnesses. Id. at 448-49. One of those fresh 

complaint witness provided graphic details about the alleged sexual assault, as 

well as an allegation that defendant had threatened the victim. Id. at 459-60. In 

that context, the Court found reversible error. Id. at 460. This case is nothing 

like R.K. Given the overwhelming evidence of defendant's guilt, even if G.N.'s 

one-sentence testimony about I.C.'s fear of defendant should have been 

excluded, we would find no plain error. See R. 2:10-2; R.K., 220 N.J. at 456-

57. 

Defendant's arguments on this point are without sufficient merit to warrant 

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

We find defendant's second point equally unpersuasive. The State's first 

witness was Dr. Frances Pelliccia, a pediatric specialist who examined I.C. on 

June 11, 2014, for the purpose of recommending any physical or psychological 

treatment the child might need. After being asked whether she elicited 

information from the child that was necessary for her diagnosis, Dr. Pelliccia

testified that the child told her the person who molested her was a male, and that 

he was an adult. The judge overruled a defense objection on the grounds that 

such general information was admissible. The doctor gave no further testimony 

about the identity of the perpetrator. 

Defendant contends it was prejudicial error to permit the testimony that 

the child told her the perpetrator was an adult male. We find no abuse of 

discretion in the judge's decision to admit that brief and limited testimony about 

the alleged perpetrator. See State v. Nantambu, 221 N.J. 390, 402 (2015). That 

testimony was elicited in the course of having the doctor describe the 

information she obtained from the child to help make her diagnosis and 

recommend physical and psychological treatment. Such general information 

could be reasonably necessary to the diagnosis and treatment of a child sexual 

assault victim. See N.J.R.E 803(c)(4). 
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However, even if the ruling were error, on this record, it was harmless. 

Viewed in context, the testimony did not imply that the child had accused 

defendant. There was no evidence of third-party guilt in this case, and in 

particular, there was no evidence that a juvenile or a woman committed the 

assaults. The one-line testimony about an "adult male" had no clear capacity to 

produce an unjust result. See R. 2:10-2; State v. McBride, 213 N.J. Super. 255, 

273-74 (App. Div. 1986). 

IV

Defendant next argues that the judge made unduly critical remarks to the 

jury in sustaining an objection to a portion of defense counsel's summation. 

We cannot agree.

Defense counsel began his summation with the following remarks:

On October 13, 2016 Samsung Corporation 

recalled 2.5 million phones worldwide because 45 of 

those phones overheated and blew up. The reason 

Samsung Corporation did that is because they had a 

reasonable doubt about the safety of 2.5 million phones 

because 45 of those phones –

At that point, the prosecutor objected, and the judge sustained the 

objection. The judge instructed the jury that there was no evidence about 

Samsung Corporation in the case, and they should not speculate about the 

company's motives for recalling its cell phones or speculate that the company's 
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action was due to its view of "reasonable doubt." The judge told counsel to 

"leave instructions as to the law to the court" and asked him to continue his 

summation. 

We find no abuse of the judge's discretion in cutting off defense counsel's 

inappropriate discussion of information outside the trial record. Further, we 

cannot conclude that the judge's remarks unfairly influenced the jury or had the 

capacity to produce a miscarriage of justice. 

The evidence of defendant's guilt was overwhelming, and we find nothing 

to suggest that the judge's comments prejudiced the jury against the defense. In 

fact, the jury acquitted defendant of aggravated sexual assault for the acts 

committed in Passaic, and instead convicted him of sexual assault. They only 

convicted him of aggravated sexual assault for his conduct in Plainfield, where 

the evidence demonstrated the presence of his semen in the child's underwear. 

Defendant's arguments on this point are without sufficient merit to warrant 

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

V

Finally, we find no errors in the imposition of a consecutive sentence for 

endangering the child's welfare, or in the length of the aggregate sentence. The 

judge cogently explained the reasons for imposing a consecutive sentence
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pursuant to State v. Yarbough, 100 N.J. 627 (1985). We find no basis to disturb 

his decision. See State v. Miller, 205 N.J. 109, 129 (2011); State v. T.E., 342 

N.J. Super. 14, 36-37 (App. Div. 2001). 

The judge found that defendant's lack of remorse precluded a finding of 

mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (defendant was unlikely to 

reoffend). See State v. O'Donnell, 117 N.J. 210, 216 (1989). The court also 

gave some weight to defendant's lack of remorse in finding aggravating factor 

nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). However, the court gave 

particular weight to aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity 

and seriousness of the harm inflicted on the victim, including her extreme youth. 

See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). The judge stated

that the child was "severely impacted by the actions of the defendant," a 

conclusion supported by what the judge observed when he saw the victim testify. 

The judge also considered a victim impact letter from the child's mother. As the 

judge stated: "To say that defendant's repeated actions will have left this poor, 

young, unsophisticated girl scarred for her life would be an understatement." 

Defendant exploited his parental authority and repeatedly molested his 

stepdaughter over a two-year period, beginning when she was six years old until 

she was eight years old. We cannot say that a twenty-eight year term, nineteen
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of which is subject to NERA, is a conscience-shocking sentence for those 

crimes. See State v. Roth, 95 N.J. 334, 363-65 (1984). Defendant's sentencing 

arguments do not warrant further discussion. R. 2:11-3(e)(2). 

Affirmed.