State of New Jersey vs. R.P. – Fourth-degree Criminal Sexual Contact

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5394-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, v. R.P., Defendant-Appellant.

_________________________________________________

Submitted September 10, 2013 – Decided

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-03-00507.

Koulikourdis and Associates, attorneys for appellant (Peter J. Koulikourdis, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

January 2, 2014

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A jury convicted defendant R.P.1 of four counts of second-degree sexual assault by sexual penetration of a blood relative between the ages of sixteen and eighteen, N.J.S.A. 2C:14-2(c)(3)(a);2 one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The trial judge sentenced defendant to eight years imprisonment on count one (cunnilingus), and eight years on count three (digital vaginal penetration) to be served consecutively to count one. Sentences on the remaining counts were to be served concurrently to count one. The aggregate sentence was sixteen years imprisonment.

Defendant R.P appeals the May 27, 2011 judgment of conviction and sentence and raises the following contentions for our consideration.

POINT I: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.

POINT II: THE COURT FAILED TO COMPLY WITH N.J.R.E. 104 AND 403 IN THAT DEFENDANT’S

1 Due to the nature of the charges, we use initials for defendant and pseudonyms for his family members to protect the family’s privacy.

2 Specifically, regarding the four counts of sexual assault, count one alleged cunnilingus on the victim, count two alleged fellatio, count three alleged digital penetration of the victim’s vagina, and count four alleged digital penetration of the anus.

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CONFESSION WAS ADMITTED INTO EVIDENCE WITHOUT THE REQUIRED PRELIMINARY HEARING.

POINT III: THE TRIAL TRANSCRIPT WAS ERRONEOUSLY ADMITTED INTO EVIDENCE WITHOUT PROPER AUTHENTICATION PURSUANT TO N.J.R.E. 901.

POINT IV: DR. ELTON’S HEARSAY TESTIMONY, REGARDING [JANE’S] PRIOR STATEMENTS, WAS ERRONEOUSLY ADMITTED INTO EVIDENCE UNDER N.J.R.E. 803(c)(4).

POINT V: THE JUDGE ABUSED HIS DISCRETION AND OVERSTEPPED HIS BOUNDARIES IN HIS SUGGESTION AND ISSUANCE OF A MATERIAL WITNESS WARRANT.

POINT VI: THE RECORD LACKS A BASIS FOR IMPOSING CONSECUTIVE SENTENCES, AND THEREFORE THE COURT ERRED IN THEIR IMPOSITION OF CONSECUTIVE SENTENCING FOR THE FIRST AND THIRD COUNTS.

After considering defendant’s arguments in light of the record and the applicable legal principles, we affirm in part and remand for further proceedings in accordance with this opinion.

I.

The trial record reveals that in 2009, defendant lived with his wife, Vera, his son Bob, and his seventeen-year-old daughter Jane. Bob and Jane were defendant’s biological children and Vera’s step children.

Acting on a suspicion that defendant was unfaithful to her, Vera put a recording device in their bedroom. On October 11,

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2009, the device recorded a very explicit sexual interaction between a man and a woman. Two days later, Vera listened to the recording and recognized the voices on it as those of defendant and Jane.

On October 14, 2009, Vera called the Division of Youth and Family Services (the Division)3 to report the recorded incident. The following day, Vera played the recording and gave a statement accusing defendant of having a sexual relationship with his daughter to Detective Ismael Alsina of the Bergen County Prosecutor’s Office and Sergeant Jeff Telep of the local police department.

Around the same time, another detective interviewed Jane, who gave a statement which acknowledged that her father performed oral sex on her several times, and on occasion, rubbed his penis against her genitals. The acts allegedly took place from March 2009 to October 2009, usually in her parents’ bedroom. In return for allowing these sexual acts, Jane reported she received additional freedoms, such as being able to have a boyfriend, to have the car when she wanted, and to stay out late.

3 In 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

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Alsina went to defendant’s residence on October 15, 2009, informed defendant that he was the subject of an investigation, and asked him to come with them to the Prosecutor’s Office. Defendant agreed. When they arrived at the office, Alsina read defendant his Miranda4 rights, which he waived. The formal interview, which was video- and audio-recorded, lasted eight minutes. Defendant, after initially denying the accusations, admitted that he had a “mutual agreement” with his daughter that entailed granting her certain privileges in return for Jane “being close” with him. He admitted that for the past six months they would lie on a bed in their underwear watching television, and he would hug and kiss her body. At times, defendant reported, he put his mouth on her vagina. However, he asserted that Jane never performed oral sex on him, they never had sexual intercourse, and he never forced Jane to do anything. That day, the police arrested defendant on sexual assault and child endangerment charges.

The trial was held on November 15 through 18, 2010. At the trial, Vera testified that when she had reported her suspicion to the police and the Division that her husband was having sexual relations with Jane, she had been under a great deal of

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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stress. At some later time, according to Vera, she realized that she had been mistaken, and that the voices on the recording were those of her cousins, who had been visiting that weekend.

Jane testified that the statement she made to the police was true except that she did not feel like a victim and was never forced to perform the sexual acts. She described the acts of genital contact and cunnilingus by her father. Regarding her examination by Dr. Leslie Elton on November 5, 2009, Jane reported that she had given the doctor a medical history and provided information for the purpose of the doctor examining and treating her.

During Alsina’s direct examination, the State introduced the recordings of the video and audio portions of defendant’s interview with the police. Before playing the recordings for the jury, the State distributed to the jury a document that Alsina identified as the transcript of the audio portion of defendant’s interview so they could follow along with the audio recording.

When technical difficulties briefly prevented the recording from being played, defense counsel suggested that “perhaps the jurors should wait to read the transcript until the tape is playing.” Accordingly, the judge cautioned the jury:

[M]embers of the jury, wait for the screen to be activated, and then you could listen

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to the tape. The transcript is provided as a . . . form of assistance to be able to guide you through what you’re listening to. But primarily what you should be watching would be the screen, listening and watching.

After the recordings were played, the State moved to admit the recordings and the transcript into evidence. Defense counsel replied, “[n]o objection,” and the judge admitted the items into evidence.

The next day, defendant moved for a mistrial, claiming that defendant’s statement to the police should not have been admitted as substantive evidence in the State’s case-in-chief because defendant might not testify, and that the transcript of the audio statement should not have been admitted as it was not properly authenticated. The judge denied the motion, noting that defense counsel had not objected to their admissions at the appropriate time.

Dr. Elton, a pediatrician at Audrey Hepburn Children’s House at Hackensack University Medical Center, testified concerning her medical examination and treatment of Jane on November 5, 2009. The purpose of taking Jane’s medical history, according to the doctor, was to guide her medical decision-making. She explained, “I begin my medical history by just telling the patient that they’re there for me to assess their

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physical status to make sure that her body is healthy and there are no medical issues.”

When the State asked Dr. Elton to tell the jury what Jane told her, defense counsel objected on the grounds of hearsay. The State argued that Jane’s statements were subject to a hearsay exception for statements offered for medical diagnosis or treatment, N.J.R.E. 803(c)(4). The judge overruled defendant’s objection. Dr. Elton further testified:

[Jane] told me that beginning the prior spring she had been — her father had been engaging in episodes of oral sex with her. He had performed oral sex on her. She was naked and he would be wearing his boxers. She said that he would also rub himself against her and that she would feel his boxers become wet. She said that sometimes he would penetrate her vagina digitally, and that he also penetrated her anus digitally. She said that he had never put his penis in her vagina or in her anus, but . . . I asked her if . . . she had ever performed oral sex on him and she said, willingly, no, but he once put his penis in my mouth and he ejaculated in my mouth.

. . . .

The questions I asked were asked to guide my medical decision-making. And in light of the fact that she had told me that he had put his penis in her mouth, I performed oral cultures looking for gonorrhea in her mouth, which is something I would only do because she had told me that. And I also performed rectal cultures looking for gonorrhea and chlamydia. Vaginal cultures are performed by examining the urine.

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The tests for genital abnormalities and sexually transmitted diseases ultimately came back negative. Dr. Elton explained that the negative test results were not unusual, since positive results only occur in approximately four percent of the cases.

Defendant testified that Jane’s accusations were false and that she had made them up because he had disciplined her. He contended that the voices on the recording made in his bedroom were those of his wife’s cousins, who had visited his residence on the weekend the recording was made. Defendant explained that he gave the police a false statement admitting to sexual contact because he did not understand what he was saying, he had been kept at the station for hours, the police officer had yelled at him, and he was trying to protect Jane. Defendant’s son also testified that he had never observed any behavior in the home suggesting that his father and sister had a sexual relationship.

At the conclusion of trial, the jury found defendant guilty on all charges.

II.

Initially, in claiming ineffective assistance of counsel by his trial attorney, defendant makes three arguments. First, defendant asserts that the attorney engaged in improper communications with Jane, as well as with a juror. Second,

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defendant contends that counsel’s statements on several occasions to the judge and the jury that defendant would testify, chilled his Fifth Amendment right against self-incrimination. Third, defendant submits that counsel’s failure to object to the transcript of defendant’s audio statement allowed an unauthenticated document into evidence. These deficiencies, defendant avers, fell below the standard of effective assistance of counsel and resulted in him receiving an unfair trial.

To prove ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that counsel’s error so prejudiced defendant that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal “because such claims involve allegations and evidence that lie outside the trial record.” State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate procedure for their resolution commonly is not direct appeal, but rather a post-conviction relief (PCR) application attended by a hearing if a prima facie showing of remediable ineffectiveness is shown. Id. at 460, 463. Where defendant’s claim of ineffectiveness relates solely to his

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allegation of a substantive legal error contained completely within the trial record, however, we can consider it. See State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008).

Defendant’s first two claims are better suited for a PCR proceeding, rather than this appeal, as they concern issues of out-of-court statements and possible trial strategy decisions. The record, of course, cannot reveal precisely what was said during off-the-record interactions, and making an adequate judgment “would require information outside of the record [to be] before the Court.” State v. McDonald, 211 N.J. 4, 30 (2012). Our determination not to consider them on this appeal is without prejudice to defendant raising them in an appropriate and timely PCR petition.

In contrast, defendant’s third claim is that his counsel was constitutionally deficient because he failed to object to the introduction of the transcript of the audio portion of his confession. This claim is related to a substantive issue in this appeal, see Part IV, infra, and is wholly contained within the record. Thus, we will consider this ineffective-assistance-of-counsel claim as it does not rely on information outside the record. However, as we conclude in Part IV, infra, that defendant did not demonstrate any harmful error from the introduction of the transcript, we find that this particular

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ineffective-assistance-of-counsel claim is accordingly without merit. State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) (“[A]s there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied effective assistance of counsel.”), certif. denied, 197 N.J. 477 (2009).

III.

Next, defendant argues that the trial judge committed reversible error by neither conducting an N.J.R.E. 104 hearing to determine the voluntariness of his statement, nor applying the N.J.R.E. 403 balancing test for whether its probative value was substantially outweighed by any prejudice. The State acknowledges that the judge did not hold an N.J.R.E. 104 hearing to consider either voluntariness or prejudice of the statement, but maintains that reversal is unnecessary because any resulting error was harmless in light of the overwhelming evidence in the record against defendant. Alternatively, the State argues, if a remand is warranted, it should be for an N.J.R.E. 104 hearing and not a new trial.

A statement of a criminal defendant is not generally excluded as hearsay but “[i]n a criminal proceeding, the admissibility of a defendant’s statement which is offered against the defendant is subject to Rule 104(c).” N.J.R.E.

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803(b). In this case defendant claims that his confession was false because it was made in a stressful and inherently coercive situation. The “trustworthiness of [a] confession[] [is] a prerequisite to [its] use.” State v. Cook, 179 N.J. 533, 560 (2004). If a confession is obtained through compulsion or coercion, it is considered unreliable, ibid. (citing State v. Jordan, 147 N.J. 409, 425-28 (1997)), and may not be admitted against a defendant because to do so “‘would offend the community’s sense of decency and fairness.'” Ibid. (quoting State v. Kelly, 61 N.J. 283, 292 (1972)).

To be admissible into evidence, the State must show beyond a reasonable doubt that a confession was made voluntarily. State v. Gore, 205 N.J. 363, 382 (2011); Cook, supra, 179 N.J. at 562. “Voluntariness of a confession or other inculpatory statement by an accused must always be established by the State at an N.J.R.E. 104(c) hearing before it can be introduced into evidence at trial.” Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 104 (2013) (citing, among other cases, State v. Miller, 76 N.J. 392, 404-05 (1978)). Moreover, “[t]o leave determination of the issue solely to the jury [is] a cession of the trial court’s gatekeeping responsibility.” State v. Marczak, 344 N.J. Super. 388, 397 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

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Although defendant did not request a Rule 104 hearing prior to the admission of his confession, we view the failure to conduct a hearing in this case to be plain error. First, we do not agree with the State that the evidence against defendant was “overwhelming,” and we cannot conclude that the failure to conduct a hearing was of no moment. See State v. McCloskey, 90 N.J. 18, 30 (1982) (noting that “‘errors which impact substantially and directly on fundamental procedural safeguards . . . are not amenable to harmless error rehabilitation'” (quoting State v. Czachor, 82 N.J. 392, 404 (1980))). Second, introduction into evidence of defendant’s inculpatory statement, if it was indeed involuntary and thus inadmissible, was “clearly capable of producing an unjust result[.]” R. 2:10-2. “The possibility of an unjust result must be ‘sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'” State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Accordingly, we hold that defendant was entitled to a Rule 104 hearing requiring the State to prove the voluntariness of the confession before it was admitted into evidence. We are satisfied that the remedy here is to remand for a hearing to determine voluntariness. As the Court concluded in Kelly:

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[T]he interests of justice will best be served by now having the trial judge conduct the hearing on voluntariness. If at the hearing the State fails to establish voluntariness beyond reasonable doubt, the defendant will be entitled to a new trial at which the statements will be excluded. If however, the State does establish beyond reasonable doubt that the statements were voluntary, and the trial judge so determines, then the defendant’s conviction may stand.

[Kelly, supra, 61 N.J. at 294)(internal citations omitted).]

We do not reach a similar conclusion concerning defendant’s claim that the judge committed plain error in failing to conduct a hearing sua sponte on whether defendant’s statement was more prejudicial than probative and thus, under N.J.R.E. 403, should have been excluded. We find defendant’s contention to be without merit in this instance. R. 2:11-3(e)(2).

Defendant did not make a Rule 403 objection to the statement and on appeal does not argue or present facts showing that the statement was more prejudicial than probative. Based upon our review of the record, we find the statement, although inculpatory, not to be highly prejudicial or particularly inflammatory.5 State v. Chen, 208 N.J. 307, 318-19 (2011). Applying a balancing test under Rule 403, the record

5 Our conclusion under Rule 403 should not be misread to signify that we deem the statement’s admission to be harmless error if, on remand, the trial court finds it was involuntary.

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demonstrates that the probative value of defendant’s statement outweighed its prejudicial effect on defendant. See State v. Covell, 157 N.J. 554, 574 (1999).

IV.

Defendant next argues that the transcript of his audio statement to the police was not properly authenticated before being admitted into evidence. N.J.R.E. 901 states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” Here, Alsina testified that the document was the transcript of the audio recording of a portion of defendant’s statement to the police. At trial, the prosecutor played the audio recording and the judge, jury, and attorneys followed along with the aid of the transcript. Defendant does not claim that the transcript did not accurately reflect the audio recording, or added to, or omitted anything he told police.

Defendant’s argument here is unpersuasive. The document was provided not as separate evidence of defendant’s statements, but merely to assist the jury in following the audio recording. Defendant did not challenge the minimal information authenticating the document, did not question the detective concerning its authentication, and did not object to its

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introduction into evidence. In short, defendant did not claim during the trial, and does not now assert, that the document is not “what its proponent claims.” N.J.R.E. 901.

Moreover, we reject defendant’s claim that allowing the transcript in evidence amounted to the admission of additional inculpatory statements in violation of his Fifth Amendment right against self-incrimination. As the judge instructed the jury, the sole purpose of the transcript was to assist the jurors in understanding the audio recording. Defendant does not claim that the transcript contained any statement that was not in the audio recording. We have long held that transcripts of tape recordings obtained by the State are admissible in criminal trials as an aid to understanding a recording. State v. De Bellis, 174 N.J. Super. 195, 199 (App. Div. 1980) (citing State v. Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div.), certif. denied, 63 N.J. 252, cert. denied sub nom. Zicarelli v. New Jersey, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)). This is especially true where, as here, the defendant does not deny the accuracy of the transcription. Ibid.

Even if the authentication was insufficient, defendant’s failure to object means we consider the matter as plain error and inquire whether it was capable of producing an unjust result. R. 2:10-2; see also Gore, supra, 205 N.J. at 382-83

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(noting that plain error is the appropriate standard for reviewing a claim of erroneous admission of evidence when no objection is made at trial). We perceive nothing in the record suggesting that the introduction of the transcript, which was merely an aid to the jury in listening to the audio recording, was capable of producing an unjust result.

V.

Defendant further contends that the judge erred in admitting Dr. Elton’s testimony about Jane’s medical history because the doctor only treated her in response to the Division’s referral. As Jane did not seek out treatment herself, defendant argues, her medical history was not requested for the purpose of treatment, but for the State to obtain information about the acts involved. The State, on the other hand, asserts that, as Jane went to see the doctor for evaluation and treatment, knowledge of the types of sexual contact she experienced was necessary for an effective treatment plan for her. Since Jane’s medical history was relevant to medical diagnosis and treatment, the State contends that Dr. Elton’s testimony was properly admitted into evidence.

N.J.R.E. 803(c)(4) provides a hearsay exception for

[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the

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inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.

This hearsay exception is premised on the notion that “the declarant is more interested in obtaining a diagnosis and treatment culminating in a medical recovery than he is in obtaining a favorable medical opinion culminating in a legal recovery.” Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2013) (citing, among other cases, In re Registrant C.A., 146 N.J. 71, 99 (1996)). By contrast, hearsay obtained during evidence gathering and medical consultations conducted purely in preparation for litigation remains inadmissible. State in re C.A., 201 N.J. Super. 28, 33 (App. Div. 1985).

Additionally, for the exception to apply, “the patient must have believed that the statement would enable the doctor to treat,” because “[r]eliability is based on the declarant’s belief that a doctor will properly treat him if the doctor is told the truth concerning the ailment.” Id. at 33-34. Because N.J.R.E. 803(c)(4) is based upon a presumed “treatment motive,” a statement by a declarant who “is unaware that his or her statements will enable a physician to make a diagnosis and administer treatment” lacks the requisite degree of

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trustworthiness to qualify under this exception. R.S. v. Knighton, 125 N.J. 79, 87-88 (1991).

Defendant relies on State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 572 (2003), in arguing that Jane’s statements to Dr. Elton were inadmissible. In Pillar, the defendant was accused of sexually assaulting a female minor, and the victim was taken to a Division doctor where she described the sexual abuse she was alleging. Id. at 287. There, we noted that “if the examination by [the doctor] was conducted for evidence gathering purposes, the hearsay statements contained in the medical history would be inadmissible[.]” Id. at 289. In excluding the doctor’s testimony relating to the specifics of sexual abuse stated by the victim, we did so because “[t]he record [was] not entirely clear as to why [the victim] was referred to [the doctor] for examination.” Ibid.

We do not find Pillar to be determinative here. Dr. Elton made clear that she examined Jane for purposes of medical diagnosis and treatment and took a history in order to guide her medical decision making. Jane testified that she knew she was being examined to be sure she was healthy and so that the doctor would be able to treat her. As a result of statements Jane made, the doctor took oral, vaginal, and rectal swabs in order

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to test for sexually transmitted diseases. Here, unlike in Pillar, the record is clear that the examination was for medical diagnosis and treatment and thus admissible under the exception. Consequently, we reject defendant’s claim that Jane’s statement to the doctor giving the specifics of her sexual relationship was improperly admitted.

However, Dr. Elton also testified as to Jane’s remarks identifying defendant as the perpetrator. Since there is no evidence that the doctor needed to know the identity of the perpetrator to determine a course of medical treatment, that information was not admissible under N.J.R.E. 803(c)(4). Nevertheless, the identity of the alleged perpetrator was not an issue at the trial as Jane gave a statement to the police and testified at the trial that defendant was the perpetrator. Moreover, Jane was available to be cross-examined about her statements to Dr. Elton. Defendant has not identified any harm that came from this hearsay identification, and we are unable to discern any from the record. Thus, even though Dr. Elton’s testimony of Jane’s statement identifying the perpetrator was likely inadmissible, the admission of this testimony at trial was harmless error, as it was not capable of producing an unjust result. R. 2:10-2.

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VI.

Defendant also argues that the trial judge improperly aided the prosecution by suggesting that they use a material witness warrant to secure Jane as a witness at trial. This, he asserts, was an abuse of the judge’s discretion, and was outside the bounds of his judicial role as a neutral official.

We find this argument to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say, the record does not support defendant’s claim. Rather, the record shows that the State raised the issue of the missing witness the day before the trial was to start, and the judge simply inquired as to the prosecutor’s strategy for proceeding with her case, and whether she was planning to request a material witness warrant, a logical and common step. Defendant’s contention that the State otherwise would never have considered obtaining a material witness warrant is sheer speculation and unsupported by any evidence in the record.

VII.

Finally, defendant contends that the trial court’s sentence of two consecutive eight-year terms for two of the sexual assault charges was manifestly excessive. He argues that these sentences should run concurrently as they are part of one period

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of aberrant behavior against the same victim occurring in the same place. We disagree.

Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple sentences of imprisonment for more than one offense, they “shall run concurrently or consecutively as the court determines at the time of the sentence[.]” Indeed, “[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.” Ibid. The Supreme Court has recognized the need for sentencing uniformity and has set forth guidelines to assist the trial courts in deciding whether to impose concurrent or consecutive sentences. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

To determine whether sentences for separate offenses should be served concurrently or consecutively, a sentencing court should focus “‘on the fairness of the overall sentence[.]'” State v. Abdullah, 184 N.J. 497, 515 (2005) (quoting State v. Miller, 188 N.J. 112, 122 (1987)). When deciding whether to impose concurrent or consecutive sentences, the trial court must bear in mind that there are “no free crimes in a system [where] the punishment must fit the crime[.]” Yarbough, supra, 100 N.J. at 643.

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Here, the judge found at the sentencing hearing that the crimes were separate and distinct acts against defendant’s daughter, repeated on multiple occasions over an extended period of time. The judge reasoned that consecutive sentences were necessary to send a strong message of deterrence to both defendant and the public about the “heinousness” of the crimes.

The sentencing judge properly exercised his discretion in running the two counts of sexual assault consecutively in light of the repeated and different crimes committed over an extended period. To require a concurrent sentence would permit “free crimes” contrary to Yarbough, supra, 100 N.J. at 643.

In sum, we remand the case for a Rule 104 hearing on the voluntariness of defendant’s statement to the police. The hearing must be held by March 31, 2014. If the State does not prove beyond a reasonable doubt that the statement was voluntary, the conviction must be vacated and a new trial held, at which the statement will be excluded. If, on the other hand, the trial judge determines that the statement was voluntary, the convictions and sentence are affirmed, subject to defendant’s right to seek review of the trial court’s ruling on voluntariness through a separate appeal of the remand decision.

Affirmed in part and remanded in part. We do not retain jurisdiction.

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