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N.J.S.A. 2C:14-4b(1); third-degree endangering of N.T.'s welfare, N.J.S.A. 2C:24-4a; second-degree sexual assault of E.M., N.J.S.A. 2C:14-2b; third-degree endangering of E.M.'s welfare, N.J.S.A. 2C:24-4a; and fourth-degree eluding, N.J.S.A. 2C:29-2a.1 "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0740-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN NOTTE,

Defendant-Appellant. ______________________________ October 26, 2010 Submitted September 13, 2010 - Decided

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Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-10-1220.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John Notte appeals from a judgment of conviction entered after a bench trial. He waived his right to trial by jury. The crimes with which he was charged arose from acts of indecency in the presence of two girls under the age of thirteen, E.M. and N.T., and defendant's subsequent failure to heed an officer's signal to stop his van. The judge found defendant guilty of an act of fourth-degree lewdness against N.T., N.J.S.A. 2C:14-4b(1); third-degree endangering of N.T.'s welfare, N.J.S.A. 2C:24-4a; seconddegree sexual assault of E.M., N.J.S.A. 2C:14-2b; third-degree endangering of E.M.'s welfare, N.J.S.A. 2C:24-4a; and fourth-degree eluding, N.J.S.A. 2C:29-2a.
1

The judge merged defendant's convictions for sexual assault and endangering of E.M. Pursuant to N.J.S.A. 2C:44-1f(2), the judge imposed a sentence within the third-degree range for second-degree assault, a term of four years. That sentence is to be served at Avenel and is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, the judge sentenced
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defendant to a concurrent eighteen-month term for lewdness against E.M.; a concurrent three--year term for endangering N.T.'s welfare; and a concurrent three--year term for eluding. Appropriate fines, penalties and assessments were also imposed. The State's evidence of defendant's conduct on the day in question can be summarized as follows. During the afternoon of July 8, 2006, E.M. and N.T. were outside on the sidewalk adjacent to Hope Street in Passaic. They were washing off rugs in front of the restaurant where E.M.'s mother worked. A van marked "Mechanical Millennium" pulled up and N.T. told E.M. to look at the man inside. It was defendant. E.M. looked and returned her attention to the rugs, but when defendant coughed, she looked back and saw him stand up a little bit and remove his shirt. They thought "he was doing bad stuff." Jesus Robles, a friend of E.M.'s mother who lived near the restaurant, was sitting outside and about seventeen feet away from the girls. He thought they were playing with a rope and did not notice the van until the girls ran toward him and pointed to it. As N.T. reached Robles and pointed to the van, E.M. saw defendant "stand up a little bit," unbutton his pants and rub his penis. E.M. did not remember if his penis was inside or outside his pants but remembered seeing him stroking it. Knowing it was wrong and feeling embarrassed, she turned away and spoke to Robles. From the way the girls ran and pointed, Robles thought they were nervous and scared. They said "[t]hat there was a person playing with his thing." Robles approached the van and, from a distance of about two and one-half feet, saw defendant. He was naked and masturbating. Although defendant drove away, Robles was able to get the van's license plate number. Several hours later, police officers patrolling in separate marked cars spotted the van and signaled the driver to stop by using the lights on both vehicles and the air horn on one. Before stopping, defendant drove two blocks, made several turns onto adjoining streets, ran a stop sign and veered in front of an officer who drove up alongside the van. When he was stopped, defendant was not wearing a shirt and his pants were not zippered. His underwear, socks and boots were in the front of the van. Although defendant showed no signs of intoxication, responded appropriately to the arresting officers' commands and there was no odor or other evidence of drug use in the van, his defense was drug-induced blackout. In the psychiatrist's opinion, if defendant committed the alleged acts, it was due to his disoriented state, a blackout, caused by consumption of crack cocaine. Such a blackout would not prevent defendant
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from performing complex tasks but would preclude him from knowing what he was doing, forming the intent required for conviction of these crimes and understanding that his conduct was wrong. Defendant was forty-seven years old at the time of these crimes. In his testimony at trial, he acknowledged his predilection for exposing himself to adult women, especially prostitutes, and sexual addictions involving masturbation and relations with prostitutes. He claimed an inability to stop using cocaine once he started, a problem he has had since his teenage years. By defendant's account of his activities on the afternoon of the crimes, he had been binging on crack cocaine since noontime. He purchased cocaine three or four times that afternoon on Myrtle Street in Passaic. He "typically" buys about $100 worth at a time. He used the drug in the van and drove around. He recalled throwing the pipe out of the van's window and wiping the drug residue from the seat of the car. Defendant had no recollection of seeing children or any events involving them, but he offered explanations as to why he would not have done what the girls alleged. First, he lacks the capacity to masturbate while binging on cocaine. Second, he has no desire to engage in that conduct in front of children and, as a father himself, would not want to harm a child. Following trial, the judge issued a written decision setting forth his findings of fact and legal conclusions. The judge explained why he rejected the defense based on drug-induced blackout and concluded that the State established the essential elements of lewdness, sexual assault and eluding and failed to establish the other crimes charged in the indictment. Defendant's appellate counsel raises the following issues: I. THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNTS I, II, III, IV, AND VIII.

II. THE TRIAL COURT ERRED IN RULING THAT CERTAIN OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO IMPEACH HIS CREDIBILITY.

III. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT I CHARGING LEWDNESS WITH RESPECT TO N.T. INTO COUNT II CHARGING ENDANGERING THE WELFARE OF A CHILD, INVOLVING N.T. AS WELL. (PARTIALLY RAISED BELOW).

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IV. THE JUDGMENT OF CONVICTION MUST BE AMENDED TO REFLECT THE FACT THE DEFENDANT WAS FOUND NOT GUILTY OF COUNT VII.

Defendant raises these additional issues in a supplemental brief he filed pro se: I. THE STATE[']S EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION. THE STATE FAILED TO ESTABLISH ESSENTIAL ELEMENTS OF THE CRIMES CHARGED. THE COURT ERRED IN DENYING THE DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18-1.

II. ERRORS IN FACT-FINDING RESULTED IN A DENIAL OF JUSTICE.

III. THE COURT ERRED IN BARRING THE DEFENSE EXPERT FROM TESTIFYING TO FACTS CONCERNING OPTICS AND PHYSICS AS THEY APPLIED TO ESSENTIAL ELEMENTS OF SEXUAL ASSAULT AND ASSOCIATED OFFENSES, VIOLATING THE DEFENDANT[']S SIXTH AMENDMENT RIGHTS TO COMPULSORY PROCESS AND CONFRONTATION. THIS WAS ESPECIALLY PREJUDICIAL BECAUSE THIS MATERIAL FACT EVIDENCE WAS OFFERED TO CLARIFY CIRCUMSTANCES SURROUNDING AN ULTIMATE ISSUE WHICH WAS THE SUBJECT OF CONTENTION AND CONTRADICTORY STATE WITNESS TESTIMONY, AND HAD THE POTENTIAL TO AFFECT THE OUTCOME IN FAVOR OF THE DEFENDANT.

IV. DISCRETIONARY ERRORS PREJUDICED THE DEFENDANT DENYING HIM DUE PROCESS AND A FAIR TRIAL.

V. ERRORS WERE COMMITTED THROUGH PROSECUTORIAL MISCONDUCT, INCLUDING SUPPRESSION OF EVIDENCE FAVORABLE TO THE DEFENSE, FABRICATION OF FALSE TESTIMONY, INTRODUCTION OF PREJUDICIAL FALSE EVIDENCE, USE OF PERSONAL OPINION AND IMPROPER COMMENTS, AND THE MISSTATING OF LAW AND FACT, IN VIOLATION OF THE DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS.

VI. THE DEFENDANT WAS COMPELLED TO TESTIFY,
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VIOLATING HIS FIFTH AMENDMENT RIGHT AGAINST SELFINCRIMINATION BECAUSE THE COURT IMPROPERLY CONDITIONED HIS ABILITY TO PRESENT EXCULPATORY PSYCHIATRIC EVIDENCE ON THE DEFENDANT TESTIFYING FIRST.

VII. INEFFECTIVE ASSISTANCE OF COUNSEL HAS DENIED THE DEFENDANT A FAIR TRIAL. (NOT BROUGHT BELOW). I Defendant has several objections to the competence and admissibility of evidence introduced by the State to establish his guilt. Defendant contends Robles' testimony about what E.M. and N.T. told him was inadmissible. Prior to that testimony, defense counsel objected, and the judge sustained the objection subject to the prosecutor laying a foundation for an excited utterance. "N.J.R.E. 803(c)(2) defines an excited utterance as 1) '[a] statement relating to a startling event or condition'; 2) 'made while the declarant was under the stress of excitement caused by the event or condition'; and 3) 'without opportunity to deliberate or fabricate.'" State ex rel. J.A., 195 N.J. 324, 340 (2008). Following defense counsel's objection, Robles testified about the girls' conduct and demeanor as they ran to him and pointed, and defense counsel did not renew his objection when the prosecutor again asked, "what did they say to you?" There was good reason for defense counsel's failure to object and the judge's acceptance of the testimony. When the girls spoke to Robles, the threat to them was ongoing and his testimony amply established that they were under the stress of excitement from what they had seen and did not have an opportunity to fabricate what they said. State v. Basil, 202 N.J. 570, 591-94 (2010) (discussing the excited utterance exception to the hearsay rule and restrictions on its use under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004) that do not apply in this case). Although he did not object at trial, defendant now contends that the arresting officer should not have been permitted to say that he was dispatched to look for a man "running around naked" and driving a van.
3 2

Even if we were to conclude that the officer improperly repeated what he was told about the crime, State v. Bankston, 63 N.J. 263, 268-69 (1973), his right of confrontation was not violated. Robles, who was the
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source of the information relayed to the police, testified and told the judge he saw defendant sitting in the van naked. The prejudice addressed in Bankston is the danger that the finder-of-fact will infer that the police had information relevant to guilt not introduced at trial. Id. at 270-72. That inference could not have been drawn in this case. Defendant also asserts that the prosecutor improperly elicited evidence of his prior convictions for disorderly persons offenses in violation of N.J.R.E. 404(b). The claim is not supported by the record. The judge properly permitted the prosecutor to use this extrinsic evidence to impeach defendant's testimony that he only exposed himself to prostitutes. N.J.R.E. 607. Defendant is incorrect in his assertion that evidence of allegations of his misconduct with his own daughter was introduced. The trial judge excluded that evidence. In addition, defendant argues that the judge should have limited cross-examination on admissions he made to his expert. This claim is without sufficient merit to warrant discussion in a written opinion. R. 2:113(e)(2). For the foregoing reasons, we reject all claims asserting that defendant's convictions rest on incompetent evidence. II Defendant cannot prevail on his objections to the adequacy and weight of the evidence or his claims of error related to the judge's factual findings. The evidence is adequate, and a motion for acquittal at the close of a case is properly denied, if the evidence, viewed in the light most favorable to the State, is sufficient to permit a finding of guilt. State v. Reyes, 50 N.J. 454, 458-59 (1967). When a verdict has been rendered by a judge after a bench trial, our review of the evidence is quite limited. We do assess and weigh the evidence but consider "whether there is sufficient credible evidence in the record to support the judge's determination." State in Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). We affirm if the findings "could reasonably have been reached on sufficient credible evidence present in the record" as a whole. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42
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N.J. 146, 162 (1964)); see also State v. Barone, 147 N.J. 599, 615 (1997). When that test is met, we cannot disturb the result unless "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. The elements essential to guilt were properly articulated by the trial judge. Contrary to defendant's claim, the judge gave full effect to judicial decisions in articulating the elements and applying the elements of lewdness and sexual assault, State v. Zeidell, 154 N.J. 417, 427-435 (1998), and the elements of eluding, State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002); State v. Fugua, 303 N.J. Super. 40, 44 (App. Div. 1997). We have considered defendant's objections to the judge's factual findings, including his rejection of the opinion of defendant's expert and defendant's account of the events. Applying the standards of review and considering the evidence set forth above, we see no basis for disturbing the judge's ruling on defendant's motion for acquittal or the verdicts. Defendant's argument with respect to the adequacy and weight of the evidence relevant to his state of mind overlooks the reasonable inferences available from the evidence. His acts of exhibitionism and self-gratification occurred in a context, after his coughing and acquiring the girls' attention and after his driving alongside them when they walked away. Similarly, there was evidence adequate to establish that defendant was guilty of fourth-degree eluding that was not undermined by the defense. Although defendant did not drive away from the police at a high rate of speed, his failure to stop his van for nearly a minute allowed him to throw his cocaine pipe out the van window and dust the residue from the seat of his car. He was still attempting to close his pants when the police approached him after he had stopped the van. From those facts, the judge could and did infer that defendant was knowingly attempting to elude police officers who he knew were signaling him to stop. III Defendant claims prejudice attributable to admission of his prior convictions for the limited purpose of relevance to his credibility. He contends that it was improper for the judge to allow the prosecutor to elicit proof of one conviction during his cross-examination and that another conviction was too remote to have probative value. The arguments ignore the fact that this was a bench trial. Undoubtedly, it would be improper to allow the State to establish a conviction by questioning a defendant in the presence of a jury,

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but we see no basis for concluding that defendant was prejudiced by allowing the State to establish a prior conviction in that manner in this case. N.J.R.E. 609. We note that a review of the judge's detailed opinion makes it clear that his disbelief of defendant's testimony was based on the evidence in the case and not an inference about veracity related to his prior convictions. In short, any errors related to prior convictions were clearly incapable of producing an unjust result. R. 2:10-2. IV In Points III and IV of his supplemental brief, defendant raises objections related to the expert testimony. These claims are without sufficient merit to warrant more than a brief comment in a written opinion. R. 2:11-3(e)(2). The judge did not abuse his discretion by precluding defendant's expert from testifying about optics and physics to establish the he could not have stood up in the van and the girls could not have seen what they reported. The judge concluded that expert testimony on those points would not assist him in resolving those factual questions which were not beyond the understanding of an ordinary person. N.J.R.E. 702. That is a proper basis for exclusion of expert testimony. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 438-39 (App. Div. 2002). Defendant's second objection is based on a misunderstanding of the record. The judge did not compel him to testify by precluding his expert from testifying about the facts reported by defendant and relied upon by the expert. The judge rejected the prosecutor's argument on that point. Defendant's additional arguments relevant to his convictions, which are raised in Points IV(C) and V, are without sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(2). Defendant presents no argument relevant to the claim of ineffective assistance raised in Point VII of the supplemental brief. He simply noted his intention to raise the claim in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451 (1992). V Although there is no error warranting reversal of defendant's convictions, the judgment of conviction must be amended. Defendant argues, correctly, that his convictions for lewdness in the presence of N.T. and endangering N.T.'s welfare, which were based on the same conduct, must be merged. State v. Hackett, 166
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N.J. 66, 70-71 (2001). In addition, the judgment of conviction does not reflect the fact that defendant was acquitted of attempted aggravated assault, count seven in the indictment. Affirmed in part; reversed in part; and remanded for correction of the judgment of conviction.

1 The judge found defendant not guilty of: possession of a weapon, the van, with unlawful purpose, N.J.S.A. 2C:39-4d; possession of a weapon, the van, under circumstances not manifestly appropriate for its use, N.J.S.A. 2C:39-5d; assaulting an officer, N.J.S.A. 2C:12-1b(5)(a); and attempting to injure an officer while eluding, N.J.S.A. 2C:29-2b. 2 This objection is raised in Point IV (A) of defendant's pro se supplemental brief. 3 This argument is raised in Point V of defendant's pro se supplemental brief. 4 This argument is raised in Point IV(B) of defendant's pro se supplemental brief. 5 This argument is raised in Point V of defendant's pro se supplemental brief. 6 This argument is raised in Point V of defendant's pro se supplemental brief. 7 These arguments are raised in Point I of the brief and Points I and II of the supplemental brief.

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