STATE OF NEW JERSEY VS. GABINO RIVERA (13-01-0020, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-2646-15T2

Background

Defendant G.R., the long-term boyfriend of the victim's grandmother (treated as a grandfather figure), was convicted by a jury of second-degree sexual assault (victim under 13), second-degree endangering the welfare of a child, and fourth-degree criminal sexual conduct based on incidents beginning when the victim was eight and including a digital penetration on her eleventh birthday.
On the night of the eleventh-birthday assault, the victim (S.M.) slept on an L-shaped sofa with her stepsister A.S.; S.M. testified G.R. digitally penetrated her while A.S. lay awake and observed.
S.M. did not disclose the abuse to family until March 2012 when she told a school social worker; A.S. testified she and S.M. discussed the birthday-night incident about a year after it occurred.
At a N.J.R.E. 104 hearing the trial court admitted A.S.'s testimony of that conversation as "fresh-complaint" evidence to rebut an inference of fabrication from delay; the trial court limited A.S.'s testimony and instructed the jury on its narrow purpose.
At sentencing the court found aggravating factors including (2) victim vulnerability/age, (6) prior record, and (9) need for deterrence and imposed concurrent seven-year terms (85% parole disqualifier under NERA) on the second-degree counts.
On appeal the court affirmed the convictions but vacated the sentence and remanded for resentencing because the trial court double-counted the victim's age as an aggravating factor (an element of the sexual-assault offense) and failed to make an adequate sentencing explanation to allow meaningful appellate review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of A.S.'s testimony as fresh-complaint evidence	State: A.S.'s testimony that S.M. raised the incident about a year later satisfied fresh-complaint requirements for a juvenile victim; admissible to rebut fabrication inference	G.R.: The "complaint" was not a complaint because A.S. already knew about the assault, so the testimony should be excluded	Court: Admitted testimony; a "complaint" need only be an expression of grievance/non-silence; whether the hearer already knew is irrelevant; no prejudice shown
Timing and spontaneity requirement for juvenile fresh complaint	State: Juvenile victims get relaxed timing; the year delay was reasonable under precedent	G.R.: Delay and lack of intimidation evidence made admission improper	Court: Found criteria satisfied for a juvenile; trial judge's credibility finding entitled to deference
Sentencing — use of victim's age as aggravating factor	State: Age and vulnerability justified aggravating factor two along with relationship; aggravating factors outweigh mitigating factors	G.R.: Age is an element of the sexual-assault offense (victim <13); using it as aggravating factor double-counts	Court: Aggravating factor two was improperly applied based on age (double-counting). Relationship could be a separate aggravator, but the sentencing explanation was unclear; vacated sentence and remanded for resentencing
Sentencing — sufficiency of other aggravating factors (e.g., deterrence, prior record) to support sentence despite error	State: Other aggravators (need for deterrence, prior record) would still support the presumptive term	G.R.: Without AF2 sentence might change	Court: State failed to show beyond preponderance that error was harmless; resentencing required because court did not adequately explain factor weighting

Key Cases Cited

State v. Perry, 225 N.J. 222 (2016) (deferential review of trial court evidentiary rulings)
State v. R.K., 220 N.J. 444 (2015) (fresh-complaint doctrine and relaxed timing for juvenile victims)
State v. W.B., 205 N.J. 588 (2011) (timing reasonableness for juvenile complaints is within trial court discretion)
State v. Fuentes, 217 N.J. 57 (2014) (aggravating facts may be considered if they show conduct at extreme reaches of the prohibited behavior)
State v. Kromphold, 162 N.J. 345 (2000) (established elements of an offense should not be double-counted as aggravating factors)
State v. Natale, 184 N.J. 458 (2005) (discussion of sentencing framework and elimination of presumptive term as binding rule)
State v. Yarbough, 100 N.J. 627 (1985) (relationship between defendant and victim may be a proper aggravating factor)