State of New Jersey v. Andrey v. Penkin

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2840-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREY V. PENKIN, Defendant-Appellant. Argued September 14, 2026 – Decided September 29, 2026 Before Judges Sabatino, Perez Friscia and Torregrossa- O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 23-07- 0849. Kelly Anderson Smith (Kelly Anderson Smith LLC) argued the cause for appellant. Taylor G. Lopa argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Taylor G. Lopa, of counsel and on the briefs). PER CURIAM Tried by a jury, defendant Andrey V. Penkin was found guilty of various offenses committed against his middle child.1 Specifically, he was convicted of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2) (count one); first-degree aggravated sexual assault of a victim under the age of thirteen, N.J.S.A. 2C:14-2(a)(1) (count two); first-degree aggravated sexual assault of a victim between the ages of thirteen and sixteen, N.J.S.A. 2C:14-2(a)(2)(a) (count three); second-degree sexual assault of relative-victim between the ages of sixteen and seventeen, N.J.S.A. 2C:14-2(c)(3) (count four); and second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1) (count five).2 The trial court sentenced defendant to an aggregate custodial term of forty -five years, subject to the parole ineligibility periods mandated by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In this direct appeal, defendant presents several arguments for our consideration contesting his convictions and sentence. For the reasons that follow, we reject those arguments and affirm. 1 To protect the privacy of the minor victim and her siblings, we refer to them by their status as the youngest, middle, and oldest child. They do not share defendant's surname. 2 The multiple ages of the victim indicated in the charges reflect that the assaults occurred over a period of years. A-2840-24 2 I. The State's case was based on allegations by defendant's now-former wife and their three daughters that he committed numerous sexual and other criminal acts against the middle child over a cumulative period of approximately seven years. Without comprehensively detailing the graphic evidence here, we briefly summarize the background facts and procedural history as follows. The family moved to the United States from Russia in 2016, living in a series of residences in New Jersey between 2016 and 2023. The family consisted of defendant, his then-wife, and three daughters. As recounted by the middle child, defendant began having inappropriate relations with her when she was eleven years old. She alleged defendant digitally penetrated and had sexual intercourse with her on numerous occasions between 2016 and 2023. According to the State's evidence, on March 19, 2023, defendant struck the middle child in the face with a pack of cigarettes and punched her. The incident was reported to the police that night in a 9-1-1 call. Police officers with the Marlboro Township Police Department arrived at the family's residence shortly before midnight. The officers questioned the mother, the oldest child, and the middle child separately from defendant. These various interactions with A-2840-24 3 the family were recorded on police Body Worn Camera ("BWC") footage, portions of which were the subject of pre-trial hearings and ultimately admitted into evidence at trial. Defendant was not formally arrested or removed from the home that night. The following day the Family Part issued a temporary restraining order against defendant, which resulted in defendant relocating from the family residence. In the weeks that followed, the middle child sought medical treatment for her injuries from multiple physicians and was diagnosed with a concussion. On April 16, 2023, while the mother and her daughters were preparing for a final restraining order hearing in the Family Part, the middle child disclosed for the first time to her mother and the oldest child that defendant had sexually assaulted her on previous occasions. The following day, the youngest child also revealed to her mother, after being questioned on the subject, that defendant had been sexually abusing her as well. Defendant was arrested at his residence several days later on April 21, 2023, for these alleged acts of sexual assault and abuse committed against both his middle and youngest daughters. A seven-count indictment ensued. During pretrial motion practice, the trial court at various times: (1) granted defendant's motion to sever counts six and seven of the indictment A-2840-24 4 (defendant's alleged acts of sexual abuse against the youngest child) from the remainder of the counts; (2) denied defendant's motion to sever count one (defendant's alleged acts of physical abuse against the middle child) from the remaining counts involving sexual offenses; (3) granted the State's motion to admit defendant's statements given to the police and recorded on BWC footage from the night of their response to the 9-1-1 call on March 19, 2023 into evidence; (4) partially granted the State's motion to admit certain entries from the middle child's diary into evidence; and (5) granted the State's motion to admit testimony of the mother and the oldest child regarding remarks made to them by the other two daughters in April 2023, pursuant to the "fresh complaint" doctrine. The jury trial took place over six non-consecutive days in September 2024. The State called ten witnesses, including five law enforcement officers who either had directly questioned defendant and his family members in March 2023 or otherwise participated in the investigation, two physicians who treated the middle child in the spring of 2023, as well as the mother, the oldest child and the middle child. Defendant did not testify and he presented no witnesses. In summations, the prosecution argued that the middle child's trial testimony established the elements of the offenses, and was corroborated by her A-2840-24 5 diary entries, her mother's observations of changes in her behavior after the abuse started, and the BWC footage in which defendant made several self- inculpatory statements. Defense counsel, meanwhile, argued that the State's case largely turned on credibility rather than objective facts, emphasizing there was no forensic evidence of or third-party eyewitnesses to the alleged sexual wrongdoing. Among other things, the defense asserted the diary entries were undated and likely fabricated, and further contended the police had pressured defendant to make unwarned incriminating statements when they interviewed him. Following deliberations, the jury returned a verdict finding defendant guilty of all five pending counts of the indictment. In sentencing defendant on February 27, 2025, the court: (1) merged count three with count two; (2) ran counts one and five concurrently; and (3) imposed consecutive terms on counts two and four. In the aggregate, defendant was sentenced to a custodial term of forty-five years, subject to the aforementioned NERA parole disqualifiers. A-2840-24 6 II. On appeal, defendant argues in his main brief:3 POINT I FAILURE TO SEVER COUNT [ONE] FROM THE SEXUAL ASSAULT OFFENSE WAS AN ERROR THAT RESULTED IN IRREPARABLE HARM AND PREJUDICE TO THE DEFENDANT. POINT II THE TRIAL COURT IRREPARABLY PREJUDICED DEFENDANT BY IMPROPERLY ADMITTING ORAL STATEMENTS. POINT III THE TRIAL COURT IMPROPERLY PERMITTED HEARSAY TESTIMONY. POINT IV PROSECUTOR'S COMMENTS WERE IMPROPER AND PREJUDICIAL WHICH DENIED DEFENDANT A FAIR AND IMPARTIAL TRIAL. POINT V TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE AND IMPROPERLY IMPOSED CONSECUTIVE SENTENCING. 3 Counsel also submitted at our request supplemental briefs addressing the hearsay issues. A-2840-24 7 POINT VI THE CUMULATIVE ERRORS COMMITTED BY THE TRIAL COURT DENIED THE DEFENDANT A FAIR TRIAL AND RESULTED IN A MANIFEST INJUSTICE. We address these issues in the order presented in defendant's main brief. In doing so, we apply the discrete standards of appellate review associated with each issue. A. (Denial of Severance) We begin with defendant's first argument that the trial court should have severed the physical assault charge in count one from the sexual offenses charged in counts two through five. In essence, defendant maintains that he was unduly prejudiced at trial by the inclusion of both the physical assault evidence and the sexual offense evidence. He argues that count one should have been severed from the rest of the allegations concerning the middle child, just as the court had severed the charges in counts six and seven involving allegations of abuse against the youngest child. Our scope of review of this severance issue is deferential to the trial court's discretion. It has long been recognized that a decision on whether to sever charges from a criminal trial rests within the trial court's discretion and its A-2840-24 8 evaluation of the degree of prejudice inherent in trying multiple charges together. State v. Weaver, 219 N.J. 131, 149 (2014); see also State v. Chenique- Puey, 145 N.J. 334, 341 (1996). An appellate court "'may find an abuse of discretion when a decision "rest[s] on an impermissible basis" or was "based upon a consideration of irrelevant or inappropriate factors."'" State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017) (alteration in original) (quoting State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div. 2013)). Under our case law, a severance motion is assessed analytically on whether the evidence of conduct concerning the indictment count that is proposed to be severed would have been admissible under N.J.R.E. 404(b) as prior "bad acts" evidence in a trial of the remaining counts. Chenique-Puey, 145 N.J. at 341 . That assessment, in turn, hinges upon the four-factor test of admissibility set forth in State v. Cofield, 127 N.J. 328 (1992) and its progeny: whether (1) evidence of the other crimes is "relevant to a material issue"; (2) the evidence is "similar in kind and reasonably close in time to the offense charged";[4] (3) the evidence of the other crimes is "clear and convincing"; and 4 We are mindful that the Supreme Court has held that the second prong of the Cofield formulation need not be applied in every case. State v. Green, 236 N.J. 71, 83 (2018); see also State v. Williams, 190 N.J. 114, 131-34 (2007). A-2840-24 9 (4) the "probative value of that evidence [is not] outweighed by its apparent prejudice." Id. at 338; see also State v. Barden, 195 N.J. 375, 389 (2008). Applying that standard, we discern no abuse of discretion by the trial court in declining to sever count one at trial from the remaining counts. Here, the trial court issued a thoughtful pre-trial oral decision reasonably applying these factors, concluding that the evidence of physical harm to the middle child inflicted by defendant would be admissible as Rule 404(b) evidence under the Cofield test. As to factor one, the evidence of physical harm the State intended to present was manifestly relevant, and it was corroborated by the middle child's medical treatment after the 9-1-1 call. In addition, as the judge noted, "[t]he statements of defendant during the investigation of abuse, the act of physical abuse of [the middle child] are all relevant to his motive and intent and state of mind. Therefore, prong one of Cofield is satisfied." Concerning factor two, the court provided the following perceptive observations: As to prong two, that the evidence of the physical abuse is similar in kind and reasonably close in time, it clearly is. The physical abuse allegation happened just months after the last incident of sexual abuse. While there hadn't been a sexual assault in a few months, since defendant was still in the home, the [c]ourt consider[s] A-2840-24 10 his acts against [the middle child], essentially, as continuing. As to its similarity, it's abuse but in a different form. All of it is power related. While not a similar act, meaning physical versus sexual, the law does not require exact similarity. [(Emphasis added).] The trial court further noted the strength of the State's evidence (which bears upon the clear and convincing standard of Cofield prong three), as it was corroborated in several ways: Additionally, during the – the assault, according to the statement of [the oldest child], defendant made a statement that [the middle child] should be pleasing him as a woman. Additionally, the statements defendant made on . . . [the BWC], Officer Schuster's . . . [BWC], regarding the burden his family is to him, is illustrative and corroborates the victims' account of the sexual abuse. [(Emphasis added).] By the time the court issued its severance ruling, it had been presented with extensive testimonial evidence, in addition to police body camera footage directly depicting the events of March 19, 2023. There were ample grounds indicative of clear and convincing evidence of defendant's commission of both physical and sexual abuse. The court also underscored how the evidence of the physical harm was "inextricably intertwined" with the evidence of the sexual assaults: A-2840-24 11 The [c]ourt find[s] that the physical and sexual abuse of [the middle child] by defendant are inextricably intertwined. Defendant's statements to the officers about his family being a burden and his statement to [the oldest child], how [the middle child] should pleasing him as a woman, really demonstrate how intertwined the abuse is. The statements show the defendant's intent and his state of mind. Despite that the abuse is different, again, it's abuse. [(Emphasis added).] Lastly, with respect to the balancing test prescribed under Cofield prong four, the court concluded: As to prong four, this [c]ourt finds this evidence highly probative. The State has no other way to prove it and, therefore, despite it being prejudicial, it is not unduly prejudicial. Therefore, defendant's motion to sever [c]ount 1 from the indictment – from the rest of the counts of the indictment, is denied. [(Emphasis added).] Given the circumstances presented by the record, we adopt that reasonable conclusion under the Cofield analysis. Moreover, to abate the degree of prejudice from trying the charges together, the trial court issued a comprehensive limiting instruction to the jurors advising them that they could only consider count one in conjunction with the four remaining counts of the indictment for the very restrictive purpose "of determining whether [defendant's] alleged physical abuse of [the middle child] A-2840-24 12 delayed her disclosure of the alleged sexual abuse," as well as "to consider how the allegation of sexual abuse came to light." Absent compelling circumstances indicating the contrary—which are not present here—jurors are presumed to be able to follow the court's specific instructions. See State v. Ross, 218 N.J. 130, 152 (2014); see also State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). No objection to this jury charge was interposed. In summary, there were multiple valid purposes for which the trial court would have admitted the evidence implicated by count one had there been a separate trial as to the remaining four counts in the case. See Chenique-Puey, 145 N.J. at 341 . There was no abuse of discretion. We therefore affirm the court's denial of the severance motion. B. (Admission of Defendant's Statements to the Police at His Home) Defendant next argues the trial court erred in admitting, over objection, BWC footage from his house in which he made several incriminating statements to police officers who had responded to the 9-1-1 call. Defendant argues the officers questioning him in his kitchen were engaged in a custodial interrogation A-2840-24 13 and that, accordingly, the officers were obligated to issue Miranda5 warnings to him. After a suppression hearing and a review of the BWC footage, the trial court agreed with defendant that the on-site questioning was more akin to an interrogation than to general on the scene questioning. However, the court found no Miranda violation because it concluded that defendant was not in "custody" while he was being questioned. Defendant now appeals that finding. The applicable legal principles are well established. "'The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state's common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503.'" State v. Bullock, 253 N.J. 512 , 532 (2023) (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). "[E]very natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty . . . ." N.J.S.A. 2A:84A-19 (emphasis added); see also N.J.R.E. 503 (articulating the same). The question of "whether a suspect must be informed of the rights under Miranda depends on (1) whether the suspect is in police custody, and (2) whether 5 Miranda v. Arizona, 384 U.S. 436 (1966). A-2840-24 14 police subjected the suspect to interrogation." State v. Tiwana, 256 N.J. 33 , 41- 42 (2023) (citing State v. Hubbard, 222 N.J. 249, 266 (2015)) (emphasis added). A custodial interrogation in this way "is defined as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Id. at 41 (quoting Miranda, 384 U.S. at 444 ). Absent a waiver by the defendant, "[t]he failure to administer Miranda warnings prior to a custodial interrogation 'creates a presumption of compulsion,' and any unwarned statements must be suppressed – even when they 'are otherwise voluntary within the meaning of the Fifth Amendment.'" Ibid. (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)) (emphasis added). "'Custody' for the purposes of Miranda requires a 'formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" State v. Erazo, 254 N.J. 277 , 298 (2023) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). Under New Jersey's jurisprudence, "determining the issue of custody is 'fact-sensitive and sometimes not easily discernible.'" Ibid. (quoting State v. Stott, 171 N.J. 343, 364 (2002)). "'The relevant inquiry is determined objectively, based on how a reasonable person in the suspect's position would have understood his situation,' rather than 'on the subjective A-2840-24 15 views harbored by either the interrogating officers or the person being questioned.'" Ibid. (quoting Hubbard, 222 N.J. at 267 (quotations, citations, and alteration omitted)). Moreover: "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action . . . ." State v. P.Z., 152 N.J. 86, 103 (1997). The court considers factors such as "the time and place of the interrogation, the status of the interrogator, [and] the status of the suspect." Ibid. However, simply because someone is questioned at a police station, by police officers, does not mean they are "in custody." See State v. Marshall, 148 N.J. 89, 225-26 (1997). Nor is it dispositive whether police consider someone a "suspect," "person of interest," or "witness." See, e.g., State v. Keating, 277 N.J. Super. 141, 148 (App. Div. 1994) ("What the police had in mind . . . is not the issue; the issue is whether defendant reasonably believed that he was in custody when being questioned."). [Id. at 298-99 (emphasis added).] An interrogation, on the other hand, occurs when "a suspect is in police custody and 'is subjected to either express questioning or its functional equivalent,' which may include 'any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Tiwana, 256 N.J. at 42 (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)) (emphasis added). Interrogation reflects "'a A-2840-24 16 measure of compulsion above and beyond that inherent in custody itself.'" Ibid. (quoting Innis, 446 U.S. at 298 ) (emphasis added). In reviewing a trial court's findings concerning whether a custodial interrogation occurred, an appellate court "defer[s] to the trial court's factual findings that are supported by sufficient credible evidence in the record and will not disturb those findings unless they are 'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Rivas, 251 N.J. 132 , 152 (2022) (quoting State v. S.S., 229 N.J. 360, 374 (2017)); see also Bullock, 253 N.J. at 532. This deferential standard of appellate review applies "even when the trial court's findings are premised on a recording or documentary evidence . . . ." State v. Tillery, 238 N.J. 293, 314 (2019). By contrast, "the interpretation of law 'and the consequences that flow from established facts' are not entitled to deference and are reviewed de novo." State v. Carrion, 249 N.J. 253 , 279 (2021) (quoting Hubbard, 222 N.J. at 263 ) (emphasis added). We also are mindful that, because of the constitutional importance of the privilege against self-incrimination, "'[w]hen 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 A-2840-24 17 constitutional rights.'" State v. Hreha, 217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)) (alteration in original). In this case, the police officers' questioning of defendant in his home involved the following circumstances, which were mostly depicted on the BWC footage or otherwise testified to at trial. On the evening of March 19, 2023, multiple police officers went to the home of defendant and his family to respond to the 9-1-1 report that the middle child had been struck and injured. When the officers arrived, defendant was in an upstairs bedroom. He was shirtless and wearing boxer shorts. The mother, the victim, and at least one of the other siblings were together in a separate bedroom. A family member let the officers into the house, and officers encountered defendant upstairs. One or more officers spoke with the mother and the children in the separate bedroom, while two officers initially directed defendant to come downstairs so they could speak to him. Defendant agreed to do so, although he unsuccessfully attempted to go into the other bedroom to speak with his wife and children. The officers and defendant then went downstairs to the kitchen, where he took a seat. The police then questioned defendant in the kitchen for a period of approximately forty minutes. The discussion was protracted, in part because A-2840-24 18 defendant repeatedly rambled and digressed from the conversation. Defendant, a native Russian speaker with limited English proficiency, spoke with a distinctive accent and at times was hard to understand. It appeared that he had been drinking alcohol that evening, although no alcohol test was administered. The tenor of the questions posed by the officers was to ascertain what had occurred at the home that night and how the middle child had been injured. Defendant at times became emotional and confrontational during the interview. At several points, he asked the officers to "arrest" him. The officers repeatedly responded that he was not under arrest. Defendant was specifically asked if he had struck the middle child. He made some comments which could be interpreted as admitting that he had "pushed" her (although his particular usage of that term could mean something other than physical contact), and he then tried to explain why he was frustrated with her. After the interview ended, the police left the house. They did not arrest or remove defendant from the house that night, although they did arrest him several days later after receiving the reports of sexual abuse. Prior to trial, the State moved in limine to have the trial court declare admissible the BWC footage containing defendant's unwarned statements to the police. Defendant argued in response that the footage and his statements must A-2840-24 19 be suppressed because the police failed to administer Miranda warnings at the house. The trial court conducted a suppression hearing, at which two of the responding police officers testified. The court also was presented with the BWC footage. The court reserved decision on the motion. On September 5, 2024, the court issued a thirteen-page written statement of reasons and corresponding order, which granted the State's motion subject to certain redactions. As we noted above, in its analysis of custodial interrogation, the court found that defendant had not been "in custody" when he was questioned in his kitchen, although the court did find that the questioning was more akin to an interrogation than to general on the scene questioning. Among other things, the trial court made the following noteworthy findings concerning custody and interrogation: [T]he [o]fficers['] request to have the [d]efendant speak with them downstairs does not provide support that the [d]efendant was in custody, as the [o]fficers were concerned about the victims speaking with [o]fficers in another room close by and did not want the [d]efendant to overhear or interrupt the conversation. In fact, as [O]fficers Anzalone and Schuster were attempting to bring [d]efendant downstairs, [d]efendant attempted to speak with the victims but appears to be ignored. Thus, the decision to move the [d]efendant downstairs from the upstairs bedroom does not establish [d]efendant was in custody either. A-2840-24 20 Upon moving the [d]efendant to the kitchen, the officers continued performing their investigatory duties in response to a domestic disturbance call. The questioning was general in nature, aimed at understanding the circumstances of the call, and did not suggest the [d]efendant was in custody. Defendant was in his own home, the officers stood a distance from him, and he even moved around his kitchen without being stopped. Defendant was not restrained in any manner. [(Emphasis added).] The trial court then turned to the manner in which the police had questioned defendant: Lastly, [d]efendant argues that Sgt. Willet's questioning of the [d]efendant was coercive because they were pointed questions based on the information he learned from the victim upstairs, accusing [d]efendant of physically assaulting his daughter. Defendant denied the allegations. Nevertheless, Sgt. Willet focused [his] questioning on the [d]efendant – this alone does not constitute custody. The court in State v. Graves[, 60 N.J. 441 (1972)] emphasized that a suspect's status as the focus of an investigation during questioning at the crime scene does not, by itself, render the suspect "in custody" for Miranda purposes. 60 N.J. 441 (1972); see also State v. Marks, 201 N.J. Super. 514, 527 (App. Div. 1985). Additionally, despite that Officer Schuster testified that defendant was not free to leave, the "determination whether a suspect is in custody for Miranda purposes depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." State v. O'Neal, 190 N.J. 60, 615 [-16] (2007). A-2840-24 21 This court finds that Sgt. Brian Willet did pointedly question [d]efendant about assaulting his daughter and that Sgt. Willet's questioning was more akin to an interrogation than general on the scene questioning. However, at the time of this questioning, [d]efendant was neither in custody nor physically restrained. Defendant was in his own kitchen, moving around freely. While he was in his boxers and no shirt, that was his choice. The officers offered for [d]efendant to put a shirt on upstairs and he declined, and the [d]efendant was not brought out of his own home. Multiple officers were on the scene, but none were standing close to [d]efendant. In fact, they were at a distance. Defendant repeatedly asked to be arrested to alleviate his self-identified burdens of providing for his family, but the officers repeatedly denied his requests to arrest him. Finally, the officers['] entire interaction with [d]efendant was short, it was less than an hour. No reasonable person could believe they were under arrest in defendant's situation. [(Emphasis added).] The court concluded its analysis as follows Therefore, given that the [d]efendant was in his own home and the officers' questions were part of a general investigation into the reported incident, there is no indication that the [d]efendant was subjected to the functional equivalent of a formal arrest. As such, the [d]efendant was not "in custody" and Miranda warning were not required. The statements made by the [d]efendant are admissible as they were part of a routine investigatory procedure, not a custodial interrogation. [(Emphasis added).] A-2840-24 22 Later at trial, the BWC footage was played for the jury as part of the State's case-in-chief, as redacted pursuant to the pre-trial ruling.6 Before us, defendant argues that the trial court erred in concluding he was not in custody when he was questioned in his kitchen. The State argues in response that the no-custody finding was correct, although it has not cross- appealed or contested the court's finding with respect to interrogation. Applying the "searching and critical review" required by case law, Hreha, 217 N.J. at 381 -82 (quoting State v. Pickles, 46 N.J. at 577 ), we affirm the trial court's finding on this issue, substantially for the cogent reasons articulated in the court's detailed written opinion. Defendant stresses that he was interviewed for an extensive period of forty or more minutes, which he contrasts with the brief two-question interview of a defendant in his bedroom that we upheld in State v. Smith, 374 N.J. Super. 425 (App. Div. 2005) in another domestic violence situation. However, the length- of-questioning comparison with Smith is not dispositive here because, as we noted above, much of the time consumed in questioning defendant here could be attributable to defendant's own repeated rambling and digressions. 6 Neither party has appealed the specific redactions. A-2840-24 23 We also do not place great significance upon the fact that as many as four police officers were in the house when defendant was questioned. At times, only two of them appeared on the BWC footage to be in the kitchen while the others were with the mother and children. In addition, the officers did not physically restrain defendant in the kitchen except for a few moments when he got up and tried to access the dishwasher. The officers sensibly directed him away from the dishwasher (where he conceivably could have removed a knife or sharp object) and guided him back to a seat. Moreover, as the video shows and the trial court rightly emphasized, the officers repeatedly declined defendant's request that they arrest him. And, as the court also correctly noted, the fact that one of the officers personally thought defendant was not free to leave the room, is not determinative of the objective question as to whether a reasonable person in defendant's shoes would believe that he was in custody. Erazo, 254 N.J. at 298-99. We decline to set aside the trial court's findings based on defendant's status as a non-native English speaker. Despite defendant's foreign accent, the record shows that defendant appeared to manage to communicate with the officers. As the trial court noted, at least one of the officers testified that he perceived that defendant understood what the officers were asking him, and that A-2840-24 24 "at no point did [the officer] feel like there was a substantial barrier to their communication." We also observe that defendant did not clearly admit to criminal wrongdoing during his interview. The content of his statements was not particularly inculpatory. We recognize his demeanor and physical presentation on the video, as shown to the jury, cast him in an unfavorable light. However, the Fifth Amendment and associated Miranda doctrine protects individuals from making self-incriminating statements and is not designed to insulate demeanor or physical presentation. See Schmerber v. California, 384 U.S. 757, 761 (1966) (The Fifth Amendment privilege against self-incrimination "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature"); see also Pennsylvania v. Muniz, 496 U.S. 582, 591 (1990) ("'the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material'") (quoting Schmerber, 384 U.S. at 763 ); State v. Green, 209 N.J. Super. 347, 352 (App. Div. 1986) (same). A-2840-24 25 We therefore affirm the trial court's decision to admit, with redactions, the BWC footage.7 We also reject defendant's related argument that his statements on the BWC about past events should have been excluded under N.J.R.E. 404(b). As we discussed in Part II(A) above concerning severance, the overall course of events within the family is inextricably intertwined, and the history of defendant's interactions with his wife and children—through his own recorded words—provided important relevant context. C. (Hearsay Diary Entries) Prior to trial, the State also moved to admit into evidence four entries the middle daughter had made in her diary recounting sexual abuse by defendant and expressing her fear of reporting his conduct. Defendant objected to the diary entries as inadmissible hearsay statements being offered for its truth. The State countered that it wanted to use the diaries to rebut the defense's anticipated theme that the middle daughter's accusations of sexual abuse "were fabricated." The State also suggested that the diary entries would satisfy the hearsay 7 For sake of completeness, we observe that, if we hypothetically deemed defendant's unwarned statements inadmissible, their presentation at trial and in the State's closing arguments was not harmless. State v. Cabell, 207 N.J. 311, 337-38 (2011). A-2840-24 26 exceptions for present sense impressions, N.J.R.E. 803(c)(1), or, alternatively, the exception in N.J.R.E. 803(c)(3) respecting "then-existing mental emotional or physical condition." In an oral opinion, the trial court recognized that the diary entries were being offered for their truth and therefore met the definition of hearsay. The court did not adopt the State's invocation of the exceptions in N.J.R.E. 803(c)(1), nor N.J.R.E. 803(c)(3). However, apparently sua sponte, the court reasoned that the diary entries were admissible under a different evidence rule, N.J.R.E. 607(b), which covers, among other things, a witness's prior consistent statement when offered "(1) to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive, and (2) as otherwise provided by the law of evidence." To prevent undue prejudice, the court excluded two of the four proffered diary entries pursuant to N.J.R.E. 403. At trial, after the middle child was cross-examined by defense counsel in a manner that insinuated her allegations were contrived, the State on redirect asked the child to read the approved diary passages aloud to the jury. The child did so for several lines and then became unable to continue. At that point the prosecutor read the rest of the approved passages aloud. The prosecutor also highlighted the diary entries in summation. A-2840-24 27 On appeal defendant argues it was reversible error to admit the diary entries. We invited supplemental briefs on the issue, focusing on the pertinent hearsay rules and exceptions. In its supplemental brief, the State cites for the first time to N.J.R.E. 803(a)(2), which authorizes the substantive admission of prior consistent statements by a declarant "to rebut an express or implied charge against the declarant-witness of (A) recent fabrication or (B) improper influence or motive." We analyze this issue as follows. In doing so, we give substantial deference to the trial court's evidentiary ruling. State v. Gonzalez, 249 N.J. 612 , 633 (2022) (generally applying an abuse of discretion review standard to such rulings). First, we concur with the trial court that the diary entries were used here substantively, i.e., for their truth and not simply to neutralize impeachment of the middle child. See N.J.R.E. 801(c)(2). Indeed, several of the graphic details described in the diaries were not established by other evidence or testimony. Second, we agree with the trial court that neither N.J.R.E. 803(c)(1) nor 803(c)(3) provide a basis to admit the hearsay diaries. The present sense impression exception, N.J.R.E. 803(c)(1), does not pertain here because the diaries were not made "while or immediately after" the perceived events. State A-2840-24 28 ex rel. J.A., 195 N.J. 324 , 337 (2008) (deeming a ten-minute delay too long); Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 458 (App. Div. 2015) (statement made at least "several minutes" after an observation did not qualify). Third, we also agree the so-called "state of mind" hearsay exception in N.J.R.E. 803(c)(3) does not justify the diary readings because the entries did not merely convey the middle child's mindset, but also contained factual recollections. The exception specifically carves out statements "of memory or belief to prove the fact remembered or believed," except as regarding a declarant's will. We respectfully note that N.J.R.E. 607, which was the basis for the judge's conclusion of admissibility, is not a hearsay exception. Rule 607 allows certain prior consistent statements to be used to rebut theories of recent fabrication , but does not allow those hearsay statements to be used for their truth, as they were here. The Comment to N.J.R.E. 803(a)(2) explains the hearsay exception in that separate rule was specifically adopted in 1992 "in order to allow the use as substantive evidence of those prior statements of a witness which would be admissible also under N.J.R.E. 607 purely on the issue of credibility . . . ." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(a)(2). In short, a hearsay exception is needed to admit the diary entries A-2840-24 29 substantively. See State v. Vargas, 463 N.J. Super. 598 (App. Div. 2020) (noting the differences between the hearsay rules and other evidence rules). That said, in compliance with the distinctive circumstances here, we conclude the State and the trial court sufficiently invoked appropriate evidentiary principles conceptually, if not the correct rule number. The diary entries manifestly were presented here to respond to a cross-examination that essentially intimated that the middle child had fabricated the allegations against her father because she was angry with him. The context satisfies both N.J.R.E. 803(a)(2) and N.J.R.E. 607. It is not unfair to defendant to utilize the allied provisions of N.J.R.E. 803(a)(2) to enable the substantive use of the diary entries. Although New Jersey law to date has not required the hearsay statements to chronologically precede the declarant's motive to fabricate, see Tome v. United States, 513 U.S. 150 (1995), the record here reflects that the diary entries were written a year or more before the children learned that defendant had brought a divorce action against their mother. The prior consistent statements in the diaries were pre-motive. We therefore affirm the trial court's decision to admit two of the four proffered diary entries, albeit for allied reasons slightly different from the court's Rule 607 analysis. See Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162 , A-2840-24 30 175 (1968) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance.") D. (Fresh Complaint) Little needs to be said about defendant's argument that the court erroneously admitted, under the fresh complaint doctrine, evidence of the conduct of the middle child and the youngest child in reporting events of defendant's abuse to their mother and oldest sister. The trial court rightly concluded the circumstances met the criteria of the fresh complaint doctrine, as set forth in case law. See State v. R.K., 220 N.J. 444, 455 (2015); State v. Hill, 121 N.J. 150, 151 (1990). The court did not abuse its discretion. Gonzalez, 249 N.J. at 633. There are ample indicia the statements were made "spontaneously and voluntarily," within "a reasonable time," and to a trusted confidante. R.K., 220 N.J. at 455 . E. (Prosecutor's Comments and Summation) Defendant argues the prosecutor made numerous pejorative or misleading comments during the trial and in closing argument that deprived him of a fair trial. The vast majority of these cited instances were not objected to by A-2840-24 31 defendant at trial. Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506 (2011) (as raising a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention). Having considered the comments, we do not deem any of them to have been so "clearly and unmistakably improper and so egregious that it deprived defendant of the right to have a jury fairly evaluate the merits of [appellant's] defense." State v. Pressley, 232 N.J. 587, 593-94 (2018) (quoting State v. Wakefield, 190 N.J. 397, 435-38 (2007)). F. (Sentencing) Defendant challenges his aggregate sentence as being excessive and reflecting a misapplication of aggravating and mitigating factors. He further contends it was unfair for the court to have imposed consecutive terms on offenses involving the same victim. We are satisfied the trial court carefully evaluated the pertinent aggravating and mitigating factors and did not abuse its discretion in sentencing. State v. Case, 220 N.J. 49, 65 (2014). Given the reprehensible conduct of defendant against his vulnerable minor child, the lengthy sentence imposed was justified and thoroughly explained by the trial court. Moreover, we discern no error in the court's imposition of consecutive sentences on certain counts involving offenses during different time frames, and no need to remand for a A-2840-24 32 further assessment of the overall fairness of the aggregate sentence as a whole. See State v. Torres, 246 N.J. 246 , 268 (2021); State v. Yarbough, 100 N.J. 627, 643-44 (1985). G. (Conclusion) We have considered the balance of defendant's arguments, including his claim of cumulative error, and conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). Affirmed. A-2840-24 33