STATE OF NEW JERSEY VS. SYLVESTER H. CHEW (12-06-1598, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3852-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SYLVESTER H. CHEW,

Defendant-Appellant.
________________________

Submitted May 26, 2021 – Decided June 22, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment No. 12-06-
1598.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).

Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Natalie A. Schmid
Drummond, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant appeals from a March 1, 2016 judgment of conviction after a

jury found him guilty of numerous counts including second-degree

endangering the welfare of a child (creating child pornography), N.J.S.A.

2C:24-4(b)(4); third-degree invasion of privacy, N.J.S.A. 2C:14-9(b); fourth-

degree endangering the welfare of a child (possessing child pornography),

N.J.S.A. 2C:24-4(b)(5)(b); second-degree attempt to endanger the welfare of a

child, N.J.S.A. 2C:24-4(b)(3); and second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a). We affirm.

The following facts are gleaned from the trial record. A.C. 1 was born in

December 1998. In 2007, defendant met victim A.C.'s mother on a dating site.

A.C. and her mother came to New Jersey from the Philippines in March 2009,

and defendant married A.C.'s mother. The three were living together when

defendant asked A.C. to put on a bathing suit and do a "photo shoot" during

the summer between A.C.'s fifth and sixth grade. In 2010, when she was

eleven years old, A.C. finished taking a shower and came downstairs to see

defendant watching a video depicting A.C. in her bedroom, with a towel on her

head and wearing the same clothes she was then dressed in. A.C. told her

mother about the incident. Her mother confirmed what A.C. had seen and saw

1
We use initials for the minor victim pursuant to Rule 1:38-3(c)(9) to protect
her identity.

2 A-3852-18
the video of A.C. herself while defendant watched the video. Next to A.C.'s

bedroom was a locked room for which neither A.C. nor her mother had a key.

A.C. testified there was a T.V. and "a bunch of tapes" in the "little room."

A.C. never consented to being photographed in her bathroom or bedroom.

Defendant admitted to the mother he had filmed A.C. in the shower, and

that he had taken photos of her in the bathroom. The mother watched

defendant take hidden cameras out of the bathroom and A.C.'s bedroom. She

also testified that she told defendant that if he didn't remove the cameras, she

would call the police. Defendant threatened to kill the mother if she contacted

the police.

In 2011, A.C.'s mother sent her to live at a friend's house in a different

town because she was scared for A.C. The mother disclosed to her neighbor

what had happened, and the neighbor contacted the police. The police

obtained a search warrant of defendant's home and found computers, cameras,

hard drives, CDs, DVDs, and video cameras in a bedroom that had been

converted to an office space and that had two locks on the door.

On June 13, 2012, a grand jury returned a seventy-count indictment that

charged defendant with fifteen counts of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(b)(4); fourteen counts of third-degree

3 A-3852-18
invasion of privacy, N.J.S.A. 2C:14-9(b); thirty-seven counts of fourth-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b); one count of

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3); one

count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a); one count of second-degree hindering apprehension, N.J.S.A. 2C:29-

3(b)(3); and one count of third-degree hindering apprehension, N.J.S.A.

2C:29-3(b)(1).

Prior to the start of the trial, both defendant's ability to hear the

proceedings as well as his competence to proceed with trial became issues.

Defendant moved pursuant to Rule 1:12-3 to disqualify Judge Richard Wells

from deciding whether defendant was competent to stand trial because of

comments the judge had made questioning defendant's credibility regarding his

hearing loss. The judge rejected defendant's motion for recusal.

Judge Wells ordered a competency evaluation. The State's evaluation

was completed by Raymond Terranova, Ph.D. Kenneth J. Weiss, M.D.,

evaluated defendant on his behalf. Terranova, a forensic psychologist,

testified that defendant had no history of treatment for a neurocognitive

disorder. According to Terranova, defendant suffered from a stroke in 2013,

but no treatment plan was indicated, nor altered mental status or memory

4 A-3852-18
impairment. Terranova found that defendant had some impairment in his

ability to hear and receive language or express language outwardly, but based

on defendant's performance on the mini-mental state examination, which

measures cognitive impairment, Terranova diagnosed defendant with

malingering of memory impairment. Terranova opined defendant was

competent to stand trial under the Dusky v. United States 2 standard and the

requirements of N.J.S.A. 2C:4-4. In sum, Terranova opined that with

accommodations for defendant's hearing loss and despite possible cognition

issues related to depression, defendant met the statutory competency standard.

Weiss, defendant's expert witness, a board-certified psychiatrist,

described defendant's stroke as located in the parahippocampal gyrus part of

the brain, which is the "seat of memory." Weiss disagreed with Terranova's

assessment of defendant and opined that defendant was not malingering.

Weiss agreed with Terranova, however, that defendant was competent to stand

trial via prongs (a) through (f) of N.J.S.A. 2C:4-4(b), but that "cognitive

functioning would not permit him to aid in a presentation of his defense or to

assist counsel to a reasonable degree," under N.J.S.A. 2C:4-4(b)(2)(g).

Judge Wells made precise findings regarding defendant's competency to

2
362 U.S. 402 (1960).

5 A-3852-18
stand trial, ultimately agreeing with Terranova that defendant understood the

charges against him and the roles of courtroom personnel. The court rejected

Weiss's assertion that "defendant lacks the ability to participate in an adequate

presentation of his defense." Thus, the matter proceeded to trial.

During the jury trial, A.C. and her mother both testified, in addition to

several of the investigating police officers. Over defense counsel's objection,

the State also presented numerous nude photos of A.C. that were retrieved

from a device in defendant's home which had not been the subject of the

indictment against defendant. The court permitted the photos to be shown to

the jury as intrinsic evidence of defendant's motive, state of mind, and intent.

While authenticating the State's photo and video evidence obtained from

defendant's home, the prosecutor sought to qualify Police Detective Andrew

Mayo as an expert witness in computer forensics. The State thereafter

withdrew its request to qualify Mayo as an expert, and the judge confirmed

that Mayo would not be providing opinion testimony. However, the court

interrupted Mayo's testimony to ask trial counsel whether the testimony was

too technical or opinion-based. The judge expressed concern that it would be

unfair to the State for defense counsel to assert later on that Mayo had

technical knowledge and was not qualified. The judge then recited an expert

6 A-3852-18
witness charge regarding Mayo's testimony over defendant's objection.

The jury found defendant guilty on June 16, 2015, on fifty-three counts,

including thirteen counts of second-degree endangering the welfare of a child

(creating child pornography), thirteen counts of third-degree invasion of

privacy, twenty-four counts of fourth-degree endangering the welfare of a

child (possessing child pornography), two counts of second-degree attempt to

endanger the welfare of a child, and one count of second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a).

Following the jury's guilty verdict on fifty-three counts of the

indictment, the court sentenced defendant to an aggregate twenty-five-year

prison term, which included three consecutive seven-year terms for each of the

second-degree convictions and four one-year terms for each of the fourth-

degree convictions. 3 This appeal followed.

3
On April 13, 2016, the court entered an amended judgment of conviction to
correct defendant's sentencing. On September 21, 2016, we heard defendant's
appeal on the Excessive Sentencing Calendar, Rule 2:9-11, and affirmed in an
order issued the same day. State v. Chew, No. A-4093-15 (App. Div. Sept. 21,
2016).

In response to defendant's application for post-conviction relief, on April
5, 2019, the court granted defendant leave to file a notice of appeal as within
time with this court, pursuant to State v. Perkins, 449 N.J. Super. 309 (App.
Div. 2017).

7 A-3852-18
 Defendant raises the following arguments on appeal:

POINT I: AS THE TRIAL JUDGE HAD SHOWN
BIAS AGAINST DEFENDANT BY QUESTIONING
HIS VERACITY, THE TRIAL COURT ERRED
WHEN IT DENIED THE MOTION TO RECUSE
ITSELF FROM ADJUDICATING DEFENDANT'S
COMPETENCY MOTION.

POINT II: AS THERE WAS IRREFUTABLE
EVIDENCE THAT DEFENDANT HAD SUFFERED
A STROKE CENTERED IN THE PART OF THE
BRAIN THAT CONTROLS SHORT-TERM
MEMORY, THE TRIAL COURT ERRED WHEN IT
FOUND THAT THE STATE HAD PROVED BY
THE PREPONDERANCE OF THE EVIDENCE
THAT DEFENDANT WAS COMPETENT TO
STAND TRIAL.

POINT III: THE TRIAL COURT ERRED WHEN IT
ALLOWED THE STATE TO ADMIT AS
INTRINSIC EVIDENCE ADDITIONAL
PREJUDICIAL PHOTOGRAPHS AND VIDEOS
THAT HAD NOT BEEN IDENTIFIED IN THE
COUNTS CHARGED IN THE INDICTMENT.

POINT IV: THE TRIAL [COURT] COMMITTED
PREJUDICIAL ERROR WHEN IT QUALIFIED A
STATE'S FACT WITNESS AS AN EXPERT HALF-
WAY THROUGH THE WITNESS'S TESTIMONY.

POINT V: THE TRIAL COURT'S CUMULATIVE
ERRORS DENIED DEFENDANT HIS RIGHT TO A
FAIR AND RELIABLE TRIAL. (Not Raised Below).

Addressing defendant's first two points, we note judges' decisions as to

whether they should recuse themselves are reviewed under an abuse of

8 A-3852-18
discretion standard. Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J.

Super. 199, 221 (App. Div. 1995). A judge will not be considered biased

solely based on rulings that are unfavorable to the party seeking the judge's

recusal. State v. Marshall, 148 N.J. 89, 186-87 (1997). Moreover, we review

a trial court's ruling on whether a defendant is competent to stand trial under a

standard that is "typically, and properly, highly deferential." State v. Moya,

329 N.J. Super. 499, 506 (2000).

"[A] judge should disqualify himself or herself in a proceeding in which

the judge's impartiality might reasonably be questioned." State v. Dalal, 221

N.J. 601, 606 (2015) (quoting Canon 3(C)(1) of the Code of Judicial Conduct).

The standard for discerning whether a judge should recuse himself is whether a

"reasonable, fully informed person [would] have doubts about the judge's

impartiality[.]" DeNike v. Cupo, 196 N.J. 502, 517 (2008).

During jury selection, defendant said he was having trouble hearing the

proceedings, and that his headphones and hearing aids were not working

properly. The court expressed incredulity, suggesting defendant was feigning

his hearing loss or exaggerating it. During a sidebar with the prosecutor and

defense counsel, the judge questioned defendant's veracity because defendant

could hear fine earlier, and the judge explained his reasons. Despite his

9 A-3852-18
incredulity, the judge made extensive accommodations to pause the hearing

and obtained an interpreter to repeat and "shadow" everything so defendant

could hear all of the proceedings. Defense counsel stated: "I believe that

you'll honestly decide this motion [for recusal] and if you decide to stay on

this case I don't think you'll hold it against this defendant. . . . I don't think

you'll treat him any differently than you would treat any other defendant." The

record demonstrates the court made diligent attempts to accommodate

defendant's hearing impairment, notwithstanding doubt regarding defendant's

veracity. We discern no indicia of an unfair proceeding requiring the judge's

recusal. See DeNike, 196 N.J. at 517.

In the same vein, defendant must be legally competent in order to stand

trial; otherwise, his due process rights have been violated. Pate v. Robinson,

383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961

(1956)). When the evidence raises doubt as to the defendant's competence, a

court must hold a competency hearing, which it did here. State v. M.J.K., 369

N.J. Super. 532, 547 (App. Div. 2004). "In a competency proceeding, the

State has the burden to prove by a preponderance of the evidence that the

defendant's mental condition at the time of trial does not render him or her

incompetent to stand trial." State v. Gorthy, 226 N.J. 516, 530 (2016).

10 A-3852-18
 In Dusky, 362 U.S. 402, the United States Supreme Court established

minimum requirements for determining whether a defendant is competent to

stand trial. The test was whether the defendant had "sufficient present ability

to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual understanding

of the proceedings against him." Id. at 403; M.J.K., 369 N.J. Super. at 547.

The statutory test for determining mental competence in New Jersey is

codified in N.J.S.A. 2C:4-4. M.J.K., 369 N.J. Super. at 547-48. Pursuant to

2C:4-4(b), a person is considered mentally competent to proceed to trial if the

proofs establish:

(1) That the defendant has the mental capacity to
appreciate his presence in relation to time, place and
things; and

(2) That his elementary mental processes are such that
he comprehends:

(a) That he is in a court of justice charged with a
criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will
try to convict him of a criminal charge;

(d) That he has a lawyer who will undertake to
defend him against that charge;

11 A-3852-18
 (e) That he will be expected to tell to the best of
his mental ability the facts surrounding him at
the time and place where the alleged violation
was committed if he chooses to testify and
understands the right not to testify;

(f) That there is or may be a jury present to pass
upon evidence adduced as to guilt or innocence
of such charge or, that if he should choose to
enter into plea negotiations or to plead guilty,
that he comprehend the consequences of a guilty
plea and that he be able to knowingly,
intelligently, and voluntarily waive those rights
which are waived upon such entry of a guilty
plea; and

(g) That he has the ability to participate in
an adequate presentation of his defense.

[N.J.S.A. 2C:4-4(b) (emphasis added).]

The ultimate decision of whether a defendant is competent to stand trial

is for the judge to make, not experts. State v. Purnell, 394 N.J. Super. 28, 52

(App. Div. 2007); Moya, 329 N.J. Super. at 506. However, "[e]xpert

testimony is needed where the fact[-]finder would not be expected to have

sufficient knowledge or experience and would have to speculate without the

aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430

(App. Div. 2001).

Here, the only matter upon which the two expert witnesses disagreed

was whether defendant met criterion 2C:4-4(b)(2)(g): "That [defendant] has

12 A-3852-18
the ability to participate in an adequate presentation of his defense."

Terranova opined defendant was able to participate in presenting his defense,

while Weiss disagreed. As the fact-finder, Judge Wells explained in detail

why he rejected Weiss's contention that defendant was unable to participate in

the adequate presentation of his defense. We discern no reason to disturb his

conclusion.

We now address defendant's evidentiary arguments regarding the

admission of intrinsic evidence and the qualification of Mayo as an expert. "A

trial court's evidentiary rulings are entitled to deference absent a showing of an

abuse of discretion." State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting

State v. Harris, 209 N.J. 431, 439 (2012)). "An appellate court applying this

standard should not substitute its own judgment for that of the trial court,

unless the trial court's ruling is so wide of the mark that a manifest denial of

justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (internal quotation

marks omitted).

N.J.R.E. 404(b) governs evidence involving other crimes, wrongs, or

acts. It provides that:

Except as otherwise provided by [N.J.R.E.] 608(b),
evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in
order to show that such person acted in conformity

13 A-3852-18
 with such disposition. . . . [Such] evidence may be
admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident when such
matters are relevant to a material issue in dispute.

"In contrast to other-crimes evidence . . . res gestae evidence relates

directly to the crime for which a defendant is being tried, rather than involving

a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div. 2001).

Res gestae evidence

serves to paint a complete picture of the relevant
criminal transaction. Thus, evidence of conduct
occurring during the same time frame as the crime
charged in the indictment will not be excluded if the
evidence establishes the context of the criminal event,
explains the nature of, or presents the full picture of
the crime to the jury.

[Ibid. (quoting State v. Cherry, 289 N.J. Super. 503,
522 (App. Div. 1995)) (internal quotation marks
omitted).]

"Instructing the jury on the limited uses of other-crimes evidence is

unnecessary when evidence of uncharged conduct is admitted as part of the res

gestae of the crime." Ibid. (emphasis omitted).

In State v. Rose, 206 N.J. 157, 182 (2011), our Supreme Court

prohibited the use of res gestae as an independent means of admitting

evidence. The Court held that whenever other uncharged conduct is sought to

14 A-3852-18
be admitted, the trial judge must first determine whether the other crime is

subject to N.J.R.E. 404(b) analysis, or whether it is evidence that is intrinsic to

the charged crime and thus admitted as an exception to Rule 404(b). Id. at

179.

The Rose Court adopted the test in United States v. Green, 617 F.3d 233,

248-49 (3d Cir. 2010), to determine what can be considered "intrinsic." Id. at

180. "[E]vidence is intrinsic if it 'directly proves' the charged offense" or if

the uncharged acts are "performed contemporaneously with the charged crime

[and] if they facilitate the commission of the charged crime." Ibid. (quoting

Green, 617 F.3d at 248-49).

The Rose Court also held that background evidence is admissible

"outside the framework of Rule 404(b)," and when it is admissible for this

purpose, the evidence is subject to an N.J.R.E. 403 4 balancing test, as to

probative value orprejudice, not Rule 404(b). Id. at 177-78, 181.

There is no need to regard [N.J.R.E.] 404(b) as
containing an exhaustive list of the non-propensity
purposes permitted of other crime evidence. . . .
[T]here is no reason that our courts cannot allow,
under [N.J.R.E.] 404(b), evidence to be admitted for a

4
N.J.R.E. 403 provides that: "[R]elevant evidence may be excluded if its
probative value is substantially outweighed by the risk of: (a) Undue prejudice,
confusion of issues, or misleading the jury; or (b) Undue delay, waste of time,
or needless presentation of cumulative evidence."

15 A-3852-18
 . . . "necessary background" or, as otherwise stated,
"the need to avoid confusing the jury," non-propensity
purpose.

[Id. at 181 (quoting Green, 617 F.3d at 249).]

Here, the trial judge ruled the intrinsic evidence exception applied to the

additional photographs the State moved into evidence. These photos and

videos were not the subject of the counts of the indictment, but neither were

they "other crime evidence." Defendant had contemporaneously collected and

created the images and videos, surreptitiously taken of A.C., some of which

were alterations (such as enlargements of A.C.'s intimate parts) of evidence

that was part of the indictment. The State had provided a list of all of the

photographs and video evidence it planned to introduce at trial, and defense

counsel was able to review this list. The judge's analysis and decision to admit

the evidence comports with the directions announced in Rose, detailed above,

and we discern no abuse of discretion in his doing so.

Addressing the court's sua sponte qualification of Mayo as an expert, we

note the progression of events was somewhat out of the ordinary. However, it

demonstrates the court's instinct was proper, that the jury needed an

instruction. Under N.J.R.E. 702, "[i]f scientific, technical or other specialized

knowledge will assist the trier of fact to understand the evidence or to

16 A-3852-18
determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion

or otherwise." To be admissible, the testimony must involve a subject matter

that is beyond the ken of the typical juror, the field involved must be a state of

art that such an expert's testimony could be sufficiently reliable, and the

witness must have sufficient expertise to offer the testimony. DeHanes v.

Rothman, 158 N.J. 90, 100 (1999); State v. Kelly, 97 N.J. 178, 208 (1984).

In State v. McLean, 205 N.J. 438, 457-58 (2011), our Supreme Court

drew a distinction between testimony of police officers as lay witnesses

(N.J.R.E. 701) and expert testimony under N.J.R.E. 702. There, the Court

specified that in certain contexts, such as street drug distribution, "the

significance of the transactions and the roles played by the participants" can be

"beyond the common understanding of jurors [such] that it [meets] the

requirements that N.J.R.E. 702 imposes generally on expert testimony." Id. at

451.

Defendant argues that the State had an "unfair litigation advantage"

contrary to Rule 3:10-3(a), which provides:

Whenever the State intends to call an expert witness to
testify at trial and that expert witness did not conduct,
supervise, or participate in a scientific or other such

17 A-3852-18
 test about which he or she will testify, the State shall
serve written notice upon the defendant and counsel of
intent to call that witness, along with a proffer of such
testimony, all reports pertaining to such testimony,
and any underlying tests, at least [twenty] days before
the pretrial proceeding begins, or at least [twenty]
days before the pretrial conference. If extenuating
circumstances exist, the [S]tate may file the notice
after this deadline. For purposes of this rule the term
"test" shall include any test, demonstration, forensic
analysis or other type of expert examination.

Detective Mayo testified regarding the police department's retrieval of

photo and video evidence from defendant's computer. Defense counsel

objected, arguing that there was no adequate notice and that Mayo was not

certified as a forensic computer expert at the time of the trial. Judge Wells

determined it was necessary to instruct the jury that Mayo was an expert

witness because his extensive training in the forensic computer software was

outside the ken of the average juror. Although Mayo's certification had

expired when he testified, Mayo had been trained and obtained knowledge

beyond the jurors' ordinary ken. The jurors were instructed to view Mayo's

expert testimony as opinion, rather than fact, which ultimately could have

benefited defendant, not the State. Thus, we reject the assertion of prejudicial

error.

18 A-3852-18
 Finally, we reject defendant's argument that cumulative error requires a

new trial. When an individual error or series of errors does not rise to

reversible error, a combination of those errors and "their cumulative effect can

cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193

N.J. 440, 473 (2008). We find none that rise to such a level.

Affirmed.

19 A-3852-18