STATE OF NEW JERSEY VS. J.R.(10-09-1556, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-6236-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.R.,

Defendant-Appellant.
_____________________________________

Argued September 30, 2014 – Decided September 29, 2015
Remanded by Supreme Court January 9, 2017
Re-argued April 26, 2017 – Decided August 29, 2017

Before Judges Nugent, Accurso and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
10-09-1556.

Jeffrey G. Garrigan argued the cause for
appellant (Cammarata, Nulty & Garrigan, LLC,
attorneys; Mr. Garrigan and Michael S. Doran,
on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms.
Campbell and Thomas M. Zuppa, Jr., Assistant
Prosecutor, on the briefs).

PER CURIAM
 In November 2012, a jury found defendant, J.R., guilty of

sexually abusing his stepson's pre-teenage daughter over the

course of two years, and in July 2013, a judge sentenced defendant

to an aggregate eighteen-year prison term. Defendant appealed and

argued the following points:

I. THE CSAAS TESTIMONY OF DR. TASKA WAS IMPERMISSIBLE BOTH
IN ITS INTRODUCTION AND, SUBSEQUENTLY, SCOPE DURING THE
COURSE OF THE TRIAL.

A. The Trial Court Erred In Admitting Dr. Taska's
CSAAS Testimony.

B. The CSAAS Testimony Offered by the State Went
Beyond its Permissible Scope.

C. The Jury Charges Related to the CSAAS and Fresh
Complaint Testimony Materially Misled the Jurors,
Confused the Issues, and Misrepresented the Evidence.

II. THE TRIAL COURT ERRED IN ADMITTING THE VICTIM'S HEARSAY
STATEMENTS TO THE STATE'S MEDICAL EXPERT, DR. PAULETT
DIAH.

III. THE TRIAL COURT ERRED IN FAILING TO CONDUCT VOIR DIRE
OR INVESTIGATE AN IRREGULARITY INVOLVING A MINOR.

IV. PROSECUTORIAL MISCONDUCT IN THIS CASE DEMANDS THAT
DEFENDANT'S CONVICTIONS BE REVERSED.

V. DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTIONS
BASED UPON THE INEFFECTIVE ASSISTANCE OF HIS TRIAL
COUNSEL.

VI. THE CIRCUMSTANCES SURROUNDING THIS TRIAL AND THE IMPACT
OF HURRICANE SANDY WERE EXTRAORDINARY AND CALLED FOR A
MISTRIAL.

VII. THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S MOTION FOR
A NEW TRIAL.

2 A-6236-12T4
 VII. THE COURT ENGAGED IN AN IMPROPER SENTENCING ANALYSIS
WHICH LED TO AN IMPOSITION OF A MANIFESTLY EXCESSIVE
SENTENCE.

Perceiving the case as one decided "largely on the credibility

of defendant and the victim," we found defendant's first point

meritorious and therefore reversed and remanded for a new trial.

State v. J.R., No. A-6236-12 (App. Div. Sept. 29, 2015) (slip op.

at 3). The Supreme Court reversed and remanded. State v. J.R.,

227 N.J. 393 (2017). It noted the expert's testimony concerning

Child Sexual Abuse Accommodation Syndrome (CSAAS) "did not

entirely conform to the limitations placed on CSAAS evidence in

prior holdings by this Court," but concluded "the error was

nonetheless harmless."1 Id. at 400. The Court remanded the matter

"to the Appellate Division so that it may consider the issues that

it did not reach in its prior review of this case." Id. at 422.

1
The Court declined to consider the argument of amicus curiae
Office of the Public Defender (OPD) "that almost all of the
hypotheses underlying CSAAS testimony have been rejected by the
scientific community over several decades, and that CSAAS
constitutes 'junk science' that has no place in the courtroom."
J.R., supra, 227 N.J. at 421. The argument had not been made by
defendant and the issue had not been properly developed at trial.
Id. at 409, 421. The Supreme Court has since granted certification
on this issue and remanded it to the trial court "for a hearing,
pursuant to N.J.R.E. 104, to determine whether CSAAS evidence
meets the reliability standard of N.J.R.E. [702.]" State v.
J.L.G., ___ N.J. ___, ___ (2017).

3 A-6236-12T4
 In considering Points II through VII, it is unnecessary to

repeat in their entirety the proofs the parties developed during

defendant's trial. The facts are recounted comprehensively in our

initial opinion, J.R., supra, (slip op. at 4-19), and in the

Supreme Court's opinion, J.R., supra, 227 N.J. at 400-03.

Significant to our disposition of defendant's remaining arguments,

however, is the Supreme Court's assessment of the child victim's

testimony and credibility.2 The Court stated:

In her compelling testimony, the child victim
not only described the incidents of abuse, but
explained her failure to report her
allegations to anyone but her brothers. As
to the critical question of defendant's access
to the child on multiple occasions with no one
else present, the victim's account was
substantially supported by her parents and
brothers, and by the admissions of defendant
himself. Moreover, defendant's credibility
was impeached in important respects when he
testified.

[Id. at 400.]

The Court summarized the child victim's testimony:

N.R., fourteen years old at the time of
trial, testified on behalf of the State. At
length and in detail, she recounted the
incidents that she had alleged in her police
interview. She described for the jury the
location of each offense, the manner in which
defendant allegedly coerced her, the nature
of defendant's sexual contact with her, and
the aftermath of each incident. In addition
to the incidents she had described in the

2
N.R. was the child victim in the case.

4 A-6236-12T4
 interview, N.R., while testifying, recalled
one instance in which defendant "tried to put
[his penis] inside [of her] where the tampon
goes," but she was in pain and resisted. She
said that he apologized and assured her that
he would never do that again.
N.R. stated that she had not been given
access to the record of her interview in
preparation for her testimony. She testified
that despite the abuse, she continued with her
schedule of visits to her father and his
family, and acted normally, "because I was
scared" and "because I didn't want them to
know." She confirmed that she had told only
her brothers about defendant's alleged sexual
abuse, and instructed them not to tell anyone.

N.R.'s account was supported by the
testimony of her parents, who described her
behavior during the relevant period and her
refusal to be left with defendant on the
occasion in early 2010. N.R.'s testimony was
also buttressed by her brother A.R., who
provided "fresh complaint" testimony about her
disclosure of the alleged abuse to him and
their brother G.L.R.

[Id. at 405-06 (alterations in original).]

The Court also summarized defendant's testimony:

Defendant testified on his own behalf.
Contrary to his statement to police, defendant
conceded that N.R. and her brothers had stayed
overnight in his apartment on many occasions.
He admitted that, on at least one overnight
visit, N.R. slept with him in his bed when his
wife was not at home; he said that he kept the
bedroom door open on that occasion and that
when he awoke, N.R.'s brothers were asleep on
the floor next to defendant's bed.

[Id. at 406.]

5 A-6236-12T4
 The Court noted "the critical witness for the State was not

[the CSAAS expert], but [the child victim] herself." Id. at 418.

The Court contrasted the victim's credibility with that of

defendant:

The record before this Court reveals that N.R.
told the jury, in simple, non-confrontational
language, why she was alone with defendant
when the alleged acts of sexual abuse
occurred, and explained the setting of each
encounter. With minimal prompting by the
prosecutor, using terms appropriate to her
age, N.R. recounted each alleged instance of
abuse and its aftermath. Although N.R.
testified that she did not review her
statement to police, two years earlier, in
preparation for trial, her trial testimony was
fundamentally consistent with that statement,
and defense counsel had few discrepancies to
explore on cross-examination.

N.R. did not leave the jury to speculate
about the reason why she delayed reporting the
abuse to an adult and spoke only to her
slightly older brothers about it. She
testified that she did not disclose the abuse
to an adult because she was afraid of
defendant, who instructed her not to tell
anyone, and that she told her brothers about
the incidents in the hope that they would try
to protect her.

Although there were no witnesses to the
alleged abuse, N.R.'s account was corroborated
in important respects by members of her
family. Her parents and brothers — including
her oldest brother, G.L.R., who was called as
a defense witness, - supported N.R.'s
contention that defendant had access to N.R.,
on multiple occasions, with no one else
present. Both brothers concurred with her
account of her disclosure of the alleged abuse

6 A-6236-12T4
to them, and her plea that they not tell anyone
what she had told them. N.R.'s parents and
brothers testified consistently about A.R.'s
disclosure to his mother and the investigation
that followed. The family members
acknowledged that defendant was
affectionately greeted by all three children,
including N.R., and that he took them on
outings. They recounted, however, N.R.'s
unsuccessful attempt in early 2010 to avoid
staying alone with defendant. In short, the
testimony of four family members was
essentially consistent with N.R.'s testimony
on the critical questions of defendant's
access to her and her "fresh complaint" of the
alleged abuse.

In his testimony, defendant vehemently
denied N.R.'s allegations of sexual abuse.
Defendant confirmed N.R.'s account in material
respects, however. Moreover, defendant's
credibility was substantially challenged on
cross-examination. In his police interview,
defendant denied that N.R. ever stayed
overnight at the home he shared with his wife,
insisting that only her brothers made
overnight visits to his home. In his trial
testimony, defendant conceded that N.R. had
stayed overnight in his apartment; he insisted
that he did not remember stating otherwise to
police officers. He admitted that, on
occasion, N.R. had wanted to leave his
apartment and go outside with her brothers,
but was not permitted to do so, and stayed
with him alone.

Defendant was also confronted with self-
incriminating comments that he had made in his
police interview, in which he noted that
"nobody was there" except him and N.R., and
pressed officers to tell him whether N.R. had
been examined by a doctor. He admitted that
he had commented to the officers, "I have the
mind and capability to lie and remember many
things. Sure, about lies and whatever. I can

7 A-6236-12T4
 go to Court. Right? And you tell maybe 95
percent of whatever I say over here exactly
in Court." Before the jury, defendant had no
explanation for that statement.

[Id. at 418-420.]

The Court explained that the CSAAS expert's testimony was not

extensive, the improper portion of the testimony was brief, and

the trial court delivered a strong limiting instruction. Id. at

418. Ultimately, the Court concluded, "when the evidence is

considered in its entirety, it is clear that the trial court's

error with respect to the [CSAA expert] was not clearly capable

of producing an unjust result, and does not warrant a new trial."

Id. at 420.

Against that backdrop, we turn to defendant's remaining

arguments. In Point II, defendant alleges the trial court

committed reversible error by permitting the State's medical

expert to recount the victim's detailed hearsay statements

concerning the incidents of sexual abuse.

Under N.J.R.E. 803(c)(4),

Statements made in good faith for purposes of
medical diagnosis or treatment which describe
medical history, or past or present symptoms,
pain, or sensations, or the inception or
general character of the cause or external
source thereof [are not excluded by the
hearsay rule] to the extent that the
statements are reasonably pertinent to
diagnosis or treatment.

8 A-6236-12T4
In contrast, if statements describing medical history or the

inception or general character of the cause or external source

thereof are made "for evidence gathering purposes," they are

inadmissible. State v. Pillar, 359 N.J. Super. 249, 289 (App.

Div.), certif. denied, 177 N.J. 572 (2003). "[I]n recognition of

it being the State's burden to establish admissibility," if a

doctor's testimony – or the record on appeal – "is not entirely

clear as to why [the victim] was referred to [a doctor,]" then the

victim's hearsay statements to the doctor are inadmissible. Ibid.

Here, the record as to why the victim was referred to the

State's medical expert is equivocal. When specifically asked

whether the purpose of the examination was for diagnosis or

treatment, the doctor gave a non-responsive answer: "Well, in this

particular case, it was . . . evaluation for the possibility of

sexual abuse." Perhaps of greater significance, the doctor found

no evidence of sexual abuse. In view of that finding, it would

appear the doctor's testimony was relevant to explain to the jury

that the absence of such findings is not inconsistent with sexual

abuse. If that indeed were the purpose of the opinion, then there

is a valid argument that permitting the doctor to recount the

victim's hearsay statements concerning the details of the abuse

should have been excluded under N.J.R.E. 403, as the probative

value of the evidence was substantially outweighed by the risk of

9 A-6236-12T4
undue prejudice. In any event, it is difficult to distinguish the

equivocal testimony in this case from that given in Pillar.

Nonetheless, we conclude that any error in admitting the

evidence was harmless. We reach this conclusion based on the

consistent and compelling testimony of the victim, in contrast to

the credibility issues that plagued defendant. As the Supreme

Court noted, "[s]ignificantly the critical witness for the State

was . . . N.R. herself." J.R., supra, 227 N.J. at 418. Given the

compelling testimony of N.R., as well as her family members and

defendant himself, we cannot conclude the admission of the victim's

hearsay statements through the testimony of the medical expert was

clearly capable of producing an unjust result. R. 2:10-2.

For similar reasons, we reject defendant's argument in Point

IV that the prosecutor's misconduct was so egregious it deprived

defendant of a fair trial. Defendant asserts the prosecutor

overstepped her authority by eliciting inadmissible hearsay

testimony from the State's medical witness, improperly argued that

fresh complaint testimony corroborated the victim's allegations

against defendant, refused to refrain from repeatedly asking her

witnesses leading questions, and improperly vouched for the

credibility of the State's witnesses. While these assertions have

some validity, they neither individually nor collectively require

a reversal of defendant's conviction.

10 A-6236-12T4
 The trial court admitted the testimony of the State's medical

expert. The trial court properly handled the prosecutor's apparent

unwillingness to refrain from asking non-leading questions, at

times admonishing her for her persistent conduct. The trial court

also reacted appropriately on those occasions when defendant

objected to what he now characterizes as the prosecutor's

"bolstering" of the State's experts. And though the prosecutor

improperly argued fresh complaint evidence, her statements were

fleeting. In short, considered in the context of all of the

State's evidence, and particularly in light of the victim's

credibility, the prosecutor's conduct did not "substantially

prejudice[] defendant's fundamental right to have a jury fairly

evaluate the merits of [the] defense." State v. Timmendequas, 161

N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S.

858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant's arguments under Points III, VI, and VII are

without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

We decline to address defendant's claim that his counsel was

ineffective. There is "a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because

such claims involve allegations and evidence that lie outside the

trial record." State v. Preciose, 129 N.J. 451, 460 (1992)

(citations omitted).

11 A-6236-12T4
 Lastly, in Point VII, defendant argues the trial court

conducted an erroneous sentencing analysis. Defendant contends

the court committed error in its analysis of factor seven, N.J.S.A.

2C:44-1(b)(7). The argument is based on the court's statement,

"[t]he court finds this factor but I note that the legislative

intent of the presumption of incarceration for first and second

degree offenses renders . . . this factor essentially meaningless."

According to defendant, the trial court confused the need to

determine, in the first instance, whether a presumption of

imprisonment, N.J.S.A. 2C:43-1(d), or a presumption of non-

imprisonment, N.J.S.A. 2C:43-1(e), applies; with the

responsibility of weighing aggravating and mitigating factors to

determine the length of the sentence.

In addition, defendant argues the court "wrongly concluded

that by finding [a]ggravating [f]actor three, N.J.S.A. 2C:44-

1(a)(3), the risk of committing another offense[,] that it would

be inconsistent to find mitigating factors eight and nine."

Lastly, defendant asserts the trial court's imposition of an

eighteen-year term is inconsistent with its determination that "a

sentence at or about the midpoint of the statutory range is

warranted."

We review a trial court's sentence under a deferential

standard, being careful not to substitute our judgment for that

12 A-6236-12T4
of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989).

We will:

affirm the sentence unless (1) the sentencing
guidelines were violated; (2) the aggravating
and mitigating factors found by the sentencing
court were not based upon competent and
credible evidence in the record; or (3) "the
application of the guidelines to the facts of
[the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014)
(quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

When we review a trial court's determination of aggravating

and mitigating factors, we will remand for resentencing if the

court "fails to provide a qualitative analysis of the relevant

sentencing factors on the record," or "the trial court considers

an aggravating factor that is inappropriate to a particular

defendant or to the offense at issue." Ibid. (citations omitted).

The aggravating and mitigating factors found by the trial court

must be based on "competent, reasonably credible evidence." Roth,

supra, 95 N.J. at 363 (citations omitted). When the judge has

followed the sentencing guidelines, and his findings of

aggravating and mitigating factors are supported by the record,

we will only reverse if the sentence "shock[s] the judicial

conscience" in light of the particular facts of the case. Id. at

364-65.

13 A-6236-12T4
 Here, the trial court did not abuse its discretion in

sentencing defendant. The trial court considered aggravating

factor one, the nature and circumstances of the offense, but did

not give it much weight. The court gave considerable weight to

aggravating factor nine, deterrence. Lastly, the court gave weight

to aggravating factor three, the risk defendant will commit another

offense, "based upon the sheer number of acts" he committed.

The trial court found only mitigating factor seven,

defendant's lack of criminal history, but gave it little weight

because of the "legislative intent of the presumption of

incarceration for first and second degree offenses[.]"

Considering the court's comments at sentencing in their

entirety and in context, we find no error in the court's rejection

of mitigating factors eight (defendant's conduct was the result

of circumstances unlikely to recur) and nine (the character and

attitude of the defendant indicate he is unlikely to commit another

offense). There was no factual basis for a finding of mitigating

factor eight, and the court's rationale for finding aggravating

factor three — "based upon the sheer number of acts that this is

indicative that the defendant will commit another offense" —

negated a finding of mitigating factor number nine.

The court's rationale for giving mitigating factor seven

(absence of prior criminal record) little weight is somewhat

14 A-6236-12T4
quizzical. It is difficult to understand how the presumption of

incarceration for a first or second-degree offense somehow negates

consideration of a defendant's previous law-abiding life for

purposes of determining the length of the presumptive

incarceration. The trial court did not support its view of the

statute's legislative history with citation to any authority.

Nonetheless, there was more than ample evidence to support the

court's determination that the aggravating factors substantially

outweighed the mitigating factors. And though there is an apparent

discrepancy between the court's statement concerning a mid-range

sentence and the eighteen-year sentence the court imposed, the

balance of aggravating and mitigating factors is consistent with

an above-mid-range sentence. See Fuentes, supra, 217 N.J. at 73

(citations omitted) (noting that "reason suggests that when the

mitigating factors preponderate, sentences will tend toward the

lower end of the range, and when the aggravating factors

preponderate, sentences will tend toward the higher end of the

range").

For the foregoing reasons, we affirm defendant's conviction

and sentence.

Affirmed.

15 A-6236-12T4