On appeal from Superior Court, Law Division, Morris County.
Before Judges Pressler, Landau and Newman.
[278 NJSuper Page 297] The opinion of the court was delivered by
Following a trial by jury, defendant W.L. was convicted of four first-degree and three second-degree crimes of sexual abuse of which the victim was D.L., one of his six children and the oldest of his three daughters. The gravamen of the charges is that from the time D.L. was seven years old until she was seventeen, defendant abused her by way of sexual contact which escalated into intercourse by the time she was thirteen. He was sentenced to consecutive terms of twenty years on two of the first-degree convictions and to unspecified concurrent terms on the remaining convictions.
In appealing from the judgment of conviction, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS DENIED BY THE PROSECUTOR'S SUMMATION CHARACTERIZING THE CSAAS FACTORS AS "INDICATORS" OF SEXUAL ABUSE; HER ARGUMENTS THAT BASED UPON THE EXPERT'S TESTIMONY, DEFENDANT WAS "THE TYPE OF PERSON" LIKELY TO ENGAGE IN DEVIANT BEHAVIOR; AND THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE FUNCTION OF CSAAS EVIDENCE. (Not raised below)
II. SINCE THE STATE HAD PRESENTED EVIDENCE THAT ANOREXIA WAS COMMONLY ASSOCIATED WITH SEXUAL ABUSE, IT WAS FUNDAMENTALLY UNFAIR AND A VIOLATION OF THE CONFRONTATION CLAUSE TO PRECLUDE THE DEFENSE FROM INTRODUCING THOSE PORTIONS OF D.L.'S DIARIES IN WHICH SHE ATTRIBUTED HER ANOREXIA TO THE FACT THAT HER BOYFRIEND HAD USED HER SEXUALLY, AND INDICATED THAT SHE HAD BEEN RAPED BY ANOTHER PERSON.
III. THE STATE'S EXPERT'S TESTIMONY THAT ON THE "CHILD ABUSE POTENTIAL INVENTORY" TEST ADMINISTERED TO DEFENDANT, "THE FAKING GOOD INDEX WAS HIGHLY ELEVATED" (MEANING THAT HE "WASN'T GIVING US HONEST ANSWERS," BUT WANTED TO APPEAR "HEALTHY"), WAS HIGHLY IMPROPER, AND DENIED DEFENDANT A FAIR TRIAL. (Not raised below)
IV. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS ATTORNEY'S FAILURE TO MOVE FOR A PRETRIAL HEARING ON THE ADMISSIBILITY OF PORTIONS OF THE DIARY; HIS FAILURE TO
OBJECT TO THE TESTIMONY ABOUT THE DEFENDANT'S SCORES ON THE FAKING GOOD INDEX OF THE CHILD ABUSE POTENTIAL INVENTORY; HIS FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION THAT THE CSAAS FACTORS WERE "INDICATORS" OF CHILD ABUSE; AND HIS FAILURE TO REQUEST A LIMITING INSTRUCTION EXPLAINING THAT THE CSAAS FACTORS WERE NOT SUBSTANTIVE EVIDENCE OF GUILT. (Not raised below)
V. THE SENTENCE WAS IMPOSED IN VIOLATION OF THE SENTENCING GUIDELINES OF THE CODE, AND IS PARTIALLY ILLEGAL. (Not raised below)
A. The Decision To Impose the Maximum Sentence on Both Count Two and Count Three Violated The ...