On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-11-2733.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Graves.
Defendant, D.J.P., appeals from his conviction following a jury trial in September 2005 on five counts of a six-count indictment charging the following offenses: aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (count one); sexual assault, N.J.S.A. 2C:14-2c(4) (count two); endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); criminal sexual contact, N.J.S.A. 2C:14-3b (count five); and endangering the welfare of a child, N.J.S.A. 2C:24-4a (count six). Defendant was acquitted on count four charging aggravated criminal sexual contact, N.J.S.A. 2C:14-3a.
On February 3, 2006, after denying the State's motion to sentence defendant as a persistent offender, the trial judge sentenced defendant to a twenty-year prison term on count one, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Count two was merged with count one. A consecutive ten-year term of imprisonment with five years parole ineligibility was imposed on count three, and another consecutive ten-year term with a five- year parole bar on count six. A concurrent eighteen-month sentence was imposed on count five. As a result, defendant's aggregate sentence was forty years with twenty-seven years of parole ineligibility.
Defendant presents two arguments seeking reversal of his conviction and one argument concerning his sentence, as follows:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO ADEQUATELY DEFINE THE ELEMENT OF "IN LOCO PARENTIS" TO THE JURY. (Not Raised Below)
POINT II: THE MODEL JURY INSTRUCTION ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) UNCONSTITUTIONALLY INTRUDES ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TELLS THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT [THE ALLEGED VICTIMS'] TESTIMONY IS UNTRUTHFUL BASED ONLY ON THEIR SILENCE OR DELAY DISCLOSURE." (Not Raised Below)
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
The following is a brief summary of the facts. B.F. and T.B. worked with defendant at a discount store. B.F.'s son, K.V.O., age fourteen, and T.B.'s son, J.S., also fourteen, would often meet their mothers at the workplace, where they met defendant. Defendant became friendly with the two boys and their mothers. At one point, defendant took K.V.O., T.B., and T.B.'s mother to Atlantic City for the day.
On July 11, 2004, K.V.O. came to the store to celebrate his birthday with his mother. Defendant offered to take him out for the day. He took K.V.O. to breakfast, then to the arcades at nearby Keansburg. When his mother came to pick him up at defendant's apartment, K.V.O. asked if he could sleep over for a few days. The mother agreed and went home.
K.V.O.'s mother took him home on July 13, 2004. He initially made no complaints about his stay with defendant. However, based on a conversation with a co-worker later that day, the mother asked her son if anything had happened. K.V.O. responded that although nothing happened the first night, the second night, defendant touched the boy's penis over his clothing. However, the next night, defendant put his hand under K.V.O.'s pants and manipulated his penis. His mother immediately took him to the authorities. She also spoke with her friend T.B., who then questioned her son, who was at that time staying with his uncle in Chicago.
J.S., who suffered from Attention Deficit Hyperactivity Disorder (ADHD), had a longer relationship with the defendant than did K.V.O. From December 2003 to June 2004, J.S. would spend weekends at defendant's apartment. He told his mother that defendant had begun by touching his penis, then would perform oral sex on him. In return, he would receive gifts from the older man. J.S. stated he never told anyone because he did not want to get in trouble.
At first, J.S. told the police that K.V.O. was also present during these incidents, but later admitted that this was not true. He also admitted that defendant had accused him of stealing money from defendant's apartment.
Linda J. Shaw, M.D., an expert in pediatrics and child abuse, testified that she examined J.S., primarily focusing on his anal and genital areas, on August 19, 2004, and found no "damage or any infection." The doctor was not surprised by the lack of physical findings. Dr. Shaw testified that it was unusual in her practice, and for other practitioners in the field, to find any physical indicia in boys or girls who claim that they were sexually abused.
Mary Fierro, Ph.D., an expert in the field of child sexual abuse, testified that the Child Sexual Abuse Accommodation Syndrome (CSAAS) has five stages: secrecy, helplessness, accommodation, disclosure, and retraction. Dr. Fierro testified, to a reasonable degree of psychological certainty, that: (1) J.S. lied when he claimed that K.V.O. and he were sexually assaulted by defendant at the same time as a way to accommodate the sexual abuse so that the abuse would not feel "as bad if it didn't just happen to [him], it happened to somebody else, or [he] wasn't all alone and that someone was present"; (2) boys have a harder time with sexual abuse than girls because the culture expects males to be able to completely protect themselves and not let sexual abuse happen to them; (3) boys have more difficulty disclosing sexual abuse by another male because the boy will think that he "must be gay" and he was abused because the perpetrator knew he was gay, thus, it was not surprising to her that J.S. did not tell his parents about the abuse; (4) defendant's gifts to J.S. were a way for J.S. to accommodate the sexual abuse so that it did not feel quite as bad to him and served as a way for defendant to manipulate the boy into keeping the abuse a secret; (5) J.S.'s ADHD was relevant in that children with this disorder act impulsively or act without thinking; (6) CSAAS is not a diagnostic tool and cannot diagnose that a child has been sexually abused; (7) a sexual abuse victim need not be a victim of incest or interfamilial abuse for CSAAS to be relevant to explain a victim's behavior; (8) she did not interview J.S. or defendant; (9) there were other hypotheses to explain J.S.'s behavior; (10) ...