On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1179-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Simonelli.
A jury convicted defendant Thomas Zowasky of five counts of first-degree aggravated sexual assault, one count of second-degree sexual assault, and one count of endangering the welfare of a child. The conviction stemmed from defendant's sexual assault of S.P., a 12-year-old girl he had befriended. Defendant received three consecutive fifteen-year terms of imprisonment, two concurrent fifteen-year terms of imprisonment, and two concurrent five-year terms of imprisonment, all of which were subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals his conviction and sentence.
Because of prejudicial legal errors committed during the trial, including the improper introduction of polygraph evidence, we are constrained to reverse defendant's conviction and remand for a new trial. We limit our review to a determination of whether introduction of the polygraph evidence, and the submission of a transcript of the victim's trial testimony to the jury, constitute reversible error. Although not raised on appeal, we also address whether reversible error occurred when the jury had an unrestricted private review of defendant's videotaped pretrial statement without any precautionary measures.*fn1
Defendant did not raise these issues below. Thus, we consider them under the plain error standard of review. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, we "must disregard any error unless it is'clearly capable of producing an unjust result.' Reversal of defendant's conviction is required only if there was error'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004)); Macon, supra, 57 N.J. at 336; R. 2:10-2.
We summarize the evidence pertinent to this appeal. Defendant was accused of having engaged in a sexual relationship with S.P. from December 2003 to September 2004. During a police investigation, defendant gave a videotape statement to Detective Brian Weisbrot from the Burlington County Prosecutor's Office, Sexual Assault/Child Abuse Unit. Defendant admitted his sexual relationship with S.P. and described the various sexual acts in which they had engaged numerous times, including vaginal intercourse, anal penetration, cunnilingus, fellatio and digital penetration of the vagina.
At trial, S.P. admitted she and defendant had a sexual relationship. She testified about the various sexual acts in which they had engaged "too many" times, "like a hundred... maybe more."
Defendant also testified at trial, and denied any sexual contact with S.P. He insisted that S.P. was forced to admit that they had sexual intercourse in order to protect her drug-addicted mother, and that she had lied at trial. Defendant also testified that he lied during the videotape statement, that Weisbrot forced him to make the statements in the videotape, and that Weisbrot threatened him with the loss of his children to foster care if he did not cooperate.
Contrary to the State's argument, defendant did not first raise evidence of the polygraph during his direct examination. Rather, the State introduced this evidence at the beginning of its case-in-chief when it entered the videotape into evidence and played it to the jury. At the end of the videotape, the following colloquy occurred:
[WEISBROT]: Okay,  has everything that we spoke about today, ...