On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-11-1639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Chambers.
On November 15, 2005, defendant J.D.*fn1 was charged by a Hudson County Grand Jury under Indictment No. 05-11-1639 with having committed various acts of aggravated sexual assault and related offenses upon K.E., a girl, on diverse dates between April 19, 2000 and August 29, 2005, when K.E. was between ten and fifteen years old. Specifically, defendant was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Counts One and Four); four counts of endangering the welfare of a minor, N.J.S.A. 2C:24-4a (Counts Two, Five, Eight and Eleven); four counts of child abuse, N.J.S.A. 9:6-1 and -3 (Counts Three, Six, Nine and Twelve); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c (Counts Seven and Ten).*fn2
Defendant moved pre-trial to bar the admission of the Y-short tandem repeat (Y-STR) DNA test results, asserting that the probative value of the evidence was substantially outweighed by the risk of undue prejudice to him. N.J.R.E. 403(a). Before ruling on the motion, the trial court conducted a Frye*fn3 hearing to determine the reliability of the Y-STR DNA test results. Following the Frye hearing on March 21, 2007, the court ruled that the DNA test results were admissible, determining that the method used to test the DNA sample taken from K.E. on August 30, 2005, was generally accepted by the scientific community;*fn4 and that the probative value of the evidence was not substantially outweighed by the risk of prejudice to defendant.
Tried to a jury, defendant was convicted of one count of second-degree sexual assault (Count Ten) and one count of second-degree endangering the welfare of a child (Count Eleven). He was acquitted of all other charges, either by the jury or by the court. On September 28, 2007, the court denied defendant's motion for a new trial and sentenced him to a nine-year term of imprisonment on Count Ten and to a concurrent seven-year term of imprisonment on Count Eleven.
On appeal, defendant argues:
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AS THE TRIAL COURT SIGNIFICANTLY RESTRICTED THE DEFENSE'S USE OF INCONCLUSIVE DNA TEST RESULTS AND CONSEQUENTLY DEPRIVED THE JURY OF HIGHLY RELEVANT AND MATERIAL EVIDENCE THAT HAD REAL POTENTIAL TO ALTER THE VERDICT IN THE CASE.
A. THE TRIAL COURT ERRED IN APPLYING THE NEW JERSEY'S RAPE SHIELD STATUTE BECAUSE, BY ITS OWN TERMS, IT IS NOT IMPLICATED HERE.
B. ASSUMING ARGUENDO THAT THE RAPE SHIELD STATUTE APPLIES, THE DEFENSE'S PROPOSED USE AND INTERPRETATION OF THE DNA TEST RESULTS WOULD NOT HAVE VIOLATED THE STATUTE.
J.D. and C.D. (collectively, the D's) are K.E.'s godparents. K.E., born in 1990, was seventeen years of age at the time of trial. K.E. began sleeping overnight at the D's home at the age of five and continued to do so until age fifteen. K.E. alleged that when she was between the ages of ten and twelve, defendant digitally penetrated her vagina on numerous occasions, and when she was approximately twelve or thirteen years old, he had sexual intercourse with her.
The convictions in this case stem from an incident that occurred at approximately 1:00 a.m. on August 29, 2005, while K.E., then fifteen years old, slept with defendant's daughter Mary in the guest bedroom. According to K.E., defendant entered the bedroom while she was sleeping; awoke her; took her from the second-floor bedroom to the first floor living room where defendant kissed her on the lips and neck; requested that she remove her underwear; and had sexual intercourse with her. K.E. described defendant's kiss on her neck as him sucking on it. K.E. further testified that defendant did not ejaculate in her, but rather he pulled out and ejaculated on her buttocks. After completing sexual intercourse, they said goodnight, and K.E. returned upstairs to the guestroom where Mary was asleep. K.E. stayed at the D's house the following night and again slept in the guestroom with Mary. Nothing transpired between K.E. and defendant that evening.
On August 30, 2005, K.E.'s mother noticed a "hickey" on K.E.'s neck. K.E.'s mother questioned her regarding who had given it to her. Although K.E. refused to tell her mother what happened, K.E. informed her maternal grandmother that defendant had given her the hickey. In turn, K.E.'s grandmother informed her daughter, who contacted the police. Medical technicians and the police responded to the grandmother's residence. After an initial interview, K.E. was transported to Christ Hospital for an examination.
At approximately 7:00 p.m., a Jersey City police officer contacted Lieutenant Honey Spirito of the Hudson County Prosecutor's Office Special Victims Unit, and informed her of K.E.'s allegations. Spirito alerted the Sexual Assault Response Team (SART), requesting that Detective Maria Dargon respond to the hospital to investigate the matter. While at the hospital, Dr. Francis Pelliccia performed a sexual assault examination of K.E. at 8:30 p.m. The examination disclosed a superficial abrasion of the posterior fourchette. The doctor also performed a cervical swab, vaginal swab, and buccal swab of K.E. The swabs were placed into the sexual assault examination kit and delivered to Detective Dargon. The doctor found K.E.'s injury to the posterior fourchette consistent with the history of penile penetration.
On October 13, 2005, the New Jersey State Police Office of Forensic Sciences analyzed the vaginal and cervical swabs taken by Dr. Pelliccia. A forensic scientist used the STR methodology to analyze the vaginal and cervical swabs. He concluded that, although the samples contained K.E.'s DNA, "there was not enough sperm to form a conclusion about the male DNA present." The DNA samples were ...