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State of New Jersey v. W.L.J

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 25, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
W.L.J., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0462.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010

Before Judges Carchman, Graves and Messano.

Following a jury trial, defendant W.L.J. was convicted of first degree aggravated sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(a)(1); second degree sexual assault, N.J.S.A. 2C:14-2(b); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant to an aggregate term of imprisonment of ten years in prison, with an eighty-five percent parole disqualifier under the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2, together with five years of parole supervision as well as the required registration and supervision under Megan's Law. N.J.S.A. 2C:7-1 to -11. Defendant appeals. We affirm the judgment of conviction but defer defendant's claims as to ineffective assistance of counsel to a petition for post-conviction relief.

R. 3:22-1 to -4.

These are the facts adduced at trial. Defendant and L.J., both Haitian immigrants, were married in 1998, when L.J.'s daughter, Y.J., was four-and-a-half years old. L.J. and defendant had a daughter together, W.J. Y.J. called her step-father "Poppy." The relationship between L.J. and defendant was "rocky" according to defendant's cousin, Florcy, who lived with the family in 1999-2000. L.J. conceded that she and her husband did not get along, and that the children sometimes saw defendant physically hurt her. L.J. was also aware that defendant maintained two girlfriends during his marriage, and L.J. knew the women's names, addresses, cell phone numbers and license plate numbers. L.J. also claimed to have spoken to the girlfriends on the telephone.

The family lived in a house in Roselle, but in August 2005, they sold the house, planning to move to Georgia for a fresh start. Until the move to Georgia could be accomplished, the parties moved to another house in New Jersey to live with friends. The $121,000 proceeds from the sale of their house were placed in a joint account. According to L.J., defendant took some money out of the account, prompting her to remove $121,000 from the account on September 5 or 6, 2005. Defendant then moved out of their temporary residence with friends and filed for divorce in October 2005.

According to L.J., sometime in 2004, Y.J. came to her and said, "When Poppy is kissing me he tries to kiss my tongue."

L.J. advised Y.J. to tell defendant not to kiss her that way, but Y.J. wanted her mother to talk to him. When L.J. relayed the conversation to defendant about a week later, he said that Y.J. was "crazy." However, in a statement given by L.J. to the prosecutor's office on December 14, 2005, L.J. said that the conversation between her and Y.J. happened "in the summer [of 2005] while I was waiting to do my closing for my house." When she spoke to defendant about it, he saw nothing wrong with it but agreed not to do it again. When challenged as to the actual time of this conversation, L.J. insisted that it was made in 2004. When again confronted with her previous statement that the conversation occurred in the summer of 2005, L.J. said she made a mistake because she was upset, or maybe the person "working on the computer" made an error. She then admitted that she could not remember when Y.J. made the statement about Poppy kissing her, but thought maybe it was about a year before the house was sold.

Y.J. said nothing more about defendant until December 2005, when, on December 8, 2005, Y.J., her mother and W.J. were driving to church. According to L.J., Y.J. said she had something to tell her mother, but did not want to discuss it in front of her sister. When L.J. persisted, Y.J. said, "Remember when I told you that Poppy was kissing me?" When L.J. agreed, Y.J. said that after that, defendant came to school, took her to the basement of their home, beat her on the mouth and said, "If you ever repeat to . . . anybody else what I did to you I will kill you."

The next day, December 9, 2005, L.J. appeared in court in her matrimonial action and was ordered to put $99,000 she had taken from the marital account into an attorney trust account. She returned only $40,000 of the money.

A few days later, on December 12, 2005, L.J. took both her daughters to her friend Bethy's house. While alone, Y.J. told Bethy that defendant had been touching her. Bethy told L.J., who called Y.J.'s doctor, who told her to take Y.J. to Trinitas Hospital. Y.J. was examined by pediatrician Rajyalakshmi Vadali, who noted that Y.J. was menstruating. Vadali found no lesions or tears or other signs of sexual assault, despite Y.J.'s claim that her stepfather had inserted his penis into her vagina.

Vadali notified the police, and on December 14, 2005, Detective Walter Johnson of the Union County Prosecutor's Office took statements from Y.J. and L.J. He described Y.J. as "sullen" and "withdrawn," and she cried when she gave her statement. L.J. was "distraught" and was "hysterically crying" during her interview.

Y.J., who was fourteen years old at the time of trial, informed the jury that beginning in September 2004, when she was eleven years old, she would be called to come to the school office at lunchtime, where defendant was waiting. When she left school with him, he informed her that a teacher had called and said she was misbehaving. Then he would take her to the basement of their house and hit her with a belt on her arms, legs and back until she agreed to do her school work. Defendant would then tell her to take off her pants and he would take off his own pants. He touched her breasts with his hands and then put his penis in her vagina, which "hurted." Y.J. cleaned up "white stuff" afterward. Then defendant would take her back to school. Y.J. claimed this occurred on at least nine occasions between September 2004 and August 2005.

Y.J. also recalled an incident that occurred in September 2004, when defendant took her to Toys R Us for a late birthday present (her birthday was August 30). After buying Y.J. a video game, defendant drove her to a motel near Chuck E. Cheese and a restaurant called Tiffany's, where he put his penis in her vagina, again producing "white stuff."

Y.J. indicated that she had seen defendant hit her mother with his hand, and once, her mother threw a lamp at him. She denied that anyone told her to make these accusations against defendant.

Defendant was arrested, and the police interviewed him.*fn1 During the interview, defendant claimed that he had a "very good" relationship with Y.J. Her teachers called him (never her mother) and reported various instances of Y.J.'s misconduct in school. For example, they reported that Y.J. did not do her homework, did not behave, made noise, talked to other students or did not listen to the teacher. He recalled that one teacher, Mr. Perrone, called him on his cell phone "many times." When he received the phone calls, sometimes he went to the school, where he went to the office to see Y.J. and the principal. Sometimes, after signing Y.J. out of school, he picked her up at lunch and took her home to talk to her about school issues. He admitted that sometimes he spanked her with a belt on her hands as discipline during these incidents but denied sexually abusing her or taking her to a motel. He mentioned that L.J. took money from the sale of their house and put it in her own account. He also suggested that Y.J. was lying. After Johnson inquired as to the motel, defendant discontinued the interview.

At the recommendation of Trinitas, on December 22, 2005, Y.J. went to the Dorothy B. Hersch Child Protection Center, where she talked to Linda Shaw, M.D., a pediatrician with expertise in child sexual abuse. Shaw met with Y.J. alone but did not examine her because Y.J. said she had been examined and tested at Trinitas. Y.J. told Shaw that there had been penile contact with her genital area by an adult male and that she was experiencing sadness, anger, trouble sleeping and bad dreams. Shaw referred Y.J. to counseling.

At the request of the prosecutor's office, Shaw performed a physical examination of Y.J. in January 2007. The doctor found no evidence of sores, bumps, discharge or irritation to indicate sexual abuse. However, "[p]enetration doesn't, necessarily, leave anything for a physician to identify on an examination." Shaw stated that it is "unusual" to find any injury indicative of sexual abuse in a child of Y.J.'s age because generally, genitalia are sexually mature, and specifically, Y.J.'s genitalia were mature.

Thomas Perrone, who was Y.J.'s teacher for two years, challenged defendant's claims regarding his interaction with the school. He testified that Y.J. was not a disruptive student, and he never called her parents concerning her behavior. He did contact her parents about her school work, but he did not recall ever speaking to defendant. He never asked her parents to pick her up from school. Similarly, two other teachers indicated that Y.J. was never disruptive in school, and the teachers never sought immediate parental intervention. One teacher, Barbara Becker, said she called home four times about schoolwork matters, but got no response, and she never met with defendant.

Racquel White, Y.J.'s music teacher, said Y.J. presented no behavioral problems, and White never asked the parents to come to the school immediately. She called home only to report that Y.J. repeatedly forgot her flute. White's classroom was next to the office, and she recalled seeing defendant "a good amount of times." After learning of the allegations against defendant, White recalled one occasion when Y.J. left school at lunchtime and returned in the afternoon. The teacher did note that in 2004-2005, Y.J. was always "sad and always mopey." When she asked Y.J. about her family, she replied, "you just don't know." However, Y.J. never mentioned a sexual assault to White.

Barbara Ann DeMarco, the principal of Y.J.'s school, observed that Y.J. was "extremely well behaved." DeMarco never asked for any immediate parental involvement for behavior issues, but Y.J. "was struggling" academically. DeMarco met with both parents only once, when Y.J. failed to do a book report. DeMarco explained that the school had a sign-in/sign-out sheet that the parents were supposed to sign when they retrieved their children during school hours, but it was possible to circumvent the rule during lunchtime when the children were outside by telling the outside aide that the child had already been signed out. The sign-in/sign-out sheet revealed that Y.J. was signed out only once during 2004-2005, on December 23, 2004. DeMarco stated, "Apparently, that is her father's signature." She then admitted that the signature was illegible, and she was speculating as to the signer. L.J. came to the school one day "hysterical[ly] crying" and told DeMarco of the allegations against defendant. DeMarco did not remember the date of that incident but thought it was January. DeMarco also noted that conferences between the Child Study Team and L.J. were held in December and January, and the reports of those meetings made no mention of the sexual abuse allegations. If L.J. had mentioned abuse to a teacher, it would not be placed in the report, but the teacher would have to report it to the authorities.

Upon investigation, Johnson determined that no records from Toys R Us or the Garden State Motel were retained to corroborate Y.J.'s story about the abuse at the motel on the day defendant took her to Toys R Us.

Locombe, defendant's cousin who once lived with the family, was "very close" to L.J. Locombe conceded that L.J. was a "very jealous person" and repeatedly told her that if she and defendant did not stay together, he would "end up in jail or back to Haiti" as L.J. would "get back at" him. E.P.L., one of defendant's girlfriends, indicated that on the day defendant was arrested, she called L.J. and asked what she had done to him.

L.J. replied, "If I can't have W.J., no one else will have him. Everybody lose [sic]."

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXERCISED ITS DISCRETION ALLOWED BY RULE 30:20-1 [sic] TO SET ASIDE THE VERDICT OF THE JURY AND ORDER A NEW TRIAL.

POINT II

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXERCISED ITS DISCRETION PURSUANT TO RULE 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION.

A. AT THE END OF THE STATE'S CASE THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

B. AFTER THE JURY VERDICT THE TRIAL COURT SUA SPONTE SHOULD HAVE EXERCISED ITS DISCRETION PURSUANT TO RULE 3:18-1 BY ENTERING A JUDGMENT OF ACQUITTAL.

POINT III

THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY OF L.J. UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO ISSUE LIMITING INSTRUCTIONS TO THE JURY REGARDING THE FRESH COMPLAINT TESTIMONY.

POINT V

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE ADMISSION OF DEFENDANT'S DOMESTIC VIOLENT ACTIONS AGAINST THE VICTIM'S MOTHER AND/OR THE OMISSION OF A LIMITING INSTRUCTION AS TO THIS OTHER CRIME OR WRONGFUL CONDUCT EVIDENCE CONSTITUTES PLAIN ERROR.

POINT VI

THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS OF Y.J. TO DR. SHAW.

POINT VII

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO PROVIDE THE JURY WITH THE FULL DEFINITION OF ABUSED AND NEGLECTED CHILD AS PROVIDED IN N.J.S.A. 9:6-1 AND N.J.S.A. 9:6-8.21.

POINT VIII

THE TRIAL COURT ERRED DURING JURY DELIBERATION WHEN IN RESPONSE TO THE JURY'S INQUIRY CONCERNING THE CHARGE OF AGGRAVATED SEXUAL ASSAULT IT INADVERTENTLY BOLSTERED THE CREDITABILITY OF THE STATE'S EXPERT'S TESTIMONY ON THE ISSUE OF PENETRATION.

POINT IX

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

POINT X

TRIAL COUNSEL WAS INEFFECTIVE IN HIS REPRESENTATION OF DEFENDANT.

A. FOR FAILING TO RETAIN AND CALL AN EXPERT ON DEFENDANT'S BEHALF IN LIGHT OF DR. SHAW'S TESTIMONY.

B. IN FAILING TO MAKE A MOTION FOR MISTRIAL WHEN L.J. TESTIFIED THAT DEFENDANT WENT TO JAIL BECAUSE OF DOMESTIC VIOLENCE.

C. FOR FAILING TO CHALLENGE DETECTIVE JOHNSON'S INTERVIEW METHODOLOGY OF Y.J. BY WAY OF CROSS EXAMINATION OR RETENTION OF AN EXPERT.

D. FAILING TO FILE A MOTION FOR ACQUITTAL AFTER DISCHARGE OF THE JURY PURSUANT TO RULE 3:18-2.

E. FOR FAILING TO MOVE A NEW TRIAL PURSUANT TO RULE 3:20-1 ON THE GROUND THAT THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT XI

THE AGGREGATE ERRORS MANDATE THAT DEFENDANT'S CONVICTION BE REVERSED.

Defendant's first argument claiming the verdict is against the weight of the evidence presents a procedural dilemma. Our consideration of whether to consider such issue on appeal incorporates, by Rule, a condition precedent - the filing of a motion for a new trial. R. 2:10-1 (mandating that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). See R. 3:20-1 (addressing the criteria for setting aside a jury verdict).

Defendant concedes that trial counsel failed to move for a new trial;*fn2 moreover, in asserting that the we should consider the issue on appeal, he alludes to post-trial comments made by the trial judge who expressed his view (and that of his court staff, to the extent it is relevant), that he was not convinced beyond a reasonable doubt. The judge tempered his comments by also acknowledging that "I don't know whether this incident, as described by [Y.J.] actually happened or not. I am not here to act as a 13th juror . . . ." He also was critical of L.J.'s testimony; nevertheless, he took no action, sua sponte, to set aside the verdict. Defendant argues that we should consider the merits even though a new trial motion was not made, as we have previously done in the interests of justice. See State v. McNair, 60 N.J. 8, 9 (1972); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993); State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990). We have determined that the interests of justice mandate that we determine the issue.

The court's duty is to determine whether "it clearly appears that there was a miscarriage of justice under the law."

R. 2:10-1; see also State v. Carter, 91 N.J. 86, 96 (1982). In reviewing a trial court's action on a motion for a new trial following a jury verdict, we "must weigh heavily the trial court's 'views of credibility of witnesses, their demeanor, and [its] general 'feel of the case.'" Ibid. (alteration in original) (quoting State v. Sims, 65 N.J. 359, 373 (1974)). However, "it is a jury function, not the function of the reviewing court, to evaluate witness credibility and the weight and worth of the evidence." State v. Taccetta, 301 N.J. Super. 227, 241 (App. Div.), certif. denied, 152 N.J. 187-88 (1997). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Carter, supra, 91 N.J. at 96. Defendant contends that there was "no physical, medical, or credible testimony" that he sexually assaulted Y.J. and an abundance of evidence that L.J. encouraged the false allegations to retaliate against him for having affairs, filing for divorce and causing the return of the proceeds of the house sale. Defendant also alludes to the trial judge's comments at sentencing in arguing that the verdict was "absurd."

As to the credibility of L.J., that was for the jurors, not the judge, to decide. The same holds true of DeMarco's credibility regarding the identity of the person who signed Y.J. out of school on December 23, 2004. While DeMarco originally testified that the signature on the sign-out log was defendant's, she later admitted that the signature was illegible. Johnson also testified that the signature was illegible; however, the sign-in log sheet was admitted into evidence for the jurors to review to draw their own conclusions. Further, the jury had the same information as the judge. The judge's comments about Y.J.'s being "closeted" with her "aunt" for hours were not supported in the evidence, as the "aunt," Balisage, did not testify at trial, nor was her statement admitted. L.J.'s testimony did not reflect how long Y.J. spent with Balisage.*fn3 The factual determination here was properly for the jury.

Defendant was charged with aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). He could be found guilty if he "commit[ed] an act of sexual penetration with" a victim less than thirteen years old. He was also charged with sexual assault, N.J.S.A. 2C:14-2(b), and could be found guilty if he "committ[ed] an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." Finally, he was charged with violating N.J.S.A. 2C:24-4(a), which provides:

[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

There was no dispute that Y.J. was under the age of thirteen at the time of the alleged crimes, that defendant was at least four years older than Y.J., and that he had assumed responsibility for her as a step-parent. Y.J. testified that on more than one occasion, defendant put his penis "in" her vagina and it "hurted." Y.J. testified that in addition to putting his penis in her vagina, defendant put his hands on her breasts, and after the encounters she cleaned up "white stuff." She repeated the allegation of penile contact to Shaw. While her allegations were not supported by any forensic evidence, her claims were consistent with her telling Shaw that she was sad and angry and had problems sleeping, including bad dreams. Johnson confirmed that when Y.J. gave her initial statement to him, she was "sullen" and "withdrawn." Y.J.'s teacher, White, likewise, indicated that there were days when Y.J. was "sad" and did not participate in class, but after the allegations were revealed, Y.J. appeared "relieved."

This prosecution centered on the credibility of the witnesses and especially, the victim. Y.J.'s testimony and the uncontested facts about age and relationship were sufficient to sustain the charges against defendant, if the jury found her credible. Although defendant correctly notes that there was no physical evidence to confirm her claims, Shaw countered that it is not uncommon to have no physical evidence of the assault, especially when the girl is sexually immature, as was Y.J. Courts too, have recognized that "[f]requently, there is no visible physical evidence that acts of sexual molestation have occurred." State v. D.R., 109 N.J. 348, 358 (1988). Further, although there was evidence that supported defendant's position that Y.J.'s allegations were prompted by her mother, defendant's statement after his arrest bolsters Y.J.'s allegations.

Defendant claimed that he was called to school many times due to Y.J.'s behavioral problems, but four teachers and the principal disputed that assertion by offering that Y.J. was well-behaved and there was never any request that a parent pick her up. Defendant recalled Perrone calling him; Perrone denied that such call was made. Defendant admitted to taking Y.J. home at lunchtime and hitting her with a belt. At the least, defendant's statement gave credence to Y.J.'s allegation that defendant picked her up from school numerous times at lunchtime. The proofs of what happened during those encounters were sufficient to present to the jury a rational basis to find beyond a reasonable doubt that the crimes were committed. In sum, the record provides sufficient support to conclude that the verdict was not against the weight of the evidence.

Our conclusion as to the new trial renders moot any claim that defendant was entitled to a judgment of acquittal at the end of the State's case or after both parties had rested. The proofs adduced were sufficient to meet the statutory elements of the charged offenses.

We dismiss with only brief commentary, defendant's assertion that the judge erred in admitting L.J.'s hearsay testimony under the fresh complaint rule. In his brief, defendant asserts:

Y.J. told her mother that Defendant picked her up from school, took her home, beat her in the mouth and had sex with her. [L.J.] arranged a meeting for Y.J. to speak with her friend, Bethy. After being in her bedroom with Y.J. for almost two hours "pressuring" Y.J. to "open up", [sic] Bethy came out of the room and told [L.J.] that Y.J. told her that Defendant had sexual intercourse with Y.J.

Defendant's argument is based on a claim that this evidence was before the jury. It was not. The testimony regarding Blaisage is derived from a pre-trial motion not trial testimony. Moreover, the judge ruled that L.J. could testify about Y.J.'s complaint about defendant kissing her, an issue not raised on this appeal. There was no fresh complaint error here.

We reach a similar result regarding testimony involving the domestic violence dispute between the parties. First, the judge had ruled that the "bare bones" of the domestic violence disputes between the parties would be permitted, a circumstance acquiesced in by both the State and defendant. While there was testimony that defendant struck L.J., which now defendant argues violated Rule 404(b) and cut "mortally" into defendant's rights, the testimony was consistent with defendant's theory of his defense. In her opening, defense counsel alluded to L.J.'s motive to lie and in her closing, she alluded to the domestic violence, harm to L.J. and L.J.'s motive "to have this man in jail."

Defendant further asserts that the judge gave no limiting instruction regarding the use of such testimony. Neither issue, the mention of the striking or the absence of a limiting instruction, was raised at trial,*fn4 so we must determine whether the alleged error was "clearly capable of producing an unjust result." R. 2:10-2.

As we have noted, the proofs regarding defendant's treatment of L.J. were consistent with defendant's theory of the defense and trial strategy. We find no error here and even if error, it was harmless. These were sexual assault offenses and the limited reference to the domestic violence offense is too remote from the facts truly at issue to warrant our intervention.

Defendant next argues that the judge erred in admitting hearsay statements made by Y.J. to Dr. Shaw. We conclude there was no error.

Shaw testified that Y.J. told her that she was having trouble sleeping, was sad and angry and had bad dreams. In addition, Y.J. told her that she was worried about being pregnant, that she experienced itching in her genital area and that Y.J. told her that an adult male had made penile contact with her vagina.

The judge admitted these statements, after conducting a N.J.R.E. 104 hearing, on the theory that these statements were relevant to medical treatment and diagnosis. N.J.R.E. 803(c)(4) permits the hearsay statements to be admitted if they are:

[s]tatements 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 to the extent that the statements are reasonably pertinent to diagnosis or treatment.

This exception to the hearsay rule is "based on the assumption that the declarant is more interested in obtaining a diagnosis and treatment culminating in a medical recovery than he is in obtaining a favorable medical opinion culminating in a legal recovery." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2010). "Hence, statements which describe present or previous symptoms, pain or sensations and/or their history are admissible to prove the truth of the statements if the statements are relevant to an issue of the declarant's condition." Ibid.

Following the N.J.R.E. 104 hearing, the judge ruled, "I'm satisfied that the Prosecutor has laid the proper foundation for the exception to the Hearsay Rule that the statements, the history that was taken by Doctor Shaw was necessary for her treatment diagnosis of this medical condition, based upon her testimony."

Again, we will not disturb the discretionary ruling of the trial judge unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).

Defendant claims that Y.J. did not meet with Shaw in December 2005 for treatment or diagnosis, but rather, the visit "was solely to prepare Dr. Shaw to testify at the criminal trial." He claims that Y.J. was "sent to Dr. Shaw after Y.J. was interviewed by the Union County Prosecutor's Office and after Defendant was arrested." He argues that Shaw did not perform a physical examination of Y.J. and did not make any diagnosis or provide any treatment.

The factual premise of defendant's argument is incorrect. After Y.J. was examined in the emergency room of Trinitas Hospital, Trinitas referred her to Shaw as a "follow-up" to emergency room treatment because "Emergency Rooms are not an ideal place . . . for kids to get . . . a fuller assessment of their mental or physical well being . . . ." Shaw's role was to identify Y.J.'s mental and physical condition, to give her an opportunity to express concerns about what happened to her, and to recommend resources. Y.J. expressed to Shaw information that was necessary to treat and diagnose Y.J. Shaw reacted by recommending that Y.J. be referred for intensive counseling. After talking with Y.J., Shaw decided not to perform a physical examination, which was redundant to the examination the week before. Y.J. reported no new symptoms, and Shaw would have performed a physical examination if that had not been the case.

Shaw's testimony falls within the parameters of the N.J.R.E. 803(c)(4) hearsay exception. In sum, Shaw was not retained by the State to perform this evaluation; rather, Y.J. was referred by the hospital as part of Y.J.'s follow-up at the emergency room. Shaw used the information Y.J. told her to determine that a physical examination was not necessary, and to make further recommendations about Y.J.'s treatment. The admitted statements were made for purposes of medical treatment and diagnosis. Again, we find no error here.

We likewise reject defendant's contention that the judge erred in denying his request to provide the jury with the full definition of "abused and neglected child" as provided in N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21.

Defendant was charged with violating N.J.S.A. 2C:24-4(a), which provides that a person is guilty of a crime if he had a legal duty for the care of a child and engaged in "sexual conduct which would impair or debauch the morals of the child, or who cause[d] the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-8.21]" (emphasis added). The jury found defendant guilty of the "sexual contact" portion of the statute, and defendant claims no error with respect to that part of the charge. Even if the jury instruction on the "abused or neglected child" portion of the statute was deficient, defendant's conviction for endangering the welfare of a child was still valid.*fn5

Defendant raises two other substantive arguments on appeal, neither of which have merit. As to the assertion that in his response to a jury question the judge bolstered Dr. Shaw's testimony by his reference to her, we find no error. His sole reference to the doctor's testimony was to her definition of vaginal lips "or if as Doctor Shaw referred to it, if vulvar coitus occurred, then that is sufficient to establish penetration under the law." Such fleeting reference is not bolstering a reference to terminology utilized by the doctor.

We reach the same result regarding the claim that the judge erred in denying defendant's motion for a new trial based on newly-discovered evidence.

Defendant sought to present evidence from J.D., a person who learned of defendant's connection to L.J. after defendant went to prison. J.D. was L.J.'s boyfriend in the 1990s; after meeting in the United States in 1991, they moved to Haiti and opened a grocery store together, which L.J. ran during the day. In 1998, L.J. went to New York temporarily to care for her sick daughter, who had been staying with her mother. J.D. repeatedly asked L.J. when she was coming back, and when she did not return for several months, J.D. told her that he would have to close the business and come to New York, which he did, with her approval. After J.D. arrived in New York and L.J. called him to make sure he was there, she flew to Haiti and removed everything from the store and their house, and also took his car. After that, J.D. never heard from her again.

Defendant claimed that J.D.'s testimony was relevant to L.J.'s motive in instructing her daughter to fabricate the sexual assault because she wanted to see defendant in prison "partly because of defendant filing for divorce, but also because she wanted [the] proceeds of the sale of the family home." Defendant also argued that because credibility was a "huge factor" in this case, casting doubt on L.J.'s credibility would have changed the result of the case.

The judge concluded that although the evidence probably met the standards for newly discovered evidence, it was not admissible. The judge said:

At its heart the evidence here, however, is intended to demonstrate L.J.'s character, that is, that she is a grasping, avaricious and spiteful woman. Those character traits are not specifically in issue here and, generally speaking, the only character trait relevant to a witness in issue is whether that person is truthful or untruthful, and those issues, or those traits, can only be shown by evidence of opinion or reputation. Specific instances of misconduct are specifically excluded as a method of proof of such character trait under Evidence Rule 609*fn6 . . . .

But I think quite clearly the only way the evidence would be admissible here is through 404B evidence. And the defendant made reference in some of his papers to it being evidential of her motive. But whether you call it a motive, a scheme, at heart it is propensity evidence, and it fits none of the issues in 404B. His argument is that she went to great lengths to steal from a prior lover and she's done the same thing here. Her character is not at issue, and the only material [issue] in dispute is her credibility. And even with a lesser standard of proof for the defendant on 404B evidence, I think that it would be inadmissible[.]

Defendant maintains that the evidence was admissible under N.J.R.E. 404(b) to show L.J.'s motive, preparation and intent. N.J.R.E. 404(b) provides that evidence of other wrongs or acts "is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, such evidence may be admitted to show "motive," "intent" or "preparation," among other things. N.J.R.E. 404(b). While defendant claims that J.D.'s testimony would show motive, intent, or preparation, he fails to link L.J.'s stealing property from J.D. to her motive, intent or preparation to encourage her daughter to fabricate sexual assault charges. Moreover, "[t]he use of other crime evidence against non-party witnesses should be strictly circumscribed because such attempts may be nothing more than subterfuge for avoiding the restrictions on using specific acts of misconduct to impeach the credibility of a witness." Biunno, Current Rule of Evidence, comment 8f on N.J.R.E. 404(b) (2010); see also State v. Dreher, 302 N.J. Super. 408, 453-57 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998) (rejecting testimony offered by a defendant in a murder case that the State's key witness had committed a fraud because proving that [the witness] was greedy and predisposed to criminal conduct would not have made it any less likely that defendant murdered his wife).

The judge correctly noted that J.D.'s proposed testimony was really about L.J.'s character and credibility, an issue inadmissible under N.J.R.E. 404(a), and N.J.R.E. 404(b) could not be used to circumvent its inadmissibility. Even if L.J. was the type of person who would do anything for money, J.D.'s testimony would not have exculpated defendant of the sexual abuse crimes. Moreover, the trial was laden with testimony of L.J.'s motive for encouraging her daughter to fabricate the allegations for the jury to consider. We conclude that there was no error.

Finally, defendant contends that his counsel was ineffective. He cites, among other issues, that counsel failed to retain and call a witness to counter Dr. Shaw's testimony, failed to object to certain testimony by L.J. regarding defendant's incarceration for domestic violence, failed to challenge Johnson's interview methodology, failed to move for a judgment of acquittal under Rule 3:18-2 and failed to move for a new trial.

In State v. Preciose, 129 N.J. 451, 460-62 (1992), the Court noted that reviewing courts are reluctant to consider ineffective assistance claims on direct appeal, in cases when the existing record is inadequate to permit fact-findings on the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). Such claims may be deferred to allow a defendant to petition for post-conviction relief, especially when defendant's arguments require a review of trial counsel's motives and strategies. Preciose, supra, 129 N.J. at 462.

We adhere to these principles here and defer consideration, without prejudice, to defendant's petition for post-conviction relief at which time the court may consider facts and record relevant to addressing the issues raised here. There is, however, one caveat.

On the direct appeal, in the interests of justice and at defendant's urging, we did consider defendant's claim that a new trial should have granted. That issue is now barred from consideration in post-conviction proceedings. R. 3:22-5. State v. Rosen, 110 N.J. Super. 216, 218-19 (App. Div. 1969), aff'd, 56 N.J. 89 (1970).

Affirmed.


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