NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-0832.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
Before Judges Messano and Sabatino.
After a February 2012 non-jury trial, defendant R.D. was convicted of six counts of second-degree sexual assaults upon his daughter C.D. ("Cassie") while she was under the age of thirteen, N.J.S.A. 2C:14-2(b) (counts one, two, four, six, eight and nine); three counts of second-degree engaging in sexual conduct that would harm, impair, or debauch the morals of Cassie while under a legal duty to care for her, N.J.S.A. 2C:24-4(a) (counts three, ten, and thirteen); two counts of first-degree aggravated sexual assault of Cassie while she was under the age of thirteen, N.J.S.A. 2C:14-2a(1) (counts five and seven); one count of third-degree terroristic threats to Cassie if she disclosed the sexual abuse, N.J.S.A. 2C:12-3a (count eleven); and one count of third-degree attempt to cause or recklessly cause significant bodily injury to Cassie, N.J.S.A. 2C:12-1b(7) (count twelve). The trial judge imposed upon defendant what he intended to be a seventy-year aggregate prison sentence, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
Defendant now appeals. His principal argument, which was not raised at trial, is that the court improperly admitted and relied upon opinion testimony presented by the State's expert concerning Child Sexual Abuse Accommodation Syndrome ("CSAAS"), in connection with Cassie's delay in reporting her father's alleged acts of sexual abuse. Defendant further argues that the court's sentencing analysis is erroneous and incomplete in several respects, and that a remand for resentencing is warranted if the court affirms his convictions. For the reasons that follow, we affirm the convictions, but remand, with the State's consent, this case for resentencing.
The State's proofs at trial essentially showed that defendant repeatedly sexually assaulted his daughter Cassie on numerous occasions from the time she was the age of four until the age of ten. Centrally, the State relied upon the testimony of Cassie herself, who was fifteen years old at the time of trial. The State also presented testimony from a police detective, Barbara Stio, who interviewed Cassie about the sexual abuse, and from Dr. Anthony D'Urso, a psychologist who provided expert opinion explaining the theory of CSAAS as it relates to the delays of child victims in reporting such sexual abuse. Defendant elected not to testify and did not call any witnesses on his own behalf.
The testimony shows that Cassie lived in the same household with defendant, her mother, her sister, and, at times, also her grandmother, from birth. She recalled that defendant would touch her breasts over and under her clothing, starting when she was around the age of four or five, making her feel uncomfortable. Around the time that Cassie was in first grade, defendant began making her touch his penis. The sexual abuse thereafter worsened, as defendant began demanding that Cassie take off her clothes. Cassie testified that he would touch her body with his penis, and at times, she would see him ejaculate. According to Cassie, defendant also vaginally penetrated her with his penis on numerous occasions, usually in her bedroom or in the living room where defendant slept. At times, the assaults took place in the bathroom when Cassie was taking a bath, in which defendant would not only fondle her, but also get physically aggressive, leaving red marks on her when she resisted his advances. Cassie testified that the sexual assaults would get more frequent as she got older, to a point that they were happening several times a month.
Near the end of the school year in 2009, Cassie reported the sexual abuse to a person at her school. According to Cassie, the reason that she finally reported the abuse was that she was afraid that defendant, who was then in prison on an unrelated matter, was going to be released and would resume abusing her. Detective Stio of the Bergen County Prosecutor's Office interviewed Cassie, who was then thirteen years old, and Cassie recounted several of the acts of sexual abuse in a videotaped interview. The detective also interviewed Cassie's younger sister, who denied being herself abused by defendant, but acknowledged that Cassie had told her something about their father's conduct. Cassie was not medically evaluated after her videotaped statement, since the last instance of abuse had occurred over a year beforehand.
After hearing the trial testimony of Cassie, Detective Stio, and Dr. D'Urso, and considering the closing arguments of counsel, the trial judge issued an extensive oral opinion on February 16, 2012, finding defendant guilty beyond a reasonable doubt of all counts charged in the indictment. In his opinion, the judge predominantly discussed Cassie's narrative account and indicated that he had observed her testify "extremely carefully." The judge also closely reviewed Cassie's videotaped courtroom testimony. Based upon Cassie's demeanor and other appropriate credibility factors, the judge found that he had "no doubt in [his] mind" that her accusations of defendant were truthful. The judge accepted Cassie's explanation that she had delayed in reporting defendant's attacks out of fear, and was persuaded that her account was not fabricated or spawned by improper motives.
On appeal, defendant advances the following arguments for our consideration:
THE COURT VIOLATED R.D.'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING EVIDENCE AS TO THE ALLEGED CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME. U.S. CONST. AMENDS. VI, XIV; N.J. ...