NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1483.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Fuentes and Fasciale.
Defendant appeals from his convictions for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. We affirm.
The State charged defendant with committing these sex-related offenses against his prepubescent daughters, J.P. and C.A., with whom he and their mother lived during the relevant time frame. The judge conducted a jury trial on five days between May 2010 and June 2010.
C.A. testified that defendant placed his penis into her vagina on approximately six or seven occasions when she was tenor eleven-years-old. She explained to the jury that on the first occasion they played hide-and-seek, he took her into his bedroom, and then defendant removed her pants and underwear and performed the act. She testified that "he got on top of me and started humping me." The other incidents occurred in the home too. She stated at trial that defendant directed her not to tell anyone and offered her money to keep the sexual abuse a secret. C.A. testified, without objection, that defendant drank beer when he performed some of the acts.
The mother testified that C.A. reported the sexual abuse to her in 2007 or 2008 and that the defendant denied any wrongdoing. In May 2009, when C.A. was twelve
-years -old, she reported the incidents to her school guidance counselor. The guidance counselor notified the Division of Youth and Family Services (DYFS),  which then placed C.A. and J.P. in various foster homes until they were reunited with their mother shortly before the trial commenced.
J.P. testified that defendant inserted his penis into her vagina when she was seven
-years -old and repeated this conduct three times per week until she was approximately ten - or eleven -years -old. J.P. explained that most of the acts occurred in her parents' bedroom, where defendant directed her to remove her pants and underwear, but that defendant also performed these acts in a bathroom at a construction site where he had worked. J.P. also provided to the jury details of the sexual abuse. She testified that he used a condom and "moved back and forth, " which caused her physical pain. J.P. told a friend from school about the sexual abuse during the time frame when defendant was performing the acts; J.P. informed her mother about what had occurred after her mother learned that defendant had been sexually assaulting C.A.
The State called Lynn Taska, Ph.D., a psychologist with expertise in child sexual abuse, to testify regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Taska described five behavioral patterns associated with victims of child sexual abuse, beginning with secrecy. She indicated that in many cases, children are bribed to remain silent about the abuse. Regarding the entrapment and accommodation behavioral characteristic, the doctor testified that children who are sexually abused adapt to the circumstances by being depressed and through self-destructive conduct, such as "cutting themselves." The State used Dr. Taska's testimony concerning the children's behavior to the victims, in part, to support the testimony of the State's Medical Examiner, Lesley Ann Elton, M.D.
Dr. Elton, the State's medical expert who specializes in sexual abuse, examined C.A. and J.P. in July 2009. As part of the examinations, Dr. Elton obtained the children's account about what defendant had allegedly done to them. The girls' description to the doctor of the sexual abuse they allegedly endured from defendant corroborated their trial testimony. Dr. Elton testified that J.P. described for her a history of "depression and . . . cutting herself." After performing the examinations, the doctor saw no indication of trauma, but stated that
[e]vidence of penetration . . . in a child, is a rather unusual . . . . We actually only see evidence of trauma in about four percent of the children that we examine. There are a lot of reasons why we don't see evidence of trauma when we do these genital examinations of girls . . . . [I]t is very much related to the anatomy of the female genitalia.
Dr. Elton then explained that if the examination of the child is more than seventy-two hours from the sexual abuse, it is "more difficult" to detect evidence of trauma and two weeks after sexual abuse it is "very unlikely" that physical injury will be detected. Here, the doctor performed the examinations well beyond two weeks after the acts, and observed no evidence of trauma.
Detective Joanne Son, testified that she brought defendant to an interview room to obtain a statement, read him his Mirandarights, and then advised him that she would arrest him after they spoke. When defendant stated that he wanted a lawyer, Detective Son immediately stopped the interrogation, and left the room briefly. When she returned, she told defendant that because he had invoked his right to counsel, she could not hear "his side of the story" and was required to return him to a cell. The investigator testified that "[defendant then stated voluntarily to me] that he had a drinking problem. That he knows he didn't do anything [wrong], but [that] he can't control himself with drinking."
The mother testified that she was approximately fifteen
-years -old when she met defendant, they began dating, and then they had J.P., C.A., and S.A., Jr., together. The mother indicated that she confronted defendant after she learned about sexual abuse from C.A., but that he denied any wrongdoing. On cross-examination, she testified that defendant was unable to go to work sometimes because he was too drunk the previous night.
Defendant testified, through the use of a Spanish interpreter,  that he worked as a landscaper six days per week from approximately 6:30 a.m. to 7:00 p.m. He explained that he never missed work as a result of being hung over, and testified in general that it was "very rare" that he missed going to work. Defendant testified that he did not spend time alone with the victims and never played hide-and-seek with them. Defendant called five character witnesses, who testified that he was truthful, respectful, and honest.
The jury rejected the testimony from defendant and his character witnesses and found him guilty of committing these offenses. The judge imposed an aggregate thirty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole supervision for life (PSL), and Megan's Law, N.J.S.A. 2C:7-1 to -23. This appeal followed.
On appeal, defendant raises the following points:
[DEFENDANT'S] RIGHT TO A FAIR TRIAL WAS OBLITERATED WHEN THE PROSECUTOR ASKED THE CHILD-VICTIMS' MOTHER A SERIES OF QUESTIONS WHICH IMPROPERLY SUGGESTED THAT SHE, TOO, HAD BEEN A VICTIM OF SEXUAL ...