NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-04-0365.
Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).
Gregory Aprile, attorney for Respondent.
Before Judges Yannotti and St. John.
The State appeals, by leave granted, from an order entered by the Law Division on January 30, 2013, which granted defendant's motion to bar the State from presenting at trial certain expert testimony. We reverse.
A Passaic County grand jury charged defendant with first-degree aggravated sexual assault upon a victim who is less than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The State claimed that, on October 17, 2009, defendant digitally penetrated S.K.'s vagina and performed cunnilingus upon her. S.K. was seven years old at the time.
The matter was tried before a jury from May 30, 2012 through June 14, 2012. At the trial, the State presented evidence that S.K. reported to her mother E.A. that defendant, her mother's live-in boyfriend, had sexually abused her. E.A. reported the matter to the police, who conducted an interview with her daughter. S.K. told the interviewer that defendant touches her "private part" with his finger and, and on that day, "touched it with his tongue."
S.K. said the incident on that day occurred in her mother's room, on the bed in which her mother and defendant sleep. She stated that she tried to get away but defendant stopped her. According to S.K., defendant then spread her legs and "started playing with" her. S.K. said she was wearing a diaper at the time. She stated that defendant put his finger in the diaper and inside her "private. She also stated that defendant stretched out the side of the diaper and "put his tongue" in her "private."
When S.K. informed her mother that defendant was touching her and "playing around" with her vagina, E.A. confronted defendant. He denied that he had done anything inappropriate. When the police arrived, they confiscated and stored S.K.'s clothing, including the diaper that S.K. was wearing when the alleged offenses occurred.
Defendant agreed to a videotaped interview. He denied doing anything wrong. The detective conducting the interview told defendant that forensic scientists could check for the presence of saliva on or near S.K.'s vagina. Defendant agreed to provide a sample of his saliva. The police took buccal swabs from defendant and preserved the swabs for forensic examination.
Delores Coniglio, a forensic scientist at the New Jersey State Police Office of Forensic Sciences, testified as an expert in the area of analysis of deoxyribonucleic acid (DNA), which she said is "genetic material that we inherit from our parents." Coniglio stated that she had received DNA samples from S.K. and defendant. Coniglio analyzed S.K.'s diaper and, although she determined that there was human male DNA present in the material, she could not generate a profile of the DNA. She said that, based on her analysis, there was no way of determining from whom the male DNA came.
The jury found defendant not guilty on count one, and it could not reach verdicts on the other counts. The trial judge declared a mistrial. On January 7, 2012, jury selection began for the retrial on counts two and three. By January 29, 2013, the jury had been selected but it had not been sworn.
On that date, defense counsel objected to certain expert testimony that the State intended to present at trial, specifically testimony that the diaper had been tested and found to be positive for amylase, an enzyme present in human saliva. On January 29, 2013, the trial judge heard oral argument on defendant's objection.
The assistant prosecutor noted that the State had informed the defense "three years ago" that it was going to use evidence regarding the presence of amylase in S.K.'s diaper. Thirty days before the trial, the State had received a "complete report" from Matthew R. Wood, a forensic scientist with the State Police. The assistant prosecutor had discussed the testimony with defense counsel. He noted that amylase is found in high concentrations in human saliva.
The assistant prosecutor pointed out that the scientist could not state that the amylase was from defendant's saliva, but the DNA expert would testify that there was male DNA in the same sample. He stated that it was "very probative circumstantial evidence" which supported S.K.'s testimony. The assistant prosecutor conceded that there was no written report which detailed "everything" he had ...