RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6236-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

J.R.,

Defendant-Appellant.

_____________________________________

Argued September 30, 2014 – Decided 

Remanded by Supreme Court January 9, 2017

Re-argued April 26, 2017 – Decided August 29, 

Before Judges Nugent, Accurso and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Indictment No. 

10-09-1556.

Jeffrey G. Garrigan argued the cause for 

appellant (Cammarata, Nulty & Garrigan, LLC,

attorneys; Mr. Garrigan and Michael S. Doran,

on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued 

the cause for respondent (Esther Suarez, 

Hudson County Prosecutor, attorney; Ms. 

Campbell and Thomas M. Zuppa, Jr., Assistant 

Prosecutor, on the briefs).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

September 29, 2015

2017
2 A-6236-12T4

In November 2012, a jury found defendant, J.R., guilty of 

sexually abusing his stepson's pre-teenage daughter over the 

course of two years, and in July 2013, a judge sentenced defendant 

to an aggregate eighteen-year prison term. Defendant appealed and 

argued the following points: 

I. THE CSAAS TESTIMONY OF DR. TASKA WAS IMPERMISSIBLE BOTH 

IN ITS INTRODUCTION AND, SUBSEQUENTLY, SCOPE DURING THE 

COURSE OF THE TRIAL.

A. The Trial Court Erred In Admitting Dr. Taska's 

CSAAS Testimony.

B. The CSAAS Testimony Offered by the State Went 

Beyond its Permissible Scope.

C. The Jury Charges Related to the CSAAS and Fresh 

Complaint Testimony Materially Misled the Jurors, 

Confused the Issues, and Misrepresented the Evidence.

II. THE TRIAL COURT ERRED IN ADMITTING THE VICTIM'S HEARSAY 

STATEMENTS TO THE STATE'S MEDICAL EXPERT, DR. PAULETT 

DIAH.

III. THE TRIAL COURT ERRED IN FAILING TO CONDUCT VOIR DIRE 

OR INVESTIGATE AN IRREGULARITY INVOLVING A MINOR.

IV. PROSECUTORIAL MISCONDUCT IN THIS CASE DEMANDS THAT 

DEFENDANT'S CONVICTIONS BE REVERSED.

V. DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTIONS 

BASED UPON THE INEFFECTIVE ASSISTANCE OF HIS TRIAL 

COUNSEL.

VI. THE CIRCUMSTANCES SURROUNDING THIS TRIAL AND THE IMPACT 

OF HURRICANE SANDY WERE EXTRAORDINARY AND CALLED FOR A 

MISTRIAL.

VII. THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S MOTION FOR 

A NEW TRIAL.
3 A-6236-12T4

VII. THE COURT ENGAGED IN AN IMPROPER SENTENCING ANALYSIS 

WHICH LED TO AN IMPOSITION OF A MANIFESTLY EXCESSIVE 

SENTENCE.

Perceiving the case as one decided "largely on the credibility 

of defendant and the victim," we found defendant's first point 

meritorious and therefore reversed and remanded for a new trial. 

State v. J.R., No. A-6236-12 (App. Div. Sept. 29, 2015) (slip op. 

at 3). The Supreme Court reversed and remanded. State v. J.R., 

227 N.J. 393 (2017). It noted the expert's testimony concerning 

Child Sexual Abuse Accommodation Syndrome (CSAAS) "did not 

entirely conform to the limitations placed on CSAAS evidence in 

prior holdings by this Court," but concluded "the error was 

nonetheless harmless."1 Id. at 400. The Court remanded the matter 

"to the Appellate Division so that it may consider the issues that 

it did not reach in its prior review of this case." Id. at 422. 

 

1 The Court declined to consider the argument of amicus curiae 

Office of the Public Defender (OPD) "that almost all of the 

hypotheses underlying CSAAS testimony have been rejected by the 

scientific community over several decades, and that CSAAS 

constitutes 'junk science' that has no place in the courtroom." 

J.R., supra, 227 N.J. at 421. The argument had not been made by 

defendant and the issue had not been properly developed at trial. 

Id. at 409, 421. The Supreme Court has since granted certification 

on this issue and remanded it to the trial court "for a hearing, 

pursuant to N.J.R.E. 104, to determine whether CSAAS evidence 

meets the reliability standard of N.J.R.E. [702.]" State v. 

J.L.G., ___ N.J. ___, ___ (2017). 
4 A-6236-12T4

In considering Points II through VII, it is unnecessary to 

repeat in their entirety the proofs the parties developed during 

defendant's trial. The facts are recounted comprehensively in our 

initial opinion, J.R., supra, (slip op. at 4-19), and in the 

Supreme Court's opinion, J.R., supra, 227 N.J. at 400-03. 

Significant to our disposition of defendant's remaining arguments, 

however, is the Supreme Court's assessment of the child victim's 

testimony and credibility.2 The Court stated:

In her compelling testimony, the child victim 

not only described the incidents of abuse, but 

explained her failure to report her 

allegations to anyone but her brothers. As 

to the critical question of defendant's access 

to the child on multiple occasions with no one 

else present, the victim's account was 

substantially supported by her parents and 

brothers, and by the admissions of defendant 

himself. Moreover, defendant's credibility 

was impeached in important respects when he 

testified. 

[Id. at 400.]

The Court summarized the child victim's testimony:

N.R., fourteen years old at the time of 

trial, testified on behalf of the State. At 

length and in detail, she recounted the 

incidents that she had alleged in her police 

interview. She described for the jury the 

location of each offense, the manner in which 

defendant allegedly coerced her, the nature 

of defendant's sexual contact with her, and 

the aftermath of each incident. In addition 

to the incidents she had described in the 

 

2 N.R. was the child victim in the case.
5 A-6236-12T4

interview, N.R., while testifying, recalled 

one instance in which defendant "tried to put 

[his penis] inside [of her] where the tampon 

goes," but she was in pain and resisted. She 

said that he apologized and assured her that 

he would never do that again.

N.R. stated that she had not been given 

access to the record of her interview in 

preparation for her testimony. She testified 

that despite the abuse, she continued with her 

schedule of visits to her father and his 

family, and acted normally, "because I was 

scared" and "because I didn't want them to 

know." She confirmed that she had told only 

her brothers about defendant's alleged sexual 

abuse, and instructed them not to tell anyone. 

N.R.'s account was supported by the 

testimony of her parents, who described her 

behavior during the relevant period and her 

refusal to be left with defendant on the 

occasion in early 2010. N.R.'s testimony was 

also buttressed by her brother A.R., who 

provided "fresh complaint" testimony about her 

disclosure of the alleged abuse to him and 

their brother G.L.R. 

[Id. at 405-06 (alterations in original).]

The Court also summarized defendant's testimony:

Defendant testified on his own behalf. 

Contrary to his statement to police, defendant 

conceded that N.R. and her brothers had stayed 

overnight in his apartment on many occasions. 

He admitted that, on at least one overnight 

visit, N.R. slept with him in his bed when his 

wife was not at home; he said that he kept the 

bedroom door open on that occasion and that 

when he awoke, N.R.'s brothers were asleep on 

the floor next to defendant's bed.

[Id. at 406.]
6 A-6236-12T4

The Court noted "the critical witness for the State was not 

[the CSAAS expert], but [the child victim] herself." Id. at 418. 

The Court contrasted the victim's credibility with that of 

defendant:

The record before this Court reveals that N.R. 

told the jury, in simple, non-confrontational 

language, why she was alone with defendant 

when the alleged acts of sexual abuse 

occurred, and explained the setting of each 

encounter. With minimal prompting by the 

prosecutor, using terms appropriate to her 

age, N.R. recounted each alleged instance of 

abuse and its aftermath. Although N.R. 

testified that she did not review her 

statement to police, two years earlier, in 

preparation for trial, her trial testimony was 

fundamentally consistent with that statement, 

and defense counsel had few discrepancies to 

explore on cross-examination.

N.R. did not leave the jury to speculate 

about the reason why she delayed reporting the 

abuse to an adult and spoke only to her 

slightly older brothers about it. She 

testified that she did not disclose the abuse 

to an adult because she was afraid of 

defendant, who instructed her not to tell 

anyone, and that she told her brothers about 

the incidents in the hope that they would try 

to protect her.

Although there were no witnesses to the 

alleged abuse, N.R.'s account was corroborated 

in important respects by members of her 

family. Her parents and brothers — including 

her oldest brother, G.L.R., who was called as 

a defense witness, - supported N.R.'s 

contention that defendant had access to N.R., 

on multiple occasions, with no one else 

present. Both brothers concurred with her 

account of her disclosure of the alleged abuse 
7 A-6236-12T4

to them, and her plea that they not tell anyone 

what she had told them. N.R.'s parents and 

brothers testified consistently about A.R.'s 

disclosure to his mother and the investigation 

that followed. The family members 

acknowledged that defendant was 

affectionately greeted by all three children, 

including N.R., and that he took them on 

outings. They recounted, however, N.R.'s 

unsuccessful attempt in early 2010 to avoid 

staying alone with defendant. In short, the 

testimony of four family members was 

essentially consistent with N.R.'s testimony 

on the critical questions of defendant's 

access to her and her "fresh complaint" of the 

alleged abuse.

In his testimony, defendant vehemently 

denied N.R.'s allegations of sexual abuse. 

Defendant confirmed N.R.'s account in material 

respects, however. Moreover, defendant's 

credibility was substantially challenged on 

cross-examination. In his police interview, 

defendant denied that N.R. ever stayed 

overnight at the home he shared with his wife, 

insisting that only her brothers made 

overnight visits to his home. In his trial 

testimony, defendant conceded that N.R. had 

stayed overnight in his apartment; he insisted 

that he did not remember stating otherwise to 

police officers. He admitted that, on 

occasion, N.R. had wanted to leave his 

apartment and go outside with her brothers, 

but was not permitted to do so, and stayed 

with him alone.

Defendant was also confronted with selfincriminating comments that he had made in his 

police interview, in which he noted that 

"nobody was there" except him and N.R., and 

pressed officers to tell him whether N.R. had 

been examined by a doctor. He admitted that 

he had commented to the officers, "I have the 

mind and capability to lie and remember many 

things. Sure, about lies and whatever. I can 
8 A-6236-12T4

go to Court. Right? And you tell maybe 95 

percent of whatever I say over here exactly 

in Court." Before the jury, defendant had no 

explanation for that statement. 

[Id. at 418-420.]

The Court explained that the CSAAS expert's testimony was not 

extensive, the improper portion of the testimony was brief, and 

the trial court delivered a strong limiting instruction. Id. at 

418. Ultimately, the Court concluded, "when the evidence is 

considered in its entirety, it is clear that the trial court's 

error with respect to the [CSAA expert] was not clearly capable 

of producing an unjust result, and does not warrant a new trial." 

Id. at 420.

Against that backdrop, we turn to defendant's remaining 

arguments. In Point II, defendant alleges the trial court 

committed reversible error by permitting the State's medical 

expert to recount the victim's detailed hearsay statements 

concerning the incidents of sexual abuse.

Under N.J.R.E. 803(c)(4),

Statements 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 [are not excluded by the 

hearsay rule] to the extent that the 

statements are reasonably pertinent to 

diagnosis or treatment.
9 A-6236-12T4

In contrast, if statements describing medical history or the 

inception or general character of the cause or external source 

thereof are made "for evidence gathering purposes," they are 

inadmissible. State v. Pillar, 359 N.J. Super. 249, 289 (App. 

Div.), certif. denied, 177 N.J. 572 (2003). "[I]n recognition of 

it being the State's burden to establish admissibility," if a 

doctor's testimony – or the record on appeal – "is not entirely 

clear as to why [the victim] was referred to [a doctor,]" then the 

victim's hearsay statements to the doctor are inadmissible. Ibid. 

Here, the record as to why the victim was referred to the 

State's medical expert is equivocal. When specifically asked 

whether the purpose of the examination was for diagnosis or 

treatment, the doctor gave a non-responsive answer: "Well, in this 

particular case, it was . . . evaluation for the possibility of 

sexual abuse." Perhaps of greater significance, the doctor found 

no evidence of sexual abuse. In view of that finding, it would 

appear the doctor's testimony was relevant to explain to the jury 

that the absence of such findings is not inconsistent with sexual 

abuse. If that indeed were the purpose of the opinion, then there 

is a valid argument that permitting the doctor to recount the 

victim's hearsay statements concerning the details of the abuse 

should have been excluded under N.J.R.E. 403, as the probative 

value of the evidence was substantially outweighed by the risk of 
10 A-6236-12T4

undue prejudice. In any event, it is difficult to distinguish the 

equivocal testimony in this case from that given in Pillar. 

Nonetheless, we conclude that any error in admitting the 

evidence was harmless. We reach this conclusion based on the 

consistent and compelling testimony of the victim, in contrast to 

the credibility issues that plagued defendant. As the Supreme 

Court noted, "[s]ignificantly the critical witness for the State 

was . . . N.R. herself." J.R., supra, 227 N.J. at 418. Given the 

compelling testimony of N.R., as well as her family members and 

defendant himself, we cannot conclude the admission of the victim's 

hearsay statements through the testimony of the medical expert was 

clearly capable of producing an unjust result. R. 2:10-2.

For similar reasons, we reject defendant's argument in Point 

IV that the prosecutor's misconduct was so egregious it deprived 

defendant of a fair trial. Defendant asserts the prosecutor 

overstepped her authority by eliciting inadmissible hearsay 

testimony from the State's medical witness, improperly argued that 

fresh complaint testimony corroborated the victim's allegations 

against defendant, refused to refrain from repeatedly asking her 

witnesses leading questions, and improperly vouched for the 

credibility of the State's witnesses. While these assertions have 

some validity, they neither individually nor collectively require 

a reversal of defendant's conviction. 
11 A-6236-12T4

The trial court admitted the testimony of the State's medical 

expert. The trial court properly handled the prosecutor's apparent 

unwillingness to refrain from asking non-leading questions, at 

times admonishing her for her persistent conduct. The trial court 

also reacted appropriately on those occasions when defendant 

objected to what he now characterizes as the prosecutor's 

"bolstering" of the State's experts. And though the prosecutor 

improperly argued fresh complaint evidence, her statements were

fleeting. In short, considered in the context of all of the 

State's evidence, and particularly in light of the victim's 

credibility, the prosecutor's conduct did not "substantially 

prejudice[] defendant's fundamental right to have a jury fairly 

evaluate the merits of [the] defense." State v. Timmendequas, 161 

N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S.

858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant's arguments under Points III, VI, and VII are 

without sufficient merit to warrant discussion. R. 2:11-3(e)(2). 

We decline to address defendant's claim that his counsel was 

ineffective. There is "a general policy against entertaining 

ineffective-assistance-of-counsel claims on direct appeal because 

such claims involve allegations and evidence that lie outside the 

trial record." State v. Preciose, 129 N.J. 451, 460 (1992) 

(citations omitted).
12 A-6236-12T4

Lastly, in Point VII, defendant argues the trial court 

conducted an erroneous sentencing analysis. Defendant contends 

the court committed error in its analysis of factor seven, N.J.S.A.

2C:44-1(b)(7). The argument is based on the court's statement, 

"[t]he court finds this factor but I note that the legislative 

intent of the presumption of incarceration for first and second 

degree offenses renders . . . this factor essentially meaningless." 

According to defendant, the trial court confused the need to 

determine, in the first instance, whether a presumption of 

imprisonment, N.J.S.A. 2C:43-1(d), or a presumption of nonimprisonment, N.J.S.A. 2C:43-1(e), applies; with the 

responsibility of weighing aggravating and mitigating factors to 

determine the length of the sentence. 

In addition, defendant argues the court "wrongly concluded 

that by finding [a]ggravating [f]actor three, N.J.S.A. 2C:44-

1(a)(3), the risk of committing another offense[,] that it would 

be inconsistent to find mitigating factors eight and nine."

Lastly, defendant asserts the trial court's imposition of an 

eighteen-year term is inconsistent with its determination that "a 

sentence at or about the midpoint of the statutory range is 

warranted."

We review a trial court's sentence under a deferential 

standard, being careful not to substitute our judgment for that 
13 A-6236-12T4

of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989). 

We will: 

affirm the sentence unless (1) the sentencing 

guidelines were violated; (2) the aggravating 

and mitigating factors found by the sentencing 

court were not based upon competent and 

credible evidence in the record; or (3) "the 

application of the guidelines to the facts of 

[the] case makes the sentence clearly 

unreasonable so as to shock the judicial 

conscience." 

[State v. Fuentes, 217 N.J. 57, 70 (2014) 

(quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)).]

When we review a trial court's determination of aggravating 

and mitigating factors, we will remand for resentencing if the 

court "fails to provide a qualitative analysis of the relevant 

sentencing factors on the record," or "the trial court considers 

an aggravating factor that is inappropriate to a particular 

defendant or to the offense at issue." Ibid. (citations omitted). 

The aggravating and mitigating factors found by the trial court 

must be based on "competent, reasonably credible evidence." Roth, 

supra, 95 N.J. at 363 (citations omitted). When the judge has 

followed the sentencing guidelines, and his findings of 

aggravating and mitigating factors are supported by the record, 

we will only reverse if the sentence "shock[s] the judicial 

conscience" in light of the particular facts of the case. Id. at 

364-65.
14 A-6236-12T4

Here, the trial court did not abuse its discretion in 

sentencing defendant. The trial court considered aggravating 

factor one, the nature and circumstances of the offense, but did 

not give it much weight. The court gave considerable weight to 

aggravating factor nine, deterrence. Lastly, the court gave weight 

to aggravating factor three, the risk defendant will commit another 

offense, "based upon the sheer number of acts" he committed.

The trial court found only mitigating factor seven, 

defendant's lack of criminal history, but gave it little weight 

because of the "legislative intent of the presumption of 

incarceration for first and second degree offenses[.]"

Considering the court's comments at sentencing in their 

entirety and in context, we find no error in the court's rejection 

of mitigating factors eight (defendant's conduct was the result 

of circumstances unlikely to recur) and nine (the character and 

attitude of the defendant indicate he is unlikely to commit another 

offense). There was no factual basis for a finding of mitigating 

factor eight, and the court's rationale for finding aggravating 

factor three — "based upon the sheer number of acts that this is 

indicative that the defendant will commit another offense" —

negated a finding of mitigating factor number nine. 

The court's rationale for giving mitigating factor seven 

(absence of prior criminal record) little weight is somewhat 
15 A-6236-12T4

quizzical. It is difficult to understand how the presumption of 

incarceration for a first or second-degree offense somehow negates 

consideration of a defendant's previous law-abiding life for 

purposes of determining the length of the presumptive 

incarceration. The trial court did not support its view of the 

statute's legislative history with citation to any authority. 

Nonetheless, there was more than ample evidence to support the 

court's determination that the aggravating factors substantially 

outweighed the mitigating factors. And though there is an apparent 

discrepancy between the court's statement concerning a mid-range 

sentence and the eighteen-year sentence the court imposed, the 

balance of aggravating and mitigating factors is consistent with 

an above-mid-range sentence. See Fuentes, supra, 217 N.J. at 73 

(citations omitted) (noting that "reason suggests that when the 

mitigating factors preponderate, sentences will tend toward the 

lower end of the range, and when the aggravating factors 

preponderate, sentences will tend toward the higher end of the 

range").

For the foregoing reasons, we affirm defendant's conviction 

and sentence.

Affirmed.