### RECORD IMPO UNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 2435

- 16T2 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. R.D. , Defendant

- Appellant.

_______________________

Submitted January 27, 2020

– Decided Before Judges Sumners, Geiger and N atali. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 14

- 10

- 1560. Joseph E. Krakora, Public D efender, attorney for appellant (Joshua D avid Sanders and Lauren S te phanie Michaels , Assistant Deputy Public Defender s , of counsel and on the briefs). Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecuto r, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief ).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court.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 ca se and its use in other cases is limited. R. 1:36

- 3.

F ebruary 27, 20202 A

- 2435

- 16T2

A jury convicted defendant R.D. of second

- degree sexual assault of David, 1 his non

- biological grandson , contrary to N.J.S.A. 2C:14

- 2(b) , and
second

- degree en dangering the welfare of a child, contrary to N.J.S.A. 2C:24

- 4(a)

. H e was sentenced to a seven

- yea r term of imprisonment for the sexual assault conviction subject to an eighty

- five percent period of parole ineligibility pursuant to the No Early Release Ac t. See N.J.S.A. 2C:43

- 7.2. The court also sentenced defendant to a concurrent seven - year term for the endangering the welfare of a child conviction. In addition, t he judgment of conviction imposed a restraining order pursuant to Nicole ' s Law, N.J.S.A. 2 C:14

- 12, ordered that defendant comply with Megan ' s Law , N.J.S.A. 2C

- 7

- 1 to

- 22 5 , and required that he serve parole super vision for life, N.J.S.A. 2C:43

- 6.4. On appeal, d efendant raises the following points for our consideration:
POINT I
TESTIMONY ABOUT C HILD SEXUAL ABUSE ACCOMMODATION SYNDROME [(CSAAS)] WAS NOT BASED ON RELIABLE SCIENCE A ND WAS UNDULY PREJUDICIAL. ITS ADMISSION NECESSITATES REVERSAL OF DEFENDANT ' S CONVICTIONS.

1 Pursuant to Rule 1:38

- 3(c)(9), we use pseudonyms to protect the privacy of the child and members of the family.3 A

- 2435

- 16T2 POINT II
THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF H IS PRISON TERM, DEFENDANT WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO REOFFEND.
A. The Sentencing Court Improperly Found Aggravating Factor Three.
B. The Sentencing Court's Analysis Of Deterrence Was Fundamentally Flawed.
1. Base d upon both the fact that defendant's offense was intrafamilial and his age upon release, he is less likely to reoffend in the future.
2. Because defendant will be strictly monitored upon his eventual release, he is less likely to reoffend in the future.
De fendant filed a supplemental letter brief, presenting the following point:
POINT I STATE V. J.L.G. [ 2 ] APPLIES RETROACTIVELY TO THIS CASE, AND THE IMPROPER ADMISSION OF EXPERT TESTIMONY ON [CSAAS] REQUIRES REVERSAL OF DEFENDANT ' S CONVICTIONS

. A. J.L.G. Anno un ced A New Rule Of Law: Expert Testimony About CSAAS Is Inadmissible. That New Rule Should Be Accorded Complete Retroactivity, Or At The

2 234 N.J. 265 (2018)

.4 A

- 2435

- 16T2 Very Leas t , Pipeline Retroactivity. When That New Rule Is Applied To This Case, It Necessitates Reversal Of Def enda nt 's Convictions.
B. The improper admission of CSAAS expert testimony in this case was harmful error. [ 3 ] Having considered these arguments in light of the record and applicable legal standards, we reverse and remand for a new trial

. Because we are reversin g de fendant's conviction s based on the improper admission of CSAAS evidence , we need not address defenda nt's sentencing arguments raised in Point
II.
I. David lived in Mahwah between September 2013 and May 2014 with his biological grandmother, Rachel, his mot her, Vicky, and his aunt, Veronica. Defendant stayed in the residence occasionally, but did not per manently reside in the home. Patrolman Rosario Zito of the Mahwah Police Department testified at trial that he was dispatched to David's home on May 14, 2014 in response to an allegation that David was sexually assaulted

. After speaking with Vicky, Zit o

3 We have renumbered defendant's argument for consistency and clarity.5 A

- 2435

- 16T2

went upstairs alone to speak to David who " seemed very timid and shy. " Zito attempted to ask David some questions regarding the allegations, but Davi d di d not immediately respond. He then brought David downstairs where Vicky proceeded to ask David ques tions. After listening to the conversation between Vicky and David, Zito informed his sergeant, who subsequently arrived at the
home with Patrolman Eri c La rsen and Detective Kevin Hebert

. Detective Kelly Krenn of the Bergen County Prosecutor ' s Office (BCPO) Special Victims Unit also testified at trial. Krenn stated that Hebert informed the BCPO about the allegations and that he instructed Hebert to tra nspo rt Vicky and David to the BCPO office so David could be interviewed forensically in the office's child

- friendly interview room. David, Vicky, and Veronica arrived at the BCPO office later that day. Detective Jenn Rueda, who was also assigned to the S peci al Victims Unit, conducted the forensic interview with David while Krenn, Hebert, Larsen , and Sergeant Cecilia Love watched from a screen in the conference room. David also testified and first answered in the negative when the prosecutor asked whethe r "a nybody ever touched [him] in a place that they shouldn't touch." David also answered ye s then no as to whether he remembered telling a detective about someone touching his body parts. He also denied ever telling anyone that6 A

- 2435

- 16T2

defendant touched his priv ate parts. When the prosecutor asked whether "grandpapa ever touch[ed] your penis" and whet her he "ever touch[ed] your butt," David answered no both times. Krenn then testified that after David's trial testimony, he met with David and his guardian Donna t o ta ke them back to their residence in New York. While speaking to David, he handed Krenn a handwritten note which stated, "I want to live in New Jersey" and "Mr. Kelly, can I live in New Jersey?" After Krenn inquired what the note was regarding, David a lleg edly told him he "lied to [Krenn] before, but now that [he] told the truth, can [he] now live in New Jersey?" David was recalled to testify and authenticated the note that he provided to Krenn. David answered affirmatively when the prosecutor asked him whether he told Krenn he "lied before and that [he was] telling the truth today, so can [he] live in New Jersey?" When David was asked why he left New Jersey, he responded that it was "[b]ecause [he] said grandpapa touched [him]." When David was asked on direct examination whether his statement that defendant never touched him was a lie or t he truth, he answered that it was the truth. David further indicated that he wanted to go back to living in New Jersey with "[his] aunt, [his] mother, [his] grandm a, a nd grandpapa," and reiterated that7 A

- 2435

- 16T2

he loved defendant and wanted to live with him. On c ross - examination, David again denied that defendant ever touched his private parts and reemphasized that telling Kelly that defendant touched him "was the lie." 4
Du ring Rueda's trial testimony , the State played the video recording of her initial forensic i nterview with David

. D uring th at interview, David told Rueda that defendant touched him in the area of his groin, and that " [i]t ' s fun " and made him feel " happy. " Aft er Rueda attempted to confirm that defendant touched him in the groin, David stated, how ever, that " [defendant] didn ' t touch [him] " and that defendant was merely " touching [his] hair. " David later told Rueda that on one occasion, while he was wearing his Iron Man pajamas, defendant touched
him " with his hair , " which David acted out, according to Rueda, by " putting [a doll ' s] whole face and head into the groin area of the male doll. " D avid also told
Rueda that defendant touched his " button " with his ha ir. Rueda testified that David denied being touched by defendant ' s mouth or hands.

4 On direct examination , i t was in itially unclear what statements David was referring to as the " lie " because he stated that "grandpapa never touching [him]" was "the entire lie." On cross - examination, however, when asked whether "grandpapa ever touched [his] private parts," Da vid answere d no. When he was further asked if he "remember[ed] telling Detective Kelly that grandpa touched [him]" and whether that was "a lie or was . .

. the truth," David answered "[y]es" and "[t]hat was the lie."8 A

- 2435

- 16T2

After Rueda's testimony, Anthony Vincent D'Urso, Psy.D., testified regarding CSAAS. During opening argu ments, the prosecutor described Dr. D'Urso as "an expert in [CSAAS]" and informed the jury that he was "going to explain that sometimes children that have been sexually abused . . . tell the little pieces, they don't tell all the details at once . . . and sometimes they tell them
and then take it back." The prosecutor fur ther stated that Dr. D'Urso was "going to explain why [children] may do that and why that is normal." As part of his qualifications, Dr. D'Urso introduced himself as a "supervising psych ologist" and "section chief" of a "legislatively mandated child
abus e ce nter" that "tend[s] to see most of the sexual abuse cases, some severe physical abuse cases, and . . . cases of severe psychological maltreatment." He stated that he testified as an e xpert "over 250 times on just CSAAS" and emphasized that such testim ony was "allowed in [forty

- nine] of the [fifty]
states." After the court admitted Dr. D'Urso as an expert in CSAAS without objection, he stated that CSAAS "[was] not a diagnostic tool," and his explanation of the syndrome was "just to provide typical cha ract eristics of kids who act in a particular manner relative to child sexual abuse" because "some of the things that may be true in child abuse are counterintuitive [and] not logical."9 A

- 2435

- 16T2

He also explained that CSAAS was "not a tool that goes to the proof of

som ething . . . [but that] it is simply trying to explain why kids may not act in the way we think they should act when something aversive like sexual touch occurs." Dr. D'Urso, then pro ceeded to elaborate on the CSAAS theory of the five behavioral phase s ch ild abuse victims pass through as a result of abuse: secrecy, helplessness, entrapment/coercion/accommodation, delayed or unconvincing disclosure, and retraction or recantation.
Dr. D 'Urso specifically testified that "there's not one credible study in the world that says kids typically [disclose abuse] after the first sexual incident, and by definition if they don't typically tell, then you're going to have delayed disclosure." He fur ther elaborated on unconvincing and piecemeal disclosure stating tha t "k ids are very unlikely to tell you everything that happened over this period of time either because of emotional trauma, memory . . . [or] too many events to remember everything." He n oted that "while it's all about the same act of abuse, [children] mi ght give different parts of that abuse to different people based upon the role the child thinks they have in their life . . . [but that] it's not more things coming out as much as a differ ence of when they're either ready to tell or to whom they're telling ." Dr. D'Urso concluded that "[t]here's no data to suggest that there's any predictable time period, so six months, a year, two10 A

- 2435

- 16T2

months, two years, there's no data which would tell us that the length of time tells us anything about the veracity of the disc losu re." With respect to retraction or recantation, Dr. D'Urso stated that it happens

" when [children] begin to understand that there are impacts of the things the y
say . . . [and if] th ey don ' t receive support from the system around them, then
the child is likely to pull back on those

. . . statements. " When asked if it was uncommon for a child to give a disclosure and then take it back very quickly, he confirmed that "it is a dynamic t hat happens in child abuse." He further provided that children "may say things like I made it up [or] it didn't happen" and that he typically saw such behaviors in " familia [l] cases [where] it would generally be [a] disruption of the family, breaking apar t of the family, or a function of the relationship that exists betwe en t he child and the perpetrator. " He concluded that "if kids have to make a decision between tolerating the abuse themselves . . . or los[ing] an apartment . . . los[ing] a caregiver, [or] los[ing] support, they'll tend to internalize the abuse."
The court p rovided the standard jury charge on CSAAS prior to Dr. D'Urso's cross - examination, as well as a similar charge before jury deliberations that substantively tracked Model J ury Charges (Criminal) , "Child Sexual Abuse Accommodation Syndrome" (rev. May 16, 201 1) , stating in relevant part :11 A

- 2435

- 16T2 I just want to, again, tell you that you can only consider Dr. D'Urso's testimony for limited purposes . . . . But you may not consider Dr. D'Urso's testimony as offering proof that child sex abuse occurred in this ca se. The [CSAAS] is not a diagnostic device and cannot determine whether or not abuse occurred. It relates only to a pattern of behavior of the victim which may be present in som e child sex abuse cases. You may not consider expert testimony about the syn drome as proving whether abuse occurred or did not occur. Similarly, you may not consider the testimony as proving in and of itself that [David], the alleged victim here, was or was not truthful. Dr. D'Urso's testimony may be considered as explaining cer tain beh avior of the alleged victim of child sex abuse. As I just stated, that testimony may not be considered as proof that the abuse did occur or did not occur. The accommo dation syndrome, if proven, may help explain why a sexually abused child may hav e delaye d reporting or recanted abuse or denied that the sex abuse occurred, or any other such characteristics as testified.
On cross

- examination, Dr. D'Urso confirmed that he did not speak to anyone regarding the facts of this case and that "the informat ion that [he] gave is of a general nature regarding [CSAAS]." Defendant did not object to the CSAAS testimony

. Finally, the State recalled Krenn who testified that on April 6, 2016 he picked up David and Donna for a second forensic interview at the BCPO f rom thei r residence in New York

. The recorded interview was also played for the12 A

- 2435

- 16T2

jury

. David , who was now six years old , initially denied that anyone ever touched his private part s or " any places that [he didn ' t] like to be touched. " David, however, even tually t old Krenn that on one occasion, defendant touched

" [his] private " with his hands in his bedroom while laughing. More specifically, David stated that on the day the pol ice were called, defendant put his hand on his private and " shaked it. " Contrar y to his earlier statement that he was wearing Iron Man pajamas, David indicated that he was wearing jeans, a shirt, and sneakers at the time of the incident. He stated that h e told defendant to "[s]top . . . [b]ut he [kept] doing it" and that he told "Gr andma [R achel]" sometime after. The State did not introduce any other witnesses to substantiate the allegations against defendant. 5 In addition to David's recorded statements, the State introduced into evidence a diagram it used to help David identify p arts of the body, the note that David handed to Krenn asking to live in New Jersey, and a photograph of defendant. Defendant testif

ied and stated that David was not his biological grandson and that he and David's grandmother were separated at the time. On dir ect and

re - direct examination , defendant denied touching David in a sexual way.

5 David's mother, Vicky, was subpoena ed to testi fy on behalf of defendant but after a N.J.R.E. 104 hearing, the defense did not call Vicky as a witness.13 A

- 2435

- 16T2

Defendant first denied staying at the house or ever spending time with David in the home during the time that he lived in Mahwah, but he later admitted that he
occasio nally st opped by to bring groceries. Defendant also admitted that he slept with his wife, David's grandmother, in the home but denied staying there overnight and stated that it occurred only when the kids were not present. During closing arguments , the pr osecutor reminded the jury that Dr

. D'Urso "talked about how children often meld details into one" and that he "educate[d] everybody ab out the syndrome and how children disclose and why children do the things that they do." The prosecutor further noted th at he "t alked about the scientific research that absolutely children give a disclosure and they take it back, and that's normal, it doe sn't mean it didn't happen." The prosecutor emphasized that based on Dr. D'Urso's testimony, "if there's a disruption in the
fam ily . . . [or] [i]f the child's disclosure isn't supported [,] there could be a recantation," and argued that "those factors app ly in this case." As noted, after considering the evidence, the jury convicted defendant of sexual assault and endanger ing the welfare of a child

. This appeal followed

. II.

" If a defendant, as here, does not object or otherwise preserve an issue for
app eal at the trial court level, we review the issue for plain error

. . . [ and ] must14 A

- 2435

- 16T2

disregard any unchallenged errors or o missions unless they are ' clearly capable of producing an unjust result. '" State v. Santamaria , 236 N.J. 390, 404 (2019) (quoting R. 2:10

- 2)

. The Supreme Court has explained that " [p]lain error is a high bar. " Ibid. If a defendant raises an issue for t he first time on appeal, the defendant "' bears the burden of establishing that the trial court ' s actions constituted plai n error ' because ' to rerun a trial when the error could easily have been cured on request[] would reward the litigant who suffers an er ror for tactical advantage either in the trial or on appeal. '" Id. at 404

- 05 (quoting State
v. Ross , 229 N.J. 389, 407 ( 2017)). "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. '" Ibid. (quoting State v. Williams , 168 N.J. 323, 336 (2001)) Defendant pri ncipally argues that there is " a narrow window of appropriate expert testimony in child sexual abuse cases [and that the CSAAS] testimo ny in th is case exceeded those bounds. " Defendant further maintains tha t Dr. D ' Urso ' s testimony cannot be dismissed as h armless error because " the jury was exposed to the fullest extent of this unreliable evidence and was encouraged to use that evidence t o find t hat abuse occurred. " Defendant concludes that since there was " no physical evidence, no eyewitnesses, and certainly no confession, "15 A

- 2435

- 16T2

this was a case that hinged on credibility and " admission of the CSAAS expert testimony ' could have appreciably tip ped the credibility scale. '" We agree . During the pendency of this appeal, our Supreme Cou rt issued its opinion
in J.L.G

. The Court partially overturned its holding in State v. J.Q. , 130 N.J. 554 (1993), and held that:

[b]ased on what is known toda y, it is no longer possible to conclude that CSAAS has a sufficiently reliable basis in science t o be the subject of expert testimony. We find continued scientific support for only one aspect of the theory

— delayed disclosure

— because scientists general ly accep t that a significant percentage of children delay reporting sexual abuse.
We therefore hold that expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials. Evi dence ab out delayed disclosure can be presented if it satisfies all parts of the appli cable evidence rule. In particular, the State must show that the evidence is beyond the understanding of the average juror. [ J.L.G. , 234 N.J. at 272 (citing N.J.R.E. 70 2).]
Th e J.L.G. court noted that admissibility of CSAAS expert testimony on this limi ted aspect of the syndrome " will turn on the facts of each case. " 234 N.J. at 272. When a victim gives " straightforward reasons about why [he or] she delayed reporting a buse, th e jury [does] not need help from an expert to evaluate [his or] her explanatio n. However, if a child cannot offer a rational16 A

- 2435

- 16T2

explanation, expert testimony may help the jury understand the witness ' s behavior. " Ibid.
J.L.G. permits expert testimo ny about delayed disclosure or causes for delayed disclosure; however, " [t]he testimony should not stray from explaining that delayed disclosure commonly occurs among victims of child sexual abuse , and offering a basis for that concl usion. " 234 N.J. at 30 3. For example , we found it improper for a CSAAS expert to testify that the five CSAAS categories of behavior " may be behaviors exhibited by a truthful child sex abuse victim. "
State v. G.E.P. , 458 N.J. Super. 436 , 4 50

- 51 (App. Div

. 2019)

. A dmissibility of
CSAAS expert testimony , nevertheless, may be harmless " in light of the overwhelming evidence of [a] defendant ' s guilt. " J.L.G. , 234 N.J. at 306. The J.L.G. c ourt did not opine with respect to whether its holding applied
retroacti vely. We recently conc luded in G.E.P. , however, that the holding

" should be given at least pipeline retroactivity, " rendering it applicable to all cases in which the parties have not exhausted all avenues of direct review when the Court issued its opinion in J.L.G. , 458 N.J. Su per. at 448. W e fully endorse the G.E.P. court's pipeline retroactivity holding and its reas oning

.17 A

- 2435

- 16T2

Turning to defendant's arguments, w e initially note that this was not a case that turned on David's failure to report abuse prior to May 2014. 6 Even if Dav id delay ed reporting any earlier abuse , Dr. D'Urso's testimony strayed beyond the limits of " explaining that delayed disclosure commonly occurs among victims of child sexual abuse, and offering a basis for that conclusion." See J.L.G. , 234
N.J. at 303

. We ackno wledge th at the court's limiting instructions , along with Dr. D'Urso's testimony that he did not know anything about the facts and circumstances of the case , potentially mitigate d the negative impact the CSAAS testimony may have had on the jury

. S pecifica lly, a s noted, t he trial judge issued limiting instructio ns both after Dr. D'Urso's direct testimony and in the final charge instructing the jury that it "may not consider Dr. D'Urso's testimony as offering proof that child sex abuse occurred in th is case" and "may not consider

6 In this regard, t he State argues on appeal that introduction of CSAAS testimony was harmless as Dr. D'Urso "never claimed that CSAAS test imony could be used to assess defendant's guilt or innocence," the prosecutor "never intimated to the contrary," and his testimony "was not a critical factor in the jury's determination of defendant's guilt." The State does not argue that the CSAAS testim ony was app ropriate to explain why David did not report the abuse immediately after any incidents that may have occurred prior to May 2014.18 A

- 2435

- 16T2

expert testimony about the syndrom e as proving whether abuse occurred or did
not occur." And, Dr. D'Urso also stated that he was merely going to " provide a backdrop of the differences between abuse and why some of the facto rs may b e present that, again, seem illogical or don ' t seem to ma ke sense so that you can know that it is typical in child abuse for certain things to occur. " He further stated : [CSAAS should not be] used in any quantitative or

diagnostic manner. You can ' t say i f three [categories] are present that ' s more meaningful t han two or less meaningful than four. It is not a tool that goes to the proof of something, it is simply trying to explain why kids may not act in the way we think they should act when somet hing ave rsive like sexual touch occurs.
We are not convinced , however, under the unique facts of the case where
the evidence was not overwhelming and the victim recanted his initial claims, that the jury instructions and Dr. D'Urso's disclaimers were suff icient t o ensure the fact

- finding process was not su bstantially impaired as t he CSAAS testimony went well beyond the scope of what is allowable under J.L.G. Indeed, as in G.E.P. , Dr. D ' Urso ' s CSAAS testimony included explanations of all five categories o f behavi or including secrecy, helplessness, entrapme nt, and retraction or recantation, in addition to delayed disclosure.19 A

- 2435

- 16T2

Further , the " admission of CSAAS testimony [in this case] presented the real possibility of an unjust result . . . [because] credibi lity was the lynchpin of the
State ' s case. " G.E.P. , 458 N.J. Super at 45 4

. Here, David ' s credibility was a central issue for the jury to resolve and required an assessment of David's recanted trial testimony and the two recorded interviews. Dr. D'Urso's
testimo ny, and particularly the portion related to recantation, improperly gave the jury an "expert opinion" that informed on this central issue. We disagree with the State's argument that "[t]he fact that the jury asked to review the victim's testimony , the fo rensic interviews [,] and defendan t's testimony but [never] asked to hear Dr. D'Urso's testimony demonstrates beyond any doubt that the jury recognized that [his] testimony was for educational purposes only." Rather than serving as a mere " educatio nal " too l, t he State relied significantly on Dr. D'Urso , who it qualified as an expert, and his CSAAS testimony to help explain why David's recollection of the alleged incidents was inconsistent with his forensic interviews, as well as why he wo uld renounc e his
pr evious allegations of sexual abus e at trial on two discrete occasions

. In these circumstances, we conclude the CSAAS testimony " improperly bolstered [David's] testimony, raising a reasonable doubt as to the validity of the verdict. "
G.E.P. , 458 N .J. Supe r at 457.20 A

- 2435

- 16T2

Further, t he State relied heavily on Dr. D'Urso's testimony during its closing argument when it stated that " children give a disclosure and they take it back, and that's normal, it doesn't mean it didn't happen." The prosecutor further emphasi zed that based on Dr. D'Urso's testimony, "if there's a disruption in the family . . . [or] [i]f the child's disclosure isn't supported there could be a recantation," and argued that "those factors apply in this case." In addition , although Dr. D 'Urso st ated that he was unaware of the factual details surrounding David, his testimony touched upon distinctive facts of the case. For example, after David d isclosed the abuse, there was a " disruption of the family, breaking apart of the family, or a fu nction o f the relationship that exists between the child and the perpetrator

. " And according to Dr. D'Urso , abuse victims have to "make a decision between tole rating the abuse [himself] . . . or los[ing] an apartment . . . los[ing] a caregiver, [or] los[i ng] supp ort

. " Here, the jury was informed by David 's testimony that he now lived in an apartment in New York with a new guardian , his mother, and his aunt, but he expressed his desire to move back to New Jersey to live with his aunt, mother, grandmother, and gran dfather again. Thus, Dr. D'Urso's testimony regarding the "gen eral nature" of CSAAS provided the jury with precise explanations why David's inconsistent disclosures and subsequent recantations occurred

.21 A

- 2435

- 16T2

Finally, c ontrary to the finding of harmless error i n J.L.G. due to the

" overwhelming evidence of [a] defendant ' s g uilt , " 234 N.J. at 306 , no such overwhelming evidence existed here. In J.L.G. , t he victim testified about a series of escalating acts of sexual abuse , she recorded an encounter during which de fendant sexually abused he r, t he recording corroborated her tes timony ,

e xplicit and disturbing language on the recording confirm ed the victim's description of abuse, l aw enforcement monitored phone conversations between the victim and defendant in which he offered her money and other items in exchange for retracting h er accusations , and the victim's mother testified that
she found defendant lying on top of the victim while erect

. Ibid. Here, d efendant denied his guilt at trial and the State provi ded no

w itnesses that observed the abuse, and no evidence other than a body part diagram, David's note to Krenn, a photograph of defendant, and David ' s interviews , which were inconsistent . David also recanted the allegations of abuse on two distinct occas ions dur ing his testimony

. Thus, t he CSAAS testimony here likely " severely impaired the defense ' s ability to test the victim ' s credibility " which was " clearly capable of producing an unjust result , " s ee G.E.P. , 458 N.J. Super. at 465 (citing R. 2:10

- 2) , a nd was " sufficient to raise a22 A

- 2435

- 16T2

reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. " State v. Macon , 57 N.J. 325, 336 (1971).
I II

. In light of our decision , we need not address defendant ' s arguments that
h is sente nce was manifestly excessive because he will be closely monitored upon release and is a low risk to reoffend, or that the sentencing court improperly found aggravating factors three and nine. Reversed and remanded for a new trial

. We do not retain jurisdi ction.