RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5783-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.E.L.,1 

Defendant-Appellant.

___________________________

Argued October 19, 2017 – Decided

Before Judges Simonelli, Haas and Rothstadt. 

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 

11-03-0672.

Louis H. Miron, Designated Counsel, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Louis H. Miron, on the 

briefs). 

Annmarie Cozzi, Senior Assistant Prosecutor, 

argued the cause for respondent (Gurbir S. 

Grewal, Bergen County Prosecutor, attorney; 

Annmarie Cozzi, of counsel and on the brief).

 

1 Because this matter involves the sexual assault of defendant's 

minor daughter, we use initials to identify those individuals 

involved in this matter pursuant to Rule 1:38-3(c)(9) and N.J.S.A. 

2A:82-46.

NOT FOR PUBLICATION WITHOUT THE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.

August 31, 2018
2 A-5783-13T1

PER CURIAM 

Following a jury trial, defendant C.E.L. was convicted of 

first-degree aggravated sexual assault of a victim less than 

thirteen years (his four-year-old daughter, C.L.), N.J.S.A. 2C:14-

2(a)(1) (count one); second-degree sexual assault of a victim less 

than thirteen years old, N.J.S.A. 2C:14-2(b) (count two); seconddegree sexual assault of a victim less than thirteen years old, 

N.J.S.A. 2C:14-2(b) (count three); second-degree sexual assault 

of a victim less than thirteen years old, N.J.S.A. 2C:14-2(b) 

(count four); second-degree endangering the welfare of a child, 

N.J.S.A. 2C:24-4(a) (count five); third-degree hindering 

prosecution by preventing or obstructing the child victim from 

providing testimony or information that might aid in his discovery 

or apprehension or in the lodging of a charge against him, N.J.S.A.

2C:29-3(b)(3) (count six); fourth-degree endangering the welfare 

of a child by possessing or viewing child pornography, N.J.S.A.

2C:24-4(b)(5)(b) (count seven); and fourth-degree tampering with 

evidence by attempting to delete images of child pornography from 

a computer, with the purpose of impairing its verity or 

availability in an official proceeding or investigation, N.J.S.A.

2C:28-6(1) (count eight). 

The trial judge denied defendant's post-trial motion for 

judgment of acquittal or a new trial. The judge sentenced 
3 A-5783-13T1

defendant to a fifteen-year term of imprisonment on count one; a 

consecutive term of seven years on count two; concurrent terms of 

seven years on counts three, four, and five; a consecutive term 

of three years on count six; a consecutive term of one year on 

count seven; and a concurrent term of one year on count eight.

Megan's Law, parole supervision for life, and the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2, applied to various counts. Thus, 

defendant's aggregate sentence was twenty-six years, with a 

twenty-two-year period of parole ineligibility.

On appeal, defendant raises the following contentions:

I. THE TRIAL COURT ERRED IN ADMITTING THE 

[STATE v. MICHAELS, 136 N.J. 299 (1994)] 

INTERVIEW INTO EVIDENCE AND PERMITTING 

THE JURY TO REVIEW THE VIDEO RECORDING 

FOUR TIMES DURING THE TRIAL AND 

DELIBERATIONS.

A. The Recording of the Michaels

Interview Should Have Been Ruled

Inadmissible Based Upon the 

Totality of Circumstances, 

Particularly Where C.L.'s 

Statements Following the 

Suspicious and Inexplicable 

"Blackout" Period Were 

Materially Different and 

Diametrically Opposed to Every 

Other Statement Made by C.L. 

Prior To and After the 

"Blackout" Period.

B. The Trial Court Should Not Have 

Permitted the Jury to Review the 

Michaels Interview Recording on 

Four Separate Occasions During 
4 A-5783-13T1

the Trial and Deliberations in 

Violation of [State v. Burr, 195 

N.J. 119 (2008)] and its Progeny 

Because It Resulted in The 

Jury's Giving More Weight to 

C.L.'s Statements After the 

"Blackout" Period Than to C.L.'s 

Testimony During Trial.

II. THE TRIAL COURT ABUSED ITS DISCRETION 

WHEN IT RULED THAT [DEFENDANT] WOULD 

NOT BE PERMITTED TO USE THE AUDIO 

RECORDINGS MADE BY [DEFENDANT'S] WIFE, 

M.L., AT THE AUDREY HEPBURN CHILDREN'S 

HOUSE AND THE EXCLUSION OF THE 

RECORDINGS VIOLATED [DEFENDANT'S] DUE 

PROCESS RIGHTS AND HIS SIXTH AMENDMENT 

RIGHT TO CONFRONTATION.

III. THE TRIAL COURT SHOULD HAVE GRANTED 

[DEFENDANT'S] MOTION FOR A MISTRIAL OR 

A CONTINUANCE UPON LEARNING THAT THE 

STATE DID NOT PRODUCE THE DISCOVERY 

CONCERNING [W.K.'s] CELL PHONE, WHICH 

CONTAINED SIGNIFICANT IMPEACHMENT 

INFORMATION ABOUT [W.K.] AND 

EXCULPATORY EVIDENCE FOR [DEFENDANT], 

UNTIL DURING THE TRIAL.

IV. THE TRIAL COURT ERRED IN FAILING TO 

INSTRUCT THE JURORS FULLY AND 

ADEQUATELY CONCERNING THEIR [AVOIDING] 

EXTRANEOUS INFORMATION FROM OUTSIDE OF 

THE COURTROOM AND IN FAILING TO VOIR 

DIRE THE JURORS UPON THEIR RETURNING TO 

THE COURTROOM FOR TRE TRIAL MORE THAN 

ONE MONTH AFTER THE JURY HAD BEEN 

SELECTED. [(Not raised below).]

V. THE [TRIAL] COURT ABUSED ITS DISCRETION 

IN DENYING [DEFENDANT'S] MOTION [TO] 

SEVER THE SEXUAL ASSAULT COUNTS (ONE 

THROUGH SIX) FROM THE COUNTS RELATING 

TO THE CHILD PORNOGRAPHY (SEVEN AND 

EIGHT).
5 A-5783-13T1

VI. THE TRIAL COURT ERRED IN NOT GRANTING 

[DEFENDANT'S] MOTION TO DISMISS THE 

INDICTMENT BECAUSE THE STATE FAILED TO 

PRESENT MATERIAL EXCULPATORY EVIDENCE 

TO THE GRAND JURY.

VII. THE TRIAL COURT ABUSED ITS DISCRETION 

IN DENYING [DEFENDANT'S] MOTION FOR 

JUDGMENT OF ACQUITTAL AND FOR A NEW 

TRIAL OR, ALTERNATIVELY, [DEFENDANT'S] 

CONVICTION SHOULD BE VACATED AND THIS 

COURT SHOULD ORDER A NEW TRIAL BASED 

UPON THE CUMULATIVE EFFECT OF THE TRIAL 

COURT'S ERRORS THROUGHOUT [DEFENDANT'S] 

PRE-TRIAL PROCEEDINGS AND THROUGHOUT 

HIS TRIAL.

VIII. THE TRIAL COURT ABUSED ITS DISCRETION IN 

SENTENCING [DEFENDANT] TO SUCH A 

DRACONIAN AND UNJUST SENTENCE BASED UPON 

THE RECORD AND, THEREFORE, [DEFENDANT'S] 

SENTENCE SHOULD BE VACATED.

We reject these contentions and affirm.

I.

Trial Testimony Relevant to the Issues 

Raised On Appeal

On October 6, 2010, C.L.'s nanny, W.K., was caring for C.L. 

and her brother, E.L., while defendant and the children's mother, 

M.L., attended a baseball game. W.K. testified she began working 

for the family in May or June 2010, but knew them for much longer 

because her mother and cousin preceded her as the children's nanny. 

That afternoon, the children had an after-school playdate at their 

home with some friends. The friends' father, J.M., stayed for the 

playdate and looked after the children with W.K. At some point 
6 A-5783-13T1

C.L. defecated in her underpants, so W.K. took her upstairs to 

shower. W.K. testified that C.L. frequently urinated and defecated 

in her underpants, and she always had to be very gentle with C.L.

because she was unusually sensitive and never liked to be wiped 

in her genital area.

Before taking C.L. out of the shower, W.K. asked if anybody 

had ever "touched her there [meaning the genital area] on the 

playground or in school[.]" W.K. had twice asked C.L. this 

question in the past because of her concern about C.L.'s unusual 

objections to being wiped, and C.L. said "no" each time. This 

time, however, C.L. hesitated and was silent for a few seconds. 

Then, looking at her feet, she said "yes, Daddy does." 

W.K. froze and pretended not to hear what C.L. said because

it was so unexpected. She told C.L. she was going to get her new 

underwear and they would go back to play. She then got C.L. 

dressed and they went downstairs to rejoin the playdate. W.K. 

remained shocked and told J.M. what C.L. said. J.M. suggested she 

speak more with C.L., and expressed that maybe C.L. simply meant 

her father sometimes wiped her too hard. 

Later that evening, W.K. took the children upstairs for E.L.'s 

shower. While E.L. showered, W.K. spoke to C.L. in her parents'

bedroom. C.L. answered "no" when W.K. asked if she remembered 

what she told W.K. earlier and if she meant that her daddy washed 
7 A-5783-13T1

or wiped her. W.K. then asked C.L. "when does that happen?," and 

C.L. answered "usually, when nobody is home." W.K. asked where 

her mother and brother were, and C.L. said they were "out shopping 

or something like that." C.L. was behaving normally while she 

spoke and at some point jumped off her parents' bed and began 

walking around. 

W.K. then asked C.L. if she could tell her what her daddy

does. C.L. climbed back on the bed and said "Daddy tell[s] me to 

take the winky into my hands and go really, really, really, 

fast[,]" moving her hands quickly up and down while making this 

disclosure. "Winky" was C.L.'s word for penis.

2 C.L. then came 

close to W.K., as if she were going to whisper in her ear, and 

said "I'll tell you something." W.K. asked "what happened?" and 

C.L. said "I don't know what's inside; and she pointed on the 

private area; but, something white comes out." C.L. then started 

giggling and W.K. giggled with her. C.L. then pointed to the left 

side of her parents' bed, indicating it happened there.

W.K. asked if there was anything else, and C.L. said "Daddy 

puts medicine on his winky." C.L. then started looking for the 

medicine, which she found in a nightstand on her mother's side of 

the bed. She showed it to W.K., who saw it was a tube of KY 

 

2 The word is spelled winky or winkie, interchangeably, throughout 

the record, and sometimes the word "weenie" is used instead.
8 A-5783-13T1

lubricant. While C.L. made these statements she was acting 

normally, no differently than if she were telling her something 

that happened at school. W.K. then asked if there was anything 

else, and C.L. took W.K. by the hand and led her to the doorway 

of her bedroom. C.L. pointed to her bed and said that "last Sunday 

she took winky to her mouth. And she went ill." 

W.K. brought C.L. back to her parents' bedroom, sat on their 

bed, and told C.L. "you know that Daddy's not supposed to do this." 

C.L. responded "yes, Daddy told me that it was wrong" and she 

"should not say anything to Mommy. Because she would throw me and 

Daddy out of the house." C.L. got quiet for a second, and then 

said to W.K., "But you won't; right?," to which W.K. answered "no; 

of course not." 

At this point, E.L. exited the shower and W.K. put C.L. in

the shower. W.K. put the children to bed after they showered and 

were in their pajamas. W.K. then spoke to J.M., who testified

that W.K. seemed "upset" and "shaken" by what C.L. told her. He 

advised her to act as normally as possible when the children's 

parents came home, explaining he did not want them to coach C.L.

or tell her not to repeat what she told W.K. W.K. followed J.M.'s 

advice and did not speak with M.L. about what C.L. told her,

explaining she did not think M.L. would believe C.L. over 

defendant. 
9 A-5783-13T1

After leaving defendant's home that night, W.K. went to J.M.'s

home and he gave her a cassette recorder to document what C.L. 

said. However, W.K. never recorded or wrote down anything. J.M.

also told W.K. that he would speak with a friend of his who was a 

police officer to ask for advice. 

The next day, W.K. returned to defendant's home to work. 

After dropping E.L. off at school, she allowed C.L. to play at the 

playground. She then took C.L. to her mother's house and then to 

a nearby park. W.K. did not speak to C.L. about anything they 

discussed the previous day, but spoke with her mother about the 

situation. 

Meanwhile, that morning J.M. went to the police and told

Sergeant Daniel Kellogg what occurred the previous day, including 

C.L.'s disclosures of sexual abuse. He did not identify W.K. or

C.L. by name because he was friendly with defendant and his family, 

and W.K. was frightened to speak with the police. Kellogg told 

J.M. he had to speak with the child and her nanny immediately. He 

also advised J.M. not to use the tape recorder, and asked him to 

contact the nanny and encourage her to contact him, which J.M.

did.

Kellogg then contacted the Bergen County Prosecutor's Office 

(BCPO) regarding how to proceed. He was advised to identify the 

child and have her brought to the Audrey Hepburn Children's House 
10 A-5783-13T1

(AHCH) to be interviewed.

3 

Kellogg subsequently received a call from W.K. She identified 

herself as the nanny J.M. spoke to him about, and told Kellogg 

what C.L. had told her. Kellogg asked to meet with her so that 

the BCPO could conduct an investigation; however, she would not 

reveal her identity or agree to meet. She testified she was scared 

to put the children through an investigation or have them taken 

away from their parents when she "didn't know if it was even true."

Kellogg gave W.K.'s cell phone number to the BCPO, which 

provided him with her name and home address. Kellogg then searched 

for W.K. in the Police Department's in-house record management 

system and discovered she had been involved in a minor motor 

vehicle accident eight days earlier, with E.L. and C.L. in the 

vehicle.

Kellogg called W.K. and told her he knew her name and address,

knew the family she worked for, and needed to speak with her that 

day. Kellogg also contacted M.L. and told her to meet him at the 

AHCH in connection with an investigation of child abuse or neglect. 

After hearing that M.L. was going to the AHCH, W.K. agreed to meet 

with the police. She told C.L. only that they "were going to meet 

 

3 The AHCH is a regional diagnostic center where investigators 

conduct forensic interviews of children related to alleged sexual 

and physical abuse, and where the children can be seen by doctors 

and psychologists.
11 A-5783-13T1

up with Mommy." 

M.L. called defendant after she spoke with Kellogg. Between 

1:19 p.m. and 5:42 p.m., she and defendant exchanged eight phone 

calls and two text messages. However, defendant testified to 

knowing only that M.L. would be meeting with the police with 

respect to W.K. and C.L. He also testified he believed W.K. may 

have done something wrong and said he and M.L. discussed possibly 

hiring a new babysitter and that he would have to pick up E.L. 

after school. Defendant denied knowing or suspecting he was under 

investigation. When presented with evidence he was in contact 

with three attorneys that afternoon, while he claimed he was with 

E.L. at Dunkin' Donuts and a toy store, he denied any recollection 

of those calls.

Detectives Cora Taylor and Barbara Stio from the BCPO's sex 

crimes unit were assigned to investigate C.L.'s allegations of 

sexual abuse. Taylor worked at the BCPO for fourteen years, 

including eight years in the sex crimes and child abuse unit, 

where she was trained in how to conduct forensic interviews of 

children. She conducted over 100 interviews of young children. 

Stio worked as a law enforcement officer for twenty-five 

years, the first thirteen with the Bergen County Sheriff's Office, 

and the last twelve with the BCPO. She worked on sex crimes 

investigations for seven years, was trained in conducting forensic 
12 A-5783-13T1

interviews of children, and conducted over 400 interviews.

When Taylor and Stio arrived at the AHCH, they first spoke 

with Kellogg, Detective Mike Musto from the Wyckoff Police 

Department, and Olivia Troche from the New Jersey Division of 

Youth and Family Services (Division),4 and explained how the 

investigation would proceed. The officers and Troche next briefly 

met with W.K., with Stio questioning her, in order to discover the 

nature of the allegations she heard from C.L. From this meeting, 

Taylor understood "there was touching of the private parts." 

After meeting with W.K., the group spoke with M.L. Stio 

testified that M.L. was advised "why we were there and that a 

forensic interview was about to take place of her daughter to find 

out what the nature of the allegations truly were." M.L. was also 

advised that defendant was the suspected perpetrator. M.L. 

remained in the waiting room with W.K. while C.L. was interviewed. 

They did not discuss what C.L. told W.K. 

Taylor conducted the forensic interview of C.L. while Stio 

watched by closed circuit television from an observation room, 

along with Troche, Kellogg, and Musto. Taylor's interview of C.L.

was videotaped and transcribed, except for an approximately 

twenty-minute portion that was not taped because the recording 

 

4 The Division is presently known as the New Jersey Division of 

Child Protection and Permanency.
13 A-5783-13T1

equipment malfunctioned. The malfunction was resolved and the 

videotaping resumed. Taylor was not advised of the malfunction 

until after the interview concluded.

Because it is protocol to interview a child only one time, 

start to finish, Taylor's interview of C.L. continued during the 

break in recording. The observers could not watch the interview 

during that time period, but could hear it. Therefore, that part

of the unrecorded interview was memorialized in Stio's 

contemporaneous notes and officers' reports. 

Taylor testified she used the rapport, anatomy, touch, abuse 

scenario, and closure (RATAC) format during the interview. RATAC

is "a protocol that's used to elicit information from a child in 

a credible and reliable way." Interviewers using this format are 

trained to pose open-ended, free recall questions, and not leading 

or suggestive questions, so the child has the opportunity to give 

a narrative. However, interviewers may pose "[f]ocus 

questions[,]" once the child has described some type of abuse, in 

order to obtain additional information and discover whether any 

abuse actually occurred. Interviewers also must take into account 

the age and cognitive ability of the child.

During the rapport stage, the interviewer tries to make the 

child comfortable and establish communication. During the anatomy 

stage, the interviewer finds out what terms the child uses to 
14 A-5783-13T1

identify his or her body parts, so those terms may be used during 

the interview. During the touch stage, the interviewer explores 

the child's understanding of touches and what touches the child 

likes or does not like. During the abuse scenario stage, the 

interviewer explores whether any kind of abuse occurred. Finally, 

in the closure phase, the interviewer closes the interview and 

establishes a safety plan for the child, so the child knows he or 

she has someone to tell if anything were to happen again. 

During the touch stage of C.L.'s interview, she responded

"no" when Taylor asked whether anyone had touched her "peepka" 

(C.L.'s word for vagina) in a way she did not like. Taylor 

proceeded with the interview nonetheless because the RATAC format 

provides a process of inquiry, and she knew that "disclosure is a 

process." 

Soon after this question and response, the recording 

equipment malfunctioned, but the interview continued. Stio 

testified that Taylor's tone of voice remained the same during the 

break in recording, Taylor never cajoled C.L., showered her with 

praise, or offered her rewards, and C.L. made no requests to 

terminate the interview.

Stio and Taylor testified that during the break in recording,

Taylor moved from questioning C.L. about body parts to questioning 

her about who assisted her in cleaning her body. C.L. said her 
15 A-5783-13T1

mother was her primary caretaker, with her nanny also assisting, 

and her father cleaned her only when her mother was not home. Stio 

testified that C.L. said that her mother sometimes touched her 

peepka in order to apply a special ointment when she had accidents 

or when her peepka burned. However, her father did not do this; 

her mother did all the work. C.L. also said there were two special 

ointments.

Taylor next spoke with C.L. about boys' body parts, and C.L. 

stated she had seen her brother's winky but never touched it.

Taylor next asked C.L. if she knew why she was there, and C.L. 

said that W.K. drove her and she was there because she needed her 

mommy's help. Taylor then asked C.L. about her conversation with 

W.K. the day before, about whether anyone had touched her "dupee"

(C.L.'s word for butt) or peepka, and C.L. responded that she had 

talked to W.K. about touches and "yucky things." Taylor told C.L. 

that W.K. shared with her what C.L. told W.K., but did not tell 

C.L. what W.K. said.

C.L. then told Taylor that her mother uses a special ointment 

that is white when she has accidents, or because her peepka burns, 

and her father sometimes uses ointment because he "just wants to."

She then disclosed that her father sometimes puts his finger into 

her peepka. Taylor asked C.L. where these things happened, and 

what people were wearing. C.L. responded that it happened in her 
16 A-5783-13T1

father's bedroom, on his bed, her father was wearing no clothing, 

so she could see his winky and dupee, and they were watching 

Princess Dora on television. She also said she lay down on the 

bed, her father told her to open the winky ointment, and he touched 

his winky and also touched her peepka with his finger. According 

to Taylor, C.L. also described straddling her father's body and 

rubbing winky ointment on his winky.

Taylor asked C.L. if her father ever asked her to do anything 

funny to his winky, and C.L. said sometimes "white stuff" comes 

out of "the little hole." Taylor asked what was going on, and 

C.L. said her father sometimes touched his winky while putting his 

finger in her peepka. However, C.L. said her father's winky had 

never touched her peepka or dupee.

At this point, the recording resumed. C.L. said that her 

father sometimes "touches wrong" by touching his winky while 

putting his finger in her peepka, and that while he was doing that 

he is also "texting and watching tv" with her. She said that 

"white stuff" comes out of his winky, after which he walks to the 

bathroom and washes off.

Taylor asked C.L. if her father ever used anything on his 

winky, and C.L. responded that he used a special winky ointment 

that was in one of his drawers, like she showed her nanny. Taylor 

asked C.L. to describe the bottle of ointment, and she said "it 
17 A-5783-13T1

has the spell on it[,]" but she did not know how to spell it. 

Stio understood C.L. to be saying that the bottle had letters on 

it, causing her to jot down a question in her notes as to whether 

C.L. was referring to KY lubricant. Taylor asked C.L. how she 

felt about this, and C.L. responded that "[a]fter it makes me feel 

lame, dumb." She also said it made her feel "[b]ad[,]" "[b]ecause 

it's private" and "a bad occasion." 

Taylor asked C.L. if her father ever talked to her about 

whether she should tell somebody about what he was doing with her. 

She responded that her father said to her "please, please, [C.L.] 

don't say no." C.L. also said he made her promise not tell 

anybody. 

Taylor then asked C.L. if her father had ever asked her to 

touch his winky, and C.L. initially said "no," looking away from 

Taylor as she said it. However, after Taylor said "Remember, what 

I told you, everything that we talk about in here is the truth[,]" 

C.L. changed her answer and said "sometimes he tells me to touch 

it." Taylor denied she was chiding C.L., or suggesting that her 

answer was untruthful. She testified she made this remark about 

truthfulness in the context of C.L.'s demeanor in turning away 

from her and backing into a corner.

Taylor then asked C.L. to tell her about it, and C.L. 

responded that her father would put the special ointment on her 
18 A-5783-13T1

hand, and at his request she would put the ointment on his winky 

and just above his winky and then get on top of him. Taylor next 

asked C.L. if her father's winky had ever touched her peepka and 

she said "For that - - no." C.L. responded "no" when Taylor asked 

if her father's winky had ever touched her dupee or her butt, or 

if her peepka ever got on her father's weenie.

Using anatomically correct dolls, Taylor then went through 

C.L.'s statement about what her father did with her. Just before 

using the anatomical dolls, however, C.L. asked Taylor if she 

could tell her mother something. Taylor answered no, but added 

that they were going to talk to her mother after they were done. 

C.L. asked when they would be done, and Taylor said in a few 

minutes. Taylor also asked C.L. if there was any reason she needed 

to talk to her mother at that moment, and C.L. said no.

Using the anatomically correct dolls, C.L. took off all of 

their clothing, explaining that this was what she and her daddy 

did while her mother and brother were not home. She said that "we 

both stand up before we do it and then we give kisses." She then 

explained how her daddy lay down on the bed and she sat on top of 

him, he touched his weenie, she put her hands on his weenie, and 

his weenie touched her peepka. 

In response to Taylor's questions, C.L. said it hurt when her 

father put his hand in her peepka, and that his hand was not wet, 
19 A-5783-13T1

but his weenie was. She also described going to the bathroom with 

her father and watching him pee on the potty. Taylor asked C.L. 

how all of this made her feel, and C.L. said it made her feel 

"disgusted[.]" She also said she never told her father how it 

made her feel. 

Taylor asked C.L. when was the last time she and her father 

had lay down and he put his finger in her peepka, and she said 

yesterday morning, while her mother was at work and her brother 

was at school and before the nanny arrived. Taylor testified that 

in asking this question she understood that four and five-yearold children are generally unable to answer questions about timing 

of their abuse. Moreover, C.L. said these incidents happened more 

than once.

Taylor then asked C.L. if her father ever said what would 

happen to her if she told somebody, and C.L. responded that he 

told her she would "get in trouble" and "Get kicked by . . . mom." 

C.L. said she believed this would happen because her father said 

it, and she said she loved her father, mother, brother, W.K., and 

grandmother.

Finally, Taylor asked if everything C.L. had told her about 

what she did with her father was the truth, and C.L. responded it 

was. Taylor asked C.L. if there was anybody she could tell if she 

was being touched in a way she did not like, and C.L. responded 
20 A-5783-13T1

she could tell Taylor. Taylor asked C.L. if she could talk to her 

mom, and C.L. said no, because her mom would be upset because it 

was not a proper thing to do.

Taylor asked if C.L. ever told her nanny about this, and C.L. 

said she did yesterday. Taylor then told C.L. that she did not 

do anything wrong, and she did a good thing by talking and telling 

someone. She also told C.L. she could always speak with the 

police, a teacher, or her mother, and assured her that her mother 

would not be upset. 

Cross-examined about the length of the interview, which was

eighty-three minutes, between 3:12 and 4:35 p.m., Taylor and Stio 

conceded that the guidelines suggested interviewing four-year-old 

children for only twenty-five minutes. However, they also said 

the guideline was not absolute, and their practice was to continue 

interviews for as long as the children were engaging in 

conversation. In this regard, Taylor testified that throughout 

the interview C.L. "was very engaged" and never lost interest.

After the interview concluded, Taylor, Stio, Kellogg, Musto, 

and Troche spoke with M.L. and advised her of C.L.'s disclosures. 

According to Stio, M.L. cried, was unable to speak, and broke out 

in hives. When she got her emotions under control and was able 

to speak, she said she did not understand how this could have 

happened in her home. 
21 A-5783-13T1

M.L. consented to C.L. being physically examined. No injuries 

or evidence of trauma were found during the examination. A small 

amount of fecal matter was found around C.L.'s anus, and she had 

some mild redness in her genital area. However, the doctor who 

examined her, Dr. Julia De Bellis, opined that the presence of 

fecal matter was merely indicative of poor hygiene, which was 

common in young children, and the genital redness was a nonspecific 

finding, meaning there could be many explanations for it. 

De Bellis further opined that the absence of physical trauma 

neither confirmed nor denied the validity of C.L.'s allegations 

of abuse. She stated the child's genitalia could appear normal 

even if there had been some degree of penetration, and any 

superficial injuries could heal quickly without a scar or any 

deformity. She testified that in the majority of cases she has 

worked on involving alleged digital penetration of a child's 

vagina, she found no physical injury. She also stated that the 

use of lubricant would decrease the likelihood of injury.

At 5:40 that evening, Taylor and Musto took a statement from 

W.K. Meanwhile, Stio and Kellogg went to defendant's home in an 

attempt to locate him. Stio testified they arrived at defendant's 

home at approximately 6:00 p.m., defendant answered the door, and 

she advised him they had to speak with him in reference to his 

daughter being interviewed at the AHCH. Defendant and E.L. then 
22 A-5783-13T1

left with the officers, who first transported E.L. to the AHCH to 

be with M.L. and then transported defendant to the BCPO, where 

they placed him under arrest.

W.K. drove C.L. home, while M.L. drove with E.L. When they 

arrived home, W.K. told M.L. to give her a call if she needed 

anything. The next day M.L. texted W.K. and asked her to take the 

children out of the house, which W.K. did, taking them to J.M.'s

house to play. W.K. worked for the family for another three or 

four days, after which she never saw C.L. again. She never 

discussed with M.L. what had happened.

At approximately 8:30 p.m. on October 7, 2010, Stio returned 

to defendant's home along with another detective. M.L. allowed 

the officers into the home and consented to their searching the 

home for the two ointments C.L. discussed during her interview. 

In a nightstand in defendant's bedroom, they found a bottle of KY 

lubricant. M.L. also gave them the ointment she used on C.L. The 

following day, Stio returned to defendant's home with a search 

warrant and retrieved a desktop computer and a laptop computer. 

Yanal Bachok, a computer forensic analyst in the BCPO's

computer crimes unit, testified as the State's expert in computer 

forensics. He testified that he reviewed hard drives from the two 

computers seized from defendant's home, and on his first preview 

found no child pornography in the "allocated" space. He explained 
23 A-5783-13T1

that information in "allocated" space has not been deleted by the 

user, whereas information in "unallocated" space consists of 

deleted information. He further explained that although 

information in unallocated space has been deleted, it has not been 

erased. Rather, the deleted information remains in the hard 

drive's unallocated space until it has been overwritten, even 

though the user cannot see it anymore.

Bachok testified he found no user data or personal information 

in the allocated space on the laptop computer, meaning "no 

pictures, no documents, no audio, like songs or video. Nothing 

that would indicate that this computer has been used practically 

at all[,]" which he said was "an unusual condition. . . ." To 

Bachok, this computer looked as though it had just arrived from 

the manufacturer because "[t]here was nothing except the operating 

system."

5 He therefore suspected the hard drive "must have gone 

through a process called system recovery[,]" which restores the 

hard drive "back to the factory image."

Bachok verified his suspicion by starting up the laptop

computer after imaging the hard drive and replacing it into the 

laptop. When he turned the computer on with the hard drive 

replaced, and was able to crack the password ("Nurse"), he received 

 

5 Defendant testified that he purchased the laptop in 2008.
24 A-5783-13T1

a message on the screen stating "Preparing your desktop," which 

indicated the system restore was in its final stages and the laptop

was being prepared for an initial use. He testified that someone 

has to affirmatively access the computer and initiate the system 

restore process, and it appeared the system restore was initiated 

at 5:52 p.m. on October 7, 2010, i.e., just ten minutes after 

defendant's last phone call to M.L. and shortly before Stio arrived 

at his home at 6:00 p.m. Defendant denied he initiated the system 

restore. He testified that E.L. was using the laptop computer

when the officers arrived, which he claimed was only a minute or 

two after his last phone call to M.L. 

Bachok testified that when the system restore process occurs, 

the hard drive is restored to the factory image, and all of the 

allocated information is erased. However, this "doesn't mean 

gone"; rather, the information "moves to the unallocated space." 

Bachok next performed a review of unallocated space on the 

two computer hard drives, using a special forensic program called 

NCASE. In particular, he looked for images (jpeg and gif), and

"keywords" that relate to child pornography. He explained that 

finding a keyword on the computer means the word is in the 

computer's memory because the keyword had been "searched or looked 

for or existed as part of like an internet history or a document 

or it could be even a dictionary word." 
25 A-5783-13T1

In unallocated space on the laptop computer hard drive, Bachok 

found "hits" for the keywords "Lolita," "Preteen, "PTHC," which 

stands for Preteen Hardcore, "R@ygold," and "Underage." He also 

found hits for "Jenny Lays With Dog," "Asian Street Meat," "DashaModels," "Indexlolita," "Little Caprice," "Littleliana," "Little 

Virgins," "Nymphets," and "Teenburg." He found 152 "hits" for the 

keyword "Limewire," explaining that Limewire "is a peer-to-peer 

program for file sharing between computers" that is often used for 

sharing illegal content, such as child pornography. He also found

numerous images of suspected child pornography, as well as images 

of defendant and his family, and "website banners" that included 

key words related to child pornography. The images were shown to 

the jury, with the child pornography separated from the family 

photos. Because of the system restore, however, Bachok was unable 

to recover the internet history for these items, the dates and 

times when the files were downloaded or viewed, where the photos 

were downloaded from, or the user profile associated with the 

files.

Regarding the desktop computer hard drive, Bachok testified 

that "[i]t looked like the computer has been used almost every day 

since it was purchased[,]" because there was "[a] lot of user 

information, whether it's pictures, documents, MP3 files, like 

audio, songs, videos and things like that[,]" in both the allocated 
26 A-5783-13T1

and unallocated space. He found no child pornography images on 

the desktop, but found many "hits" for keywords, mostly in 

unallocated space, including "Lolita" (4341 hits), "preteens" (320 

hits), "PTHC" (14 hits), "Underage" (58 hits), "Teenburg" (27 

hits), "Nymphets" (103 hits), and "Index Lolita" (68 hits). He 

also found 152 hits for "Limewire." 

Finally, Bachok testified he found the program "Cyberscrub" 

installed on the desktop computer, and explained that Cyberscrub 

is advertised as a program that deletes your internet history. He 

further stated he found 10,089 hits for Cyberscrub on the laptop

computer, indicating that Cyberscrub had also been installed on 

this computer, although it was removed to unallocated space during 

the system restore.

C.L.'s Recantations

Defendant retained a private investigator, Lisa Reed, to 

interview C.L. Reed had prior experience working as a law 

enforcement officer in a sex crimes unit and was trained in 

interviewing children. She stated that four-year-old children 

generally have an eight-minute attention span, but also admitted 

"[y]ou interview them until you realize you've lost them or until 

you have no other questions." 

Reed interviewed C.L. on November 30, 2010, with the interview 

lasting twenty-three minutes, between 2:29 and 2:52 p.m. A 
27 A-5783-13T1

videotape of that interview was shown to the jury. During the 

interview, C.L. mentioned that her brother saw her father in 

handcuffs. When asked why he was in handcuffs, C.L. responded 

that "somebody thought that daddy did a bad thing. . . . Like me 

and my dad, like did something." When asked "What'd you do?[,]" 

C.L. responded she had taken her clothes off in her parents' bed, 

with her father in it, but he had not asked her to do it, and he 

was wearing clothes at the time. Reed asked C.L. if she told "the 

ladies something that made them arrest your daddy?[,]" and C.L. 

responded she did not know "if he really got arrested." 

Thereafter, in response to direct questions (e.g., "Did daddy 

ever touch your ah, peepka when you were laying in bed, in, in his 

bed?" and "Did you ever touch daddy's weenie?"), C.L. denied her

father ever touched her peepka or put his finger in it, that she 

had ever seen or touched his winky/weenie, or seen anything come 

out of his winky, or that she sat on top of her father when she 

had no clothes on. She also denied ever telling anyone that any 

of those things happened. She said her father would clean her 

peepka in the shower, but he was wearing a bathing suit when he 

did so. C.L. also claimed that W.K. pulled down E.L.'s underwear 

in front of his friends, in order to embarrass him, but stated she 

never saw this happen, and her brother would tell Reed about it.

At trial, C.L. denied she told W.K. about things that happened 
28 A-5783-13T1

between her and her father. She also repeated what she told Reed 

about W.K. pulling down her brother's pants in order to embarrass 

him, adding that W.K. also hung her brother upside down. She also 

said she told her mother about this event, after which W.K. was 

no longer her babysitter.6

C.L. testified that she spoke to Taylor and told Taylor her 

father "didn't do anything." She denied that anybody ever touched

her private parts, and said her father only did so in order to 

apply a Neosporin-type ointment. She also denied her father ever 

made her touch his winkie, touched her peepka, or touched his 

winkie to her body. She said she only told Taylor these things 

happened because W.K. told her to, which was the same reason she 

told Taylor that she and her father lay on the bed with no clothes 

on. She testified that she told Taylor only what W.K. told her 

to say, which was "[t]hat my dad touched me in a place that I 

wouldn't want to get touched[,]" and that she touched him. 

C.L. claimed that W.K. pulled her into the mudroom, told her 

"to tell that my dad touched me in a place that I don't like to 

get touched[,]" and when she resisted W.K. told her "well, then 

you won't like what's going to happen." She did not know what 

W.K. was planning to do to her, but said W.K. had threatened to 

 

6 W.K. denied ever doing this to E.L.
29 A-5783-13T1

stuff cheese down her brother's throat, and "[s]he would make me 

and my brother clean, top to bottom, the house." 

When questioned whether she ever talked to Taylor about 

"winkie ointment," C.L. admitted she had and explained that "one 

night I walked in and he -- my dad screamed at me, and then I went 

back to my room. I cried, and then nothing happened after that." 

When questioned further, she said that when she walked into her 

parents' bedroom in the middle of the night, her father was lying 

on his side on his bed, wearing only a t-shirt and watching a 

movie on his laptop computer, and she saw him putting ointment on 

his winkie, which she described as appearing "like silk and gooey 

kind of." However, she immediately contradicted herself by saying

she never saw him put the ointment on his body and that the 

ointment container was merely lying behind him on the bed. 

C.L. testified she told her mother about this incident, and

the incident in which W.K. pulled her into the mudroom and told 

her what to say, and also told her therapists about both incidents.

She said she was sad that her father could not be home and she 

could not see him. She said that she loved her father and "he's 

a good dad[,]" and she wanted him to come home. She also knew 

that her mother wanted her father home because it was hard to be 

a single mom of two kids, and she knew that her grandfather 

(defendant's father), who lived with her, also wanted defendant 
30 A-5783-13T1

to come home. 

C.L. testified her mother told her they would "try to get him 

home together[,]" but also that she was "the main part of this, 

and you're the one that will help get him home." Based on what 

her mother told her, C.L. believed her father would "be home soon," 

after her therapy was finished and they had a final court date, 

"like we are right now." Asked how she felt to be the main part 

of this, she responded, "Well, I feel really confident in myself 

because I know I can make my dad come home . . . [b]y telling the 

truth and not telling a lie to anybody." She said she was in the 

courtroom "to get my daddy home[,]" and believed the jurors were 

there "to make the decisions if my daddy can come home." 

On cross-examination she responded "Yes" when asked: "Would 

you say anything you could, no matter whether it was true or not, 

to get your daddy to come home?" Following up, defense counsel 

asked if she "would lie to us to get your daddy to come home?[,]" 

and she responded "No." Thereafter, on redirect, she expressed 

her belief that because she testified her father had not touched 

her peepka and she had never touched his winkie, "[h]e's going to 

come home." When asked what she thought would happen if she said 

that her father touched her peepka, or he had her touch his winkie, 

she responded "[h]e's not going to come home[,]" and that would 

make her feel sad.
31 A-5783-13T1

The Defense

Defendant testified and denied committing the acts alleged 

in the indictment and any of the acts alleged in C.L.'s statement 

to Taylor. He testified to the incident C.L. spoke of at trial, 

where C.L. walked in on him while he was masturbating in his 

bedroom, and to the incident C.L. spoke of with Reed, that is, his 

getting into the shower with C.L. while wearing shorts, in order 

to clean her up after toileting accidents.

Defendant presented character witnesses, who testified he had 

a reputation for truthfulness. Defendant also contested whether 

C.L. had ever been sexually abused. As to those issues, C.L.'s 

pediatrician, Dr. Kimberly Kinney, testified she reviewed C.L.'s 

medical records and found no evidence she suffered any trauma from 

sexual abuse. 

Defendant also contested the validity of C.L.'s disclosures 

to W.K. by attacking W.K.'s credibility and claiming she influenced 

the child to accuse him of abuse. He also attacked the validity 

of C.L.'s statements to Taylor based upon the length of the 

interview, the nature of Taylor's questioning, and the gap in the

recording.

Dr. Phillip W. Esplin, an expert in forensic psychology, 

testified about the validity of C.L.'s statements to W.K. Esplin 

testified that children between three and six years old "have 
32 A-5783-13T1

difficulty sorting out the origin of their belief . . . [s]o that 

they can become confused in terms of what they may have heard from 

somebody or what they may have overheard as opposed to what comes 

from their direct experience." They are also socialized to 

acquiesce and defer to adults, so they tend to answer a question 

even if they do not know the answer, and to change their answer 

if their initial answer is not accepted. 

Esplin opined one must be wary that an adult might have 

influenced the child either by questioning the child, or having 

the child overhear the adult's conversations, including negative 

statements about the suspected perpetrator, or having the child 

observe the adult's demeanor, attitude, or concern, because "all 

those factors can influence what the child may say during that

forensic interview." Esplin also opined that when questioning 

such young children, the interviewer must be careful that the 

child comprehends the basic rules of the interview (e.g., "If I 

ask you a question and you don't know the answer, don't guess."), 

and the interviewer should exercise caution when using optionposing questions (e.g., "were your clothes on, or off, or something 

else?"), because such questions "are very difficult for that age 

group to understand[,]" so sometimes the child will "just begin 

to guess and choose one of the alternatives." 

Esplin testified that when interviewing children, the focus 
33 A-5783-13T1

should be on "invitational questions" (e.g., "tell me what 

happened[.]"). He stated that leading questions, also referred 

to as "tag questions," are permissible; however, they should not 

be the "focus" of the interview, and generally they should not be 

posed until later on in the interview, if necessary.

Esplin further testified that the recommended time for 

interviewing children between three and five years old is between 

fifteen and twenty-five minutes. If the interview exceeds this 

time-frame "[t]he risk is that the child may reach a point where 

they decide that they're going to tell you what you want to hear 

so they can get out of there." They will also lose focus, pay 

less attention, and sometimes give confusing answers. He stated 

that anyone interviewing a child should keep track of the time, 

and also observe whether the child is showing signs of fatigue.

Esplin acknowledged, however, there are individual 

differences between children, so each situation must be evaluated 

on a case-by-case basis. While he believed that forty minutes was 

the outside limit for an interview of a child between three and 

five years old, he conceded an interview of that length could 

continue, after a break, if the interview was productive.

Regarding breaks generally, Esplin opined that ideally an 

interview would continue uninterrupted. However, a child's 

request for a break should be respected. Esplin said it was a 
34 A-5783-13T1

judgment call as to whether a break should be taken in the event 

of a malfunction of the recording equipment, as there were numerous 

factors to consider, including the safety of the child and whether 

the malfunction occurred at a critical time.

Finally, Esplin testified with respect to the use of dolls 

in child interviews that on the one hand "there's some information 

that the use of the dolls increases some detail." "At the same 

time, it increases the frequency of errors." Also, with school 

age children, age six and up, the use of dolls tends "to lessen 

the amount of verbal memories you receive." Ultimately, he said

there have "been no studies to demonstrate that the use [of dolls] 

increases the yield of reliable information about what may have 

happened." Thus, he would not use dolls, or diagrams, unless he 

had "exhausted every other avenue of getting verbal memories." 

Defendant blamed his father-in-law, K.W. for the child 

pornography found on his laptop computer.

7 Both defendant and 

K.W. testified that on two occasions when K.W. visited defendant's 

home, in 2003 and 2008, defendant discovered K.W. was using his

computers to view child pornography and angrily confronted K.W. 

about it. On both occasions defendant limited K.W.'s access to 

 

7 Bachok testified that K.W.'s last name had 285 hits on the 

desktop computer, and 271 hits on the laptop, which meant only 

that the name appeared somewhere on each computer, e.g., an email, 

an email address, or a document.
35 A-5783-13T1

the computers and monitored K.W.'s internet history although after 

the second incident he never found any evidence that K.W. was 

accessing child pornography. In addition, K.W. promised defendant 

he would not access child pornography again, and gave defendant 

money to replace the computers.

Defendant testified that in 2003 he threw out the old computer 

and purchased a new one with money K.W. provided. Thereafter, in 

2008, he used K.W.'s money to purchase the laptop computer, which 

was kept in the family room and "pretty much everyone used[;]" 

however, he did not discard the desktop computer, which was kept 

upstairs. Instead, he chose to run Cyberscrub on the desktop 

computer, in order to eliminate unwanted material while retaining 

everything else. Initially, he claimed to have run Cyberscrub in 

2007 or 2008. However, when confronted with his purchase record,

he conceded he did not purchase the program until 2010. 

K.W. testified that he used defendant's computers to view 

child pornography and claimed he had "a sickness, an addiction" 

to child pornography. However, he testified he only viewed child 

pornography maybe once a month, or three times per week, and

claimed he only began viewing it in 2006, and completely stopped 

viewing it in 2009. He denied having any preference for viewing 

any particular sexual acts or body parts, downloading any photos 

or emailing them, keeping a collection of child pornography, or 
36 A-5783-13T1

trading it with collectors, and using the program Lime Wire.

8 He 

also said he never went to any particular website, and only 

accessed the child pornography through search engines. He recalled

some of the keywords found on the computers, and recalled viewing 

some of the photos recovered from the laptop computer's hard drive. 

On the other hand, in 2011, K.W. denied to the Division that 

the child pornography belonged to him. Moreover, on other 

occasions, he indicated he only accessed child pornography twice, 

once in the fall of 2003, and the second time in the fall of 2008. 

He also claimed that in 2008 he viewed only Japanese comic book 

style drawings depicting people engaged in sexual activity with 

underage persons, but no pictures of live persons.

II.

Defendant filed a motion to suppress C.L.'s statement to 

Taylor. Following a N.J.R.E. 104 hearing, at which W.K., Stio, 

and Taylor testified, the court issued a written opinion, finding 

the statement trustworthy, notwithstanding the gap in the 

recording. The court rejected defendant's argument that Taylor's 

questioning of C.L. was "inept, coercive and manipulative,"

stating:

The court disagrees with defendant's 

analysis of Taylor's interview of C.L. While 

she did employ leading questions, it is 

 

8 Defendant also denied using Lime Wire.
37 A-5783-13T1

apparent that such questions occurred only 

after the child made a disclosure, and that 

the leading questions were geared to clarify 

or to assist the child to specify the 

disclosure. The court finds the interview of

. . . C.L., and her resulting statements were 

not the product of threats, bias, or 

misleading questions. To the contrary, the 

court is satisfied that C.L. was able to 

articulate the alleged sexual conduct without 

prompting or suggestive questioning; that she 

was able to describe specific events; that she 

did not use words or phrases 'beyond her 

years,' but demonstrated her naivety to the 

sexual acts portrayed; that she was able to 

identify with clarity the parts of her anatomy 

and defendant's anatomy involved in the acts; 

that she was able to recall events, both as 

to time and place, although not with timespecificity due to her age. 

Therefore, based upon the totality of the 

circumstances, the court is satisfied that 

C.L.'s statement is trustworthy, and should 

therefore be admitted at trial, pursuant to 

[N.J.R.E. 803(c)(27)]. 

The fact that this court finds C.L.'s 

statement trustworthy for purposes of 

admissibility at trial in no way reflects upon 

whether or not the incidents actually 

occurred. Her statements are subject to 

cross-examination at trial, as well as Stio's 

notes regarding the gap and Taylor's method 

of questioning the child. Whether or not the 

incidents actually occurred, is reserved 

solely for the jury's providence.

On appeal, defendant contends in Point I that the court erred 

in admitting C.L.'s videotaped statement to Taylor. He argues the 

statement was untrustworthy because: (1) twenty crucial minutes 

of the statement, during which C.L. first made allegations of 
38 A-5783-13T1

sexual abuse, went unrecorded, and therefore there is no verbatim 

record of what questions Taylor asked or what statements she made 

to C.L., and no recording of the tone of Taylor's voice; (2) C.L.'s 

failure to make any abuse allegations in the first half of the

statement, and her post-interview recantations of the sexual abuse 

allegations, indicate her statements to Taylor were fabrications; 

(3) the interview was excessively long for someone of C.L.'s young 

age; and (4) Taylor's denial of C.L.'s request to see her mother, 

just prior to using the anatomical dolls, "was clearly an abuse 

of Taylor's ability to reward or punish C.L. for the child's 

responses to Taylor's questions." Only a few of these arguments 

were raised before the trial judge.

Defendant further argues the court compounded the error by 

permitting the State to play the video twice on its direct case

and during summation, and allowing the jury to watch the video for 

a fourth time during deliberations. Defendant claims this enabled 

the State to give undue weight to C.L.'s statement and effectively 

prevented the jury from considering her sworn trial testimony and 

other out-of-court statements denying defendant engaged in any 

improper conduct. Alternatively, for the first time on appeal, 

defendant argues that when the jury viewed the tape during 

deliberations, "[a]t a minimum," C.L.'s trial testimony and her 

interview with Reed should have been read back to the jury along 
39 A-5783-13T1

with her statement to Taylor. 

"[I]n reviewing a trial court's evidential ruling, an 

appellate court is limited to examining the decision for abuse of 

discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) 

(citation omitted). Under that standard, "[c]onsiderable latitude 

is afforded a trial court in determining whether to admit 

evidence," and "an appellate court should not substitute its own 

judgment for that of the trial court, unless 'the trial court's 

ruling was so wide of the mark that a manifest denial of justice 

resulted.'" Id. at 385-86 (alteration in original) (citations 

omitted). 

Our review of a trial court's decision on a motion to suppress 

is limited. State v. Robinson, 200 N.J. 1, 15 (2009). As our 

Supreme Court has held: 

Appellate review of a motion judge's factual 

findings in a suppression hearing is highly 

deferential. We are obliged to uphold the 

motion judge's factual findings so long as 

sufficient credible evidence in the record 

supports those findings. Those factual 

findings are entitled to deference because the 

motion judge, unlike an appellate court, has 

the "opportunity to hear and see the witnesses 

and to have the 'feel' of the case, which a 

reviewing court cannot enjoy."

[State v. Gonzales, 227 N.J. 77, 101 (2016) 

(citations omitted).]
40 A-5783-13T1

We will "reverse only when the trial court's determination is 'so 

clearly mistaken that the interests of justice demand intervention 

and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014)

(citation omitted). However, we owe no deference to the trial 

court's legal conclusions or interpretations of the legal 

consequences flowing from established facts, and review questions 

of law de novo. State v. Watts, 223 N.J. 503, 516 (2015).

N.J.R.E. 803(c)(27) provides as follows:

A statement by a child under the age of 12 

relating to sexual misconduct committed with 

or against that child is admissible in a 

criminal . . . proceeding if (a) the proponent 

of the statement makes known to the adverse 

party an intention to offer the statement and 

the particulars of the statement at such time 

as to provide the adverse party with a fair 

opportunity to prepare to meet it; (b) the 

court finds, in a hearing conducted pursuant 

to [N.J.R.E.] 104(a), that on the basis of the 

time, content and circumstances of the 

statement there is a probability that the 

statement is trustworthy; and (c) either (i) 

the child testifies at the proceeding, or (ii) 

the child is unavailable as a witness and 

there is offered admissible evidence 

corroborating the act of sexual abuse; 

provided that no child whose statement is to 

be offered in evidence pursuant to this rule 

shall be disqualified to be a witness in such 

proceeding by virtue of the requirements of 

[N.J.R.E.] 601.

Here, the court considered the evidence and relevant factors 

in determining that C.L.'s interview was sufficiently trustworthy 

to warrant admission under N.J.R.E. 803(c)(27), including the gap 
41 A-5783-13T1

in the recording and the other arguments defendant raised. See

Idaho v. Wright, 497 U.S. 805, 821-22 (1990); State v. P.S., 202 

N.J. 232, 248-54 (2010). On the evidence presented at the N.J.R.E. 

104 hearing, we discern no reason to second-guess the court's 

factual findings, and defendant has not shown an abuse of 

discretion in the court's evidentiary ruling. 

Regarding defendant's complaint about the number of times the 

video was played to the jury, the record reflects the video was 

played in full twice during the State's direct case, first during 

Stio's testimony, and second during Taylor's testimony. The court 

inquired as to whether defense counsel had any objection to the 

video being played twice, and defense counsel answered he did not.

Thereafter, defense counsel used the video extensively when 

cross-examining Stio and Taylor, as he was critical of the length 

of the interview, Taylor's demeanor, her statements to C.L., the 

nature of her questions, C.L.'s behavior during the interview, and 

Taylor's denial of C.L.'s request to see her mother.

9 

The court overruled defense counsel's objection to the 

prosecutor using two, two-minute clips of the video during 

summation. Defense counsel did not use the video during his 

 

9 This string of citations is not meant to reflect a complete 

list of times defense counsel played the videos during crossexamination.
42 A-5783-13T1

summation; however, in attacking Taylor's credibility, he reviewed 

the interview in detail with the jury, highlighting particular

questions and particular portions of the interview he argued were 

problematic. 

During deliberations, the jury requested a playback of a 

portion of the video. The court discussed the request and its 

proposed response with counsel. During that discussion, defense 

counsel did not object to the jury watching the video, or request 

that the court require the jury to have a playback or readback of 

any other testimony. However, counsel objected to the jury having 

the transcript of the video as an aid.

Thereafter, the jury was brought to the courtroom, and the 

judge inquired as to which video the jury wanted to watch, "the 

Cora Taylor video or the Lisa Reed video," to which the jury 

foreperson responded the "Cora Taylor video[.]" The court then 

inquired: "[I]s it the entire video that you want to see[,]" and 

the foreperson responded: "We don't need the beginning, we would 

like it maybe four or five minutes prior to when the tape goes out 

and then, obviously we don't want to watch a blank tape for 

[twenty] minutes, but then the end of the tape[.]" Finally, jurors 

responded affirmatively when the court inquired whether the 

foreperson's response was "everybody's choice[.]" 
43 A-5783-13T1

The court then replayed the portion of the video the jury 

requested, in open court, subject to the court's supervision. 

After the playback, the court instructed the jury as follows:

Members of the jury, you've requested a play 

back of the testimony of [C.L.] The recorded 

testimony has been played for you. In your 

deliberations you're instructed to consider 

all the evidence presented and not give undue 

weight to the testimony you heard and seen 

played back and now you can go back into the 

jury room and continue deliberations. Thank 

you.

The jury then deliberated for another hour, at which time the

court adjourned for the day. The next day the jury resumed its 

deliberations. The jury reached its verdict, which the court 

accepted, and the court adjourned at 1:04 p.m. 

Since defendant did not object to the jury watching the video 

twice during trial, or to the jury watching a portion of the video 

for a third time during deliberations, we review those issues for

plain error, that is, whether the error was "clearly capable of 

producing an unjust result[.]" R. 2:10-2; State v. Weston, 222 

N.J. 277, 294 (2015). Defendant bears the burden of proving plain 

error. Weston, 222 N.J. at 295.

Under the unique circumstances of this case, where there was 

a twenty-minute break in the video due to the recorder 

malfunctioning, we find no plain error in the court's permitting 

the jury to watch the video during the testimony of both Stio and 
44 A-5783-13T1

Taylor. Defendant's failure to object to this procedure, and 

defense counsel's extensive use of the video during crossexamination, indicates his belief that repetition and close 

analysis of the video would be helpful, not harmful, to defendant's

case, as it would reveal misconduct or mistakes on the 

investigators' part.

There also was no error in the court allowing the prosecutor 

to use two short clips from the video during summation. The 

prosecutor used those clips to focus the jury's attention on C.L.'s 

statements that were supportive of counts in the indictment 

alleging specific acts of sexual abuse. Thus, there was nothing 

inappropriate in the prosecutor's use of the video. See State v. 

R.B., 183 N.J. 308, 330 (2005) (stating that summations should be 

limited to discussion of the evidence); State v. C.H., 264 N.J.

Super. 112, 134 (App. Div. 1993) (finding no error in the 

prosecutor's commenting on evidence that showed sexual assault by 

penetration).

Regarding the jury's review of the video during 

deliberations, the law provides that videotaped pretrial 

statements of witnesses are a special type of exhibit, akin to 

trial testimony. Burr, 195 N.J. at 134. Therefore, they 

"require[] special consideration by a court overseeing a trial 

that has reached the deliberation stage." Weston, 222 N.J. at 
45 A-5783-13T1

289. 

"[T]here is no per se rule against the replay of video 

recordings during jury deliberations and . . . the decision to 

replay a recording is vested in the discretion of the trial judge." 

State v. A.R., 213 N.J. 542, 560 (2013). Indeed, absent some 

unusual circumstances, a request by the jury to replay a videotaped 

statement should be granted, State v. Miller, 205 N.J. 109, 119-

20 (2011), and the court "should honor a jury's specific request 

to hear only limited parts" of a video. Id. at 123 (noting that 

when a limited playback of testimony is requested, court should 

ensure that playback includes relevant direct and crossexamination).

Nevertheless, certain procedures should be followed. 

Specifically, in order to avoid the jury overemphasizing a 

particular segment of a video, or viewing a video out of context, 

"a trial court should not permit a jury to have unrestricted access 

during deliberations to the videotaped pretrial statements of 

witnesses." Weston, 222 N.J. at 289, 292-93. Rather, any "replay 

of a videotaped statement during deliberations should only be 

conducted upon the jury's request, and after a determination that 

the jury's concerns cannot be addressed with a readback of 

testimony." Id. at 293. In making that determination, the court 

also should consider whether testimony from additional witnesses 
46 A-5783-13T1

should be replayed in order to provide context. A.R., 213 N.J.

at 560. Moreover, any replay "must be conducted in open court, 

under the careful supervision of the trial judge." Weston, 222 

N.J. at 293. Finally, "at the time the testimony is repeated, 

judges should instruct jurors to consider all of the evidence 

presented and not give undue weight to the testimony played back." 

Miller, 205 N.J. at 109. 

Here, the court complied with the governing law to the extent 

that it did not permit a playback of C.L.'s statement except upon 

the jury's request, and it required the playback occur in open 

court. However, the court did not inquire of the jury whether it 

would like a playback or read back of any trial testimony from 

C.L. or another witness.

Defendant argues it was plain error to not sua sponte provide 

the jury with C.L.'s trial testimony and her interview with Reed, 

along with her statement to Taylor. However, the above-cited case 

law did not require such an action, defendant did not request it, 

and under the circumstances of this case, we perceive no error in 

the failure to inquire about a playback or read back of additional 

testimony. See Weston, 222 N.J. at 294-300 (engaging in casespecific inquiry when considering whether trial court committed 

plain error in allowing jury unsupervised access to witnesses' 

videotaped pretrial statements). 
47 A-5783-13T1

C.L.'s statement to Taylor accused defendant of sexual abuse. 

Therefore, a read back of C.L.'s trial testimony or a playback of 

her interview with Reed would not have provided the jury with the 

information it requested.

Furthermore, the defense was that Taylor pressured C.L. to 

disclose abuse through her conduct of the interview. The defense 

also argued that C.L. was of such a young age she could not stay 

focused during an interview exceeding twenty-five minutes. To the 

extent the jury was considering those arguments, none of that 

information could be gleaned from a read back of the transcript 

of C.L.'s videotaped statement to Taylor, nor from a replay of 

C.L.'s trial testimony or her statement to Reed. Cf., A.R., 213 

N.J. at 561 (finding no error in allowing the jury unsupervised 

access to video of witnesses' statements where defense counsel 

invited the error by encouraging the jury to review video recorded 

statements and urged the court to submit statements to the jury 

during deliberations).

We conclude there was no abuse of discretion in the court's 

admission of C.L.'s pretrial statement to Taylor under N.J.R.E.

803(c)(27); no plain error in the court's allowing the video to 

be played twice during trial; no error in the prosecutor's limited 

use of the video during summation; and no plain error in the 

court's handling of the jury's request for a replay of a portion 
48 A-5783-13T1

of the video during its deliberations.

III.

Defendant contends in Point II that the court erred in barring 

audio recordings made by M.L., and exclusion of the recordings 

violated his right to due process and his right to confrontation. 

We disagree.

The court held a N.J.R.E. 104 hearing to determine the 

admissibility of various audio recordings made by M.L. M.L. 

testified that the Family court ordered her and her children to 

attend therapy sessions at the AHCH. On July 5, 2012, she recorded 

a therapy session, where C.L. was also present. She gave the 

recording to defendant, who copied it onto a CD and prepared a 

transcript.

M.L. also testified she recorded a therapy session on December 

27, 2012, where C.L. was also present. She also recorded ten or 

fifteen other therapy sessions, as well as her conversation with 

Anthony D'Urso, Ph. D. in December 2011. M.L. did not advise the 

individuals that she was recording them. She gave the recordings 

to defendant. At some point in 2012, M.L. advised the Family 

court attorneys that she made the recordings, and gave them the 

audiotapes. She testified she made the recordings because she did 

not feel comfortable with how the therapy was progressing and

believed the therapy was not being accurately reported to the 
49 A-5783-13T1

court. 

M.L. testified that on several occasions at home, C.L. said

that W.K. told her what to say about defendant, although C.L. did 

not give any details about what W.K. instructed her to say. C.L. 

first made such a statement about two months after defendant's 

arrest. A few months later, C.L. told M.L. about the incident 

when she walked in on defendant masturbating.

Based upon C.L.'s statements to her, as well as defendant 

having passed a polygraph and a psychosexual test, M.L. believed 

he was innocent, and W.K. was responsible for C.L.'s fabricated 

accusations of sexual abuse. M.L. stated she did not speak with

C.L. about what happened since the therapy session recorded on 

December 27, 2012. The only things C.L. said to her since then 

was that she missed her father and wanted him to come home.

In its oral and written opinions, the court set forth its 

understanding that defendant's "application involves the interplay 

between the various statutory privileges which protect the 

disclosure of therapeutic records . . . particularly in a Title 

Nine case, against a defendant's Constitutional Rights of Due 

Process insured by the Fifth Amendment, and his Sixth Amendment 

Right of Confrontation in criminal proceedings."

Reviewing the governing law and weighing the legal issues, 

the court concluded that M.L. "had no authority to waive C.L.'s 
50 A-5783-13T1

victim counselor privilege and disclose the conversations between 

the child and her therapist to third persons" because she had an 

interest in the outcome of the litigation. Specifically, M.L.

believed W.K. told C.L. to fabricate the allegations of sexual 

abuse, and "[s]he [was] convinced defendant [was] innocent of all 

charges and want[ed] defendant reunited with her and the children." 

The court further held that, even if M.L. had the right to waive 

C.L.'s privilege, the overriding policy reasons which established 

the confidentiality of Title Nine proceedings would defeat such a 

waiver, which was not in the best interests of the child.

Nevertheless, in considering defendant's rights to due 

process and confrontation, the court held he could admit some 

evidence of C.L.'s recantations during the July and December 2012 

therapy sessions, but only through therapy progress notes, which 

was "a less intrusive avenue than playing the recorded therapy 

sessions. . . ." Thus, the court issued a protective order 

regarding all of M.L.'s recordings, such that they would remain 

under seal with the court and defendant would not be permitted to 

use them at trial, or take testimony from the AHCH therapists. 

However, the court permitted defendant to present evidence of 

C.L.'s alleged recantations of the sexual abuse allegations during 

therapy through information from therapy progress reports. 

In addition, the court ruled that a thirty-two second, non-
51 A-5783-13T1

confidential recording M.L. made of a conversation with C.L., 

either immediately before or after a therapy session, could be 

used at trial. The court noted that during this conversation, 

C.L. could be heard crying while telling her mother she knew about 

the recorder in her mother's pocket.

After issuing this ruling, the court held another hearing on 

these issues on September 9, 2013, at which it addressed how C.L.'s 

alleged recantations could be introduced into evidence at trial, 

i.e., either through a stipulation between the parties or limited 

testimony from a therapist. Thereafter, in a September 25, 2013

order, the court memorialized its above rulings and additionally 

held that the therapy progress reports themselves could not be 

admitted into evidence. The court also allowed for reconsideration 

of its rulings based upon issues that might arise at trial. 

The court later issued a supplemental opinion, detailing the 

contents of four therapy progress reports. In addition, finding 

there were no therapy progress reports for the July 5 and December 

27, 2012, therapy sessions, the court ruled that defendant could 

introduce information about C.L.'s recantations during those 

sessions through testimony of the therapists in attendance, and

if those therapists were unavailable or denied any recantations 

occurred, then defendant could renew his request to present M.L.'s

recordings to the jury.
52 A-5783-13T1

At trial, C.L. testified on both direct and cross-examination

that she told both her mother and therapists that W.K. coerced her 

into making the abuse allegations. Moreover, on crossexamination, defense counsel specifically asked C.L. about her 

statements at the July and December 2012 therapy sessions. 

Thereafter, defense counsel did not call M.L. or any therapists 

to testify, or request admission of any of M.L.'s recordings or 

therapy progress notes. 

On defendant's motion for a new trial, he argued the court 

erred in excluding M.L.'s recordings of the therapy sessions. In 

denying the motion, the court noted the jury heard C.L.'s 

recantations through her trial testimony, and M.L.'s recordings

of the therapy sessions would have been of little value to 

defendant in light of the recording M.L. made of her conversation 

with C.L., in which C.L. indicated she knew M.L. was recording the 

conversation.

Both the Federal and State constitutions protect a 

defendant's rights to due process and to confront the witnesses 

against him. U.S. Const. amends. V, VI, XIV; N.J. Const. art. 1, 

¶¶ 1, 10; State v. Garron, 177 N.J. 147, 168-69 (2003). Notably, 

however, the right of confrontation is not absolute. Sometimes 

it must give way to accommodate competing interests, such as rules 

of evidence and procedure, so long as application of those rules 
53 A-5783-13T1

does not deprive a defendant of his right to a fair trial. Chambers 

v. Mississippi, 410 U.S. 284, 295 (1973); Garron, 177 N.J. at 169-

72. 

Here, the interests competing with defendant's rights of due 

process and confrontation are the statutory confidentiality of 

Title Nine proceedings, as well as the privilege that protects 

victim-counselor therapy sessions. Specifically, under N.J.S.A.

9:6-8.10a, Division records are maintained subject to a "strict 

confidentiality requirement" that serves as "a procedural 

safeguard to protect victim children from unnecessary disclosure 

of his/her abuse which may cause the child further guilt, 

vulnerability or humiliation." N.J. Div. of Youth & Family Servs. 

v. J.C., 399 N.J. Super. 444, 447 (Ch. Div. 2006). 

There are limited exceptions to the confidentiality 

requirement, including that records may be produced to a court 

"upon its finding that access to such records may be necessary for 

determination of an issue before it[.]" N.J.S.A. 9:6-8.10a(b)(6). 

Under no circumstances, however, shall the Division "release any 

information that would likely endanger the life, safety, or 

physical or emotional well-being of a child . . . ." N.J.S.A.

9:6-8.10a. The statute states, in pertinent part:

a. All records of child abuse reports 

. . . all information obtained by the 

Department of Children and Families in 
54 A-5783-13T1

investigating such reports . . . and all 

reports of findings forwarded to the child 

abuse registry . . . shall be kept 

confidential and may be disclosed only under 

the circumstances expressly authorized under 

subsections b., c., d., e., f., and g. herein. 

The department shall disclose information . . 

. that is relevant to the purpose for which 

the information is required, provided, 

however, that nothing may be disclosed which 

would likely endanger the life, safety, or 

physical or emotional well-being of a child

or the life or safety of any other person or 

which may compromise the integrity of a 

department investigation or a civil or 

criminal investigation or judicial 

proceeding. . . . 

b. The department may and upon written 

request, shall release the records and reports 

referred to in subsection a., or parts 

thereof, . . . to: 

. . . .

(6) A court . . . upon its finding that access 

to such records may be necessary for 

determination of an issue before it, and such 

records may be disclosed by the court . . . 

in whole or in part to the law guardian, 

attorney, or other appropriate person upon a 

finding that such further disclosure is 

necessary for determination of an issue before 

the court . . . .;

. . . .

Any individual, . . . court . . . or other 

entity which receives from the department the 

records and reports referred to in subsection 

a., shall keep the records and reports, or 

parts thereof, confidential and shall not 

disclose the records and reports or parts 

thereof except as authorized by law. 
55 A-5783-13T1

. . . . 

The department shall not release any 

information that would likely endanger the 

life, safety, or physical or emotional wellbeing of a child or the life or safety of any 

other person. 

[N.J.S.A. 9:6-8.10a (emphasis added).]

See also N.J.R.E. 515 (prohibiting disclosure of official State 

information "(a) if disclosure is forbidden by or pursuant to any 

Act . . . of this State, or (b) if the judge finds that disclosure 

of the information in the action will be harmful to the interests 

of the public").

In addition, N.J.S.A. 2A:84A-22.13 and N.J.R.E. 517 codify 

the victim-counselor privilege, such that "it is the public policy 

of this State to extend a testimonial privilege encompassing the 

contents of communications with a victim counselor and to render 

immune from discovery or legal process the records of these 

communications maintained by the counselor." A person may waive 

a privilege they hold. N.J.S.A. 2A:84A-29; N.J.R.E. 530. However, 

a parent's ability to waive the victim-counselor privilege held 

by their child is limited under N.J.S.A. 2A:84A-22.15 and N.J.R.E.

517(1), which set forth that:

In any instance where the juvenile is, in the 

opinion of the judge, incapable of knowing 

consent, the parent or guardian of the 

juvenile may waive the privilege on behalf of 

the juvenile, provided that the parent or 
56 A-5783-13T1

guardian is not the defendant and does not 

have a relationship with the defendant such 

that he has an interest in the outcome of the 

proceeding. 

[(Emphasis added).]

As a general rule, evidentiary privileges are to be narrowly 

construed. State v. Szemple, 135 N.J. 406, 413 (1994). Since 

they may undermine the administration of justice, "they are 

accepted only to the extent that they outweigh the public interest 

in the search for truth." Id. at 413-14. 

In terms of case law, most relevant are Pennsylvania v. 

Ritchie, 480 U.S. 39 (1987), and State v. L.J.P., 270 N.J. Super.

429 (App. Div. 1994). In Ritchie, 480 U.S. at 54, the Court held 

the State did not violate the Sixth Amendment's Confrontation 

Clause by withholding a child protective services file, where 

defense counsel was able to cross-examine his accuser. See also

State v. Nyhammer, 197 N.J. 383, 411-14 (2009) (finding no 

Confrontation Clause violation in admitting child sex abuse 

victim's statement to police where victim testified at trial and 

was subject to cross-examination). However, the Court concluded 

that in order to protect a defendant's due process rights, it may 

be necessary for a court to review such protective services records 

in camera, and order that any material information be disclosed. 

Ritchie, 480 U.S. at 56-60. 
57 A-5783-13T1

Similarly, in L.J.P., 270 N.J. Super. at 436-38, the defendant 

appealed from his conviction of sexual assault and endangering the 

welfare of a child, arguing the trial court erred in finding the 

psychologist-patient privilege prevented him from introducing 

evidence, contained in Division reports already in his possession, 

that the child victim had recanted her allegations of sexual abuse 

during a conversation with her psychologist.

Considering the issue, we noted that the psychologist-patient 

privilege may be defeated if necessary to protect a defendant's 

rights to a fair trial and to confront the witnesses against him. 

Id. at 439-40. However, in order to pierce the privilege, the 

defendant must show: (1) a legitimate need for the protected 

information; (2) that the information is relevant and material to 

an issue before the court; and (3) no less intrusive source for 

the information exists. Id. at 440.

We also noted that at trial a witness testified to the 

victim's recantation, and the victim was also cross-examined about 

the recantation. However, the victim dismissed the recantation 

"as the product of coercion and misguided hopes for a reunified 

family." Id. at 442. Thus, we found the recantation allegedly 

contained in Division reports "was not otherwise available to the 

defense[,]" and its exclusion could not be viewed as harmless 

error. Ibid. Accordingly, we reversed and remanded for a new 
58 A-5783-13T1

trial, id. at 444, stating: "[T]he defendant's legitimate need for 

critical evidence and his right to confront his accuser with her 

repudiation of her allegations was far more compelling than the 

interests of confidentiality." Id. at 443. 

The present case is significantly different than Ritchie and 

L.J.P. Unlike in those cases, defendant did not seek Division 

records in a manner permissible under the law, specifically 

N.J.S.A. 9:6-8.10a(b)(6). See N.J. Div. of Youth & Family Servs. 

v. N.S., 412 N.J. Super. 593, 637-38 (App. Div. 2010) ("[T]he 

mechanism employed by our Legislature to preserve the 

confidentiality of [the Division's] records and protect a victim's 

privacy interests is to require judicial review of a party's 

written request of the need for disclosure."). Instead, M.L.

surreptitiously recorded therapy sessions and provided the 

recordings to her attorney and defendant, who then provided them 

to his attorney, all in contravention of the law. These recordings 

only came to the criminal court's attention when defendant sought 

additional discovery and to admit the recordings into evidence at 

trial. 

We cannot condone or encourage M.L.'s behavior, as it violates 

the public policy set forth in the statutes and evidentiary rules 

previously discussed. Moreover, given M.L.'s relationship to 

defendant and her belief that he was innocent of the charges, the 
59 A-5783-13T1

court correctly ruled she could not waive C.L.'s victim-counselor 

privilege. Therefore, in its rulings, the court reasonably 

attempted to avoid introduction of the surreptitious recordings 

of therapy sessions and instead relied solely on Division records 

or testimony from the therapists.

Ultimately, however, no such evidence was necessary because, 

unlike in L.J.P., C.L. recanted her allegations of abuse at trial. 

She also testified that W.K. coerced her into making allegations 

of abuse and told this to her therapists in the July and December 

2012, therapy sessions, with defense counsel questioning her about 

her statements during those therapy sessions. 

Therefore, unlike in L.J.P., defendant did not need M.L.'s

recordings at trial. Through C.L.'s testimony, he got what he 

wanted -- C.L.'s multiple recantations presented to the jury, 

along with her allegation that W.K. was the source of her 

statements to Taylor.10

In sum, the court provided defendant with relevant 

information from the Division's records, and defendant had a full 

 

10 Defendant argues he should have been permitted to use the 

recorded therapy sessions "to confront the State's witnesses." 

However, the only State's witness he could have confronted was 

C.L., in order to defuse her allegations of sexual abuse. No 

other State's witnesses appeared on the recordings or had any 

connection to C.L. at the time the recordings were made in 2012, 

two years after defendant's arrest.
60 A-5783-13T1

and fair opportunity to cross-examine C.L. and explore the 

recantations with her, even without the recordings. Therefore, 

there was no violation of his rights to due process and 

confrontation. Ritchie, 480 U.S. at 54, 56-60; Nyhammer, 197 N.J.

at 411-14. Moreover, under the circumstances presented, C.L.'s 

prior consistent statements to her therapists would not have been 

admissible under the Rules of Evidence. See N.J.R.E. 607; N.J.R.E.

803(a)(2); Neno v. Clinton, 167 N.J. 573, 580 (2001).

Finally, as the court cogently noted on defendant's posttrial motion, there were risks associated with introduction of the 

therapy recordings at trial. Specifically, if defendant had 

renewed his request for introduction of the July 5 and December 

27, 2012 recordings, then the prosecution likely would have sought 

introduction of the recording of C.L.'s conversation with M.L.,

in which C.L. tearfully told her mother she knew she was being

recorded. Introduction of that mother-daughter conversation would 

have seriously diluted the value of the July 5 and December 27, 

2012 recordings, and supported the State's argument that C.L.'s 

family influenced her to recant her accusations. Indeed, that 

strategic risk-benefit analysis is the most likely explanation as 

to why, once C.L. recanted at trial, defense counsel did not renew 

his motion to introduce the recordings, as the court permitted him 

to do.
61 A-5783-13T1

As for the recordings of M.L.'s own therapy sessions, which 

defendant argues for the first time on appeal should have been 

ruled admissible at trial, defendant has made no showing those 

recordings would have affected the outcome of the case. R. 2:10-

2. Accordingly, we find no abuse of discretion in the court's 

evidentiary ruling with respect to M.L.'s surreptitious recordings 

of confidential therapy sessions.

IV.

Defendant contends in Point III that the court erred in 

denying his motion for a mistrial or a continuance upon learning 

the State did not produce discovery from W.K.'s cellphone until 

after trial began, since the cellphone contained significant 

impeachment information about W.K. 

As set forth in greater detail below, defendant did not move 

for a mistrial or a continuance based on late discovery of the 

information found on W.K.'s cellphone. Rather, he moved only for 

admission of certain photos and text messages exchanged between 

W.K. and her boyfriend, which the court found irrelevant and 

therefore inadmissible under N.J.R.E. 401.

At trial, the prosecutor belatedly produced digital discovery 

of the contents of W.K.'s cellphone. The court held a N.J.R.E. 

104 hearing to determine whether evidence of "sexting" between 

W.K. and her boyfriend was admissible. At the hearing, W.K.
62 A-5783-13T1

testified that she used the cellphone while working for defendant's 

family, and gave it to the police for analysis on October 8, 2010.

W.K. testified that on September 29 and 30, 2010, her thenboyfriend sent her three photos of his penis, including two with 

semen on it. Also on September 30, 2010, she sent her boyfriend 

a photo of herself posing in underwear in defendant's bathroom. 

She explained she took the photo while in the bathroom, with the 

door locked. The cellphone also contained other texted photographs

and W.K. explained the messages were a form of entertainment for 

them.

W.K. testified that her cellphone was always in her pocket 

or her purse, and she knew of only one occasion when E.L. accessed 

it in order to answer a call from his father when W.K. had left 

the children in the car for two minutes while she dropped off some 

insurance documents. However, that incident occurred in the summer 

of 2010, before the photos at issue were taken.

In terms of accessing the cellphone, W.K. testified that an 

incoming phone call could be answered while the cellphone was 

locked by simply pressing the green headphone button. However, 

in order to access the entire phone, the user had to press both 

the send button and the star button at the same time. If the 

cellphone was unlocked in that manner, the text messages could 

then be accessed by opening the menu and selecting messages. To 
63 A-5783-13T1

her knowledge, neither C.L. nor E.L. had ever seen the photos at 

issue. She never showed them the photos, and never saw them 

looking at the photos.

The court barred the photos and text messages from W.K.'s 

cellphone under N.J.R.E. 401 because there was no evidence that 

C.L. ever saw them and nothing showing the photos and text messages

were relevant to W.K.'s motives. However, the court permitted 

defendant to renew his application if other evidence came to light 

that made this information relevant.

When trial resumed, defense counsel questioned W.K. about 

text messages that showed she and her boyfriend were arguing on 

October 6, 2010, and she needed money for a deposit on a new 

apartment. Counsel also suggested that W.K.'s nanny job was in 

jeopardy, although she denied knowing it was. Thereafter, defense 

counsel renewed his request to admit the photos and text messages. 

Counsel argued the photos were relevant to establish W.K.'s motive 

to coerce C.L. into accusing defendant of sexual abuse because 

W.K. needed money and was afraid of losing her job. The court 

denied the motion under N.J.R.E. 401, for the same reasons it 

previously expressed.

Defendant raised this evidentiary issue on his post-trial 

motion. In denying the motion, the court declined to address the 

contents of W.K.'s cellphone, other than to note the "issue was 
64 A-5783-13T1

fully developed at a [N.J.R.E.] 104 hearing." 

As previously discussed, we review evidentiary rulings for 

an abuse of discretion. Kuropchak, 221 N.J. at 385. We review 

motions for a mistrial or a continuance abuse of discretion. State 

v. Smith, 224 N.J. 36, 47 (2016).

Whether a mistrial is required will depend upon "the unique 

circumstances of the case." Ibid. If there is a reasonable 

alternative to a mistrial, such as "a curative instruction, a 

short adjournment or continuance, or some other remedy," then 

granting a mistrial would constitute an abuse of discretion. 

Ibid.

Depending upon the facts of the case, late discovery may form 

the basis for grant of a continuance or a mistrial. 

Late discovery can cause unfair surprise and 

raise due process concerns. When a party 

fails to comply with its obligations, the 

discovery rule expressly states that the court 

may "grant a continuance or delay during 

trial" or "enter such other order as it deems 

appropriate." A court's failure to take 

appropriate action to remedy a discovery 

violation can implicate the defendant's right 

to a fair trial. 

[Id. at 48 (citations omitted).]

Here, because there was no basis for concluding that C.L. 

ever saw the photos on W.K.'s cellphone, the court did not err in 

concluding they were irrelevant under N.J.R.E. 401 and not 
65 A-5783-13T1

exculpatory of defendant. Moreover, the photos did not depict the 

sexual acts C.L. alleged defendant committed during her interview 

with Taylor. Thus, there was nothing tying the photos on M.L.'s 

cellphone to C.L.'s disclosures of sexual abuse. See N.J.R.E. 401 

("'Relevant evidence' means evidence having a tendency in reason 

to prove or disprove any fact of consequence to the determination 

of the action."); Burr, 195 N.J. at 126-27.

The photos were produced to defendant after C.L. testified. 

However, C.L. never mentioned any photos in her pretrial statements 

or trial testimony. Had defendant wanted to explore the photos 

issue with C.L., he could have requested that she testify at the 

N.J.R.E. 104 hearing, but did not do so. 

Also contrary to defendant's argument, the photos did not 

constitute impeachment evidence with respect to W.K. because they 

did not constitute extrinsic evidence relevant to the issue of her 

credibility. N.J.R.E. 607; State v. Hockett, 443 N.J. Super. 605, 

615-16 (App. Div. 2016). Introduction of the photos would have 

served only to distract the jury from the issues presented, that 

is, whether defendant committed the criminal acts alleged in the 

indictment, by presenting it with salacious details of W.K.'s 

consensual, adult sexual relationship with her boyfriend, none of 

which was known to C.L. Accordingly, we find no abuse of 

discretion in the court's evidentiary ruling, excluding the photos
66 A-5783-13T1

and text messages from W.K.'s cellphone, and thus no plain error 

in the court not sua sponte granting a mistrial or a continuance 

based upon the State's late production of discovery.

V.

Defendant contends for the first time on appeal in Point IV 

that the court erred in failing to instruct the jurors fully and 

adequately concerning their avoiding information from outside of 

the courtroom and voir dire the jurors upon their returning to the 

courtroom for the trial more than one month after the jury had 

been selected. This contention lacks merit.

During jury selection in December 2013, prospective jurors 

were asked whether they had any knowledge of the case or anyone 

involved in the case. The court also admonished prospective jurors 

to not discuss the case with anyone and to not do any research 

regarding the case. Once the jury was empaneled, the court gave 

a more detailed instruction, stating:

It is extremely important that you do not 

discuss the case amongst yourselves. You 

don't discuss it at home with your families 

or friends. Don't go online. Don't use any 

Internet sites or . . . do any research of us, 

of the defendant, of the attorneys. And, 

. . . again, . . . don't go on any online 

sites to look for any of us, and particularly 

the three of us -- the attorneys and myself 

and the defendant, or don't discuss the law 

or try to find out what the law is all about 

or the facts, anything like that. 
67 A-5783-13T1

And the reason I say that is obvious. 

You haven't heard . . . anything yet. But, 

also, understand that if there's any outside 

influence it will taint this trial completely. 

And, . . . unfortunately it's happened 

before where we've been through a trial two 

or three weeks and somebody -- one of the 

members of the jury did some outside research 

or researched about . . . information about 

one of the parties and that got circulated and 

everybody wasted their time and we had to 

start all over. Not with that jury, because 

that jury had to be discharged. Not happy 

because they had to spend time out of their 

lives. 

So, it is critically important that 

. . . your deliberations are based solely on 

what happens inside this Courtroom, without 

any interference from anybody. And don't 

discuss, as I said, the case with family or 

friends. You really don't know anything. 

What you have are only allegations. You know 

nothing else about that. 

In time you will hear all the facts. 

You'll hear argument of counsel. You'll be 

instructed on the law from me and then you 

guys can talk amongst yourselves. 

Compare with Model Jury Charges (Criminal), "Preliminary 

Instructions to the Jury" (May 12, 2014).

Trial reconvened in January 2014. Throughout the trial the 

court admonished the jurors to avoid outside information about the 

case, including media coverage and independent research or 

discussions with other jurors or family members or friends. In 

the final charge, the court also instructed the jury that its 
68 A-5783-13T1

verdict must be based solely upon the evidence produced at trial.

Here, there is no basis whatsoever to conclude the jury was 

tainted by outside influences. We must presume that the jurors 

followed the court's instructions to avoid outside sources of 

information, State v. Ross, 218 N.J. 130, 152 (2014) because there 

is nothing in the record suggesting otherwise. Defendant was 

arrested in 2010, and the trial did not occur until 2014. 

Defendant produced no evidence this trial received extensive news 

coverage or that the jury was tainted by such coverage. 

Moreover, the jurors in this case were diligent about their 

obligations. In another instance, they advised the court of a 

juror's misconduct (prematurely discussing his belief as to 

defendant's guilt or innocence), which resulted in that juror 

being excused. Therefore, it is reasonable to conclude the jurors 

also would have informed the court if it appeared a juror was 

tainted by outside information. We find no error, let alone plain 

error in the court's failure to sua sponte voir dire the jury 

regarding that issue.

VI.

Defendant contends in Point V that the court erred in denying 

his motion to sever the sexual assault charges (counts one through 

six) from the child pornography and tampering/attempted 

destruction of evidence charges (counts seven and eight). Before 
69 A-5783-13T1

trial, he moved to sever counts seven and eight from the rest of 

the indictment. In a written opinion, the court denied the motion, 

stating:

In this case, the Cofield[11] factors weigh 

in favor of the State such that the child 

pornography and destruction of evidence 

charges should not be severed from the sexual 

assault charges. 

Defendant argues that the sexual assault 

charges have nothing in common, either in fact 

or by way of proof, with the child pornography 

and destruction of evidence charges. The 

court disagrees, as these allegations are 

intertwined and there is a sufficient nexus 

to each other to justify joinder. [State v. 

Morton, 155 N.J. 383, 451 (1998); State v.

Chenique-Puey, 145 N.J. 334 (1996)]. C.L. 

stated that defendant was "texting and 

watching TV" while performing the alleged 

sexual conduct. The two separate charges are 

similar in kind to each other and occurred 

within a reasonably close time from each 

other. Moreover, the alleged destruction of 

evidence demonstrates defendant's state of 

mind and intent relative to any charges 

pertaining to deviant sexual conduct. While 

the evidence of one crime vis a vis the other 

crime is prejudicial, such prejudice does not 

outweigh its probative value. 

The court also agrees with the State's 

position that the evidence between the two 

allegations of sexual assault and child 

pornography/destruction of evidence is 

"intrinsic" to each other. As set forth in 

[State v. Rose, 206 N.J. 141, 181-82 (2011)

(citing United State v. Green, 617 F.3d 233 

(3d Cir. 2010)),] evidence which is 

intrinsically intertwined with the other crime 

 

11 State v. Cofield, 127 N.J. 328 (1992).
70 A-5783-13T1

charged, provides a background to the events, 

or "completes the story" is such intrinsic 

evidence. 

In another pretrial motion, defendant renewed his request for 

severance, which the court denied for the reasons previously 

stated. During trial, defendant again moved for severance of the 

child pornography charges, and the court denied the motion for the 

reasons previously stated, also noting C.L.'s trial testimony that 

she observed defendant masturbating while watching something on 

the laptop computer.

Rule 3:7-6 allows for two or more offenses to be charged 

together in the same indictment "if the offenses charged are of 

the same or similar character or are based on the same act or 

transaction or on 2 or more acts or transactions connected together 

or constituting parts of a common scheme or plan." Under Rule

3:15-1 (emphasis added):

(a) Permissible Joinder. The court may order 

2 or more indictments . . . tried together if 

the offenses . . . could have been joined in 

a single indictment or accusation. . . . 

(b) Mandatory Joinder. Except as provided 

by [Rule] 3:15-2(b), a defendant shall not be 

subject to separate trials for multiple 

criminal offenses based on the same conduct 

or arising from the same episode, if such 

offenses are known to the appropriate 

prosecuting officer at the time of the 

commencement of the first trial and are within 

the jurisdiction and venue of a single court.
71 A-5783-13T1

Finally, under Rule 3:15-2(b), if for any "reason it appears that 

a defendant or the State is prejudiced by a permissible or 

mandatory joinder of offenses . . . in an indictment . . . the 

court may order an election or separate trials of counts[.]"

We review a court's ruling on a severance motion for abuse 

of discretion. Chenique-Puey, 145 N.J. at 341. In ruling on a 

motion to sever, the court should consider the potential harm to 

defendant, as well as the need for judicial economy and expediency. 

Coruzzi, 189 N.J. Super. at 297-98. The key to determining whether 

joinder is prejudicial to a defendant is whether, if the crimes 

were tried separately, evidence of the severed offenses would be 

admissible under N.J.R.E. 404(b) in trial of the remaining charges. 

Chenique-Puey, 145 N.J. at 341. "If the evidence would be 

admissible at both trials, then the trial court may consolidate 

the charges because 'a defendant will not suffer any more prejudice 

in a joint trial than he would in separate trials.'" Ibid.

(quoting Coruzzi, 189 N.J. Super. at 299).

N.J.R.E. 404(b) provides, in pertinent part, that 

evidence of other crimes, wrongs, or acts is 

not admissible to prove the disposition of a 

person in order to show that such person acted 

in conformity therewith. Such evidence may 

be admitted for other purposes, such as proof 

of motive, opportunity, intent, preparation, 

plan, knowledge, identity or absence of 

mistake or accident when such matters are 

relevant to a material issue in dispute.
72 A-5783-13T1

A four-pronged test is used to determine the admissibility of 

evidence under the rule:

1. The evidence of the other crime must be 

admissible as relevant to a material issue;

2. It must be similar in kind and reasonably 

close in time to the offense charged;

3. The evidence of the other crime must be 

clear and convincing; and

4. The probative value of the evidence must 

not be outweighed by its apparent prejudice.

[Cofield, 127 N.J. at 338 (quoting Abraham P. 

Ordover, Balancing the Presumption of Guilt 

and Innocence: Rules 404(b), 608(b), and 

609(a), 38 Emory L.J. 135, 160 (1989)).]

The second prong of the test is not found in N.J.R.E. 404(b). 

Therefore, it "need not receive universal application in Rule

404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007). 

"The fourth prong, whether the probative value of the evidence is 

outweighed by its apparent prejudice, is generally the most 

difficult part of the test." State v. Barden, 195 N.J. 375, 389 

(2008).

Under the facts presented, the court did not abuse its 

discretion in denying defendant's motions to sever the child 

pornography and tampering/attempted destruction of evidence counts 

from the sexual assault counts. As the court noted, these crimes 

were inextricably intertwined and intrinsic to one another, in 
73 A-5783-13T1

that C.L. stated defendant was texting and watching television

while he sexually abused her, suggesting he was using the laptop 

computer at the time. C.L. also testified to observing defendant 

masturbate while he was watching a movie on the laptop, and 

defendant attempted to destroy the child pornography on the laptop 

just minutes after M.L. called him from the AHCH, and minutes 

before the police arrived at his home to arrest him on the sexual 

assault charges. Thus, the court properly denied the severance 

motion because there was no way to tell the story of his arrest 

for sexual assault without also addressing the child pornography 

found in his possession at the time of his arrest, as well as his 

attempted destruction of the child pornography. See State v. 

Gorthy, 226 N.J. 516, 539 (2016).

Furthermore, performing an analysis under N.J.R.E. 404(b), 

the court reasonably concluded that all four prongs of the Cofield

test were established: (1) the child pornography crimes were 

relevant to material issues regarding the sexual assaults, 

including defendant's intent and state of mind; (2) the child 

pornography crimes were similar in kind and reasonably close in 

time to the sexual assault offenses in that defendant possessed 

the pornography and attempted to destroy it near the time of his 

arrest for sexual assault; (3) the evidence of the child 

pornography crimes was clear and convincing and supported by expert 
74 A-5783-13T1

forensic analysis of defendant's computers; and (4) the probative 

value of the evidence did not outweigh its apparent prejudice. 

We acknowledge the child pornography evidence was prejudicial 

to defendant. R. 3:15-2(b). However, the evidence was not 

prejudicial in the sense that N.J.R.E. 404(b) proscribes, i.e., 

that it would focus the jurors' attention on defendant's criminal 

character and divert their attention from their duty to consider 

only the crimes charged. See, e.g., Williams, 190 N.J. at 132. 

To the contrary, as the court found, the evidence of 

tampering/attempted destruction of the child pornography was 

relevant to defendant's state of mind, i.e., his consciousness of 

guilt for the sexual assaults. See id. at 125-34 (recognizing 

relevance of post-crime conduct to defendant's consciousness of 

guilt, particularly attempts to cover up crime).

As well, the jury could have considered the child pornography 

evidence with respect to defendant's motive, intent, and state of 

mind with respect to the sexual assault charges, because it 

demonstrated his sexual interest in children, which he denied at 

trial, and because it contradicted his claim that he would not 

have committed the alleged crimes because he would never hurt his 

daughter or any child. See Covell, 157 N.J. at 561, 566-71.

Finally, it is significant that in summation, defense counsel 

stated the State wanted the jurors "to believe that because there's 
75 A-5783-13T1

. . . child porn on there that he must be a child abuser." The 

court sustained the State's objection and instructed the jury that 

the State did not want the jurors to make any such presumption, 

and the law required them to consider each charge separately. In 

the main charge, the court also instructed the jurors in greater 

detail on their obligation to separately consider each alleged 

crime. We conclude there was no abuse of discretion in the court's 

denial of defendant's motions to sever.

VII.

Defendant contends in Point VI that the court erred in denying 

his motion to dismiss the indictment based upon the State's failure 

to present the grand jury with exculpatory evidence, namely, 

"C.L.'s repeated statements to investigators and professionals 

denying that [defendant] had engaged in any improper conduct."

Defendant made a pretrial motion to dismiss the indictment, but

it does not appear he raised this argument. At most, he argued 

"that C.L. gave 'many inconsistent statements' in her statement 

concerning the alleged sexual assaults." The court denied the 

motion, finding that:

inconsistent statements do not rise to the 

level of "clearly exculpatory," to result in 

a dismissal of the indictment. Those 

statements, if inconsistent, are ripe for 

cross-examination at trial and preserve 

defendant's Sixth Amendment right of 

confrontation. Resolutions of factual 
76 A-5783-13T1

disputes are not the province of the grand 

jury. [State v. Hogan, 144 N.J. 216, 235 

(1996).] 

Also as relates to this issue, it is relevant that the grand 

jury presentation occurred on March 23, 2011. C.L.'s statement 

to Reed was taken a few months earlier, on November 30, 2010. 

However, the record does not indicate when the defense provided 

that statement to the State. Moreover, C.L.'s alleged recantations 

in therapy sessions occurred on July 5 and December 27, 2012, 

after the grand jury presentation.

We review motions to dismiss an indictment for abuse of 

discretion. Id. at 229. We discern no abuse of discretion here.

The grand jury is "an accusatory and not an adjudicative 

body." Id. at 235. Its duty is to determine whether the State 

has presented a prima facie case that a crime has been committed, 

and the defendant committed it. Id. at 228. 

The prosecutor must present to a grand jury any evidence in 

its possession that directly negates the defendant's guilt and is 

clearly exculpatory. Id. at 236. However, in considering whether 

the prosecutor erred in not presenting such evidence, courts must 

give "due regard to the prosecutor's own evaluation of whether the 

evidence in question is 'clearly exculpatory.'" Id. at 238. Thus, 

it is anticipated that "only in the exceptional case will a 

prosecutor's failure to present exculpatory evidence to a grand 
77 A-5783-13T1

jury constitute grounds for challenging an indictment." Id. at 

239.

Recantations by the victim are not viewed as clearly 

exculpatory. Id. at 239. Rather, they present questions of 

credibility to be resolved by a petit jury. Id. at 239-40. Thus, 

even assuming the State was aware of C.L.'s recantations before 

presenting evidence to the grand jury, which defendant has not 

established, "[t]he recantation did not affect the State's prima 

facie case of guilt against defendant, and thus the prosecutor did 

not commit misconduct in not revealing the recantation to the 

grand jury." Id. at 240. Moreover, the petit jury considered all 

of C.L.'s statements at trial, along with her trial testimony, and 

determined her recantations were not credible. United States v. 

Mechanik, 475 U.S. 66, 70 (1986); State v. Cook, 330 N.J. Super.

395, 411 (App. Div. 2000). Accordingly, we affirm the court's 

denial of defendant's motion to dismiss the indictment. 

VIII.

Defendant contends in Point VII that the court erred by 

denying his motion for judgment of acquittal, or alternatively, a 

new trial. He argues the evidence was insufficient to sustain a 

guilty verdict on all charges, and alternatively, that the 

cumulative trial errors previously discussed deprived him of a 

fair trial. Considering defendant's post-trial motions, the court 
78 A-5783-13T1

rejected his complaints about various evidentiary rulings, and 

concluded that the evidence at trial supported the jury's verdict. 

A motion for judgment of acquittal under Rule 3:18-1 should 

be granted "if the evidence is insufficient to warrant a 

conviction." 

[T]he question the trial judge must determine 

is whether, viewing the State's evidence in 

its entirety, be that evidence direct or 

circumstantial, and giving the State the 

benefit of all its favorable testimony as well 

as all of the favorable inferences which 

reasonably could be drawn therefrom, a 

reasonable jury could find guilt of the charge 

beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

A motion for a new trial may be granted "if required in the 

interest of justice." R. 3:20-1. "The trial judge shall not, 

however, set aside the verdict of the jury as against the weight 

of the evidence unless, having given due regard to the opportunity 

of the jury to pass upon the credibility of the witnesses, it 

clearly and convincingly appears that there was a manifest denial 

of justice under the law." Ibid.; R. 3:20-1; State v. Perez, 177 

N.J. 540, 555 (2003). There is no manifest denial of justice if 

the jury rationally could have found defendant's guilt beyond a 

reasonable doubt. State v. Jackson, 211 N.J. 394, 413-14 (2012).

We agree with the court that since the evidence supported the 

jury's verdict on each charge of the indictment, defendant was not 
79 A-5783-13T1

entitled to a judgment of acquittal or a new trial based upon the 

weight of the evidence. In addition, we find no merit to his 

claim that he was deprived of a fair trial due to cumulative error, 

State v. Jenewicz, 193 N.J. 440, 473-74 (2008), and affirm the

denial of his post-trial motion for judgment of acquittal or, 

alternatively, a new trial.

IX.

Defendant challenges his sentence in Point VIII. He argues 

the sentence is draconian and unjust. 

In issuing its sentence as to counts one, two, three, and 

four, the court found aggravating factors two, N.J.S.A. 2C:44-

1(a)(2) (the gravity and seriousness of harm inflicted on the 

victim, including that the victim was particularly vulnerable to 

extreme youth), three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffense), four, N.J.S.A. 2C:44-1(a)(4) (defendant took advantage 

of a position of trust or confidence to commit the offense), and 

nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter). With respect 

to counts five, six, seven, and eight, the court found only 

aggravating factors three and nine.

The court found mitigating factors seven, N.J.S.A. 2C:44-

1(b)(7) (defendant has no history of prior delinquency or criminal 

activity, noting as well defendant's years of military service), 

and eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment 
80 A-5783-13T1

would entail excessive hardship to his dependents, albeit selfimposed). As to all counts, the court found the aggravating 

factors outweighed the mitigating factors. Nevertheless, the 

court issued only mid- or low-range sentences. 

Specifically, as to count one (first-degree aggravated sexual 

assault of a victim less than thirteen years old), with a 

sentencing range of ten-to-twenty years, N.J.S.A. 2C:43-6(a)(1),

the court sentenced defendant to fifteen years. As to count two 

(second-degree sexual assault of a victim less than thirteen years 

old), with a sentencing range of five-to-ten years, N.J.S.A. 2C:43-

6(a)(2), the court sentenced defendant to seven years, consecutive 

to count one, since it was different in nature. 

As to counts three (second-degree sexual assault of a victim 

less than thirteen years old), four (second-degree sexual assault 

of a victim less than thirteen years old), and five (second-degree 

endangering the welfare of a child), the court sentenced defendant 

to terms of seven years, concurrent to count two, since the crimes 

were similar in nature.

As to count six (third-degree hindering prosecution), with a 

sentencing range of three-to-five years, N.J.S.A. 2C:43-6(a)(3), 

the court sentenced defendant to a term of three years, consecutive 

to count counts one and two, because it was independent of the 

sexual assault offenses. 
81 A-5783-13T1

As to count seven (fourth-degree endangering the welfare of 

a child by possessing child pornography), with a sentencing range 

of up to eighteen months, N.J.S.A. 2C:43-6(a)(4), the court 

sentenced defendant to a term of one year, consecutive to the 

other terms, because it was a completely different offense from 

the sexual assault and hindering offenses.

Finally, as to count eight (fourth-degree tampering with 

evidence by attempting to delete the child pornography), the court 

sentenced defendant to a term of one year, concurrent to count 

seven, since the two offenses occurred similar in time and had 

similar objectives.

Regarding each of the consecutive terms, the court made 

findings consistent with State v. Yarbough, 100 N.J. 627, 633-34

(1985). Finally, the court made findings that Megan's Law, parole 

supervision for life, and NERA applied to certain counts. Thus, 

the aggregate sentence imposed was twenty-six years, with twentytwo years subject to NERA.

We review a court's sentencing decision under an abuse of 

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

As directed by the Court, we must determine whether: 

(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 
82 A-5783-13T1

guidelines to the facts of [the] case makes 

the sentence clearly unreasonable so as to 

shock the judicial conscience." 

[Ibid. (alteration in original) (quoting State 

v. Roth, 95 N.J. 334, 364-65 (1984)).]

We have considered defendant's contention in light of the 

record and applicable legal principles and conclude it is without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We affirm substantially for the reasons the court 

expressed at sentencing. We are satisfied that the court did not 

violate the sentencing guidelines and the record amply supports 

its findings on aggravating and mitigating factors. The sentence 

is clearly reasonable and does not shock our judicial conscience. 

Affirmed.