RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0863-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.Z.,

Defendant-Appellant.

________________________

Argued December 17, 2019 – Decided

Before Judges Fisher, Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 15-07-2243.

Jennifer L. Gottschalk argued the cause for appellant

(Jennifer L. Gottschalk and Thomas J. DeMarco, 

attorneys; Jennifer L. Gottschalk, of counsel and on the 

brief; Thomas J. DeMarco, of counsel).

Lila Bagwell Leonard, Deputy Attorney General, 

argued the cause for respondent (Gurbir S. Grewal, 

Attorney General, attorney; Lila Bagwell Leonard, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 12, 2020
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A-0863-18T2

A jury convicted defendant of four crimes related to the sexual assault of 

a minor: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); 

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); third-degree aggravated 

criminal sexual contact, N.J.S.A. 2C:14-3(a), as a lesser-included offense; and 

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). 

Defendant was sentenced to an aggregate prison term of twenty-two years, with 

a period of parole ineligibility, as well as parole supervision for life.

He contends that his convictions should be reversed because he was not 

allowed to cross-examine the child's mother on her immigration status, and he 

was not accorded a Rule 104 hearing on that issue. He also argues that the trial 

court erred in charging the jury on the lesser-included offense of aggravated 

criminal sexual contact. We reject these arguments and affirm.

I.

The evidence at trial included testimony by the victim, the victim's 

mother, and defendant's statement given to law enforcement personnel. That 

evidence established that defendant had sexual relations with the daughter of his 

girlfriend when the daughter was between the ages of twelve and fourteen and 

defendant was approximately between the ages of twenty-two and twenty-four.
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A-0863-18T2

In 2010, at the age of ten, the victim came from El Salvador to live with 

her mother and sister in New Jersey. Defendant, who was then approximately 

twenty years old, was the live-in boyfriend of the victim's mother. Defendant 

watched and cared for the victim and her sister when the mother was at work. 

When the victim was twelve years old, defendant began having sexual 

intercourse with her. According to the victim, she and defendant had sex 

multiple times over a period of years.

In 2014, when the victim was fourteen years old, she disclosed the 

relationship to her stepmother, who informed the victim's father. When 

confronted by the father, defendant acknowledged that he was having sex with 

his fourteen-year-old daughter and he tried to justify the relationship by 

claiming that he was in love with her and wanted to be with her.

The father contacted the Division of Child Protection and Permanency

(Division), and the Division referred the matter to the police. Thereafter, both 

the victim and defendant were interviewed by a detective from the prosecutor's 

office. The victim disclosed that she and defendant had sexual intercourse 

multiple times. After waiving his Miranda1rights, defendant initially denied 

any wrongdoing, but later admitted to "hav[ing] sex with" the victim "[t]hree or 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
4

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four times." He also acknowledged that the sexual intercourse had taken place 

both at the apartment where the family lived and at a hotel. 

After the mother testified on direct examination, defense counsel 

requested a Rule 104 hearing to explore whether he could question her on her 

immigration status. Defense counsel argued that if the mother was not a citizen

of the United States, it would be relevant in terms of her credibility to determine 

whether she had sought favorable treatment as an immigrant in exchange for her 

testimony at trial. The prosecutor represented that she was not aware of any 

promise by her office to assist the mother with her immigration issues in 

exchange for her testimony in this matter. The trial court denied the request for 

a Rule 104 hearing and ruled that, to the extent the questioning about the 

mother's immigration status had any relevance, it was outweighed by potential 

prejudice and confusion. Accordingly, the court ruled that defendant could not 

cross-examine the mother on her immigration status under Rule 403. The court 

also ruled that no other witness could be questioned regarding his or her 

immigration status. 

At the jury charge conference, the trial court proposed to charge the jury 

with each crime in the indictment, and a lesser-included offense of third-degree 

aggravated criminal sexual contact on the charges of second-degree sexual 
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assault. Neither defense counsel nor the prosecutor objected. Thus, the jury 

was charged with the lesser-included offense, which included the element that 

defendant stood in loco parentis to the victim.

As already noted, the jury convicted defendant of first-degree aggravated 

sexual assault, second-degree sexual assault, third-degree aggravated criminal 

sexual contact, as a lesser-included offense of one of the charges of sexual 

assault, and second-degree endangering the welfare of a child. On the firstdegree conviction, defendant was sentenced to sixteen years in prison, subject 

to the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by parole supervision 

for life. He was required to register under Megan's Law, N.J.S.A. 2C:7-2, and 

prohibited from having any contact with the victim or her family under Nicole's 

Law, N.J.S.A. 2C:14-12; N.J.S.A. 2C:44-8. On the conviction for endangering, 

defendant was sentenced to a consecutive prison term of six years. The 

sentences for the other two convictions were merged with his sentence for his 

first-degree conviction.

II.

Defendant now appeals his convictions. He does not dispute that he had 

sexual relations with the victim when she was between the ages of twelve and 
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fourteen and he was more than ten years older than the victim. Instead, he 

presents two arguments for our consideration, which he articulates as follows:

POINT ONE – THE TRIAL COURT'S FAILURE TO 

CONDUCT A RULE 104 HEARING AT 

DEFENDANT'S BEHEST REGARDING A 

WITNESS' IMMIGRATION STATUS WAS 

UNCONSTITUTIONAL, AS IT DEPRIVED HIM OF 

HIS RIGHT TO CONFRONT AND CROSSEXAMINE HER PROPERLY.

POINT TWO – THE JURY'S VERDICT ON THE 

LESSER-INCLUDED OFFENSE OF AGGRAVATED 

CRIMINAL SEXUAL CONTACT ON COUNT FOUR 

WAS UNLAWFUL.

A.

Defendant argues that he was denied a fair trial and his constitutional right 

to effective cross-examination because he was prohibited from asking the 

victim's mother about her immigration status. He contends that that violation 

was "compounded" when the trial court applied the same ruling to all witnesses. 

Defendant asserts that a witness' immigration status can be admissible if the 

State had promised the witness favorable immigration treatment in exchange for 

testimony. Finally, defendant argues that the trial court should have conducted 

a Rule 104 hearing before precluding all cross-examination regarding 

immigration status.
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We review the trial court's decision to admit or exclude evidence under an 

abuse of discretion standard. State v. Torres, 183 N.J. 554, 567 (2005). "[W]e 

will reverse an evidentiary ruling only if it 'was so wide [of] the mark that a 

manifest denial of justice resulted.'" Griffin v. City of E. Orange, 225 N.J. 400, 

413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). A 

trial court can abuse its discretion "when relevant evidence offered by the 

defense and necessary for a fair trial is kept from the jury." State v. Cope, 224 

N.J. 530, 554-55 (2016).

Both the United States and New Jersey Constitutions guarantee a 

defendant in a criminal matter the right to confront adverse witnesses. U.S. 

Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Guenther, 181 N.J. 129, 147 

(2004). "A defendant's right to confrontation is exercised through crossexamination, which is recognized as the most effective means of testing the 

State's evidence and ensuring its reliability." Guenther, 181 N.J. at 147.

Generally, extrinsic evidence can be introduced if it is relevant to the issue 

of credibility. N.J.R.E. 607. There are exceptions to that rule including (1) the 

use of specific instances of conduct to attack the credibility of a witness, 

N.J.R.E. 405; (2) the use of a trait of character, which is usually disallowed,

unless the prior act was a "false accusation against any person of a crime similar 
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to the crime with which defendant is charged," N.J.R.E. 608; and (3) if its 

"probative value is substantially outweighed by the risk of . . . [u]ndue

prejudice" or confusion, N.J.R.E. 403.

In State v. Sanchez-Medina, our Supreme Court addressed when a party's 

immigration status may be relevant. 231 N.J. 452, 463 (2018). There, the Court 

ruled that in most cases, the immigration status of a witness is irrelevant, and 

the jury "should not learn about it." Ibid. The Court went on to point out that 

immigration status can be admissible "[i]n limited circumstances," such as when

the prosecutor promises "a witness favorable immigration treatment in exchange 

for truthful testimony," or if "a defendant had lied about his immigration status 

to obtain government benefits as part of a scheme to defraud . . . ." Ibid. The 

Court addressed the relevancy and prejudicial effect of immigration status and 

explained:

A defendant's immigration status is likewise not 

admissible under other rules of evidence. It is not proof 

of character or reputation that can be admitted under 

Rules 404 or 608 . . .. Nor is a person's immigration 

status admissible as a prior bad act under Rule 404(b). 

To be admissible, such evidence must be "relevant to a 

material issue," and its probative value "must not be 

outweighed by its apparent prejudice." 

[Id. at 464-65 (citation omitted).]
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We conclude that the trial court did not abuse its discretion in denying 

defendant the ability to question the mother and other witnesses concerning their 

immigration status. Defendant produced no evidence indicating that the mother 

or any other witness had been promised assistance in dealing with immigration 

issues in exchange for truthful testimony. Indeed, when the issue arose, the 

prosecutor represented that she was not aware of any such promise. Given the 

highly prejudicial effect of allowing the jury to hear about the mother's 

immigration status, it was appropriate for the trial court to exclude that 

information under Rule 403.

Moreover, we reject defendant's argument that the trial court was required 

to hold a Rule 104 hearing on the immigration issue. Rule 104(a) allows the 

trial court to hear and determine matters relating to "the qualification of a person 

to be a witness, or the admissibility of evidence" outside the presence of a jury. 

The decision to conduct a Rule 104 hearing, however, rests within the sound 

discretion of the trial court. Kemp ex rel. Wright v. State, 174 N.J. 412, 432 

(2002).

The trial court here considered defendant's request for a Rule 104 hearing 

but found that immigration status had no bearing on the witness' credibility, and 

the defendant was engaging in a "fishing expedition." The trial court also 
10 A-0863-18T2

appropriately recognized that even allowing a Rule 104 hearing could have a 

chilling effect on a witness' willingness to testify. We agree.

In short, defendant's request to question the mother or any other witness

about their immigration status was properly denied because the trial court 

reasonably concluded that the inquiry had virtually no probative value to a 

relevant issue and was unduly prejudicial. Defendant also presented no 

information that there was a reasonable basis for a Rule 104 hearing, and we 

discern no abuse of discretion in the trial court's denial of such a hearing.

B.

Defendant argues that the trial court erred in charging the jury on thirddegree aggravated sexual contact, as a lesser-included offense of second-degree 

sexual assault. In that regard, defendant points out that aggravated criminal 

sexual assault includes the element of in loco parentis, but that element is not 

included in the crime of second-degree sexual assault.

Defendant did not object to the lesser-included charge. Accordingly, we 

review this issue for plain error. R. 1:7-2; R. 2:10-2. A plain error is disregarded 

unless it is "of such a nature as to have been clearly capable of producing an 

unjust result." R. 2:10-2. "To warrant reversal," the error must be sufficient to 

raise "reasonable doubt . . . as to whether the error led the jury to a result it 
11 A-0863-18T2

otherwise might not have reached." State v. Funderburg, 225 N.J. 66, 79 (2016). 

Moreover, the prejudicial effect of the alleged error is viewed "in light of the 

totality of the circumstances," including the entire jury charge. State v. Adams, 

194 N.J. 186, 207 (2008) (quoting State v. Marshall, 123 N.J. 1, 145 (1991)). 

Trial courts are required "to submit to the jury . . . those offenses charged 

in the indictment," as well as "uncharged lesser-included offenses grounded in 

the evidence." State v. Denofa, 187 N.J. 24, 41 (2006) (citations omitted). 

Consequently, courts are required to instruct the jury on a lesser-included 

offense if counsel requests such a charge and there is a "rational basis in the 

record" for the charge or, in the absence of a request, if the record clearly 

indicates a lesser charge is warranted. State v. Garron, 177 N.J. 147, 180 n.5 

(2003) (citations omitted). An offense is included if:

(1) [i]t is established by proof of the same or less than 

all the facts required to establish the commission of the 

offense charged; or

(2) [i]t consists of an attempt or conspiracy to commit 

the offense charged or to commit an offense otherwise 

included therein; or

(3) [i]t differs from the offense charged only in the

respect that a less serious injury or risk of injury to the 

same person, property or public interest or a lesser kind 

of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8(d).]
12 A-0863-18T2

See also State v. Thomas, 187 N.J. 119, 131-32 (2006).

Defendant was charged with five crimes, including two counts of firstdegree aggravated sexual assault and two counts of second-degree sexual 

assault. To convict defendant on first-degree aggravated sexual assault, a jury 

must find that defendant committed (1) an act of penetration; (2) with a victim 

who was at least thirteen but less than sixteen years old; and (3) the defendant 

stood in loco parentis within the household. N.J.S.A. 2C:14-2(a)(2); Model Jury 

Charges (Criminal), "Aggravated Sexual Assault Victim at Least 13 but Less 

Than 16 (N.J.S.A. 2C:14-2a(2))" (rev. Mar. 10, 2008). To convict defendant of 

second-degree sexual assault, the jury must find that defendant committed (1) 

an act of penetration; (2) with a victim who was at least thirteen years but less 

than sixteen years old; and (3) the defendant is at least four years older than the 

victim. N.J.S.A. 2C:14-2(c)(4). To convict defendant of third-degree 

aggravated criminal sexual contact, the jury must find that defendant committed 

(1) an act of sexual contact; (2) with a victim who was at least thirteen but less 

than sixteen years old; and (3) the actor stood in loco parentis within the 

household. N.J.S.A. 2C:14-2(a)(2), -3(a).

We find no reversible error in the trial court's decision to charge the jury 

with the lesser-included offense of aggravated criminal sexual contact. While 
13 A-0863-18T2

that offense had the element of in loco parentis, which is not an element to 

second-degree sexual assault, defendant clearly knew that he was being charged 

with standing in loco parentis to the victim. In loco parentis was an element of 

the first-degree aggravated assault charge. Moreover, defendant did not dispute 

that he stood in loco parentis to the victim. Indeed, he admitted it in his 

statement to the police and did not dispute this issue at trial. Thus, defendant 

suffered no prejudice because the elements of the lesser-included charge were 

"within the four corners" of the indictment. See State v. Tully, 94 N.J. 385, 393 

(1983).

Defendant was also not prejudiced because his sentence for aggravated 

criminal sexual contact was merged with his sentence for aggravated sexual 

assault. Accordingly, defendant was not prejudiced either in his ability to 

prepare a defense or by the consequences of his conviction for the lesserincluded offense. 

Affirmed.