RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3645-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.A.M.,

1

Defendant-Appellant.

_______________________

Submitted October 27, 2020 – Decided

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 14-01-0016.

Dunne, Dunne & Cohen, LLC, attorneys for appellant 

(F.R. Chip Dunne, III, on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Michele C. Buckley, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

PER CURIAM

1

 We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9). 

NOT FOR PUBLICATION WITHOUT THE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.

November 10, 2020
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A-3645-17T4

Defendant was charged and convicted by a jury of first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a)(1), and four other crimes of lesser degrees. 

He was sentenced on the first-degree offense to a fifteen-year prison term 

subject to an eighty-five percent period of parole ineligibility, and other lesser 

concurrent terms on those other offenses that did not merge.

Defendant appeals, arguing: (1) the trial judge erred in sustaining the 

State's objection to a question the defense sought to pose to a State's witness; 

(2) the jury verdict was against the weight of the evidence; and (3) the sentence 

was excessive. We find insufficient merit in these arguments to warrant further 

discussion in a written opinion, R. 2:11-3(e)(2), adding only the following brief 

comments abouts the first and second points.

In putting defendant's first point in its proper setting, the record reveals

defendant lived in a home in Elizabeth with his sister, her husband, and their 

three children. The victim of his crimes was his oldest niece; defendant was 

accused of molesting her from the time she was seven until she was thirteen. 

We need not go into the specifics.

Defendant's first point arises from what occurred during the testimony of 

the victim's guidance counselor, who was called by the State to provide the jury 

with background about how authorities came to investigate the matter. The 
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guidance counselor said – without revealing the content of things she was told 

– that she became aware of the child's accusations through another counselor 

who had spoken with another student's mother about it. The guidance counselor

testified that after receiving this information from the other counselor, they

spoke with the other student, who had heard about the allegations from the 

victim. The guidance counselor later spoke to the victim who confirmed what 

the others had said.

Throughout the direct examination, the State elicited from the guidance 

counselor only the sources of her information – without divulging the statements 

of others – and that, as a result of whatever it was that she learned, the guidance 

counselor reached out to police and the Division of Child Protection and 

Permanency. Any time the witness veered off and attempted to recount the 

content of what the victim or someone else said to her, the defense objected and 

the judge sustained the objections; in this way, the witness was never permitted

during direct examination to blurt out any hearsay statements.

When cross-examination commenced, defense counsel immediately posed 

the following question:

Based on your conversation with [the victim] that you 

just testified to, were you led to believe that she was 

just telling you about one incident –
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Before defense counsel could reach the question's end, the State objected.

At sidebar, the judge asked defense counsel "where you going with this?" 

The judge further noted that "the State was very careful not to get into . . . what 

this child disclosed and your question now is asking how many instances she 

told [the witness] about." As we understand the argument at sidebar, defense

counsel's intent was to elicit what the victim said to the witness about the number 

of assaults committed on her by defendant in order to later impeach the victim 

with some inconsistent statement about the frequency or nature of the assaultive 

conduct. The State argued this went beyond what it had elicited from the 

witness, called for hearsay because the question called for a revelation of some 

part of the victim's communications not just that the communications had 

occurred, and would open the door on redirect to the State eliciting all that the 

victim said to the witness. Defense counsel persisted but the judge ultimately 

concluded he would not allow him to put the particular question to the witness 

"right now," adding that the defense could always call the witness back to the 

stand after the victim testified.

Later in the trial, after the victim testified, the defense did indeed call the 

guidance counselor to the stand and posed the same question the judge had not 
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permitted earlier. At that time, defense counsel questioned the guidance 

counselor further at length and without limitation.

In his first point in this appeal, defendant argues that the judge should 

have permitted the one question that defense counsel posed in cross-examining 

the guidance counselor during the State's case. He claims that the sustaining of 

the State's objection caused prejudice and resulted in a miscarriage of justice. 

We disagree. Defendant was able to ask the witness that particular question 

during the course of the trial, so the only conceivable prejudice would be if the 

delay somehow hampered the defense. Defendant, however, has not explained 

here how or why the brief delay before the jury eventually heard the answer to 

that question caused prejudice. We, thus, find no merit in defendant's first point.

In his second point, defendant argues that the jury's verdict was against 

the weight of the evidence. Because defendant did not move in the trial court 

for a new trial, this argument is not cognizable on appeal. See R. 2:10-1; State 

v. McNair, 60 N.J. 8, 9 (1972).

Affirmed.