### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 3645

- 17T4 STATE OF NEW JERSEY, Pla intiff

- 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).
PE R CURIAM

1 We u se initials to protect the privacy of the victim. See R. 1:38

- 3(c)(9). NOT FOR PUBLICATION W ITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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 , 20202 A

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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

- degr ee offense to a fifteen

- year prison term subject to an e ighty

- 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 p ose to a State's witness; (2) the jury verdict was against the weight of the evidence; and (3) the sentence

wa s excessive. We fi nd insufficient merit in these arguments to warrant further discussion in a written opinion , R. 2:11

- 3(e)(2) , add ing only the f ollowing brief comments abouts the first and second points. In putting defendant's first point in its proper setting, the record reveals d efendant lived in a home in Elizabeth with his sister, her husband, and their three children. The victim of his crime s was his oldest niece ; defendant was accused of molesting her from the time she was seven until she was thirteen. We need not g o into the specifics. Defendant's first point ar ises from what occurred during the testimony of the victim's guidance counselor , who was called by the State to provide the jury with background a bout how authorities came to investigate the matter

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guid ance counselor said

– without revealing the content of things she was told

– that she became aware of the child's accusations t hrough another counselor who had spoke n with another student's mother about it. The guidance counselor testified that after rece iving this information from the other counselor, they spoke with the other student , who had heard about the allegations from th e victim. The guidance counselor later spoke to the victim who confirmed what the others had said.
Th roughout the direct examina tion, the State elicited from the guidance counselor only the source s 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 veer ed off and attempted to recount the content of what the victim o r someone else said to her, the defense objected and the judge susta ined 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 immediate ly pos ed the following question:

Based on your conversation with [th e 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] ab out." As we understand the argument at sidebar, defense counsel 's i ntent wa s to elicit what the victim said to the witness about the number of assaults commit t ed on her by defendant in order to later impeach the victim with some inconsistent statement abo ut the frequency or nature of the assaultive conduct. T he State arg ued 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 co mmunications had occurred , and would open the door on redirect to th e 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 witnes s "right now , " add ing 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 t he judge had not5 A

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permi t ted earlier. At that time , defense counsel questioned the guidance counselor further at length and without limitatio n . In his first point in this appeal, defendant argues that the judge should have permitted the one question that de fense 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 th e witness t hat particular questio n during the course of the trial , so the only conceivable prejudice would be if the delay somehow hamper ed the defense. Defendant, however, has not explained here how or why th e brief delay before the jury eventually heard the answer to that quest ion caus ed 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 tria l, this argument is not cognizable on appeal. See R. 2:10

- 1; State v. McNair , 60 N.J. 8, 9 (1972). Affirmed.