RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4080-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.P.D.,

Defendant-Appellant.

____________________________

Submitted January 27, 2020 – Decided April 28, 2020

Before Judges Rothstadt, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Warren County, Docket No. 08-05-0215.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Seon Jeong Lee, Designated Counsel, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Regina M. Oberholzer, Deputy Attorney 

General, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-4080-17T2

Defendant P.P.D. was charged in a four-count indictment with crimes 

related to multiple sexual assaults of his niece-by-marriage, A.T., during 

sleepovers at his house with her cousins, defendant's children, one of whom, 

J.D., was A.T.'s age. The assaults commenced in October 1997 and ended in 

February 2002; A.T. was between the ages of six and ten years-old.

1

 Defendant 

was convicted by jury of two counts of first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a) (counts one and two), second-degree sexual assault,

N.J.S.A. 2C:14-2(b) (count three), and third-degree endangering the welfare of 

a child related to the sexual assaults, N.J.S.A. 2C:24-4(a) (count four). We 

affirmed his conviction in April 2016, remanding only for reconsideration of the 

Sex Crime Victim Treatment Penalty imposed. State v. P.P.D., A-4941-12 

(App. Div. Apr. 1, 2016). The Supreme Court denied defendant's petition for 

certification. State v. P.P.D., 227 N.J. 251 (2016).

Defendant appeals2from the January 9, 2018 order denying his petition 

for post-conviction relief (PCR). His sole point on appeal is: 

 

1

 We use initials to protect the privacy of A.T. See N.J.S.A. 2A:82-46; R. 1:38-

3(c)(9), (12).

2

 We granted defendant's motion to file his notice of appeal as within time on 

May 29, 2018. Both that motion and defendant's notice of appeal were filed on 

May 15, 2018.
3

A-4080-17T2

THIS COURT SHOULD GRANT DEFENDANT'S 

PETITION FOR [PCR] BECAUSE THE STATE'S 

[CHILD SEXUAL ASSAULT ACCOMMODATION 

SYNDROME (CSAAS)] EVIDENCE ADMITTED AT 

DEFENDANT'S TRIAL WAS UNRELIABLE 

EXPERT TESTIMONY, AS HELD RECENTLY IN 

STATE V. J.L.G., 234 N.J. 265 (2018)[,] REVERSING 

STATE V. J.Q., 130 N.J. 554 (1993), THAT 

FUNCTIONED TO BOLSTER A.T.'S TESTIMONY 

UPON WHICH DEFENDANT'S CONVICTION WAS 

SOLELY BASED, DEPRIVING DEFENDANT OF 

HIS CONSTITUTIONAL RIGHT TO 

FUNDAMENTAL DUE PROCESS.

We determine the new rule of law announced by our Supreme Court should not 

be applied with full retroactive effect and affirm.

During the pendency of this appeal, our Supreme Court decided State v.

J.L.G., 234 N.J. 265 (2018), holding:

Based on what is known today, it is no longer possible

to conclude that CSAAS has a sufficiently reliable basis

in science to be the subject of expert testimony. We

find continued scientific support for only one aspect of

the theory — delayed disclosure — because scientists

generally accept that a significant percentage of

children delay reporting sexual abuse.

We therefore hold that expert testimony about

CSAAS in general, and its component behaviors other

than delayed disclosure, may no longer be admitted at

criminal trials. Evidence about delayed disclosure can

be presented if it satisfies all parts of the applicable

evidence rule. See N.J.R.E. 702. In particular, the

State must show that the evidence is beyond the

understanding of the average juror.
4

A-4080-17T2

[Id. at 272 (emphasis added).]

Our decision on direct appeal fully delineated the facts of this case and we 

will not repeat them here except as germane to this case. Defendant did not 

cease assaulting A.T. in 2002 because A.T. disclosed the attacks to anyone. 

They stopped when defendant's wife advised A.T.'s parents that defendant was 

arrested for sexually abusing three of J.D.'s friends during sleepovers at his 

house. Although, after that arrest, A.T.'s parents asked her if anything 

inappropriate occurred at defendant's house and they sent her to therapy, A.T. 

did not disclose the abuse to her father until 2004. A.T.'s parents engaged her 

in further counseling after her unspecific disclosure to her father. A.T. and her 

family, sometimes aided by the therapist, periodically discussed pressing 

charges against defendant but did not do so until 2008. 

At defendant's trial, the State called Dr. Anthony D'Urso who testified as 

an expert in CSAAS. After explaining that the theory behind CSAAS was to 

"help people understand [how] the dynamics of child sexual assault . . . might

differ from adult sexual assault," he testified at length regarding all five 

component behaviors of CSAAS: secrecy, helplessness, accommodation, 

delayed disclosure and recantation, including explanations about coercion, 
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A-4080-17T2

entrapment, and psychological accommodation, as well as accidental and 

purposeful disclosures. 

We recognize the CSAAS evidence ran afoul of the Court's holding in

J.L.G. because it encompassed four of the prongs now precluded from

admission, and also contravened the Court's admonition:

Trial judges must exercise care to limit the testimony

and bar any reference to "CSAAS," an abuse

"syndrome," other CSAAS "behaviors" aside from

delayed disclosure, or causes for delayed disclosure.

The testimony should not stray from explaining that

delayed disclosure commonly occurs among victims of

child sexual abuse, and offering a basis for that

conclusion.

[234 N.J. at 303.]

Further, the then twenty-year-old A.T. was clearly able to articulate at

trial her uncomplicated reasons for delayed disclosure. She explained that

although she disclosed the abuse to her mother, father, and therapist in 2004, 

she did not go to the police because 

I wasn't ready to. That was the first time my parents 

found out. That was the first time any of my loved ones 

knew. So I wasn't ready to, first of all, lose [J.D.] as a 

friend. I was scared to see their reactions. Scared of 

what [defendant] was going to do. I didn't want 

anything to change. 
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A-4080-17T2

She testified that she decided to disclose the abuse in 2008 after having multiple 

discussions with her boyfriend, and after her mother asked if she was ready to 

press charges.

A.T.’s therapist testified: A.T. and she discussed going to the police for 

"[a]n enormous amount of time"; A.T. told her that she did not disclose the abuse 

earlier because she was concerned "[w]hat the process would be . . . and how 

difficult that would be"; and that A.T's reservations about pressing charges were:

What would happen, that there would be little or no jail 

time, that she would go through this horrific process of 

having to talk about the abuse in an open [c]ourt, how 

many people she would have to tell, versus what would, 

you know, what would be the outcome, would he be 

punished. She would never see the cousins. 

Those reasons were not "beyond the ken of the average juror," J.L.G., 234

N.J. at 304 (quoting State v. Kelly, 97 N.J.178, 208 (1984)). The J.L.G. Court

held it is the State's burden to make that showing before delayed-disclosure 

expert testimony is admitted. Id. at 272. Under N.J.R.E. 702, "expert testimony 

is not appropriate to explain what a jury can understand by itself." J.L.G., 234

N.J. at 305. As the Court explained:

If a child witness cannot offer a rational explanation for 

the delay in disclosing abuse -- which may happen 

during the pretrial investigative phase or on the witness 

stand -- expert evidence may be admitted to help the 

jury understand the child's behavior. In this context, we 
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A-4080-17T2

do not accept that jurors can interpret and understand 

an explanation that is not offered.

On the other hand, a young teenager's 

explanation from the witness stand may fall within the 

ken of the average juror and might be assessed without 

expert testimony.

[Ibid.]

Thus, if defendant's trial took place today, the expert delayed-disclosure 

testimony would not have been admitted at trial. See ibid. (noting that the 

victim’s reasons for her delayed disclosure fell within the ken of the average 

juror where the victim testified she waited to disclose the abuse because "(a) 

defendant threatened her with a gun, (b) she was embarrassed by the degrading 

experiences, and (c) she feared that her mother would kill defendant . . .").

A.T.'s reasons for non-disclosure were clear and uncomplicated. The jury did 

not need expert testimony to understand them.

The admission of the CSAAS testimony was not harmless error in light of 

the limited physical evidence of the charged crimes. The linchpin of this case 

was A.T.'s credibility. "An error is harmless unless, in light of the record as a 

whole, there is a 'possibility that it led to an unjust verdict' -- that is, a possibility 

'sufficient to raise a reasonable doubt' that 'the error led the jury to a result it 
8

A-4080-17T2

otherwise might not have reached.'" Id. at 306 (quoting State v. Macon, 57 N.J. 

325, 335-36 (1971)).

In J.L.G., the Court determined the admission of the expert CSAAS 

testimony constituted "harmless error," incapable of affecting the outcome of 

the case, because the State presented an overwhelming amount of evidence at 

trial corroborating the defendant's guilt which was not dependent on the jury's 

assessment of the victim's credibility, including an audio recording of the 

defendant's assault, an eyewitness account of the defendant sexually aroused 

while lying on top of the victim, and police-recorded telephone conversations in 

which the defendant offered the victim bribes to refrain from testifying. Ibid. 

In contrast, we recently determined that the admission of CSAAS expert 

testimony in four different cases, consolidated on appeal, constituted harmful 

error. See State v. G.E.P., 458 N.J. Super. 436, 449 (App. Div.), certif. granted,

239 N.J. 598 (2019). In each of those four cases we determined the admission 

of expert CSAAS evidence at trial unduly bolstered the victim's credibility and 

could not be considered "harmless error," observing there was little or no 

corroborating physical evidence introduced at each trial, and the credibility of 

each victim’s testimony was the linchpin of the State’s case. Ibid.
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A-4080-17T2

Here, the State's case predominantly relied on A.T.’s detailed testimony, 

including the time and place of each assault occurred, how defendant positioned 

her during the assaults, her reasons for both her delayed disclosure of the abuse, 

and for going to the police. All the other State's witnesses testifying at trial 

learned about the abuse from A.T. Although on one occasion, A.T.'s underwear 

was found on the floor on the morning after an assault, no one observed any 

assault. The admission of the CSAAS testimony, therefore, raised "a possibility 

'sufficient to raise a reasonable doubt' that 'the error led the jury to a result it 

otherwise might not have reached.'" J.L.G., 234 N.J. at 306 (quoting Macon, 57 

N.J. at 335-36)

Although defendant's counsel presciently argued during the new-trial 

motion that "the Supreme Court has to revisit the issue because CSAAS goes 

back to the [19]80's and really has been undercut in terms of the science and the 

author's own discounting and disapproval of the way that it's used forensically," 

defendant did not raise a CSAAS issue on direct appeal. Of course, J.L.G. was 

not filed until July 31, 2018, well after the resolution of defendant's direct appeal 

and PCR petition before the trial court, and after we granted permission for this 

late-filed appeal.
10 A-4080-17T2

The issue becomes, therefore, the extent of retroactivity applied to J.L.G.3 

"[R]etroactivity can arise only where there has been a departure from existing 

law." State v. Burstein, 85 N.J. 394, 403 (1981). In determining whether a case 

raises a new rule of law, there must be a "sudden and generally unanticipated 

repudiation of a long-standing practice." State v. Afanador, 151 N.J. 41, 58

(quoting State v. Cupe, 289 N.J. Super. 1, 12 (App. Div. 1996)). That is, it must 

"break[] new ground or impose[] a new obligation on the . . . government"; "if 

the result was not dictated by precedent existing at the time the defendant's 

conviction became final," it will be considered a new rule. State v. Lark, 117 

N.J. 331, 339 (1989) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). 

The J.L.G. Court reviewed de novo whether the reliability of CSAAS 

testimony was established under the Frye test.4 234 N.J. at 301. Such testimony 

had been widely utilized by prosecutors who relied on the cases endorsing its 

use, G.E.P., 458 N.J. Super. at 447, beginning with State v. J.Q., 130 N.J. 554, 

 

3

 Defendant did not argue for full retroactivity of J.L.G. until he filed his reply 

brief. Although "a new issue cannot be raised in a reply brief" on appeal, Alpert, 

Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 527 n.5 

(App. Div. 2009), we will address the issue.

4

 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding 

admissibility of proposed expert testimony is conditioned on whether the 

scientific basis for the opinion has "gained general acceptance in the particular 

field in which it belongs").
11 A-4080-17T2

556 (1993) (finding CSAAS had a "sufficiently reliable scientific basis" to 

justify presentation to a jury). The Court's prohibition of the introduction of 

CSAAS-related expert testimony on any of the five syndrome factors except 

delayed disclosure, J.L.G., 234 N.J. at 303, cannot be viewed as anything but a 

new rule of law.

That having been determined, we can

(1) make the new rule of law purely prospective, 

applying it only to cases whose operative facts arise 

after the new rule is announced; (2) apply the new rule 

to future cases and to the parties in the case announcing 

the new rule, while applying the old rule to all other 

pending and past litigation; (3) grant the new rule 

[pipeline] retroactivity, applying it to cases in (1) and 

(2) as well as to pending cases where the parties have 

not yet exhausted all avenues of direct review; and, 

finally, (4) give the new rule complete retroactive 

effect[.]

[Burstein, 85 N.J. at 402-03.]

In G.E.P, we concluded J.L.G.'s holding "should be given at least pipeline

retroactivity," G.E.P, 458 N.J. Super. at 448, rendering it applicable to all

prospective cases arising after the announcement of the new rule of law, parties

in the case considered, and pending cases in which "the parties have not yet

exhausted all avenues of direct review," Burstein, 85 N.J. at 403, when the Court

issued its opinion in J.L.G. Judge Koblitz cogently analyzed the three factors 
12 A-4080-17T2

considered in determining whether a new rule of law should be made purely 

prospective, prospective but applicable to the case announcing the new rule, 

retroactive to cases in the pipeline or completely retroactive:

"(1) the purpose of the rule and whether it would be 

furthered by a retroactive application, (2) the degree of 

reliance placed on the old rule by those who 

administered it, and (3) the effect a retroactive 

application would have on the administration of 

justice." 

[G.E.P., 458 N.J. Super at 445 (quoting Feal, 194 N.J. 

at 308).] 

 

The first factor is the "most pivotal" and requires the court to consider 

whether "the purpose of the new rule 'is to overcome an aspect of the criminal 

trial that substantially impairs its truth-finding function' and raises 'serious 

question[s] about the accuracy of guilty verdicts in past trials [.]'" Ibid. (first 

alteration in original) (quoting Feal, 194 N.J. at 308-09). If the purpose of the 

new rule was to remedy an aspect of a criminal trial which substantially impaired 

the "truth-seeking function" of the trial, retroactive effect generally should be 

given; however, if the "new rule is designed to enhance the reliability of the 

fact-finding process, but the old rule did not 'substantially impair' the accuracy 

of that process, a court will balance the first [factor] against the second and third 

[factors]." Id. at 446 (alterations in original) (quoting Feal, 194 N.J. at 309). 
13 A-4080-17T2

J.L.G. does not fall into that class of cases where "fundamental

constitutional implications" mandate full retroactivity, State v. Purnell, 161 N.J. 

44, 54 (1999), such as those recognized by our colleagues in G.E.P., as striking 

"at the heart of the truth-seeking function," 458 N.J. Super. at 445-46. Unlike 

those cases where full retroactivity has been accorded, the severe curtailment of 

CSAAS evidence imposed by the J.L.G. Court does not involve altering the 

burdens of proof, Hankerson v. North Carolina, 432 U.S. 233 (1977); Ivan V. v. 

City of New York, 407 U.S. 203 (1972) or the right to counsel at critical stages, 

Arsenault v. Massachusetts, 393 U.S. 5 (1968); Pickelsimer v. Wainwright, 375 

U.S. 2 (1963); see also Feal, 194 N.J. at 309. 

 In contrast to those cases, full retroactivity has not been afforded to new 

rules of law that simply "affect[] the jury's assessment of the victim's 

credibility." State v. J.A., 398 N.J. Super. 511, 524 (App. Div. 2008) (refusing 

to grant complete retroactive effect to a new rule because the old rule simply 

"affected the jury's assessment of the victim's credibility, [and] was [not] a 

'substantial' impairment of the truth-finding process" (citing State v. R.E.B., 385 

N.J. Super. 72, 84-86 (App. Div. 2006))); see also Feal, 194 N.J. at 310 (refusing 

to apply a new rule of law which recategorized "comments on a defendant's 

presence at trial as interdicted under all circumstances," in part, because the "old 
14 A-4080-17T2

rule was a well-settled and legitimate means of fairly attacking a 

defendant's credibility").

CSAAS testimony was previously admitted to explain a child victim's 

reaction to sexual assault. Prior to J.L.G., the jury was instructed they can 

consider CSAAS testimony to help "explain[] certain behavior[s] of the alleged 

victim of child sexual abuse" and "help explain why a sexually abused child may 

. . . delay reporting[,] . . . recant allegations of abuse . . . [or] deny that any 

sexual abuse occurred[.]" Model Jury Charges (Criminal), "Child Sexual Abuse 

Accommodation Syndrome" (rev. May 16, 2011); see also G.E.P., 458 N.J. 

Super. at 462 n.5. 

Defendant argues that the admission of CSAAS testimony bolstered A.T.'s 

testimony. In G.E.P., we discerned the purpose of J.L.G.'s holding was "to avoid 

unjust convictions in which the State's proofs are unfairly bolstered by expert 

opinion that lacks a reliable basis." 458 N.J. Super. at 447. Inasmuch as the 

CSAAS-expert testimony cannot be used to establish a defendant's guilt, it is 

our judgment that the J.L.G. Court's ruling was "designed to enhance the 

reliability of the fact-finding process[,] but the old rule did not 'substantially 

impair' the accuracy of that process." See Burstein, 85 N.J. at 408. 
15 A-4080-17T2

In balancing the two remaining factors—"the degree of reliance placed on 

the old rule by those who administered it, and . . . the effect a retroactive 

application would have on the administration of justice," Feal, 194 N.J. at 308

(quoting State v. Knight, 145 N.J. 233, 251 (1996))—we need not ford waters 

already bridged by our holding in G.E.P., where we recognized the wide 

utilization of CSAAS testimony by prosecutors who relied on the cases 

sanctioning its use beginning in 1993, 458 N.J. Super. at 447; see also J.Q., 130 

N.J. at 556 (finding CSAAS had a "sufficiently reliable scientific basis" to 

justify presentation to a jury). Indeed, the J.L.G. Court indicated that the 

introduction of CSAAS testimony at trial was widespread throughout the State 

and country. 234 N.J. at 272 ("Courts across the nation embraced [CSAAS as 

reliable] . . . pav[ing] the way for experts to testify about the syndrome in 

criminal sex abuse trials").5 

While we cannot definitively analyze the impact retroactive application 

would have on the justice system, not knowing the number of convictions in 

which CSAAS evidence has played a part, we do know that experts have been 

testifying in trials of defendants accused of child sexual abuse for almost three 

 

5

 We noted there were, at minimum, forty pending appeals involving the 

admissibility of CSAAS evidence when we decided G.E.P. See 458 N.J. Super. 

at 448.
16 A-4080-17T2

decades. While such evidence may not have been "a staple of criminal trials" 

like eyewitness identification testimony, see State v. Henderson, 208 N.J. 208, 

302 (2011) (determining that "reopen[ing] the vast group of [eyewitness 

identification] cases decided over several decades . . . would 'wreak havoc on 

the administration of justice'" (quoting State v. Dock, 205 N.J. 237, 258 

(2011))), it was introduced in cases where child-victims had to testify about 

assaults, the disclosure of which, for many, were then delayed. Retroactive 

effect would allow defendants who were convicted after trials in which CSAAS 

evidence was introduced to collaterally attack those convictions. If PCR is 

granted, the State would be required to marshal evidence if still available and 

witnesses whose memory would be subject to attack. See ibid. (refusing to grant 

full retroactive application to a new rule of law, in part, because doing so would 

require eyewitness to retake the stand at a time where their memories have "have 

long since faded"). It would also require those victims to recount attacks many 

of them were initially reluctant to disclose.

We see no reason to stray from our decision in G.E.P, concluding J.L.G.'s

holding should receive pipeline retroactivity, 458 N.J. Super. at 448, rendering

it applicable to all prospective cases arising after the announcement of the new

rule of law, parties in the case considered, and pending cases in which "the
17 A-4080-17T2

parties have not yet exhausted all avenues of direct review," Burstein, 85 N.J. at

403, when the Court issued its opinion in J.L.G. As such, J.L.G. should not be

accorded full retroactivity to afford defendant, who had exhausted all avenues 

of direct review, relief. In such cases, courts "will not burden the criminal 

justice system with the [PCR] and retrials that would result from a fully 

retroactive application" of a new rule of law." Knight, 145 N.J. at 258.

We determine the balance of defendant's arguments, including that made 

in his reply brief that "[i]n J.L.G., the Court announced two holdings: one novel 

and the other an application of well-established law under N.J.R.E. 702," the 

latter of which was not a new rule of law, to be without sufficient merit to 

warrant discussion. R. 2:11-3(e)(2). Not only was this issue raised in a reply 

brief, see Alpert, 410 N.J. Super. at 527 n.5, and was not raised to the PCR court, 

see State v. Robinson, 200 N.J. 1, 19-20 (2009), it also improperly parses the 

Court's decision in J.L.G. Moreover, that argument attacks the admission of the 

CSAAS evidence as contravening N.J.R.E. 702. As the argument was not raised 

on appeal, but was evident in the record, defendant cannot raise it in this PCR 

proceeding. R. 3:22-4; see also State v. McQuaid, 147 N.J. 464, 483 (1997) ("A 

defendant ordinarily must pursue relief by direct appeal, . . . and may not use 
18 A-4080-17T2

post-conviction relief to assert a new claim that could have been raised on direct 

appeal" (citation omitted)).

Affirmed.