RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5484-17T3

STATE OF NEW JERSEY

IN THE INTEREST OF F.W.,

a Juvenile.

___________________________

Submitted January 6, 2020 – Decided July 24, 2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FJ-20-0191-18.

Joseph E. Krakora, Public Defender, attorney for 

appellant F.W. (Janet Anne Allegro, Designated 

Counsel, on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent State of New Jersey (Michele 

C. Buckley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

F.W. (Frank), a juvenile, appeals from an adjudication of delinquency for 

conduct that, if committed by an adult, would constitute second-degree sexual 

NOT FOR PUBLICATION WITHOUT THE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.
2

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assault, N.J.S.A. 2C:14-2(b); third-degree endangering the welfare of a child, 

N.J.S.A. 2C:24-4(a)(1); and fourth-degree lewdness, 2C:14-4(b)(1).

1

 The 

charges arose out of an incident between Frank and a six-year-old girl, A.W. 

(Ashley), in August 2017. On appeal, Frank contends the trial court erred in 

admitting Ashley's statement to the police because it was untrustworthy. He 

also asserts the prosecutor committed reversible error by asking Frank whether 

one of the State's witnesses had any reason to lie about Frank's whereabouts on 

the day of the assault. Frank also alleges the trial court erred in finding there 

was sufficient evidence to support the court's adjudication of delinquency, and

that the trial court imposed an excessive sentence. We find no reversible error 

and affirm.

I.

The State presented its case through testimony of the victim, her mother,

her relative who witnessed the assault, a boy who had been with Frank earlier 

that day, and the detective who interviewed the victim. The State also 

introduced Ashley's prior statements to the detective and to her mother. Frank, 

his mother, and his aunt, testified in his defense. 

1

 In accord with Rule 1:38-3(c)(9), we use initials and pseudonyms.
3

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On August 1, 2017, around 5:00 p.m., Ashley was waiting outside her 

house while her mother, Helen, changed out of her work clothes so she could 

drive Ashley to cheerleading practice. Ashley was talking to her friend, who 

then left. Ashley then saw a group of boys from the neighborhood, including 

her friend Thomas, walk by her house. 

Thomas testified that he and a group of boys, including Frank, then twelve

years old, had decided to buy some snacks and drinks at a corner store. Thomas 

needed to go to his mother's house to get money. Frank broke off from the group 

before Thomas and the others walked past Ashley's house. Thomas saw her 

playing out front. 

Ashley testified that while playing in front of her house, alone, a boy she 

had never spoken to before approached her. She only knew him as "Aaron's 

brother." At trial, the parties stipulated Frank and Aaron are brothers. The boy, 

who Ashley later identified as Frank, asked her for some water, and she obliged. 

Ashley also noted that the boy had a red, white, and blue basketball. 

Ashley and Frank then walked towards the back of her house. Frank asked 

Ashley if she had a "fake boyfriend," to which she replied "no"; then, Frank

approached her and touched her over her clothes. She indicated on an 

anatomical drawing that he touched her on the buttocks and vagina. After Frank 
4

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touched Ashley, he pulled his pants down and "was wiggling his penis" with two 

hands.

Steven, Ashley’s cousin, was in the back of the house next door, talking 

on the phone when he saw a boy with Ashley; the boy "had his private parts in 

his hand," outside of his clothing, and with his other hand was "digging in 

between [Ashley’s] legs." Steven "screamed at him, whatcha doing?" Frank

fled, basketball in hand. Steven testified he never saw Frank's face. Rather, he

described a boy wearing a white t-shirt and green shorts. 

Thomas testified that after Frank had gone his separate way, the group

went to the store, and then to a group-member's house. While they were sitting 

there together, Thomas saw Frank running out of the backyard. Since Frank was 

running fast, Thomas thought Frank was playing tag with someone. Thomas 

testified Frank was wearing green shorts. Just a few minutes later, Helen and 

Steven came across Thomas and asked him where Frank lived. He directed them 

there, but they did not immediately find him. 

Helen brought along a teenaged relative, Zach, who knew the boys from 

the neighborhood. They went looking in the neighborhood for "Aaron's brother"

a few times, but were unable to find him. 
5

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Helen eventually came across Frank's aunt in the street, who then called 

Frank's mother and told her to "come outside [be]cause Helen is saying that 

Frank did something." As Ashley's mother questioned Frank's whereabouts, he

approached them wearing black shorts and a black shirt. Upon approaching the 

group, Frank "threw his hands up, he said, wait, what happened, I didn't do 

anything," which he asserted was in response to hearing someone say, "oh, that’s 

him right there." 

When Frank arrived, Helen asked Ashley if Frank was the boy she was 

with at the house. Helen testified that Ashley initially, "shook her head yes. I 

said use your words and she said yes and he said no I didn't, no I didn't. . . . " 

However, Helen also testified that when she asked Ashley if Frank was the 

person involved in the prior incident, as Frank stood before her, Ashley "just 

kept shrugging her shoulders and not using her words." So, she "got very upset"

and "hit her." After that, Ashley "used[d] . . . words," and "said yes, it was him 

and [Ashley] started crying."

Frank's mother testified that he approached her as he headed home in the 

afternoon. He hugged her, and she told him he smelled "a little musty," and 

should go inside and take a shower. This, she said, was why he went home, 

changed out of his white t-shirt and light gray shorts, and put on black shorts 
6

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and a black shirt. Frank's mother and Frank's aunt both testified that Ashley said 

that Frank was not the one who assaulted her, when she first confronted Frank 

outside the aunt's home. Both women testified that Helen reacted by hitting 

Ashley so hard she fell to the ground. Frank's mother said that Helen then lifted 

Ashley up by her braids, and only after additional prompting from Helen did 

Ashley reverse herself.

Frank corroborated his mother's testimony about his attire. He denied 

interacting with Ashley, although he stated that he "might have" walked past her 

house. He also denied hanging out with Thomas during the day, and denied 

running through a friend's backyard. He gave an alternative account of his 

whereabouts during the afternoon. He admitted he owned a red, white, and blue 

basketball, but he asserted it is a popular basketball and "everyone" owns one, 

although he denied having any basketball with him on the day in question. 

In an oral decision, the trial judge found "the State proved its . . . case 

beyond a reasonable doubt." The trial judge found the victim and the State's 

witnesses to be credible. In contrast, he found Frank was "evasive," not credible, 

and his version of events did not "hold together." He found implausible the 

account of Frank's mother and aunt that Helen hit Ashley to the ground. 
7

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The trial judge merged fourth-degree lewdness and third-degree 

endangering into the second-degree sexual assault count. After discussing the 

relevant aggravating and mitigating factors, the trial judge sentenced Frank to 

36 months of probation, Special Caseload, and ordered him "to comply with all 

recommendations of the 14-day plan, all After-Care provided including 

attending [a] Juvenile Sex Offender Program." The trial judge also ordered 

Frank register under Megan's Law, and noted that since Frank committed the 

crime when he was under the age of 14, he can apply to have his registration 

terminated upon turning 18. See In re Registrant J.G., 169 N.J. 304 (2001). 

On appeal, Frank presents the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN ADMITTING THE 

CHILD'S STATEMENT TO THE POLICE 

PURSUANT TO N.J.R.E. 803(c)(27) AS THE 

STATEMENT WAS NOT TRUSTWORTHY.

POINT II

THE PROSECUTOR COMMITTED MISCONDUCT 

AND F.W. WAS DEPRIVED OF HIS RIGHT TO A []

FAIR TRIAL WHEN THE PROSECUTOR ASKED 

HIM WHETHER A STATE'S WITNESS HAD ANY 

REASON TO LIE (NOT RAISED BELOW).
8

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POINT III

THE COURT'S FINDING OF DELINQUENCY IS 

NOT SUPPORTED BY SUFFICIENT CREDIBLE 

EVIDENCE IN THE RECORD AND MUST 

THEREFORE BE REVERSED.

POINT IV

THE STATE FAILED TO PROVE THE REQUIRED 

ELEMENTS OF THE FIRST AND THIRD COUNT[S] 

OF THE COMPLAINT (NOT RAISED BELOW).

POINT V

THE SENTENCE IMPOSED BY THE COURT WAS 

EXCESSIVE.

II. 

We consider first Frank's contention that Ashley's statement to the 

detective should have been excluded as not trustworthy. At a Rule 104 hearing, 

Detective Brian O'Malley, of the Union County Prosecutor's Office Special 

Victims Unit, testified that he interviewed Ashley the day after the incident. 2 

O'Malley had received special training for interviewing children under thirteen. 

O'Malley interviewed Ashley alone in a room, and the interview was videotaped. 

2 The detective testified only at an N.J.R.E. 104 hearing in support of the State's 

application to admit Ashley's recorded statement. However, to avoid repetition, 

the court granted the State's request to also consider the detective's testimony as 

if given in the State's case in chief. 
9

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During the interview, Ashley indicated she knew why she was speaking 

with the detective that day – "[b]ecause something happened bad [sic]

yesterday," namely, "a 12 year old was sticking his thing out . . . in the back of 

[her] house." Ashley identified the assailant by name, Frank, and also recounted 

the events leading up to the assault. Ashley noted that Frank approached her, 

asked her to touch his "thing," which she refused, and Frank then began 

"wiggling it . . . with his hands." Ashley was reticent to use words to describe 

private areas of the body, since she didn’t "want to get in trouble." Ashley also 

identified Frank as wearing green shorts and a white t-shirt. 

The court found Ashley's statement to O'Malley to be sufficiently 

trustworthy and admissible under N.J.R.E. 803(c)(27).3 The court heard 

testimony from O'Malley and Ashley's mother, and viewed the videotaped 

interview. Noting that Ashley was available to testify, the court made its finding 

based on the "totality of the circumstances," including "the time the statements 

were made, [and] the circumstances that they were made . . . ." 

Under N.J.R.E. 803(c)(27), "[a] statement by a child under the age of 12 

relating to sexual misconduct committed with or against that child is admissible 

3 The court also held, after an N.J.R.E. 104 hearing, that Ashley's statement to 

her mother, immediately after Steven reported the incident, was admissible. 

Defendant does not challenge that ruling on appeal. 
10 A-5484-17T3

in a criminal, juvenile, or civil case" so long as (a) opposing counsel is given 

notice that the statement will be used; (b) the court holds a Rule 104(a) hearing 

to determine "on the basis of the time, content and circumstances of the 

statement there is a probability that the statement is trustworthy"; and (c) "the 

child testifies at the proceeding," or "the child is unavailable as a witness and 

there is offered admissible evidence corroborating the act of sexual abuse." 4 

As the proponent of the hearsay, the State bears the burden to satisfy the 

Rule's prerequisites and to do so by a preponderance of the evidence. State v. 

Stubbs, 433 N.J. Super. 273, 285-86 (App. Div. 2013); State v. James, 346 N.J. 

Super. 441, 457 (App. Div. 2002). In assessing whether the State has met its 

burden to admit a tender years statement under N.J.R.E. 803(c)(27), the trial 

court must consider the "totality of the circumstances." State v. P.S., 202 N.J. 

232, 240 (2010).

Although the Confrontation Clause analysis prescribed in Idaho v. Wright, 

497 U.S. 805 (1990), has largely been supplanted by Crawford v. Washington, 

541 U.S. 36 (2004), New Jersey courts still determine "trustworthiness" under 

4 We need not address the "incompetency proviso" of the Rule, which states 

"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 Rule 601." See State ex rel. A.R., 234 N.J. 82, 98-102 (2018).
11 A-5484-17T3

N.J.R.E. 803(c)(27) according to the non-exhaustive list of factors outlined in 

Wright. State v. Burr, 392 N.J. Super. 538, 569-70 (App. Div. 2007) aff'd as 

modified, 195 N.J. 119 (2008). The non-exhaustive list includes: "whether the 

statement was made spontaneously, whether the account is repeated with 

consistency, the mental state of the declarant, the use of terminology unexpected 

of a child of similar age, lack of a motive to fabricate, use of interrogation, and 

manipulation by adults." Id. at 570; see also P.S., 202 N.J. at 249 (identifying 

"a non-exclusive list of factors relevant to evaluating the reliability of out-ofcourt statements made by child victims of sexual abuse, including spontaneity,

consistent repetition, mental state of the declarant, use of terminology

unexpected of a child of similar age, and lack of motive to fabricate" (citing

Wright, 497 U.S. at 821-22)).

Thus, courts will admit a child's pre-trial statement, pursuant to N.J.R.E. 

803(c)(27), when the answers are spontaneous, the language used is appropriate 

for that of a similarly-aged child, "there [is] no motive to fabricate and there 

[are] no inconsistencies." State v. T.E., 342 N.J. Super. 14, 35 (App. Div. 2001). 

If those factors are satisfied, the statement will be deemed "probably 

trustworthy." Id. at 36. 
12 A-5484-17T3

"[I]n reviewing a trial judge's finding that a child's statement meets the 

trustworthiness requirement of N.J.R.E. 803(c)(27), appellate courts affirm 

unless the judge's determination amounted to an abuse of discretion." P.S., 202 

N.J. at 250. We also uphold "a factual finding 'supported by sufficient credible 

evidence in the record.'" State ex rel. A.R., 234 N.J. 82, 104 (2018) (quoting 

P.S., 202 N.J. at 250). "Only if that finding is clearly mistaken should an 

appellate court intervene, in the interest of justice, to correct the error." Ibid.

Applying that standard, we discern no basis to disturb the trial court's 

finding of trustworthiness. Although the trial court's decision was conclusory, 

and did not expressly consider all the applicable factors, we find sufficient 

support in the record for the court's conclusion. The essence of Ashley's 

statement was unchanged, although there were certainly some inconsistencies 

between what Ashley told her mother, according to her mother; what she told 

the detective in her recorded statement; and what she testified at trial. Someone 

she knew then only as "Aaron's brother" touched her over her clothes on her 

buttocks and vagina, and displayed his penis. Although she incorporated details 

that she must have heard from others, the core element of her story showed no 

obvious sign of manipulation by others. 
13 A-5484-17T3

Ashley appeared attentive during the videotaped interview and responded

to all of the detective's questions. When asked if Ashley understood all of the 

questions asked, O'Malley testified, "I think so for the most part. I mean...she's 

six so there were some things that, you know, I don't know if she knew the 

answers to but she did the best she could, I think." He also asked follow-up 

questions to clarify if she understood, and if more details were needed. O'Malley 

conducted the interview with Ashley without her mother alongside her, which 

would also decrease the likelihood of influence or coercion. See Burr, 392 N.J. 

Super. at 571 (admitting child's statement at pre-trial interview, and noting that 

investigator "questioned [victim] without anyone else in the room, minimizing 

the possibility that [victim]'s answers were manipulated or coerced in any way"). 

Additionally, the narrative Ashley provided was not one a child would 

normally be able to describe, unless she had been subjected to it. See State v. 

Nyhammer, 197 N.J. 383, 411 (2009) (child victim's statements trustworthy 

where "[the victim] exhibited sexual knowledge beyond the experience of a 

typical child of similar age"). Ashley recounted Frank asking if she wanted a 

boyfriend, to which she responded, "no," and then Frank told her to touch his 

genitals, which she also refused. Ashley also used words like "thing," when

referring to Frank's private parts, that were appropriate for a child of her age. 
14 A-5484-17T3

The record does not reflect that Ashley had any motive to fabricate the 

story against Frank, as both of them testified that they had never met, or spoken, 

before she identified him as the assailant when speaking with her mother. 

Frank contends that, numerous times in the interview, Ashley used 

language that indicated other adults had influenced her. For example, Ashley

stated, "After my cousin [Steven] caught . . . him that day, he took his ball and 

ran and – and run to home to change his clothes cause he was musty [sic]." 

Ashley would not have known these details from the assault itself. Rather, she 

must have learned them from others. However, Ashley's insertion of these 

details does not taint the core allegation that she had maintained throughout.

Frank also contends that Ashley's recounting of the assault was not 

spontaneous, since Ashley's mother repeatedly asked her what happened, 

without an answer, and also struck her to prompt Ashley to answer her mother's 

questions. A child's reticence to speak should not necessarily detract from a 

statement's reliability. See T.E., 342 N.J. Super. at 35 (admitting child's pretrial statement to social worker and finding it "probably trustworthy,"

notwithstanding victim was "initially reluctant to talk"). Additionally, Ashley's 

reluctance to confront her accuser, in person, should not undermine the 

reliability of her initial statement to her mother, after the assault, that she had 
15 A-5484-17T3

been outside with "Aaron’s brother." Furthermore, by striking Ashley, her 

mother may have prompted Ashley to respond verbally, but did not suggest 

Ashley's answer. See Burr, 392 N.J. Super. at 571 (rejecting claim by defendant 

that mother coerced victim into asserting assault allegation, as "there was no 

evidence [mother] suggested to [victim] that defendant sexually assaulted her").

In sum, the trial court did not abuse its discretion in admitting Ashley's 

statements. 

III. 

Frank contends that the prosecutor committed reversible error by asking 

him if Thomas had any reason to lie about Frank's whereabouts on the day in 

question. Frank highlights the error was compounded when the prosecutor noted 

the answer in his closing statement, and by the judge in his oral decision. 

During cross-examination, the assistant prosecutor asked Frank if Thomas 

"would . . . have any reason to lie about seeing you running?" Frank responded, 

"No." The State emphasized this point in its summation, stating that, "[Frank] 

testified that he never ran anywhere that day but [Thomas] had no reason to lie. 

Your Honor, I submit it's not the State that's telling you that [Thomas] had no 

reason to lie, the defendant told you that [Thomas] had no reason to lie." 
16 A-5484-17T3

The judge also noted this testimony in his oral decision, stating that, 

"[w]hen the juvenile testified and [was] asked, does [Thomas] have any reason 

to lie, no, [Thomas] ha[d] no reason to lie. [Frank] didn't want to explain what 

[Thomas] said but he said [Thomas] had no reason to lie." 

As defendant failed to object to the question or the comment in 

summation, we review the point on appeal under the plain error standard. State

v. Santamaria, 236 N.J. 390, 404 (2019). We will disregard an error "'unless it 

is of such a nature as to have been clearly capable of producing an unjust result.'" 

State v. Bueso, 225 N.J. 193, 202 (2016) (quoting R. 2:10-2).

To support his argument, Frank relies on three cases that addressed a 

similar claim: State v. Bunch, 180 N.J. 534 (2004); State v. T.C., 347 N.J. Super. 

219 (App. Div. 2002); and State v. Green, 318 N.J. Super. 361 (App. Div. 1999) 

aff'd, 163 N.J. 140 (2000). Frank correctly observes all three cases 

unequivocally state that asking one witness if another is lying is inappropriate 

and impermissible; however, critically, it was held in all three cases this type of 

questioning alone did not support reversal. 

In Bunch, the Supreme Court 

agree[d] with defendant that the assistant prosecutor 

should not have asked [the] defendant to assess the 

credibility of another witness . . . . Nevertheless, in 

view of the substantial amount of evidence of 
17 A-5484-17T3

defendant's guilt and the trial court's instruction to the 

jury that it must determine the witnesses' credibility . . .

conclude[d] that the improper statement was not so 

egregious that it deprived defendant of a fair trial. 

[180 N.J. at 549 (internal quotation marks and citations

omitted).]

Similarly, T.C. found "that such questioning is inappropriate and should 

not be countenanced." 347 N.J. Super. at 238. Moreover, while reviewing the 

claim under the plain error standard, the court "agree[d] that the prosecutor 

should have refrained from such questioning, [but did] not find that the conduct 

constitutes a basis for reversing defendant's conviction." Ibid. 

Lastly, in Green, during cross-examination of the defendant, the

prosecutor asked defendant four separate times whether the police officers who

had testified were truthful. 318 N.J. Super. at 377. We reversed on alternative

grounds, but recognized that asking a witness to "characterize the testimony of

another witness" was both "argumentative and highly improper." Id. at 378. 

However, that conduct did not independently support reversal, as "the evidence 

of guilt was overwhelming." Ibid. We also "direct[ed] that this method of crossexamination not be repeated" on re-trial. Ibid. 

By contrast, the Court in State v. R.K., 220 N.J. 444, 460 (2015) noted 

that as a general rule, "other witnesses are prohibited from giving their opinions 
18 A-5484-17T3

about [another witness's] credibility." The Court found reversible error, under 

the plain error standard, where a step-sister bolstered the victim's credibility in 

a case that "presented a 'pitched credibility battle.'" Id. at 461 (quoting State v. 

Frisby, 174 N.J. 583, 596 (2002)). 

In Frisby, a child died of child abuse. The defendant-mother and the father 

each claimed the other was responsible for the boy when he suffered fatal 

injuries. The Court reversed a jury conviction because police officers, using 

inadmissible hearsay, testified that "out-of-court statements of non-testifying 

witnesses," "substantiated" the father's testimony in a case, and the father was 

"more credible" than the mother. As the Court recently explained its reasoning 

in Frisby: 

We found the admission of that testimony constituted

plain error beyond the simple fact that it offered

inadmissible hearsay. As the "case was a pitched

credibility battle" between the mother and father, we

explained that, "by 'necessary inference,'" the police

testimony regarding the father's credibility unfairly and

"'irresistibly' implicated [the mother]." We observed

that juries "may be inclined to accord special respect

to" police testimony, and accordingly held that "[a]ny

improper influence on the jury that could have tipped

the credibility scale was necessarily harmful and

warrants reversal" . . . .

[State v. Trinidad, ___N.J. ___, ___ (2020) (slip op. at

22-23) (quoting Frisby, 174 N.J. at 593-96, 595, 596).]
19 A-5484-17T3

Notably, in Trinidad, the Court held that a witness's opinion about the 

defendant's credibility did not constitute plain error largely because of the 

strength of the evidence, in particular, evidence challenging the defendant's 

credibility. Id. at ___ (slip op. at 23-24).

We discern from these cases the principle that one witness's improper 

bolstering of another will survive plain error review when there is overwhelming

evidence to support the trial court decision. At the other end of the spectrum,

when the case boils down to a "pitched credibility battle," Frisby, 174 N.J. at 

596, or there is "scant evidence," Trinidad, ___ N.J. at ___ (slip op. at 24), 

reversal may be warranted if the credibility opinion may have tipped the scales. 

This case falls somewhere between those two extremes. The State 

presented overwhelming evidence that Ashley was assaulted. Her testimony 

was corroborated by Steven, an eyewitness. The key question at trial was 

whether the assailant was Frank, or someone else. Although the evidence 

supporting Ashley's identification was not overwhelming, it was not scant, 

either. Ashley did not know Frank's name, but she told her mother she 

recognized her assailant as "Aaron's brother" – someone she had seen before. 

Furthermore, although there were obvious credibility questions at trial, they 

principally related to differences in the testimony of Ashley and Frank, and
20 A-5484-17T3

between Helen and Frank's mother and aunt. Thomas was a secondary witness, 

who provided circumstantial evidence of Frank's guilt, by testifying that he saw 

Frank run shortly after the assault took place.

We also may infer that defense counsel did not perceive as prejudicial

Frank's testimony about Thomas's motive to lie, because she did not object to it

at trial. See State v. Nelson, 173 N.J. 417, 471 (2002) (holding that a failure to

object to testimony permits an inference that any error in admitting the

testimony was not prejudicial); State v. Frost, 158 N.J. 76, 84 (1999) (stating

"[t]he failure to object suggests that defense counsel did not believe the remarks

were prejudicial at the time they were made"). We note that during the State's

case, in order to discredit Steven's testimony on a point of disagreement with

Thomas's testimony, defense counsel herself repeatedly asked Steven whether

Thomas had lied. In summation, defense counsel's apparent strategy was to

highlight inconsistencies of the State's witnesses, including Thomas; in doing

so, she both questioned and relied on statements Thomas made.5

5 For example, defense counsel relied on Thomas's statement that he did not 

notice that the boy he saw running through the yard had a basketball, although 

Steven insisted that Ashley's attacker had one, and fled with one. On the other 

hand, defense counsel suggested that Thomas had the facts wrong about what 

Frank was wearing at various points in the day.
21 A-5484-17T3

We conclude that Frank's opinion about Thomas's motive to lie was not 

"clearly capable of producing an unjust result," R. 2:10-2, nor did it deprive 

Frank of a fair trial. While we echo this court's, and the Supreme Court's,

previous admonitions that it is inappropriate to elicit one witness's opinion about 

the credibility or motive to lie of another witness, the questioning and 

prosecutor's comment do not warrant reversal under plain error review. 

IV. 

Defendant's remaining arguments lack sufficient merit to warrant 

extended discussion in a written opinion. R. 2:11-3(e)(2).

In particular, there was sufficient credible evidence to support the trial 

court's decision, to which we defer. The "findings of the trial judge . . . are 

substantially influenced by his opportunity to hear and see the witnesses and to 

have the 'feel' of the case, which a reviewing court cannot enjoy." State v. 

Johnson, 42 N.J. 146, 161 (1964). 

We also discern no abuse of discretion in the court's disposition, involving 

non-custodial probation and treatment; it was neither manifestly excessive nor 

unduly punitive, nor does it shock the conscience. State v. O'Donnell, 117 N.J. 

210, 215-16 (1989). The court found aggravating factors (b) ("grave and serious 

harm inflicted on the victim and that based upon the juvenile's age or mental 
22 A-5484-17T3

capacity the juvenile knew or reasonably should have known that the victim was 

particularly vulnerable or incapable of resistance due to advanced age, 

disability, ill-health, or extreme youth, or was for any other reason substantially 

incapable"); (g) (need to deter the juvenile and others); (j) ("impact of the 

offense on the victim"); and (l) (juvenile's "threat to the safety of the public or 

any individual"). The court also found mitigating factors (a) (juvenile under 

fourteen); (c) ("[t]he juvenile did not contemplate that the juvenile's conduct 

would cause or threaten serious harm"); (h) (lack of prior history of 

delinquency); (j) (juvenile's "character and attitude . . . indicate that the juvenile 

is unlikely to commit another delinquent or criminal act"); and (k) (likelihood 

of responding "affirmatively to noncustodial treatment"). There was sufficient 

competent evidence in the record to support those findings. Id. at 215.

Affirmed.