RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3476-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.K.K.,

Defendant-Appellant.

______________________________

Argued January 21, 2020 – Decided June 17, 2020

Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Hunterdon County, Indictment No. 14-10-

0307.

Scott M. Welfel, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Tamar Yael Lerer, Assistant 

Deputy Public Defender, of counsel and on the briefs).

Jeffrey L. Weinstein, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Michael J. Williams, Acting Hunterdon 

County Prosecutor, attorney; Jeffrey L. Weinstein, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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-3476-16T4

PER CURIAM

Defendant B.K.K.1appeals from the Law Division's March 20, 2017 

judgment of conviction that was entered after a jury found him guilty of three 

counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and 

(2)(c), five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), (c)(1) 

and (c)(4), and two counts of second-degree endangering the welfare of a child, 

N.J.S.A. 2C:24-4(a). In reaching its verdict, the jury found defendant sexually 

assaulted his two minor stepdaughters, J.R. and K.R., beginning in 

approximately 2013, when they were 12 and 10 years old respectively.

2

 The 

trial court sentenced defendant to an aggregate term of forty-five years, subject 

to a mandatory period of parole ineligibility under N.J.S.A. 2C:14-2(a) and the 

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

On appeal, defendant argues: (1) that testimony from his niece, whom he 

allegedly sexually assaulted as early as 2003, was improperly admitted under 

N.J.R.E. 404(b); (2) expert testimony about the Child Sexual Abuse and 

1

 We use initials to protect the privacy of the children and members of the 

family. R. 1:38-3(c)(9).

2

 Although defendant and the victim's mother participated in a religious 

ceremony, they were never legally married. However, it was undisputed that 

the victims and the family considered defendant their stepfather. 
3

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Accommodation Syndrome (CSAAS) was improperly admitted in light of the 

Court's holding in State v. J.L.G., 234 N.J. 265 (2018); and (3) defendant's 

sentence was excessive. For the reasons that follow, we affirm. 

I.

In 2013, J.R. and K.R. lived with defendant, their mother, their brother, 

and defendant's son. According to J.R., she was watching television late one 

evening while her mother, sister, and brother were in the house sleeping, when 

defendant sat next to her on the couch. Defendant then put his hands down J.R.'s 

pants, and digitally penetrated her vagina while he masturbated. J.R. stated this 

went on for about twenty or twenty-five minutes. She never told anyone about 

that incident at the time because defendant told her he would go to jail if she 

told anyone what happened, she knew defendant made her mother happy, and 

she was afraid her family would be ruined if she disclosed.

J.R. recalled two other instances when defendant sexually assaulted her.

Once while she was lying on the couch late at night, half asleep, defendant 

walked in, sat next to her, and turned her over onto her back. J.R. attempted to 

resist, but defendant would not stop. He removed her pants and her underwear,

and performed an act of cunnilingus. On another occasion in the middle of the 

afternoon, defendant unzipped J.R.'s jeans while she was laying on the couch 
4

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and digitally penetrated her vagina. Defendant committed that assault while 

J.R.'s brother was in the same room, but had his back turned and his headphones 

over his head. 

After this last incident, J.R. texted her mother and her thirteen-year-old 

friend, disclosing that defendant assaulted her. Her mother walked into her room 

crying and after J.R. explained what happened, her mother told her that 

defendant would not do that. J.R.'s mother told her that their family would be 

broken up if J.R. repeated her allegation. 

After J.R. got home from school the next day, she and her mother talked 

about J.R.'s accusation against defendant. Her mother told J.R. that defendant 

had taken a lie detector test, which revealed defendant was telling the truth. 

After about forty-five minutes of arguing back and forth, J.R. "gave up" and told 

her mother she had lied. Her mother then told J.R. that defendant never took a 

lie detector test. 

Thereafter, on July 2, 2014, K.R. told J.R. that defendant had assaulted 

her. In response, J.R. revealed that defendant had done the same thing to her. 

J.R. also told K.R. how their mother did not believe J.R., which made K.R.

believe it would be futile to tell their mother defendant had touched her. 
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K.R. texted her friend about what defendant had done, but told the friend 

not to tell anyone because she did not want to live with her father again, did not 

want her family to break apart, and because J.R. told her not to tell anyone. The 

friend showed K.R.'s text messages to her sister, and then her mother. The 

friend's mother called 9-1-1. 

According to Detective Donna Snyder of the Hunterdon County 

Prosecutor's Office, she received a phone call on July 3, 2014 that J.R. and K.R. 

had been sexually assaulted. Thereafter, arrangements were made for the two 

girls to be taken to the prosecutor's office by their grandmother. When K.R. 

learned that she was going to the prosecutor's office, she stopped home, where 

defendant allegedly told her that he was sorry and it would not happen again. 

The children were brought from the prosecutor's office to the Child 

Advocacy Center, where Snyder interviewed them. As part of this interview, 

K.R. disclosed that on July 2, 2014, defendant touched her vaginal area. J.R. 

stated that defendant had abused her several times beginning in the summer of 

2012. According to Detective Snyder, J.R. first disclosed her abuse to a close 

girlfriend, and then to her mother. Her mother did not believe J.R. and wanted 

J.R. to take a polygraph examination to determine whether J.R. was lying. 
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Defendant voluntarily appeared for an interview at the prosecutor's office 

on July 3, 2014. Defendant denied his stepdaughters' allegations. He admitted 

that he massaged his stepdaughters frequently, but understood how others could 

think it was strange. 

Defendant was arrested and charged with various offenses relating to his 

alleged sexual assault of his stepdaughters. On October 30, 2014, a Hunterdon 

County Grand Jury returned an indictment charging defendant with: two counts 

of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2(a)(1); one 

count of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-

2(a)(2)(c); two counts of second-degree sexual assault contrary to N.J.S.A. 

2C:14-2(b); two counts of second-degree sexual assault contrary to N.J.S.A. 

2C:14-2(c)(1); one count of second-degree sexual assault contrary to N.J.S.A. 

2C:14-2(c)(4); and two counts of endangering the welfare of a child contrary to 

N.J.S.A. 2C:24-4(a).

Prior to his trial, the court addressed several motions filed by defendant 

and the State. One motion led to a hearing on the suppression of defendant's 

pretrial statement to law enforcement, which the trial court denied. The State 

filed a motion to introduce testimony from B.G., defendant's niece, about 

defendant having sexually assaulted her from when she was eleven until she was 
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eighteen under N.J.R.E. 404(b). On August 2, 2016, the trial court conducted a 

Rule 104 hearing, heard testimony from B.G., and on August 16, 2016, the court 

entered an order denying the State's motion to admit evidence of defendant's 

sexual assault of B.G. in its case-in-chief under N.J.R.E. 404(b). However, the 

court reserved its determination about whether the State could admit such 

evidence "if and when a material issue in dispute [was] raised which opens the 

door to permissible rebuttal evidence." 

On November 15, 2016, the trial judge considered the State's motion to 

admit expert testimony from Dr. Vincent D'Urso, an authority on CSAAS. After 

conducting a Rule 104 hearing, the court granted the motion.

During defendant's ensuing trial, J.R. testified to the above assaults and to 

two more occasions where defendant sexually abused her by digitally 

penetrating her—including one instance where others were present in the home. 

J.R. also stated she did not call for her mother when she was being assaulted 

because she felt she would not have done anything. In addition, J.R. testified 

that while she was being interviewed by a detective at the prosecutor's office, 

her mother was sending her text messages inquiring about her answers to the 

detective's questions and reminding her that defendant would go to jail and their 

family would be broken up. 
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K.R. also testified at trial. She described the one time that defendant 

assaulted her. She explained that it occurred when everyone was home but 

engaged in their own activities. According to K.R., she was sitting on the couch 

when defendant sat next to her and began massaging her back. He gradually 

moved his hands down her back and then inside her pants when he started 

touching her vagina before digitally penetrating her. 

On cross examination, defendant challenged J.R.'s and K.R.'s testimony 

by questioning whether it was fabricated in accordance with instructions from 

their father. Moreover, the two victims were questioned about how defendant 

could have committed the crimes they alleged while other family members were 

present in the room or house. 

The victims' mother, defendant's wife, testified at trial for the State.

3

 She 

explained the relationship between her, defendant, and her former husband. She 

believed her daughters were being influenced by their father when they made 

the allegations against defendant. She confirmed at trial however, that at her 

plea hearing she testified that she believed that defendant had assaulted her 

3 Before defendant's trial, the victims' mother pled guilty to charges of child 

abuse, child endangerment, and witness tampering in connection with this 

matter. She faced up to nineteen years in prison, but under a plea agreement the 

State would recommend five years' probation if she testified truthfully at 

defendant's trial. 
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daughters. The mother also testified to a phone call she received from defendant 

in which he told her he "fucked up," that he was sorry, and could not "help it." 

The victims' brother testified at trial for defendant that "there was always 

somebody at the house." He stated that, contrary to J.R.'s testimony, he did not 

wear headphones when he was on the computer, which was located in the living 

room. He also testified that when he was on the computer and J.R. was on the 

couch, nothing inappropriate could have happened because he was in the same 

room. 

Defendant also testified at trial. He stated that the two girls fabricated 

their testimony at their father's direction. According to defendant, there was 

"quite a bit" of animosity between him and his wife's ex-husband, who 

controlled J.R. and K.R. and who wanted defendant "out of the picture." When 

he was asked if he ever sexually assaulted J.R., defendant replied that he "never 

sexually assaulted anyone." He also denied assaulting K.R. Moreover, he 

denied that he was ever alone with them, but admitted to sometimes giving them 

massages. As to the phone call he made to his wife, he explained that it referred 

to his decision to not take a polygraph test when it was offered by the prosecutor.

Thereafter, the State renewed its Rule 404(b) motion to allow B.G to 

testify, arguing that defendant opened the door for her testimony's admission. 
10 A-3476-16T4

The court concluded that under Rule 404(b), B.G.'s testimony of the prior 

assaults against her was admissible to rebut defendant's claims of fabrication, 

vendetta, and lack of feasibility/opportunity and to rebut defendant's opening 

the door. The judge allowed the testimony, but ordered that it be "sanitized" so 

as to mitigate the prejudicial effect of the details of defendant's assault on B.G. 

that were not similar in nature to the assaults on J.R. and K.R. 

After the defense rested, but before B.G. testified, the trial court delivered

a limiting instruction to the jury about their use of B.G.'s testimony in their

deliberations. B.G., who was then twenty-four years old, testified to defendant 

sexually assaulting her on several occasions beginning at the age of eleven, in 

2003, until she was fourteen, while other family members were home, in a 

manner similar to what J.R. and K.R. described in their testimony. She also 

described how defendant told her not to tell anyone about what he was doing 

because he would be sent to jail. One incident she described occurred in a hotel 

room, while she was on a trip with defendant, his son, and her brother. In 

addition, B.G. explained that although she told friends what was happening to 

her, she did not tell her father until she learned that defendant was charged in 

this matter. 
11 A-3476-16T4

Defendant and his son testified in rebuttal to B.G.'s testimony. The son, 

who had gone on trips with his father and B.G., stated he never saw defendant

assault B.G. or heard anyone else state that defendant had done so. Defendant 

denied sexually assaulting B.G. He explained that after B.G. turned eighteen, 

she moved in with defendant because her parents were moving to Las Vegas and 

she did not want to go with them. Defendant testified that he had sex with B.G. 

two or three times after she turned eighteen. However, on cross-examination, 

when defendant was confronted with the transcript of a phone call4 between him 

and his mother, he recalled his mother asking about B.G.'s age, which was eleven 

at that time, and admitted that he thought the two of them were in a relationship

at that time. 

On December 7, 2016, the jury convicted defendant on all counts of the 

indictment. The trial court sentenced defendant on March 10, 2017. This appeal 

followed. 

On appeal, defendant argues the following:

POINT I

EVIDENCE OF ENTIRELY UNRELATED 

ALLEGATIONS AGAINST DEFENDANT SHOULD 

NOT HAVE BEEN ADMITTED BECAUSE IT 

4 The judge provided a limiting instruction to the jury that this transcript was 

only to be used for the purpose of considering defendant's credibility. 
12 A-3476-16T4

SERVED ONLY AS PROHIBITED PROPENSITY 

EVIDENCE. THE ADMISSION OF THIS UNDULY 

PREJUDICIAL EVIDENCE NECESSITATES 

REVERSAL OF DEFENDANT'S CONVICTIONS.

. . . .

B. THE EVIDENCE OF PRIOR BAD ACTS 

SERVED ONLY TO DEPICT DEFENDANT AS 

HAVING BAD CHARACTER AND CRIMINAL 

PROPENSITIES. ITS ERRONEOUS ADMISSION 

NECESSITATES REVERSAL OF HIS 

CONVICTIONS.

POINT II

TESTIMONY ABOUT [CSAAS] WAS NOT BASED 

ON RELIABLE SCIENCE, WAS IRRELEVANT, 

AND WAS UNDULY PREJUDICIAL. ITS 

ADMISSION NECESSITATES REVERSAL OF 

DEFENDANT'S CONVICTIONS.

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE.

We are not persuaded by defendant's arguments about the admission of 

B.G.'s testimony or his sentence. As to the CSAAS testimony, we agree that it 

should not have been admitted, but we also conclude the error was harmless. 

Finally, we find no merit to defendant's argument about his sentence.

II.
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We begin our review by addressing defendant's argument that the trial 

court erred by admitting B.G.'s testimony under Rule 404(b). We disagree.

A.

According to the trial court's written decision issued in response to the 

State's N.J.R.E. 404(b) pretrial motion to admit B.G.'s testimony, the court 

applied the four-factor test articulated in State v. Cofield, 127 N.J. 328 (1992), 

and found that while B.G.'s testimony could not be offered as direct evidence, it 

could be used on rebuttal if defendant opened the door. The trial court barred 

the testimony because although the evidence satisfied the first three Cofield

factors, the court concluded under the last factor that the testimony's probative 

value as direct evidence would only be to bolster the credibility of the victims, 

which was not permitted. Additionally, the evidence of B.G.'s sexual assault 

was highly prejudicial to defendant. The court stated that while the evidence of 

B.G.'s sexual assault was inadmissible in the State's case-in-chief, it was 

reserving its determination as to whether it could be presented on rebuttal, 

should defendant "open the door." 

Before later permitting the challenged testimony on rebuttal, the trial court 

issued a nineteen-page comprehensive written decision setting forth its reasons. 

In its decision, the court re-analyzed the Cofield factors. In its consideration of 
14 A-3476-16T4

the first factor, after conducting a lengthy discussion of the applicable law, the 

trial court relied upon our opinion in State v. Krivacska, 341 N.J. Super. 1 (App. 

Div. 2001), and the Court's opinion in State v. Oliver, 133 N.J. 141 (1993). The 

trial court found that the proposed evidence of B.G.'s sexual assault was 

admissible to rebut defendant's claims that J.R. and K.R. were fabricating their 

stories, and that defendant lacked the opportunity or it was not feasible to have 

committed the crimes. According to the court, defendant placed those issues in 

question by cross-examining J.R. and K.R. as well as calling witnesses who were 

in the vicinity of the alleged assaults.

As to the second factor, the judge reaffirmed her earlier decision and 

stated the assaults of the three girls were similar in kind given how close in age 

each victim was, defendant's relationship to the girls, and the warnings that 

defendant gave each victim about what would happen to him if any of them 

disclosed his behavior. As to the third factor, the judge found B.G.'s testimony 

supplied clear and convincing evidence of the bad act because her testimony was 

consistent, she was detailed and specific, and her testimony was straightforward. 

Last, the judge found that the probative value of B.G.'s testimony was no 

longer outweighed by its prejudicial effect as it was probative of issues 

defendant placed in dispute. Nevertheless, the court directed that B.G.'s 
15 A-3476-16T4

testimony had to be "sanitized" to lessen its potential prejudicial effect. The 

court would not allow the State to introduce testimony that defendant's assaults 

on B.G. lasted for seven years or occurred beyond B.G. being fourteen years old 

or included allegations of sexual intercourse.

Prior to B.G.'s testimony, and afterward in its final charge, the trial court 

delivered a limiting instruction as to how and to what extent the jury was to 

consider B.G.'s testimony. In the charge, the court informed the jury that B.G.'s 

testimony could not be used to prove that defendant had sexually assaulted J.R. 

or K.R. Rather, it could only be used to rebut defendant's claims that the girls 

fabricated their allegations or that there was no opportunity for him to sexually 

assault either of them. The trial court informed the jury:

[Y]ou may not use this evidence to decide that the 

defendant has a tendency to commit crimes or that he is 

a bad person. That is, you may not decide that just 

because the defendant has committed other crimes, 

wrongs or acts, he must be guilty of the present crimes.

I have admitted the evidence only to help you to decide 

with specific questions of fabrication and opportunity, 

access or feasibility. You may not consider it for any 

other purpose and may not find the defendant guilty 

now simply because the State has offered evidence that 

he committed other crimes, wrongs or acts. 

Defendant never raised an objection to any of the trial court's charges in this 

regard. 
16 A-3476-16T4

B.

We apply a deferential standard of review to a trial court's admission of 

Rule 404(b) evidence. Generally, "[a] trial court's ruling on the admissibility of 

evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 

141, 157 (2011). "The admission or exclusion of evidence at trial rests in the 

sound discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016). 

"When specifically reviewing the sensitive admissibility rulings made 

pursuant to the weighing process demanded by Rule 404(b)," Rose, 206 N.J. at 

157, we give "great deference" to a trial court's determination on the 

admissibility of "other bad conduct" evidence, State v. Goodman, 415 N.J. 

Super. 210, 228 (App. Div. 2010) (quoting State v. Foglia, 415 N.J. Super. 106, 

122 (App. Div. 2010)). "The admissibility of such evidence is left to the sound 

discretion of the trial court, as that court is in the best position to conduct the 

balancing required under Cofield due to its 'intimate knowledge of the case.'" 

State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Covell, 157 N.J. 554, 

564 (1999)). 

While we apply an abuse of discretion standard, requiring a "clear error 

of judgment" to overturn the trial court's determination, State v. Castagna, 400 

N.J. Super. 164, 183 (App. Div. 2008), "[t]hat discretion is not unbounded. 
17 A-3476-16T4

Rather, it is guided by legal principles governing the admissibility of evidence 

which have been crafted to assure that jurors receive relevant and reliable 

evidence to permit them to perform their fact-finding function and that all parties 

receive a fair trial." Willis, 225 N.J. at 96.

N.J.R.E. 404(b) provides that evidence of other crimes or bad acts is 

generally not admissible, unless used for "proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of mistake or accident when 

such matters are relevant to a material issue in dispute." The concern in 

admitting evidence of other crimes or bad acts is "the jury may convict the 

defendant because he is 'a "bad" person in general.'" Cofield, 127 N.J. at 336

(quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). The burden of proving that 

N.J.R.E. 404(b) evidence should be admitted falls on the moving party seeking 

to admit such evidence. State v. Reddish, 181 N.J. 553, 608-09 (2004).

In Cofield, our Supreme Court set forth a four-pronged test to govern the 

admission of such evidence:

1. The evidence of the other crime must be admissible 

as relevant to a material issue;

2. It must be similar in kind and reasonably close in 

time to the offense charged;

3. The evidence of the other crime must be clear and 

convincing; and
18 A-3476-16T4

4. The probative value of the evidence must not be 

outweighed by its apparent prejudice.

[Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover, 

Balancing the Presumptions of Guilt and Innocence: 

Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 

160 (1989) (footnote omitted)); see also State v. 

Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the 

Cofield test).]

Generally, all four Cofield factors must support the admission of the 

evidence in question. State v. P.S., 202 N.J. 232, 255 (2010). However, "other 

crimes evidence may be admissible if offered for any non-propensity purpose"

if the trial court determines that it is relevant, and its probative value outweighs 

the potential prejudicial effect. Rose, 206 N.J. at 180-81; see also Cofield, 127 

N.J. at 338. "The threshold determination . . . is whether the evidence relates to 

'other crimes,' and thus is subject to . . . analysis under Rule 404(b), or whether 

it is evidence intrinsic to the charged crime, and thus need only satisfy the 

evidence rules relating to relevancy, most importantly Rule 403." Rose, 206 

N.J. at 179. 

To determine if evidence "is intrinsic to the charged crime," the Court in 

Rose adopted a test enunciated in United States v. Green, 617 F.3d 233 (3d Cir. 

2010). Rose, 206 N.J. at 180. The Court held that "two narrow categories of 

evidence" of other bad acts are intrinsic to the charged crime: (1) evidence that 
19 A-3476-16T4

"directly proves the charged" crime; and (2) evidence of bad "acts performed 

contemporaneously with the charged crime" that "facilitate[d] the commission 

of the charged crime." Ibid. (quoting Green, 617 F.3d at 248-49). Any evidence 

of other bad acts not fitting within one of those two "tight description[s] of 

intrinsic evidence" must be analyzed under Rule 404(b). Id. at 181. 

A court is not limited to "the examples set forth in the rule concerning the 

permissible uses of other-crimes evidence [as they] 'are not intended to be 

exclusive.'" N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 

572 (App. Div. 2010) (quoting State v. Nance, 148 N.J. 376, 386 (1997)). "To 

be sure, such evidence could be offered to negate accident; to establish motive, 

pattern, or design; or for a myriad of other legitimate reasons under the rule." 

P.S., 202 N.J. at 240.

By its clear terms, N.J.R.E. 404(b) permits admission of such evidence 

when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J. 

469, 482 (1997); Oliver, 133 N.J. at 151-54; State v. Stevens, 115 N.J. 289, 300

(1989). "Extrinsic acts evidence may be critical to the establishment of the truth 

as to a disputed issue," especially where the prosecution's access to significant 

information is limited. Huddleston v. United States, 485 U.S. 681, 685 (1988).

The evidence is not required to prove or disprove a fact at issue but need only 
20 A-3476-16T4

support a desired inference. State v. Swint, 328 N.J. Super. 236, 252-53 (App. 

Div. 2000). 

"Where such evidence tends to make the existence of a material fact 

'reasonably likely,' it should be admitted if its probative worth outweighs its 

potential for causing confusion, undue consumption of time or improper 

prejudice." Krivacska, 341 N.J. Super. at 39 (quoting Marrero, 148 N.J. at 482); 

see also N.J.R.E. 403. In State v. Garrison, 228 N.J. 182 (2017), the Court held 

that evidence of defendant's involvement in a game of strip poker with his victim 

was admissible since its probative value outweighed any prejudicial effect it 

might have had on defendant. Id. at 197-200. Moreover, the Court concluded 

that since evidence of the poker game was admissible under the "rigorous" 

N.J.R.E. 404(b) standard, it was not obligated to reach the State's argument that 

evidence of the poker game was intrinsic and thus only subject to N.J.R.E. 403. 

Id. at 201-02; see Rose, 206 N.J. at 178 ("It is therefore more likely that evidence 

of uncharged misconduct will be admitted into evidence if it is considered 

intrinsic to the charged crime and subject only to Rule 403 than if it is not 

considered intrinsic evidence and subject to both Rule 404(b) and Rule 403."). 

Non-propensity evidence has been admitted specifically to establish that 

a defendant who committed a sexual assault could do so even though other 
21 A-3476-16T4

people were present. For example, in Oliver, a case relied upon by the trial court 

here, the defendant sexually assaulted his victims "while other family members 

were downstairs; engaged in conversation with his victims; drank some beer; 

and then resorted to brute force to cut off the victims' air supply until they 

relented." State v. Sterling, 215 N.J. 65, 99 (2013) (quoting Oliver, 133 N.J. at 

145). While the Court in Oliver rejected the use of evidence of one assault to 

prove another, it

noted that the same evidence may have been admissible 

to prove other facts in issue, namely, the feasibility that 

the defendant could assault a woman in his room 

without the other family members at home knowing and 

to show the success of the defendant's pretext to lure 

women to his room.

[Ibid. (citing Oliver, 133 N.J. at 153).]

Similarly, in Krivacska, the other case relied upon by the trial court, we 

concluded that other-crime evidence could be introduced to demonstrate 

feasibility where "[t]he defense presented numerous witnesses who testified 

with respect to the accessibility of that office [where the assaults occurred] and 

the ability of those traveling the hallway to have an unobscured view into the 

room. The feasibility of defendant committing the offenses was one of the 

critical factual issues." Krivacska, 341 N.J. Super. at 41. In that case, we held 

the other-crime evidence would be admissible for that purpose after finding that 
22 A-3476-16T4

"the offenses committed were similar in kind and reasonably proximate in 

time. . . . [T]he other-crime evidence had sufficient probative value not to be 

outweighed by its potential for undue prejudice. And surely, there was clear and 

convincing evidence offered to establish the 'other crimes.'" Ibid.

In State v. Prall, 231 N.J. 567 (2018), the Court reviewed a trial court's 

admission of N.J.R.E. 404(b) evidence after initially barring its admission under 

Cofield, but allowing it when the defendant "opened the door" by challenging a 

victim's testimony about her "purported fear of defendant." Id. at 581-82. In its 

discussion of why the challenged evidence was not admissible under the facts 

of that case, the Court explained when such evidence is admissible in response 

to a defendant's tactics at trial. The Court stated the following:

The "opening the door" doctrine is "a rule of expanded 

relevancy and authorizes admitting evidence which 

otherwise would have been irrelevant or inadmissible 

in order to respond to (1) admissible evidence that 

generates an issue, or (2) inadmissible evidence 

admitted by the court over objection." State v. James, 

144 N.J. 538, 554 (1996) (emphases omitted). In other 

words, it permits "a party to elicit otherwise 

inadmissible evidence when the opposing party has 

made unfair prejudicial use of related evidence." Ibid.

(citation omitted). The "doctrine operates to prevent a 

defendant from successfully excluding from the 

prosecution's case-in-chief inadmissible evidence and 

then selectively introducing pieces of this evidence for 

the defendant's own advantage, without allowing the 

prosecution to place the evidence in its proper context." 
23 A-3476-16T4

Ibid. The doctrine is limited, however, by weighing the 

probative value against the prejudicial nature of the 

evidence under N.J.R.E. 403. Ibid.

[Id. at 582-83.]

The Court emphasized that the admission of such evidence cannot be 

intended "to bolster" another witness's testimony. Id. at 583. In any event, "the 

probative value of that testimony would nevertheless need to outweigh its 

apparent prejudice," ibid., and be "relevant to a material issue," id. at 584 

(quoting State v. Sanchez-Medina, 231 N.J. 452, 465 (2018)).

In P.S., the Court made clear such evidence cannot be admitted simply to 

bolster a witness' testimony. There the Court concluded "that a defendant's 

invocation of the so-called vendetta defense does not permit the prosecutor to 

bolster the credibility of a sex abuse victim by adducing evidence of another 

molestation." P.S., 202 N.J. at 240. In that case, the State had proffered 

evidence of defendant's molestation of a three-year-old boy, years earlier, to 

both refute defendant's contention that the instant victim, an eleven-year-old 

girl, had fabricated her allegations due to bias and to bolster her credibility. Id.

at 257-61. Unlike the present case, "what was proffered was an unrelated sex 

crime, which was only linked to the bias of the State's witnesses by the notion 
24 A-3476-16T4

that if defendant did it before, he likely did it again, thus supporting the 

credibility of [the victim and her mother]." Id. at 259. 

In State v. G.V., 162 N.J. 252 (2000), the Court considered whether 

evidence of the previous molestation of an older daughter by her father was 

admissible as other-crime evidence in his trial for committing sexual assault 

against his younger daughter. Id. at 256. Both the older daughter and the 

younger daughter alleged similar events, including what age the molestation 

began, how the intercourse began, and the fact that the intercourse always 

occurred while their mother was working. Ibid. The Court recognized that such 

other-crime evidence could be admissible to prove feasibility or access and 

could be used to refute a contention that the victims were biased against the 

defendant. Id. at 264-65. 

Here, B.G.'s, K.R.'s, and J.R.'s testimony all described the manner in 

which defendant would touch them, how defendant told them all not to disclose 

any of his behavior, and how defendant would touch them while others were 

nearby. B.G.'s testimony was admitted in response to issues raised by defendant 

as to fabrication and feasibility, and to his opening the door to not having 

committed other sexual assaults. Under these circumstances, the trial court 

properly determined that B.G.'s testimony met the requirements for admissibility 
25 A-3476-16T4

as contemplated by the Court and not merely to bolster defendants' victims' 

testimony. 

Once a trial court deems the non-propensity evidence admissible, it must 

give the jury limiting instructions as to how the bad-conduct evidence can be 

considered. Garrison, 228 N.J. at 200-01. "[I]n order to minimize 'the inherent 

prejudice in the admission of other-crimes evidence, our courts require the trial 

court to sanitize the evidence when appropriate.'" Rose, 206 N.J. at 161 (quoting 

State v. Barden, 195 N.J. 375, 390 (2008)). The trial court here delivered the 

required instructions. 

We discern no abuse in the trial court's discretion of its admission of 

B.G.'s testimony. We affirm that determination substantially for the reasons

expressed by the trial court in its thoughtful written decision. We add the 

following brief comments.

Here, the trial court initially barred B.G.'s testimony under Cofield's

fourth factor, but later allowed it as non-propensity evidence after defendant 

took the stand and testified that he never assaulted anyone, knowing that B.G.'s 

testimony had already been barred and the State, without leave, could not rebut 

his claim. The admission of the testimony was valid for that reason, as the State 

was without any other proof that his claim was untrue and because defendant
26 A-3476-16T4

repeatedly raised an issue with the jury that he could not commit the charged

crimes since there was always other people present in the home. Evidence that 

he successfully committed a similar crime, under similar circumstances, was 

permitted as long as it was, as here, accompanied by the appropriate instruction 

to the jury and sanitized. We "assume[ the jury] follow[ed] the instruction and 

use[d] the information for the limited purpose . . . and not for propensity." State 

v. Outland, 458 N.J. Super. 357, 372-73 (App. Div.) (citing State v. Marshall, 

173 N.J. 343, 355 (2002)), certif. denied, 239 N.J. 503 (2019).

III.

We turn next to defendant's contention that the admission of expert 

testimony about CSAAS, over defendant's objection, was improper. We agree,

but find the error to be harmless. 

A.

At trial, Dr. D'Urso was qualified as an expert witness on CSAAS and 

testified consistent with his pretrial testimony at the Rule 104 hearing. Dr. 

D'Urso explained the five characteristics of CSAAS as well as delayed 

disclosure, stating there was no credible study in the world that had concluded 

children disclosed their abuse after the first incident of abuse. When Dr. D'Urso 

was presented with a hypothetical about a child who disclosed sexual abuse to 
27 A-3476-16T4

an adult, where the adult did not believe the child, he testified that such a 

situation could foster delayed disclosure, recantation, or it could result in the 

child disclosing the abuse, but then never discussed it again in his testimony. 

Prior to Dr. D'Urso's testimony, and later in its final instructions, the trial 

court instructed the jury, in accordance with the Model Jury Charges, that it 

could not consider the doctor's testimony for the purpose of determining whether 

defendant sexually assaulted J.R. and K.R. The court instructed that the expert 

testimony about CSAAS was to be used, not as a diagnostic device, but for 

purposes of providing them with general knowledge about delayed disclosure 

and to explain behavior of children who were sexually abused. Further, the court 

instructed the jurors that they "may or may not conclude that [the victims']

testimony is untruthful based only [on J.R.'s and K.R.'s] silence and delayed 

disclosure." Finally, the court instructed the jury it "may not consider that 

[expert] testimony as proving in and of itself that J.R. or K.R., . . . were or were 

not truthful." 

B.

CSAAS is a syndrome "identified [by] five categories of behavior that 

were reportedly common in victims of child sexual abuse: secrecy; 

helplessness; entrapment and accommodation; delayed, conflicted, 
28 A-3476-16T4

unconvincing disclosure; and retraction." J.L.G., 234 N.J. at 271. "Courts 

across the nation" had allowed "experts to testify about the syndrome in criminal 

sex abuse trials. In 1993, th[e] Court found that CSAAS evidence was 

sufficiently reliable to be admitted." Ibid.

During the pendency of this appeal, our Supreme Court issued its opinion 

in J.L.G., which partially overturned its earlier holdings that permitted expert 

testimony about CSAAS. In J.L.G., the Court stated the following: 

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. In particular, the State must show that 

the evidence is beyond the understanding of the average 

juror.

[Id. at 272 (citation omitted).]

The J.L.G. Court noted that admissibility of CSAAS expert testimony on 

the delayed disclosure aspect of the syndrome "will turn on the facts of each 

case." Ibid. When a victim gives "straightforward reasons about why [he or] 
29 A-3476-16T4

she delayed reporting abuse, the jury [does] not need help from an expert to 

evaluate [his or] her explanation. However, if a child cannot offer a rational 

explanation, expert testimony may help the jury understand the witness's 

behavior." Ibid. 

J.L.G. permits expert testimony about delayed disclosure or causes for 

delayed disclosure. However, "[t]he testimony should not stray from explaining 

that delayed disclosure commonly occurs among victims of child sexual abuse,

and offering a basis for that conclusion." Id. at 303. For example, we have 

found, under J.L.G., it is improper for a CSAAS expert to testify that the five 

CSAAS categories of behavior "may be behaviors exhibited by a truthful child 

sex abuse victim." State v. G.E.P., 458 N.J. Super. 436, 450 (App. Div.), certif. 

granted, 239 N.J. 598 (2019). However, even if improperly admitted, 

admissibility of CSAAS expert testimony may be harmless "in light of the 

overwhelming evidence of [a] defendant's guilt." J.L.G., 234 N.J. at 306.

Although the Court in J.L.G. did not indicate whether its holding applied 

retroactively, in G.E.P., we concluded that the holding "should be given at least 

pipeline retroactivity," rendering it applicable to all cases in which the parties 

have not exhausted all avenues of direct review when the Court issued its 

opinion. G.E.P., 458 N.J. Super. at 448. We therefore conclude here that the 
30 A-3476-16T4

Court's holding in J.L.G. is applicable to defendant as his appeal was pending 

when J.L.G. was decided. 

Turning to defendant's argument, we initially note that this was not a case 

that turned on either victims' failure to report abuse. K.R. disclosed to J.R., and 

a friend, the one time she was victimized and explained she did not tell her 

mother because J.R. told her their mother would not believe her. J.R. explained

she did not disclose her abuse because defendant told her he would go to jail, 

that her mother would not believe her, and that it would harm or break up the 

family. These explanations were not beyond the ken of an average juror. See

J.L.G., 234 N.J. at 305 ("[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."). Even if either victim had not provided an explanation, Dr. 

D'Urso's testimony strayed beyond the limits of "explaining that delayed 

disclosure commonly occurs among victims of child sexual abuse, and offering 

a basis for that conclusion." Id. at 303. Not only did Dr. D'Urso testify in detail 

about the five categories of CSAAS behavior, separate from delayed disclosure 

and its causes, he testified that children often exhibit "piecemeal disclosure," 

wherein they disclose different elements of the abuse to different professionals 

depending on a given professional's role. Moreover, Dr. D'Urso testified as to 
31 A-3476-16T4

why a child would disclose their abuse after the first incident of abuse, stating 

that "[s]ome kids are better at self-protection than others." 

While we conclude it was an error to admit the CSAAS testimony, we find 

the error to have been harmless. "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 otherwise might not have reached.'" Id. at 306 (quoting State v. 

Macon, 57 N.J. 325, 335-36 (1971)). 

Our conclusion is based upon the overwhelming evidence of defendant's

guilt considered by the jury before reaching its verdict. J.R., K.R., and 

defendant all testified that he would sit on the couch with them while they would 

watch television. Defendant stated he would give the girls massages all the time. 

He stated he would massage them in tender areas, such as their lower back, hip, 

and thigh. K.R. testified that before the girls left for the prosecutor's office, 

defendant told her he was sorry and that "it won't happen again." Both J.R. and 

K.R. testified that defendant told them not to disclose their abuse because any 

disclosure would destroy their family dynamic. J.R. testified that she was 

digitally penetrated on multiple occasions after she had been abused numerous 

times throughout the summer 2012. She testified that she did not want to 
32 A-3476-16T4

disclose her abuse to her mother because she was afraid her mother would not 

believe her and knew that defendant made her mother happy. Moreover, B.G.'s 

testimony about defendant touching her while other people were home, in the 

same fashion he did with K.R. and J.R., and telling her why she should not 

disclose to others, rebutted defendant's testimony that he never assaulted anyone 

and that he could not have committed the crimes because other people were in 

the house. 

Under these circumstances, the admission of the CSAAS testimony was an 

error, we find no harmful error warranting a reversal of defendant's conviction.

IV.

Finally, we consider defendant's argument that his sentence to an 

aggregate custodial term of forty-five years with a minimum of thirty-seven 

years, fifteen months, and five days of parole ineligibility was excessive as he 

was a first-time offender. We find no merit to this contention. 

A.

At sentencing, the trial court considered the statutory aggravating and 

mitigating factors before imposing sentences on each count. The court stated 

aggravating factor one, the "nature and circumstances of the offense," N.J.S.A.

2C:44-1(a)(1), was inapplicable because the age of the victim was already what 
33 A-3476-16T4

made the defendant's crime a first-degree offense. It found aggravating factor 

two, "[t]he gravity and seriousness of harm inflicted on the victim," N.J.S.A. 

2C:44-1(a)(2), applied to counts one, two, and seven because defendant 

manipulated the victims into not disclosing his assaults, knowing that his victims 

cared for their family. The court also found aggravating factor three, "[t]he risk 

that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), applied 

because defendant committed multiple offenses against different victims, and 

because his psychological report5 noted he was at high risk to commit another 

offense. It also found that aggravating factor four, "defendant took advantage 

of a position of trust or confidence," N.J.S.A. 2C:44-1(a)(4), applied only to 

counts one and seven to avoid double counting because defendant took 

advantage of a position of trust by telling the victims the family would be 

destroyed if they disclosed anything. Last, given defendant's "consistent denial 

of involvement and lack of remorse," the judge found aggravating factor nine , 

"[t]he need for deterring the defendant," N.J.S.A. 2C:44-1(a)(9), applied to deter 

him from violating the law. The only mitigating factor the judge found was 

factor seven, whether defendant previously led a law-abiding life, N.J.S.A. 

5 The full psychological report is not contained in the record, though some 

excerpts are contained in the adult presentence report.
34 A-3476-16T4

2C:44-1(b)(7), as defendant only had one misdemeanor prior to the current 

offenses. 

After weighing the aggravating and mitigating factors, the trial court was 

"clearly convinced" that the aggravating factors substantially outweighed the 

mitigating factors. It also determined that parole ineligibility periods applied 

under N.J.S.A. 2C:14-2 and NERA, N.J.S.A. 2C:43-7.2, and that consecutive 

sentences were warranted. 

The trial court found consecutive sentences were appropriate, given that 

defendant engaged in a pattern of behavior amounting to a series of separate 

offenses. The judge found there were two victims and the crimes committed on 

each were separate, independent acts of sexual assault as they were committed 

at different times and places. Even though defendant's ultimate goal may have 

been the same as to each victim, the court did not consider them as part of a 

single period of abhorrent behavior. 

B.

We review sentencing decisions under an abuse of discretion standard. 

State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 

503, 512 (1979)); see also State v. Fuentes, 217 N.J. 57, 70 (2014) ("Appellate 

courts review sentencing determinations in accordance with a deferential 
35 A-3476-16T4

standard. The reviewing court must not substitute its judgment for that of the 

sentencing court."). We will affirm a trial court's sentence unless:

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 

of the guidelines to the facts of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience." 

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting 

State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Trial courts have broad sentencing discretion as long as the sentence fits 

within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). 

They must identify and consider "any relevant aggravating and mitigating 

factors," State v. Case, 220 N.J. 49, 64 (2014), that "are called to the court's 

attention," ibid., (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)), and 

"explain how they arrived at a particular sentence," id., at 65 (2014).

In determining whether to impose a consecutive sentence, the judge 

undertook the analysis required by State v. Yarbough, 100 N.J. 627, 643-44 

(1985). There, the Court set forth the following criteria for determining whether 

to impose concurrent or consecutive sentences: 

(1) there can be no free crimes in a system for which 

the punishment shall fit the crime; 
36 A-3476-16T4

(2) the reasons for imposing either a consecutive or 

concurrent sentence should be separately stated in the 

sentencing decision; 

(3) some reasons to be considered by the sentencing 

court should include facts relating to the crimes, 

including whether or not: 

(a) the crimes and their objectives were 

predominantly independent of each other; 

(b) the crimes involved separate acts of violence 

or threats of violence; 

(c) the crimes were committed at different times 

or separate places, rather than being committed so 

closely in time and place as to indicate a single period 

of aberrant behavior; 

(d) any of the crimes involved multiple victims; 

(e) the convictions for which the sentences are to 

be imposed are numerous; 

(4) there should be no double counting of aggravating 

factors; 

(5) successive terms for the same offense should not 

ordinarily be equal to the punishment for the first 

offense; and 

(6) there should be an overall outer limit on the 

cumulation of consecutive sentences for multiple 

offenses not to exceed the sum of the longest terms 

(including an extended term, if eligible) that could be 

imposed for the two most serious offenses.

[Ibid. (footnote omitted).] 
37 A-3476-16T4

Applying these controlling principles, we conclude the trial court did not 

abuse its discretion in sentencing defendant. Although his sentence was lengthy, 

the court properly performed a qualitative analysis of the applicable aggravating 

and mitigating factors. It adequately explained its reasons for finding each 

factor, and appropriately considered the nature of each of defendant's offenses 

and the effects his conduct has had on the victims. Moreover, the court's 

imposition of consecutive terms, considering the multiple victims, was 

consistent with Yarbough. Given the broad discretion trial judges have in 

fashioning sentences, the judge's aggravating and mitigating factors were 

supported by credible evidence, and the sentence does not shock the judicial 

conscience. 

Affirmed.