STATE OF NEW JERSEY VS. J.A.M. (14-01-0016, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 10, 2020
• Docket: A-3645-17T4
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3645-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.A.M.,1

Defendant-Appellant. _______________________

Submitted October 27, 2020 – Decided November 10, 2020

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-01-0016.

Dunne, Dunne & Cohen, LLC, attorneys for appellant (F.R. Chip Dunne, III, on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

1 We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9). Defendant was charged and convicted by a jury of first-degree aggravated

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

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

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

concurrent terms on those other offenses that did not merge.

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

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

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

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

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

comments abouts the first and second points.

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

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

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

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

We need not go into the specifics.

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

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

with background about how authorities came to investigate the matter. The

A-3645-17T4 2 guidance counselor said – without revealing the content of things she was told

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

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

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

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

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

the others had said.

Throughout the direct examination, the State elicited from the guidance

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

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

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

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

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

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

during direct examination to blurt out any hearsay statements.

When cross-examination commenced, defense counsel immediately posed

the following question:

Based on your conversation with [the victim] that you just testified to, were you led to believe that she was just telling you about one incident –

A-3645-17T4 3 Before defense counsel could reach the question's end, the State objected.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

stand after the victim testified.

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

guidance counselor to the stand and posed the same question the judge had not

A-3645-17T4 4 permitted earlier. At that time, defense counsel questioned the guidance

counselor further at length and without limitation.

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

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

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

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

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

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

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

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

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

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

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

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

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

Affirmed.

A-3645-17T4 5