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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4915-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.R.,
Defendant-Appellant.
Submitted October 7, 2020 – Decided July 1, 2021
Before Judges Ostrer and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-09-1556.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM Defendant J.R. 1 appeals from the denial of his petition for post-conviction
relief (PCR), contending he established a prima facie case of ineffective
assistance of counsel requiring an evidentiary hearing. Because the trial judge
correctly determined the evidence insufficient to sustain defendant's burden, we
affirm.
A jury convicted defendant of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a); second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and fourth-
degree child abuse, N.J.S.A. 9:6-1 and 9:6-3, against the daughter of his step-
son. State v. J.R., 227 N.J. 393, 403 (2017). The offenses occurred when the
child was between ten- and twelve-years-old. Ibid. The child confided in her
slightly-older brothers that "grandpa" was touching her, and one of them
eventually told their mother, prompting defendant's arrest. Ibid.
At trial, the State presented the testimony of an expert in Child Sexual
Abuse Accommodation Syndrome (CSAAS) to explain the child's delay in
reporting the abuse. Defendant had tried to block that testimony, but the trial
court denied his pre-trial motion to exclude it. On direct appeal, we determined
1 We use defendant's initials to protect the privacy of the minor victim. See R. 1:38-3(c)(9).
2 A-4915-18 the testimony exceeded the permissible bounds of CSAAS testimony, and
because the case turned almost exclusively on the credibility of the minor victim,
found the error could not be dismissed as harmless. Id. at 407.
The Supreme Court reversed. Id. at 400. Although agreeing with us that
the CSAAS testimony "did not entirely conform to the limitations placed on
CSAAS evidence" in the Court's prior holdings, it deemed the error harmless in
light of the victim's "compelling testimony" and the State's impeachment of
defendant's credibility on cross-examination. Ibid. Further, although signaling
its willingness to consider the argument raised by the Office of the Public
Defender appearing as amicus curiae — that CSAAS evidence is demonstrably
unreliable and thus inadmissible under N.J.R.E. 702 — it declined to do so in
this case, explaining that an amicus must accept the case as framed by the
parties. J.R., 227 N.J. at 421. Because defendant had not raised the issue, the
Court determined it must await the day when a defendant raises the issue in the
trial court, which would then "be in a position to hold a pretrial hearing pursuant
to N.J.R.E. 104, consider the scientific evidence presented by both sides, and
generate an appropriate record for appellate review." Ibid.
The Court remanded the case to us to consider defendant's remaining
arguments — that the court erred in admitting the victim's hearsay statements to
3 A-4915-18 the State's medical expert; in failing "to conduct voir dire or investigate an
irregularity involving a minor"; and in denying defendant's motion for a new
trial; that prosecutorial misconduct required the convictions be reversed; that he
was entitled to a reversal based on the ineffective assistance of his trial counsel;
that the effects of Superstorm Sandy were extraordinary and warranted a
mistrial; and that the trial court's improper sentencing analysis resulted in the
"imposition of a manifestly excessive sentence." State v. J.R., No. A-6236-12
(App. Div. Aug. 29, 2017) (slip op. at 2).
We considered those arguments and affirmed defendant's conviction and
sentence. Id. at 16-17. Although recognizing the "equivocal" nature of why the
victim was referred to the State's medical expert, which would impact the
admissibility of the statements, see State v. Pillar, 359 N.J. Super. 249, 289
(App. Div. 2003), we deemed any error in admitting the child's hearsay
statements harmless in light of "the consistent and compelling testimony of the
victim, in contrast to the credibility issues that plagued defendant." J.R., slip
op. at 10-11. We likewise rejected defendant's argument that the prosecutor's
misconduct deprived him of a fair trial, concluding that "considered in the
context of all of the State's evidence, and particularly in light of the victim's
credibility, the prosecutor's conduct did not 'substantially prejudice[]
4 A-4915-18 defendant's fundamental right to have a jury fairly evaluate the merits of [the]
defense.'" J.R., slip op. at 12 (quoting State v. Timmendequas, 161 N.J. 515,
575, cert. denied, 534 U.S. 858 (2001)).
We rejected as without merit defendant's remaining claims as to his
conviction, and found the trial court did not abuse its authority in imposing
sentence. Id. at 12-16. We declined to consider his ineffective assistance claims
on direct appeal. J.R., slip op. at 12; see State v. Preciose, 129 N.J. 451, 460
(1992). Following our decision on remand affirming defendant's conviction and
sentence, the Supreme Court denied his petition for certification. State v. J.R.,
232 N.J. 305 (2018).
Defendant filed a timely petition for PCR, asserting his trial counsel's
hearing impairment caused her to either miss or misinterpret critical testimony
and argument by the State; that she unreasonably failed to challenge the
reliability of CSAAS testimony under N.J.R.E. 702; failed to correct the false
impression created by the prosecutor that defendant had denied to police that the
victim ever stayed overnight at his home when his statement proves he told
police she had stayed overnight on occasion; failed to confront the victim on
cross-examination with an inconsistency in her fresh complaint testimony; failed
to give an effective summation; and recast the claims raised on direct appeal
5 A-4915-18 about the State's medical expert; the effect of Superstorm Sandy on the trial and
the "irregularity" of the minor victim's contact with a juror as ineffective
assistance of both trial and appellate counsel.
In a cogent and comprehensive opinion, Judge Venable addressed and
rejected each and every one of those arguments under the Strickland 2 standard.
The judge found no basis for trial counsel to have anticipated that the Supreme
Court — six years after defendant's trial — would hold in State v. J.L.G., 234
N.J. 265, 272 (2018), "that expert testimony about CSAAS in general, and its
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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-4915-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.R.,
Defendant-Appellant.
Submitted October 7, 2020 – Decided July 1, 2021
Before Judges Ostrer and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-09-1556.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM Defendant J.R. 1 appeals from the denial of his petition for post-conviction
relief (PCR), contending he established a prima facie case of ineffective
assistance of counsel requiring an evidentiary hearing. Because the trial judge
correctly determined the evidence insufficient to sustain defendant's burden, we
affirm.
A jury convicted defendant of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a); second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and fourth-
degree child abuse, N.J.S.A. 9:6-1 and 9:6-3, against the daughter of his step-
son. State v. J.R., 227 N.J. 393, 403 (2017). The offenses occurred when the
child was between ten- and twelve-years-old. Ibid. The child confided in her
slightly-older brothers that "grandpa" was touching her, and one of them
eventually told their mother, prompting defendant's arrest. Ibid.
At trial, the State presented the testimony of an expert in Child Sexual
Abuse Accommodation Syndrome (CSAAS) to explain the child's delay in
reporting the abuse. Defendant had tried to block that testimony, but the trial
court denied his pre-trial motion to exclude it. On direct appeal, we determined
1 We use defendant's initials to protect the privacy of the minor victim. See R. 1:38-3(c)(9).
2 A-4915-18 the testimony exceeded the permissible bounds of CSAAS testimony, and
because the case turned almost exclusively on the credibility of the minor victim,
found the error could not be dismissed as harmless. Id. at 407.
The Supreme Court reversed. Id. at 400. Although agreeing with us that
the CSAAS testimony "did not entirely conform to the limitations placed on
CSAAS evidence" in the Court's prior holdings, it deemed the error harmless in
light of the victim's "compelling testimony" and the State's impeachment of
defendant's credibility on cross-examination. Ibid. Further, although signaling
its willingness to consider the argument raised by the Office of the Public
Defender appearing as amicus curiae — that CSAAS evidence is demonstrably
unreliable and thus inadmissible under N.J.R.E. 702 — it declined to do so in
this case, explaining that an amicus must accept the case as framed by the
parties. J.R., 227 N.J. at 421. Because defendant had not raised the issue, the
Court determined it must await the day when a defendant raises the issue in the
trial court, which would then "be in a position to hold a pretrial hearing pursuant
to N.J.R.E. 104, consider the scientific evidence presented by both sides, and
generate an appropriate record for appellate review." Ibid.
The Court remanded the case to us to consider defendant's remaining
arguments — that the court erred in admitting the victim's hearsay statements to
3 A-4915-18 the State's medical expert; in failing "to conduct voir dire or investigate an
irregularity involving a minor"; and in denying defendant's motion for a new
trial; that prosecutorial misconduct required the convictions be reversed; that he
was entitled to a reversal based on the ineffective assistance of his trial counsel;
that the effects of Superstorm Sandy were extraordinary and warranted a
mistrial; and that the trial court's improper sentencing analysis resulted in the
"imposition of a manifestly excessive sentence." State v. J.R., No. A-6236-12
(App. Div. Aug. 29, 2017) (slip op. at 2).
We considered those arguments and affirmed defendant's conviction and
sentence. Id. at 16-17. Although recognizing the "equivocal" nature of why the
victim was referred to the State's medical expert, which would impact the
admissibility of the statements, see State v. Pillar, 359 N.J. Super. 249, 289
(App. Div. 2003), we deemed any error in admitting the child's hearsay
statements harmless in light of "the consistent and compelling testimony of the
victim, in contrast to the credibility issues that plagued defendant." J.R., slip
op. at 10-11. We likewise rejected defendant's argument that the prosecutor's
misconduct deprived him of a fair trial, concluding that "considered in the
context of all of the State's evidence, and particularly in light of the victim's
credibility, the prosecutor's conduct did not 'substantially prejudice[]
4 A-4915-18 defendant's fundamental right to have a jury fairly evaluate the merits of [the]
defense.'" J.R., slip op. at 12 (quoting State v. Timmendequas, 161 N.J. 515,
575, cert. denied, 534 U.S. 858 (2001)).
We rejected as without merit defendant's remaining claims as to his
conviction, and found the trial court did not abuse its authority in imposing
sentence. Id. at 12-16. We declined to consider his ineffective assistance claims
on direct appeal. J.R., slip op. at 12; see State v. Preciose, 129 N.J. 451, 460
(1992). Following our decision on remand affirming defendant's conviction and
sentence, the Supreme Court denied his petition for certification. State v. J.R.,
232 N.J. 305 (2018).
Defendant filed a timely petition for PCR, asserting his trial counsel's
hearing impairment caused her to either miss or misinterpret critical testimony
and argument by the State; that she unreasonably failed to challenge the
reliability of CSAAS testimony under N.J.R.E. 702; failed to correct the false
impression created by the prosecutor that defendant had denied to police that the
victim ever stayed overnight at his home when his statement proves he told
police she had stayed overnight on occasion; failed to confront the victim on
cross-examination with an inconsistency in her fresh complaint testimony; failed
to give an effective summation; and recast the claims raised on direct appeal
5 A-4915-18 about the State's medical expert; the effect of Superstorm Sandy on the trial and
the "irregularity" of the minor victim's contact with a juror as ineffective
assistance of both trial and appellate counsel.
In a cogent and comprehensive opinion, Judge Venable addressed and
rejected each and every one of those arguments under the Strickland 2 standard.
The judge found no basis for trial counsel to have anticipated that the Supreme
Court — six years after defendant's trial — would hold in State v. J.L.G., 234
N.J. 265, 272 (2018), "that expert testimony about CSAAS in general, and its
component behaviors other than delayed disclosure, may no longer be admitted
at criminal trials," or that the opinion would be accorded pipeline retroactivity
in State v. G.E.P., 243 N.J. 362, 370 (2020). Beyond finding that trial counsel
could not be deemed ineffective for not raising a direct challenge to CSAAS
testimony, the judge noted it would have not made any difference if she had
mounted that challenge in light of the Court's unequivocal conclusion in this
case that "the CSAAS expert's improper statements were not clearly capable of
producing an unjust result and do not warrant a new trial." J.R., 227 N.J. at 400;
see G.E.P., 243 N.J. at 370 (declining to reverse G.E.P.'s convictions,
2 Strickland v. Washington, 466 U.S. 668, 693-94 (1984).
6 A-4915-18 notwithstanding pipeline retroactivity, deeming the CSAAS testimony in his
case harmless error).
Judge Venable found defendant's claims with regard to the State's medical
expert, the irregularity involving a juror and the delay in the trial caused by
Superstorm Sandy not properly before the court as they were raised and decided
on direct appeal. See R. 3:22-4. The judge also found defendant failed to
identify any instance in which the court could find his counsel's hearing
impairment amounted to deficient performance or caused him any prejudice. As
to defendant's remaining claims about his counsel's alleged deficient
performance, the judge found defendant failed to establish that any, either
individually or in the aggregate, substantially affected his chance of conviction.
Overarchingly, Judge Venable did not find that defendant's "new claims . . . are
sufficient to upset the Supreme Court's calculation of the parties' credibility, or
the balance of the evidence evaluated by the Appellate Division and Supreme
Court on direct appeal."
We reject defendant's claim that the trial court erred in denying his
petition without an evidentiary hearing, and affirm, essentially for the reasons
expressed in Judge Venable's June 26, 2019 written opinion. We have nothing
to add to her meticulous analysis of the issues.
7 A-4915-18 Affirmed.
8 A-4915-18