                                NOT FOR PUBLICATION WITHOUT THE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-3631-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN L. GANIEL, a/k/a
PIP E. EANIEL, STEVEN
L. EANIEL, NAZ GANIEL
and PUPPY GANIEL,

     Defendant-Appellant.
___________________________

                    Submitted October 30, 2018 – Decided March 20, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 15-09-2350.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Deputy Public Defender II,
                    of counsel and on the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Dylan P. Thompson, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Steven L. Ganiel appeals from the Law Division's judgment of

conviction that was entered after a jury found him guilty of third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(7). After his conviction, the trial court sentenced

defendant in the extended term to fifty-four months with a twenty-seven month

period of parole ineligibility to be served consecutive to a term he was then serving

on parole for a prior offense.

      Defendant's conviction arose from a domestic violence incident involving his

girlfriend, A.D., who reported to the local police that defendant had assaulted and

injured her. In his statement to police, defendant did not deny injuring A.D., but

contented that he did so during a physical altercation while acting in self-defense.

      On appeal, defendant argues that various trial errors undermined his ability to

establish his claim of self-defense. For example, he claims that while he never

disputed causing some of A.D.'s injuries, the jury may have been misled into

thinking he caused all of them because he was denied his constitutional right to

confront his accuser at trial when a police officer was permitted to testify about

A.D.'s allegations even though A.D. did not appear as a witness. He also contends

that the trial court improperly allowed a police officer to offer expert testimony about

A.D.'s injuries being caused by a weapon, which challenged his claim that he used


                                                                               A-3631-16T4
                                           2
reasonable force in self-defense. In addition, he argues that he was denied his

constitutional right to present a complete defense because he was not permitted to

explore A.D.'s mental health history, which would have demonstrated many of her

injuries were self-inflicted. According to defendant, the cumulative impact of all of

the trial court's errors denied him a fair trial. In his challenge to his sentence,

defendant argues that his sentence is illegal because the trial court imposed a

consecutive term to a violation of his parole that had not yet occurred. For the

reasons that follow, we affirm.

                                         I.

      The facts established in the record are summarized as follows. On July

12, 2015, Egg Harbor Township Police Officer Jennifer Hurley responded to a

domestic violence call from A.D. who reported that defendant had been physically

abusing her since July 10, 2015. When the police responded to defendant and A.D.'s

residence, A.D. was present but defendant had left the apartment to go to the

laundromat. Some of A.D's injuries, including bruises to both of her eyes, were

immediately apparent to the responding officers. Hurley asked A.D. to remove her

top layer of clothing and observed that A.D. had additional bruises up and down her

arms as well as cuts on her left arm. When questioned, A.D. admitted that the cuts

were self-inflicted. She explained that despite defendant continuously physically


                                                                             A-3631-16T4
                                         3
abusing her over the past two days, she did not seek a restraining order against him

and that he was on parole.

       The police transported A.D. to a regional medical center. A.D. advised a

treating nurse that in addition to being physically abused, defendant had sexually

assaulted her. A.D. requested that a sexual assault kit be completed but afterwards

she clarified that she was not raped, but defendant had been aggressive during

consensual sex. The attending medical staff sent A.D. for a CT scan because she

claimed that defendant banged her head on the floor and kicked her in the chest.

Also, during her medical assessment, A.D. stated that she wanted to end her life.

She also told the nurse that she had severe depression and was dependent on

medication, but because defendant removed the medicine from their home, she had

not taken it for several days.

       While A.D. was being attended to at the medical center, Officer David

Aldridge went to the laundromat to apprehend defendant. At the police station,

defendant was advised of his Miranda1 rights and then interviewed.            When

questioned about the events of July 10, 2015, he explained that he and A.D. had an

argument and that A.D. was drinking and assaulted him with an X-Acto knife,

stabbing him in the left hand. He said that he grabbed her by the wrists and hit her


1
    Miranda v. Arizona, 384 U.S. 463 (1966).
                                                                            A-3631-16T4
                                         4
on the right side of the face with an open hand. A.D. told him that she was going to

"Lorena Bobbitt" him and then grabbed his genitals along with another knife.

Defendant stated that he grabbed her to avoid getting stabbed and hit her on the left

side of her face with an open hand, ultimately placing her in a bear hug and throwing

her to the ground in self-defense. He said that he left the apartment to get away from

her.

       Defendant stated he returned to the residence a few hours later and went to

sleep, until A.D. began to beat him with a phone. Defendant again left the home,

but later returned after he spoke with A.D. and she begged him to come back. At

home, he and A.D. had sex and went to sleep. Upon waking, defendant went to the

laundromat to do laundry, which was why he was not in the apartment when the

police arrived. Defendant also reported that alcohol and A.D.'s mental illness were

the most significant contributing factors to the incidents.

  On September 30, 2015, a grand jury returned an indictment charging defendant

with one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

Defendant's ensuing trial took place over three days in October 2016.

  After initially conducting a pre-trial Rule 104 hearing, the trial court denied the

State's application to admit the tape of A.D.'s 911 call as an a statement of "present

sense impression," under Rule 803(c)(1), or an "excited utterance," under Rule


                                                                              A-3631-16T4
                                          5
803(c)(2). It granted the State's motion to prevent defendant from offering evidence

relating to A.D.'s "mental stability as there[ was] no doctor on the witness list to

testify to any type of limitation [A.D.] may have." However, the court stated that it

would allow cross-examination about A.D.'s mental condition and her medications

to determine their impact on her ability "to answer and understand questions and her

state of mind then and now . . . ."

    The court also denied defendant's application to admit an affidavit from A.D.,

attesting to her self-harm and easy bruising.2 The court found that the affidavit

"ha[d] all the earmarks of deliberation and fabrication, where the declarant has

apparently made excuses or explanations of self-mutilation, self-abuse and easily

bruised based on medication, all of those appear to be facile explanations for what

may be very simply a domestic event resulting in her injury." It ruled that if A.D.

took "the stand, . . . she c[ould] be confronted with her statements made to the 911

dispatcher and the jury may take from that what it may choose to . . . ."

    At the end of the hearing, the parties advised the court that despite their efforts to

subpoena A.D. to testify, she would not appear for trial. The trial court issued an

order for A.D.'s arrest so that she could be compelled to appear. Despite that order,

A.D. did not testify at the trial.


2
    We have not been supplied with a copy of the affidavit.
                                                                                 A-3631-16T4
                                             6
      At trial, Hurley and Aldridge testified for the State about the events that led

to defendant's arrest and the charge made against him. During Aldridge's testimony,

the State played the audio tape of his interview of defendant, in which defendant

explained how he acted in self-defense and, in doing so, caused injuries to A.D. The

State also called Lieutenant Dylan Hutton who explained he obtained consent from

defendant to go back to the apartment to locate the weapon allegedly used by A.D.

against him. During his conversation with defendant, Hutton did not observe any

facial or neck injuries sustained by defendant, but did notice injuries to his hand,

though they did not look fresh.

      The State's final witness was Dr. Eva Guerrieri, the attending physician in the

emergency room who examined A.D. on July 12, 2015. Before she testified, the trial

court granted the State's motion to bar defendant from cross-examining Guerrieri

about A.D.'s "psychiatric issues." In granting the motion, the trial court stated it

would not allow questions "relative to any diagnosis of mental health," but it would

allow cross-examination about the doctor's knowledge of what medications A.D.

was taking and whether they impacted A.D.'s ability to "understand the course of

treatment" she was receiving or "why she was there."

      During her testimony, Guerrieri testified that she ordered a CT scan since it

looked like A.D. was struck in the face with force. She also had bruising over her


                                                                             A-3631-16T4
                                         7
legs, chest, and arms as well as "superficial scratches." She asked A.D. how she

obtained the injuries and was told that defendant had caused them over the course of

three days except for "the older healed injuries, the cuts and bruises," which A.D.

"revealed" were caused by her cutting herself in the past. Guerrieri also testified that

she ran blood and urine tests, which showed that A.D. had alcohol, benzodiazepine,3

opiates, and marijuana in her system. When defense counsel attempted to cross-

examine Guerrieri and establish a connection between A.D.'s mental health and her

injuries, the trial court barred the examination as beyond the scope of the State's

direct, but it allowed defense counsel to question her about whether any of A.D.'s

injuries were self-inflicted.

        Defendant did not testify but called R.M., A.D.'s mother, as a witness. She

testified that she saw A.D. on July 9, 2015, and that A.D. had bruising around her

eyes. She also stated that she only saw whatever injuries were present in text

message photos that A.D. sent her after July 12, 2015, and that A.D. "always had

bruising on her arms and part of her legs," which was the result of A.D. being

clumsy.

        Following deliberations, the jury found defendant guilty of the one count

of aggravated assault as charged in the indictment. On February 24, 2017, the trial


3
    A.D. indicated that she had been prescribed Xanax on her list of medications.
                                                                               A-3631-16T4
                                           8
court sentenced defendant. In imposing a sentence consecutive to the one he was

serving on parole, the court stated it did so because "[t]his offense occurred in a

separate place and time and was not in any way connected with the gravamen of the

offenses for which defendant is presently serving parole." This appeal followed.

                                            II.

      On appeal, defendant specifically argues the following points:

            POINT I

            DEFENDANT      WAS       DENIED    HIS
            CONSTITUTIONAL RIGHT TO CONFRONT HIS
            ACCUSER BY THE INVESTIGATING OFFICER'S
            HEARSAY REPETITION OF THE VICTIM'S
            ACCUSATION. (NOT RAISED BELOW).

            POINT II

            DEFENDANT       WAS       DENIED    HIS
            CONSTITUTIONAL RIGHTS TO DUE PROCESS
            AND A FAIR TRIAL BY THE INTRODUCTION OF
            EXPERT TESTIMONY THROUGH A LAY
            WITNESS WHO OPINED THAT THE VICTIM'S
            INJURIES WERE CAUSED BY A WEAPON. (NOT
            RAISED BELOW).

            POINT III

            DEFENDANT     WAS      DENIED     HIS
            CONSTITUTIONAL RIGHTS TO PRESENT A
            COMPLETE DEFENSE BY THE TRIAL COURT'S
            RULING THAT LIMITED HIS ABILITY TO
            EXPLORE THE VICTIM'S MENTAL HEALTH,
            WHICH WOULD HAVE DEMONSTRATED THAT

                                                                           A-3631-16T4
                                        9
            MANY OF HER INJURIES WERE SELF-
            INFLICTED, LENDING CREDENCE TO THE ONLY
            PROFFERED DEFENSE; SELF-DEFENSE.

            POINT IV

            THE CUMULATIVE IMPACT OF THE TRIAL
            ERRORS DENIED DEFENDANT DUE PROCESS
            AND A FAIR TRIAL. (NOT RAISED BELOW).

            POINT V

            THE TRIAL JUDGE IMPOSED AN ILLEGAL
            SENTENCE WHEN HE IMPOSED A CUSTODIAL
            TERM    THAT    WAS   MADE   TO   RUN
            CONSECUTIVELY TO A SENTENCE FOR A
            VIOLATION    OF   MANDATORY    PAROLE
            SUPERVISION THAT HAD NOT YET BEEN
            IMPOSED. (NOT RAISED BELOW).

      As noted, defendant failed to raise with the trial court three of his four

contentions challenging his conviction. Accordingly, we review those issues for

plain error, which requires us to "disregard any unchallenged errors or omissions

unless they are 'clearly capable of producing an unjust result.'"       State v.

Santamaria, __ N.J. __, __ (2019) (slip op. at 13) (quoting R. 2:10-2). Regarding

defendant's contention in Point I, where his challenge implicates constitutional

questions under the Confrontation Clause, "the appropriate plain error

analysis . . . address[es] whether any constitutional error was harmless beyond

a reasonable doubt." State v. Basil, 202 N.J. 570, 615 n.5 (2010) (Rabner, C.J.,


                                                                         A-3631-16T4
                                      10
concurring in part and dissenting in part) (citations omitted); see also State ex

rel. J.A., 195 N.J. 324, 351 (2008); State v. Castagna, 187 N.J. 293, 312 (2006)

(quoting Chapman v. California, 386 U.S. 18 (1967)).

      As to the remaining argument directed toward his conviction, we apply

the harmless error standard. Under that standard, "even though an alleged error

was brought to the trial judge's attention, it will not be grounds for reversal if it

was 'harmless error[,]'" which is "[a]n error . . . [that is not] 'clearly capable of

producing an unjust result.'" State v. J.R., 227 N.J. 393, 417 (2017) (first

quoting State v. Macon, 57 N.J. 325, 337-38 (1971); and then quoting R. 2:10-

2). "An evidentiary error will not be found 'harmless' if there is a reasonable

doubt as to whether the error contributed to the verdict." Ibid. "The prospect

that the error gave rise to an unjust result 'must be real [and] sufficient to raise

a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might

not have reached.'" Ibid. (alterations in original) (quoting State v. Lazo, 209

N.J. 9, 26 (2012)).

      As to defendant's challenge to his sentence, "[w]e apply a deferential

standard of review to the sentencing court's determination, but not to [its]

interpretation of a law." State v. Bolvito, 217 N.J. 221, 228 (2014). Our "review

of sentencing decisions is relatively narrow and is governed by an abuse of


                                                                             A-3631-16T4
                                        11
discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). In our

review, we may not "substitute [our] judgment for those of our sentencing

courts." State v. Case, 220 N.J. 49, 65 (2014). We must, however, ensure that

the trial court followed the appropriate sentencing guidelines. We determine

whether the trial court: (1) exercised discretion that "was based upon findings

of fact grounded in competent, reasonably credible evidence"; (2) "applied the

correct legal principles in exercising its discretion"; and (3) applied the facts to

the law in a manner that demonstrates "such a clear error of [judgment] that it

shocks the conscience." State v. McDuffie, 450 N.J. Super. 554, 576 (App. Div.

2017) (quoting State v. Megargel, 143 N.J. 484, 493 (1996)).

                                             III.

      With these guiding principles in mind, we turn our attention first to

defendant's contention under Point I that his constitutional right to confront A.D.

was violated by the trial court allowing Hurley's unimpeachable hearsay

testimony that A.D. told her defendant caused A.D.'s injuries.          Testimony

concerning what A.D. said about her injuries arose for the first time during

defense counsel's cross-examination of Hurley when he asked the officer

"[b]esides the physical injuries, did the victim indicate any other unlawful

behavior by . . . defendant?" In response, Hurley stated that "[b]esides the


                                                                            A-3631-16T4
                                        12
physical," a nurse told Hurley that A.D. stated that she had been sexually

assaulted. The testimony being challenged by defendant on appeal came during

re-direct when Hurley stated that A.D. indicated to her that the bruises she saw

were caused by defendant.

      Defendant contends that because A.D. did not testify, "he could not probe

which injuries were self-inflicted and which were caused [in] the reasonable

application of defendant's defense of himself." He argues that despite his failure

to object, Hurley's testimony on re-direct should have been barred under the

Confrontation Clauses contained in both the Sixth Amendment of the Federal

Constitution and Article One, Section Ten of our State Constitution because they

prohibit testimony at trial about out-of-court testimonial statements by a person

who does not testify at trial, unless that person is unavailable and the defendant

had a prior opportunity to cross-examine him or her.

      Defendant argues that any statements made by A.D. in response to

Hurley's questioning should be considered testimonial since the primary purpose

was to investigate a possible crime and not to address an ongoing emergency.

He also argues that the statement was prejudicial because he "could not probe

[A.D.]'s veracity" as to which injuries were self-inflicted and which he caused

while defending himself.       As such, defendant maintains that the error


                                                                          A-3631-16T4
                                       13
contributed to the conviction and that he met the heavier plain error burden since

the inability to confront A.D. "unfairly undercut his only defense." We disagree.

      It is beyond cavil that the Sixth Amendment's Confrontation Clause,

which applies to the states by way of the Fourteenth Amendment, guarantees

that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be

confronted with the witnesses against him . . . ." U.S. Const. amend. VI. It bars

the admission of "'[t]estimonial statements of witnesses absent from trial' except

'where the declarant is unavailable, and only where the defendant had a prior

opportunity to cross-examine'" that witness. State v. Dehart, 430 N.J. Super.

108, 114 (App. Div. 2013) (quoting Crawford v. Washington, 541 U.S. 36, 59

(2004)). For that reason, when a testifying police officer repeats "what some

other person told him concerning the crime by the accused the testimony violates

the hearsay rule . . . [and] the accused's Sixth Amendment right to be confronted

by witnesses against him." State v. Bankston, 63 N.J. 263, 268-69 (1973). The

testimony is objectionable when it includes details that "leads the jury to believe

a non-testifying witness has given the police evidence of the accused's guilt,"

which the jury does not already have. Id. at 271.

      We conclude that to the extent that Hurley's description of what A.D. told

her about defendant causing her injuries was admitted in error, it was not plain


                                                                           A-3631-16T4
                                       14
error as there was other evidence that defendant caused at least some of the

injuries. That evidence came directly from defendant in his interview with

police, which was played for the jury and in which he admitted to striking A.D.

and causing the injuries to her head and face, albeit in self-defense, as compared

to the evidence of cutting on her arms that was undisputedly self-inflicted.

There was therefore never a dispute that defendant injured A.D. during their

physical altercation.    Under these circumstances, there was no plain error

warranting a reversal.

                                            IV.

      We next address defendant's argument in Point II that the trial court

improperly allowed Hurley to offer expert testimony about defendant's use of a

weapon.    The challenged testimony arose during the following exchange

between the prosecutor and Hurley during redirect examination:

            Q: Taking a look at the State's exhibits again, the
            photos that you took, to the best of your training and
            experience, could you tell the jury do the injuries
            appear to be inflicted by a weapon or something else?

            A: I'm not sure how I would determine if it was a
            weapon or not because hands can be used as a weapon,
            so I guess, yes, a weapon of some sort. There are cuts
            that are in a straight line, so one would assume that it
            would be a cutting instrument of some kind.

            Q: How about the bruising?

                                                                          A-3631-16T4
                                       15
            A: Some of them are round, which could possibly be a
            blunt object, some of them look like a hand print. I
            can't, I'm not an expert on bruises, but I would just, you
            know, assume that some type of weapon caused the
            injuries to her.

      According to defendant, although Hurley admitted to not being an expert,

her expert testimony struck a "severe, unfair blow to his claim of self-defense"

and even though he did not object to the testimony, his conviction should be

reversed because the error "was clearly capable" of undermining his only

defense.    Defendant maintains that Hurley's testimony contradicted his

statement to the police about striking A.D. with his hands and made it

"practically certain to disbelieve that he used reasonable force" while defending

himself if the jury believed Hurley's testimony that he used a weapon.

      Defendant also argues that Hurley's testimony went beyond permissible

lay testimony under Rule 701 and amounted to impermissible expert testimony

under Rule 702 because the jury was not capable of determining whether a

weapon was used without relying on expert testimony by a witness with

specialized knowledge of the subject. Again, we disagree.

      Contrary to defendant's contention, it is clear from Hurley's testimony that

she did not testify as an expert and only provided her lay opinion in response to

the prosecutor's question. Expert opinion testimony is allowed under Rule 702,

                                                                          A-3631-16T4
                                       16
only "[i]f scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, [and the]

witness [is] qualified as an expert by knowledge, skill, experience, training, or

education . . . ." N.J.R.E. 702. To satisfy Rule 702, the proponent of the expert

evidence must establish: "(1) the subject matter of the testimony . . . [is] 'beyond

the ken of the average juror'; (2) the field of inquiry 'must be . . . such that an

expert's testimony could be sufficiently reliable'; and (3) 'the witness must have

sufficient expertise to offer the' testimony." State v. J.L.G., 234 N.J. 265, 280

(2018) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).

      Lay opinion testimony is permitted under Rule 701 "[i]f a witness is not

testifying as an expert[ and] the witness's testimony in the form of opinions or

inferences . . . (a) is rationally based on the perception of the witness and (b)

will assist in understanding the witness'[s] testimony or in determining a fact in

issue." N.J.R.E. 701. "The witness's perception must 'rest[] on the acquisition

of knowledge through use of one's sense of touch, taste, sight, smell or hearing.'"

State v. Hyman, 451 N.J. Super. 429, 442 (App. Div. 2017) (alteration in

original) (quoting State v. McLean, 205 N.J. 438, 457 (2011)).




                                                                            A-3631-16T4
                                        17
      Police officers are permitted to testify as lay witnesses when opining

based on personal observations and experience. State v. LaBrutto, 114 N.J. 187,

198 (1989). The Court has observed that

            [a]lthough . . ., in explaining such lay opinion
            testimony, [we have] referred . . . to the officer's
            training and experience, . . . the analysis of
            admissibility has been, as it must be, firmly rooted in
            the personal observations and perceptions of the lay
            witness in the traditional meaning of Rule 701.

            [McLean, 205 N.J. at 459.]

      However, "reference in [a] question to [the officer's] training and

experience, coupled with the request that [the officer] testify about his [or her]

belief as to what had happened, impermissibly ask[s] for an expert opinion from

a witness who had not been qualified to give one." Id. at 462. Whether a police

officer's opinion testimony is offered as lay or expert, it "is not a vehicle for

offering the view of the witness about a series of facts that the jury can evaluate

for itself or an opportunity to express a view on guilt or innocence." Ibid.

      Here, we conclude that the prosecutor asked Hurley for impermissible

expert opinion testimony, see id. at 463, but Hurley answered by providing only

lay opinion about whether a "weapon" was used in the altercation between

defendant and A.D. That testimony could only be provided by an expert as "it

[was] . . . outside the ken of average jurors," so the admission of Hurley's

                                                                           A-3631-16T4
                                       18
opinion was an error, but under the circumstances presented here, the error was

harmless. Id. at 462.

      The challenged testimony only corroborated defendant's statements in his

interview, which his attorney relied upon in summation. Defendant admitted to

striking A.D. with his hand and Hurley only opined that to the extent a hand

could be considered a weapon, a "weapon of some sort was used" and that she

had no specialized skill or training to determine if anything else was used to

cause A.D.'s injuries that were depicted in the photographs presented to her.

There was no plain error.

                                           V.

      We turn our attention next to defendant's argument in Point III that he

should have been allowed to admit probative evidence to demonstrate that A.D.'s

mental illness caused her to behave in a way that justified his defending himself

and that not all of her injuries were caused by him. As noted earlier, at trial,

defendant unsuccessfully attempted to admit A.D.'s affidavit that attested to her

history of self-harm and schizophrenia and his counsel tried to cross-examine

Guerrieri about the connection between A.D.'s prescription drug-use and her

infliction of injuries to herself.   He argues that the trial court abused its

discretion by preventing him from connecting A.D.'s mental health to her


                                                                         A-3631-16T4
                                      19
injuries, particularly in light of testimony from her mother. We find no merit to

this argument.

      First, the trial court properly barred the proffered affidavit from admission

because it was hearsay under Rule 803(c) and therefore not admissible under

Rule 802. Moreover, because the statement was not made by A.D. within a short

time of her conduct as alleged by defendant, it was not admissible under Rule

803(c)(3) ("[t]hen existing mental, emotional or physical condition") and it

could not be admitted under Rule 803(c)(4) ("[s]tatement[] for purposes of

medical diagnoses or treatment") because it was not one given to a medical

professional for determining a diagnosis or treatment. See State v. Williams,

106 N.J. Super. 170 (App. Div. 1969).

      Second, Guerrieri's testimony about A.D.'s statement to her about A.D.'s

mental health issues and use of medications did not open the door to allow

defendant to further examine the doctor about A.D.'s problems.           Guerrieri

specifically testified that she was not concerned with A.D.'s past mental health

history but only about treating the physical injuries and she did not ask A.D. if

she was responsible for her own injuries. For that reason, testimony by Guerrieri

about A.D.'s use of psychiatric medications or her self-inflicted injuries that

were based upon A.D.'s statements would also have been inadmissible hearsay


                                                                           A-3631-16T4
                                       20
not subject to admission under Rule 803(c)(4) because the statements made to

the doctor were not "reasonably pertinent to [her] diagnosis or treatment" of

A.D. N.J.R.E. 803(c)(4).

      Finally, even if there was some basis to admit either the affidavit or to

allow further examination of Guerrieri by defense counsel, the trial court's

decision to bar their admission was harmless. A.D.'s mental health issues and

her use of medications, as well as her history of inflicting wounds to herself

were established at trial through defendant's statement to police, A.D.'s mother's

testimony, and portions of Guerrieri's testimony that were presented to the jury.

Under these facts, we conclude that the error, if any, did not create a reasonable

doubt that the error gave rise to an unjust result.

                                             VI.

      Defendant's remaining challenge to his conviction relies upon his claim

that the cumulative effect of the various legal errors he identified requires that

we order a new trial. However, because we find that there were no prejudicial

errors made by the trial court and defendant's "'trial was fair,'" State v. Rivera,

437 N.J. Super. 434, 444 (App. Div. 2014) (quoting State v. Weaver, 219 N.J.

131, 155 (2014)), we conclude his claim of cumulative merit is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


                                                                           A-3631-16T4
                                        21
                                             VII.

      Finally, we address defendant's contention that his sentence was illegal.

Defendant's argument is premised upon his understanding that the trial court

sentenced him to a term of imprisonment that was to be consecutive to a

violation of parole for which he had yet to be convicted.             Defendant's

understanding, however, is incorrect.

      Contrary to defendant's understanding, the trial court specifically noted

that defendant's sentence was being imposed consecutive to his sentence for the

crime he was currently on parole and his judgment of conviction confirmed that

fact. The court's ruling was consistent with the statutory presumption that

"[w]here [a] second crime [is] committed while [a] defendant was released

on . . . parole, there is a presumption that the sentence is consecutive if the

sentence does not specify otherwise . . . ." Cannel, New Jersey Criminal Code

Annotated, comment 7 on N.J.S.A. 2C:44-5 (2018); see also N.J.S.A. 2C:44-

5(c) (requiring that, unless otherwise ordered by the court, a sentence for a crime

committed while on parole shall be consecutive to "any period of

reimprisonment that the parole board may require . . . upon the revocation of his

parole"). Accordingly, there was no abuse of the trial court's discretion in

sentencing defendant as his sentence was not illegal because defendant had to


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complete his sentence on his first offense for however long the parole board may

decide before he began his sentence on the present offense.

      Affirmed.




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