                             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                        NOT FOR PUBLICATION WITHOUT THE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-3820-14T2



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

W.J.S.,

     Defendant-Appellant.
________________________________

              Submitted March 22, 2017 – Decided July 26, 2017

              Before Judges Alvarez and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              12-07-1113.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jason A. Coe, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Gurbir S. Grewal, Bergen County Prosecutor,
              attorney for respondent (Catherine A. Foddai,
              Senior Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Tried to a jury, defendant was convicted of all three counts

of the indictment: (1) second-degree sexual assault, N.J.S.A.

2C:14-2c(4); (2) fourth-degree criminal sexual contact, N.J.S.A.

2C:14-3b; and (3) third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a.       Count 2 was merged with Count 1, on which

defendant was sentenced to seven-years' imprisonment; on Count 3,

defendant was sentenced to a concurrent four-year term.

     After the verdict was rendered, but prior to sentencing, a

juror came forward with information that another juror disclosed

to all of the other jurors during deliberations that she had been

the victim of a sexual assault as a young child.                 This juror

described some of the details of the assault to the other jurors

in an apparent effort to persuade some of them to find defendant

guilty.   The juror had not disclosed this prior experience during

the jury selection process.

     Defendant   moved    for   a   new   trial.   The   court    conducted

individual interviews of each of the twelve jurors.               The court

rendered a decision, in which it concluded that none of the jurors

were affected by this information and that all twelve jurors,

including the one who had the prior experience, decided the case

based solely on the evidence presented at trial.                 The court

therefore denied defendant's motion and proceeded to sentencing.



                                     2                              A-3820-14T2
    The defense moved for a stay of the sentence and for bail

pending   appeal.      The   court   found   that   "the   case   involves   a

substantial question that should be determined by the appellate

court," see R. 2:9-4, and granted the motion.              In doing so, the

court also found that the other two criteria of Rule 2:9-4 were

satisfied, namely that the safety of the community would not be

seriously threatened, and defendant was not a flight risk.

    Defendant presents the following arguments on appeal:

           POINT I

           PRECLUDING THE DEFENSE FROM INTRODUCING A
           VIDEO RECORDING OF BARRY [D'S] PRIOR STATEMENT
           TO DEMONSTRATE THE MARKED DIFFERENCE IN HIS
           DEMEANOR ON THE WITNESS STAND WAS REVERSIBLE
           ERROR.

           POINT II

           THE PROSECUTOR'S REPEATED QUESTIONS ABOUT
           DEFENDANT'S SILENCE AT THE TIME OF HIS ARREST,
           AND HER LATER REFERENCES TO THE SAME DURING
           CLOSING   ARGUMENTS,   VIOLATED    DEFENDANT'S
           CONSTITUTIONAL RIGHT TO REMAIN SILENT. (not
           raised below)

           POINT III

           THE PROSECUTOR'S EMPHASIS ON THE IMPACT OF THE
           ALLEGED ASSAULT ON THE VICTIM AND HIS FAMILY,
           AS WELL AS THE PROSECUTOR'S URGING THE JURY
           TO CONVICT IN ORDER TO SEND A MESSAGE,
           CONSTITUTED PREJUDICIAL MISCONDUCT REQUIRING
           REVERSAL. (not raised below)




                                      3                              A-3820-14T2
           POINT IV

           REVERSAL IS REQUIRED BECAUSE JUROR NO. 4
           FAILED TO DISCLOSE DURING VOIR DIRE THAT SHE
           WAS HERSELF A VICTIM OF A SEXUAL ASSAULT AT
           THE HANDS OF A FAMILY MEMBER, AS WELL AS THE
           FACT THAT SHE USED THAT EXPERIENCE DURING
           DELIBERATIONS TO ATTEMPT TO SWAY HER FELLOW
           JURORS TO FIND THE DEFENDANT GUILTY.

The arguments contained in Points I through III are unpersuasive

and do not provide a basis for reversal.    However, we agree with

defendant's argument in Point IV and we reverse.

                                 I.

       The victim in this case, Julian D.,1 was born on June 22,

1995.   Defendant was born on September 8, 1980, and was therefore

fifteen years older than Julian.

       All three counts of the indictment arose out of a single

incident that occurred sometime in June 2010, when Julian was, or

was about to be, fifteen years old, and defendant was three months

shy of thirty years old.   Defendant and the victim are not related

to each other, but there was a long history of a close connection

between Julian's family and defendant and defendant's brother,

A.S.




1
   To preserve confidentiality, our references in this opinion to
Julian and his family are pseudonyms, the same ones utilized by
the parties in their appellate briefs.

                                 4                          A-3820-14T2
     Julian's mother, Denise D., had a long and successful career

in the field of music, as a vocalist, producer, songwriter, and

vocal instructor. Julian's father, Barry D., was a very successful

self-employed financial consultant.              In 1992, the D. family moved

to Atlanta, Georgia. Defendant and his family lived in the Atlanta

area.

     In    the    mid-1990s,     Denise       began   coaching   defendant,       his

brother,    and    their   two    female       cousins    in   music   and     vocal

performance.       The four sang together.             After several years of

coaching this group, Denise and Barry decided they would sponsor

their musical careers.         They purchased a bus to allow defendant

and his brother and cousins to travel to churches and other

organizations to perform gospel music.                   They also purchased a

residence in Atlanta for the brothers to serve as a studio and to

allow them to write and record songs.                 Barry testified that his

family grew "very close" with defendant and his brother, and that

the brothers would probably refer to him and his wife as their

"godparents."      They went on vacations together and enjoyed a very

close personal as well as professional relationship.                   Defendant

would often babysit Denise and Barry's children, which included

Julian and his two sisters.

     At some point, the D. family moved to New York.                     By this

time, Denise and Barry were sponsoring the musical endeavors of

                                          5                                  A-3820-14T2
only defendant and his brother, with the two cousins no longer

being involved.   As Julian approached high school age, his parents

determined that he should attend Teaneck High School.           They

purchased an apartment in Teaneck to enable Julian to attend the

school, which he began in 2009 as a freshman.     In the Spring of

2010, Denise and Barry invited defendant and his brother to move

from Atlanta to the New York area to live in the Teaneck apartment.

Defendant would often drive Julian from his school to his parents'

apartment in New York.   On other occasions, Julian would often go

to the Teaneck apartment while waiting for his mother to pick him

up.   Additionally, defendant would often drive Julian to places

he needed to go when his parents were not available.

      Julian played on his high school baseball team, and a banquet

was scheduled for a date in June 2010 to celebrate their recent

successful season.    On the night of the banquet, Denise called

defendant and asked him to pick Julian up at school and take him

to the banquet.    Defendant agreed to do so.   Defendant testified

at trial that he picked Julian up, drove back to the Teaneck

apartment, and, at Julian's request, they played basketball for a

while.    They went back to the apartment, and defendant took a

shower.     It is at this point in the description of the events,

that defendant's version and the version to which Julian testified

diverged.

                                 6                          A-3820-14T2
     According to defendant, while he was in the shower, Julian

yelled at him to hurry because he was concerned he would be late

for the banquet. When defendant finished his shower, Julian yelled

at him again to get ready to leave.     Defendant said that Julian

then grabbed him and they "tussled for a little bit."     They then

left for the banquet.   On the way, defendant said Julian was very

concerned about being late, and was urging defendant to drive

faster and run red lights.    Julian was also texting his friends

who were already at the banquet and was upset with defendant for

being late.   When they arrived, defendant offered to go inside to

see if Julian's teammates were still there.   Defendant went in and

came back and reported to Julian that only a few of them were

there, he was not that late and he should go inside.       However,

defendant said Julian refused to go in and asked defendant to

drive him home to New York and defendant did so.   Later that night,

defendant received a call from Denise and Barry, admonishing him

for not getting their son to the party on time and upsetting him.

     According to Julian, when defendant came out of the shower

he "tackled" him, "pulled down [his] pants and anally penetrated

[him]."   Defendant was then momentarily distracted by a noise from

outside the apartment and Julian was able to escape his grasp.

Julian said he then left the apartment and waited by the car.

Defendant then came out and drove him to the banquet.     When they

                                 7                           A-3820-14T2
arrived, Julian said he felt sick and wanted to go home. Defendant

drove him back to his parents' apartment.

      Julian    did    not   tell   anyone     about    this   incident      in   its

immediate aftermath.         When his father questioned him as to why he

did not go to the party, Julian said he was afraid to say what

happened and was in shock from the incident.                   Julian testified

that his clothes had blood on them and he took them off at this

parents' apartment and threw them down a trash chute.                 Julian said

he never told his parents about this as time went by because he

assumed it was his fault for playing basketball with defendant

rather than going to the banquet on time, and he thought his

parents would be angry with him.

      After    June    2010,   Julian's      demeanor      changed.     He    became

introverted and depressed, and he struggled at school. A counselor

from Teaneck High School contacted Julian's parents. The counselor

stated that because of Julian's behavior and poor grades, he was

questioned in an effort to ascertain the problem, and Julian

revealed to them another incident of sexual abuse by defendant

that he claimed occurred when they were living in Atlanta and he

was   seven    years    old.    Julian       said   that    defendant   attempted

unsuccessfully to anally penetrate him with his penis.                       On that

occasion, he never told anyone even though he knew something bad

had happened.         He came to believe that nothing like that would

                                         8                                   A-3820-14T2
ever happen again, and was living with it.2   Barry then had a talk

with Julian, trying to ascertain why he never disclosed the prior

incident.    Julian said he believed it was his fault, and he was

afraid his father would be ashamed of him if he knew what happened.

Barry made the decision not to tell his wife and not to tell

anyone.     He made arrangements to prevent his son and defendant

from being alone in the future.

     At about this time, Julian's parents also made the decision

to transfer him from Teaneck High School to a private school,

Dwight-Englewood School.    Julian did not perform well there, and

he did not like the atmosphere or the athletic programs. He wanted

to go back to Teaneck High School.    Julian's father continued to

be assertive with him about performing better in school and setting

goals for himself in order to succeed.

     It is noteworthy, and relevant to the defense in this case,

that both of Julian's parents were highly educated at prestigious

schools and were very successful in their respective careers. They

had achieved a significant level of affluence.   The defense theory

at trial was that Julian was under constant pressure from his

parents to succeed, to be able to get into a prestigious college,


2
   On the State's pretrial motion, evidence of this prior incident
was allowed in evidence for a limited purpose, accompanied by a
limiting instruction. Defendant does not appeal from that evidence
ruling, and it is not germane to the appeal.

                                  9                         A-3820-14T2
and to follow in their footsteps.             The defense contended that

Julian was unable to meet these expectations, which caused his

depression,   change      in   demeanor,   and   downward       performance     in

school.   Finally, Julian fabricated the allegations about the

prior incident in Atlanta and the Teaneck incident that is the

subject of this case.

     In early 2012, after again meeting with the school counselor,

Barry asked his son if there was something else bothering him.                  He

asked if anything happened in Teaneck that he wanted to talk about.

According to Barry, Julian, with tears in his eyes, told him that

defendant had "jumped [him] and raped [him]."             Barry informed the

counselor of the situation.        The counselor, as legally required,

reported the matter to the police.           These charges followed.

     At trial, there were only three witnesses, Julian, his father,

and defendant.     Defendant denied attacking Julian in Atlanta and,

with respect to the allegations in Teaneck, he described the events

as we have set forth.

                                     II.

     In the jury selection process, the court read the indictment

to the jurors, but did not elaborate further about the factual

allegations   in   the    case.     The    judge   used     a    standard     jury

questionnaire.       He    addressed   the    panel   and       went   over    the

questionnaire with them, instructing them to record a "yes" or

                                     10                                  A-3820-14T2
"no" answer to each question.    A "yes" answer would reflect that

the subject matter would have to be discussed with the court and

counsel.   A "no" answer meant there would be no discussion on that

topic.

     The judge called each prospective juror to sidebar and first

ascertained whether they had answered any of the standard questions

in the affirmative.   If so, there was discussion to elicit further

information and determine whether the juror should be qualified.

Of course, if not disqualified for cause, the attorneys would have

the opportunity to consider the information in deciding whether

or not to exercise a peremptory challenge.    The judge would then

ask a series of questions about the prospective juror's reading

materials, television and internet habits, place of residence,

family circumstances and employment, and the like. And, if nothing

problematic came up, he would instruct the prospective juror to

take the next seat in the jury box.

     Among the standard questions addressed to the panel were

these:

                Is there anything about the nature of the
           charge itself that would interfere with your
           impartiality?

                . . . .

                Have you or any family member or close
           friend ever been the victim of a crime whether
           it was reported to law enforcement or not?

                                11                          A-3820-14T2
               . . . .

               Is there anything about this case, based
          on what I told you, that would interfere with
          your ability to be fair and impartial?

               . . . .

               Is there anything not covered by the
          previous questions which would affect your
          ability to be a fair and impartial juror or
          in any way be a problem for you serving on
          this jury?

               . . . .

               Is there anything else that you feel is
          important for the parties in this case to know
          about you?

     A.E. did not respond affirmatively to any of those questions.

She was not challenged for cause or peremptorily.   She was seated

as juror #4 and became one of the deliberating jurors.     We know

from the voir dire transcript that A.E. had three children, the

oldest of which was twenty-one years old at the time of trial.

Therefore, although the record does not reflect her specific age,

we can assume that she was at least in her forties.   It was A.E.

who ultimately disclosed to her fellow jurors during deliberations

the details on an incident that happened to her when she was

thirteen years old.

     The jury returned its guilty verdict on October 15, 2014.    On

October 20, 2014, juror #9, J.A., called defendant's attorney and


                               12                          A-3820-14T2
told him that one of the jurors had been the victim of a sexual

assault when she was young, which she did not disclose during voir

dire,    and    which   she   discussed    with   the    deliberating   jurors.

Defense counsel immediately called the prosecutor and the court

to inform them of this.        After consultation with both counsel, the

judge decided to bring J.A. into court to be interviewed on the

record in the presence of both counsel.3           This occurred on October

23, 2014.

     During preliminary colloquy, before bringing J.A. into the

courtroom, defense counsel described what J.A. had told him.                 She

said that from the outset of deliberations, A.E. "was for a guilty

finding for [defendant] and the other people said you know, we

have to go over the -- the evidence.         We have to, you know, discuss

this, you know, before we make any decision."                  She said A.E.

continued       to   conduct    herself     in    this     manner   throughout

deliberations, and then "said that she had been molested as a

youth.    And then the jury -- the deliberations went on from there

and came to a conclusion."

     Defense counsel laid out a two-pronged argument as follows:

               [I]f this information was given to the jurors
               did it in some way influence them?



3
    Throughout these juror interviews, defendant's appearance was
waived.

                                      13                                A-3820-14T2
               But I don't think we even have to get to
          that point because it's -- the other prong is
          what we heard.    This was not disclosed at
          sidebar or at any time in the various
          questions that are asked by the Court. You
          know, have you been the victim of a crime? Is
          there anything about the charges that -- you
          know -- that make[s] you uncomfortable or
          something to that effect. And even before the
          jurors were sworn, there's -- like -- that
          last statement is there anything that we
          should know and all that kind of stuff.

               So my feeling is that -- that if this
          woman, juror number 4, does admit that she
          told the other jurors this, she didn't tell
          us this. And I think that, right there, in
          itself, would be cause to order a new trial
          for [defendant].

     Counsel reiterated that without even assessing whether A.E's

revelations influenced the jurors, he also believed he was entitled

to a new trial because he clearly would have exercised a peremptory

challenge if she had disclosed this information during voir dire:

               The point being that without this
          revelation coming to us, when it should have
          come to us, either the Court would have
          excused for cause or I would have used a
          challenge to -- to get rid of [A.E.], if she
          had told us this ahead of time. I think that's
          what the whole case is really about -- the
          whole matter.

     J.A. was then brought into the courtroom and began her

interview by saying that the disclosure occurred on the last day

of deliberations right after lunch.   At that time, juror #7, M.V.,

spoke to the other jurors.   M.V. had just had lunch with A.E.   She


                                14                          A-3820-14T2
said that M.V. told the jurors that A.E. told her during lunch

that she always voted guilty whenever a vote was taken without any

explanation or discussion, and now she knew why.             M.V. informed

the jurors that A.E. "told me a story why, you know, she feels the

way she does and it's because something similar happened to her

as a child."    M.V. said that a number of jurors did not want to

listen to this information, but M.V. "kept on telling the story,"

and when J.A. said something to M.V. "she got angry at me.                 I

said, you know, this really has nothing to do with what's going

on here.    And then she says of course it has something to do with

what's going on here."

     A.E.   then   took   over   the    conversation   and   proceeded    to

personally tell the story of her prior incident.              Synthesizing

A.E.'s testimony and the testimony of the various other jurors,

this is the story.

     A.E.'s parents were separated.           She was living with her

father, who then moved in with a girlfriend, who had five children.

Four of them were younger than A.E.        The oldest child, a boy, was

older than A.E., but the record does not disclose his exact age.

     As A.E. described it, one day he said to her "if you get up

[from bed] I'm going to, you know, I guess do, you know, try to

have sex with me."    For the next day or two, A.E. said when she

woke up in the morning she needed to use the bathroom but was

                                   15                              A-3820-14T2
afraid "that that could happen."       She then said what happened

after the third day:

           So, you know, nothing happened for three days
           because I never got up. So then finally I did
           and I came out of the bathroom, I walked out
           and he was there waiting for me. So then --
           so then he tried, you know, and then I yelled
           for my dad and he came and he goes oh, what's
           the matter, I said nothing. You know, I said
           oh, no, you know, Michael, you know, he scared
           me because when I came out of the bathroom.
           And so nothing happened but, you know, but
           that's, you know. But then my father, I told
           my father eventually and like in this case,
           you know, he didn't do anything. He told me,
           you know, all right, it's time for you [to]
           go. So I went to live with my mother and the
           kids and his girlfriend stayed there and that
           was it.

      We note that in her in-court interview, A.E. avoided using

graphic terms or descriptions.        However, we infer that when

describing the events to her fellow jurors, she did use such terms

and   descriptions.    Several   of   the   other    jurors,   in     their

interviews, used more graphic terms.    For example, juror #6, S.M.,

said that A.E. described that when "she got up in the middle of

the night and one of the brothers said I'm going to rape you or

something similar, I'm going to f[_ _ _] you, something to that

extent."   Similarly, juror #14, H.P., said that A.E's "stepbrother

. . . kept on telling [her] when they were little oh, you know

what, I'm going to F—U, whatever."     Juror #3, A.H., described how

someone in A.E.'s house tried "to rape her."        When pinned down as

                                 16                                 A-3820-14T2
to whether she actually used the word "rape," the juror said "it

was either molest or rape, something like that, that he tried to

attack her sexually but it didn't happen."

     Common experience and common sense tell us that these jurors

would not have used these graphic terms to describe to the judge

in court on the record what A.E. said if A.E. had not used such

graphic   terms   in   the   deliberation   room.   Conversely,    it    is

understandable that A.E. and some of the other jurors, while

testifying in their in-court interviews, avoided using the graphic

terms in describing the events.

     When A.E. was asked why she disclosed this information to the

jury, she said she told M.V. the story during the lunch break and

M.V. urged her to share this with the other jurors

           because three -- three jurors couldn't decide,
           they were like, you know, not guilty they said
           and [s]he goes maybe this will help them
           decide. So I said all right, I'll say it, you
           know, but nothing happened but, you know.

     The judge then asked A.E. why she had not disclosed this

information during voir dire, particularly in response to the

standard question inquiring whether she had been the victim of a

crime.    A.E. responded:

                Yeah, I figured because it was a long
           time ago, I didn't really think, you know, I
           didn't really think about it at the time
           really, you know, because it happened so long
           ago.

                                   17                             A-3820-14T2
      Twenty minutes after M.V. and A.E. conveyed the revelations

to the other jurors about A.E's past experience, the jurors reached

a unanimous guilty verdict.          As the court noted during A.E.'s

testimony,      "[A.E.]'s   saying   that     there   were    three     people

unsolicited that were not guilty and then juror number 9 said

right after this they all went the other way."

      In the process of excusing A.E. at the conclusion of her

interview, the judge politely told her, referring to her failure

to   disclose    the   information   during   voir    dire,   that    he   knew

"sometimes sharing things like that are difficult," to which A.E.

responded, "Right." The judge then said "And I realize what you're

saying now is that nothing actually did happen . . . so that maybe

in your mind that didn't make you a victim of a crime or things

like that."       A.E. again responded to this leading question,

"Right."

      When M.V. was interviewed, she described how A.E. told her

during the lunch break that "I had something happen to me once,"

when the teenage son of her father's girlfriend "threatened her,

like he said something about if you get up in the middle of the

night I'm going to get you or something like that and she was

afraid."     And then, a couple of days later when she got up, "he

was waiting there for her," and "nothing happened but it scared


                                     18                                A-3820-14T2
the hell out of her and she told her father, not right away though.

She didn't tell him right away which I thought was interesting and

on point with what we were talking about."   Then, her father "made

her live with her mother instead of siding with her."

     M.V. said she thought it was relevant because "it really

illustrated that not all parents when they hear something are

going to take the kid's side," and "[t]here was one juror in

particular who I'm probably -- I'm pretty certain is the one who

brought all this up who from the beginning was like if something

happened to me I'd go to the police and if -- and if they didn't

go to the police right away then it didn't happen."

     Several jurors thought A.E. was wrong for revealing this

information and expressed their belief that she should have excused

herself and not been a member of this jury in the first place.      As

we stated, the court asked all of the jurors toward the end of

their interview whether this information affected their verdict

or whether they decided the case based on the evidence.    They all

said the information did not affect them and they decided the case

based on the evidence.   We do note that at least one of the jurors,

juror #8, C.G., equivocated on the point.       She said: "I don't

think it affected my decision," but then continued that "it didn't

really affect my decision but I do think it wasn't something that

was appropriate" to be discussed among the deliberating jurors.

                                19                           A-3820-14T2
     Juror #6, S.M., made these comments:

          And no act actually took place, there were,
          you know, a million reasons why it doesn't
          matter. So we continued our deliberations and
          within five or 10 minutes the woman to my right
          said but listen to what happened to [A.E.].
          And the woman who was sitting next to me just
          to my left . . . she said but that has nothing
          to do, we're not trying your case, we're
          trying this case. And so on our end of the
          room we -- again, we started talking amongst
          ourselves it's completely irrelevant, we don't
          care, but it did concern us that there was no
          way [A.E.] would ever go not guilty, there was
          no way, she was -- we believed that she was -
          - she -- and she said I won't say not guilty
          because of my own past experience.

The judge asked whether A.E. "actually said those words."     Juror

#6 replied:

          Yeah, and it was problematic for us. It --
          in the end, we just didn't include her in any
          -- she never spoke and we didn't include her
          in any deliberations, we never asked her any
          questions after that, we never asked her her
          opinion on anything.

     Juror #13, M.D., said this: "I think to my understanding that

made [A.E.], you know, be on the side of guilty because of such

experience."   When asked why she thought that, M.D. said: "Because

that's how it was talked to, it's like the comment of that, the

jurors was -- the comment of that, the jurors was, because of that

experience she had then where else she will go but to the guilty

side."   When asked whether A.E. had actually said that, M.D.



                                20                          A-3820-14T2
answered in the negative, but said that was the "feeling of the

other jurors."

     Juror #14, H.P., told the judge that when all of these

discussions were taking place, she said, "if I had a situation

like that I would have brought it up in one of your questions.     I

think it was clear if there was something in there I should have

brought it up as possibly a concern and at the very least you

should have excused yourself."

     The judge rendered an oral decision on February 26, 2015.    He

reviewed the testimony of each of the twelve jurors.     He noted

that all of them stated that the revelation of A.E.'s prior

experience did not affect their verdict, which was based solely

on the evidence.   Indeed, A.E. said the same.   The judge further

noted that A.E. did not engage in wrongdoing by withholding this

information during voir dire because "[s]he didn't view herself

as a victim of a crime.      Nothing had happened."     The judge

discounted the testimony of juror #6, S.M., that A.E. had said she

could never vote for not guilty because of her past experience,

because no other juror corroborated that A.E. had actually said

that.

     As to A.E.'s non-disclosure of the information during voir

dire, the judge said:



                                 21                        A-3820-14T2
               There is no[] juror misconduct at the
          point of not answering the question, because
          she wasn't asked specifically perhaps about
          sexual harassment, but whether she was the
          victim of a crime.      The other questions
          pertain to any voluntary disclosures or
          disclosures if they're going to -- if
          something's going to affect their verdict.
          She didn't feel it was going to affect her
          verdict.    So at that moment there was
          certainly nothing that the juror did that was
          wrong.

The judge found that A.E.'s non-disclosure was "unfortunate," and

not something "to be condoned or encouraged." Thus, he essentially

concluded that A.E. made an innocent mistake.    The judge denied

defendant's new trial motion.

     In the course of his decision, the judge did not address

defendant's argument that, had the information been disclosed

during voir dire, and if A.E. was not excused for cause, defense

counsel would have used a peremptory challenge to excuse her.

                                III.

     "When a juror incorrectly omits information during voir dire,

the omission is presumed to have been prejudicial if it had the

potential to be prejudicial."   State v. Cooper, 151 N.J. 326, 349

(1996), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed.

2d 681 (2000).   Nevertheless, a litigant still must demonstrate

that "had he or she known of the omitted information, he or she

would have exercised a peremptory challenge." Ibid. (citing Wright


                                22                         A-3820-14T2
v. Bernstein, 23 N.J. 284, 294-95 (1957)).                    It is not relevant

that the failure to disclose may have been innocent or inadvertent.

Wright, supra, 23 N.J. at 295-96.

       Failure   of     a     juror   to    disclose     potentially    prejudicial

information during jury selection is regarded as an event denying

the affected party a fair trial.                 In Re Kozlof, 79 N.J. 232, 239

(1979). This is "not necessarily because of any actual or provable

prejudice to his case attributable to such juror, but rather

because of his loss, by reason of that failure of disclosure, of

the    opportunity       to    have    excused     the    juror    by   appropriate

challenge."      Ibid.        To warrant reversal, it is only necessary to

demonstrate      that       "had   [the     defendant]    known   of    the   omitted

information, he or she would have exercised a peremptory challenge

to exclude the juror."             Cooper, supra, 151 N.J. at 349.            "Absent

an affirmative showing that a litigant would have exercised a

peremptory challenge to exclude a juror, the voir dire omission

is harmless."      Id. at 350.

       We do not agree with the trial court's assessment of A.E.'s

failure to disclose the information.                First, whether she acted in

good   faith,    and     whether      her    non-disclosure       was   innocent     or

inadvertent, is irrelevant.                It is the effect on the ability of

defendant to have a fair trial that is dispositive. The motivation



                                            23                                A-3820-14T2
of the non-disclosing juror does not add to or detract from that

result.

       Second, we view as more significant what actually happened

to A.E. when she was thirteen years old.                We do not view this as

some relatively insignificant "sexual harassment" that was not

actually a crime.      A.E.'s older household member had expressed his

intention to have sex with her against her wishes.                      He probably

made his intentions known in graphic terms by telling her that he

was    going   to   "rape"   her   or   "f_    _   _"   her.      She   was    placed

sufficiently in fear that she did not come out of her bedroom when

she needed to use the bathroom for several days.               When she finally

used    the    bathroom,     he    "accosted"       her    with     a    sufficient

demonstration of purpose to carry out his threat that it caused

her to scream, which enabled her father to come to the rescue and

prevent anything further from happening.

       He certainly placed A.E. in fear, as one juror put it "scared

the hell out of her," and may have committed a terroristic threat.

See N.J.S.A. 2C:12-3a.       The record does not disclose whether there

was any physical contact before A.E.'s father arrived.                        We will

not speculate whether he touched A.E's intimate parts, which could

have constituted criminal sexual contact.                 See N.J.S.A. 2C:14-3

and N.J.S.A. 2C:14-1(d) and (e).             He may have taken a sufficiently

substantial step in the course of conduct by which he planned to

                                        24                                    A-3820-14T2
engage in unwanted sexual activity with A.E. to have committed an

attempt to commit sexual assault or criminal sexual contact.                     See

N.J.S.A. 2C:5-1a(3).

      The    perpetrator's    conduct      against    A.E.    was   sufficiently

egregious that it should have alerted her to respond affirmatively

to one of the questions we previously set forth.                 Indeed, during

deliberations, she thought it sufficiently relevant to share it

with her fellow jurors.           Many of them felt it was sufficiently

significant    that    it   should   not    have     been    brought   up    during

deliberations and that A.E. should have excused herself from

serving on this case.        Finally, we note that when A.E. was asked

an open-ended question about why she did not disclose it, she said

it was because it happened such a long time ago.               It was not until

a leading question was posed to her suggesting that she did not

think   of   herself   as   the    victim   of   a   crime    because   "nothing

happened" that she responded, "Right."

      This information should have been disclosed during voir dire.

All prospective jurors knew what the subject of the trial would

be.   Each count of the indictment recited Julian's date of birth,

and the jurors therefore knew his age at the time of the alleged

offense, an age strikingly similar to that of A.E. at the time of

her experience.



                                      25                                    A-3820-14T2
     We have no hesitancy in concluding that a sufficient showing

has been made that, had this information been disclosed, either

the court would have excused A.E. for cause, or any reasonable

defense counsel would have surely used a peremptory challenge to

excuse her.    We therefore conclude that defendant was denied a

fair trial

            not necessarily because of any actual or
            provable prejudice to his case attributable
            to [the non-disclosing] juror, but rather
            because of his loss, by reason of that failure
            of disclosure, of the opportunity to have
            excused the juror by appropriate challenge,
            thus assuring with maximum possible certainty
            that he be judged fairly by an impartial jury.

            [Kozlof, supra, 79 N.J. at 239.]

     Our conclusion on this point makes it unnecessary for us to

determine whether the judge's finding of no actual prejudice is

supported by the record.      We realize that the trial court is

entitled to substantial deference in assessing the credibility of

the jurors who testified before him.           That deference is not

unlimited, and we will not uphold the findings if they are clearly

mistaken.    See State v. Hubbard, 222 N.J. 249, 269 (2015) (citing

State v. Locurto, 157 N.J. 463, 470-71 (1999)).        As stated, we

find it unnecessary to conduct that analysis in this case.




                                 26                          A-3820-14T2
                                 IV.

     For the sake of completeness, we address defendant's first

three points of argument.    In Point I, defendant argues that the

court erred in denying his request to display to the jury a

videotape of Barry's statement to the police.    Defendant contends

it would have shown that he was not particularly emotional when

describing what happened to his son.     Defendant argued that this

would be relevant because in his trial testimony, Barry became

quite emotional in describing these events, and comparison with

the videotape would have impugned his credibility.        Defendant

contends it would have demonstrated to the jury that his emotions

before them were manufactured, and he was thus providing his

testimony with an intent to deceive them.

     The judge viewed the videotape out of the jury's presence.

He concluded that Barry's demeanor was basically the same as when

he testified at trial.      Further, in his trial testimony, Barry

acknowledged that although he cried while testifying in court, he

had not cried when giving the statement to the police, although

he said he was a bit choked up at that time.

     We defer to the trial judge's assessment of the probative

value of the tape.   Evidentiary decisions by a trial court are

subject to "limited appellate scrutiny, as they are reviewed under

the abuse of discretion standard."     State v. Buda, 195 N.J. 278,

                                 27                         A-3820-14T2
294 (2008).     We have no occasion to find an abuse of discretion

here.

     In his second point, defendant contends the prosecutor was

impermissibly allowed to cross-examine defendant regarding his

silence at the time of his arrest and to refer to that cross-

examination in her summation to that testimony.     This argument was

not raised in the trial court, and we are therefore guided by the

plain error standard, under which we will not reverse on the ground

of such error unless the appellant shows that the error is "clearly

capable of producing an unjust result."         R. 2:10-2.    Not any

possibility of an unjust result will suffice; the possibility must

be "sufficient to raise a reasonable doubt as to whether the error

led the jury to a result it otherwise might not have reached."

State v. Macon, 57 N.J. 325, 336 (1971).

     Indeed, not only was there no plain error, but there was no

error.     The "silence" defendant refers to on appeal was actually

a series of inconsistencies or failures to disclose information

when he made a voluntary statement to the police after waiving his

Miranda4    rights.    The   prosecutor   was   merely   pointing   out

inconsistencies in that defendant left out some facts in that



4
   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).


                                 28                            A-3820-14T2
statement as compared with his trial testimony.                   The prosecutor

had not introduced defendant's statement in her case-in-chief, as

it was basically exculpatory.          However, the judge ruled that the

statement was voluntarily given, which made it fair game in cross-

examining defendant if he chose to testify.              State v. Kucinski,

227 N.J. 603, 620-21 (2017).

      Finally, in Point III, defendant complains that, in her

summation,      the   prosecutor      exceeded      permissible      bounds       in

emphasizing the serious impact of defendant's alleged conduct on

Julian and his family and urging the jury to convict in order to

send a message to the community.              Again, there was no objection

at trial and we are guided by the plain error standard.                    In our

view, both aspects of this argument pertain to legitimate responses

by   the   prosecutor      to   arguments   defense   counsel      made    in    his

summation, and they did not exceed permissible bounds.

      Failure    of   an    adverse   party    to   object   at    trial    is    an

indication that counsel did not deem the comments prejudicial at

the time.    State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.)

(citing State v. Johnson, 31 N.J. 489, 511 (1960)), certif. denied,

134 N.J. 480 (1993).            Further, failure to object deprived the

court of ruling on the issue and, if appropriate, ordering the

comments stricken and issuing an appropriate curative instruction.



                                      29                                   A-3820-14T2
    For the reasons expressed in Part III of this opinion,

defendant's conviction is reversed and the matter is remanded for

a new trial.




                              30                          A-3820-14T2
