                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4141-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY M. JACKSON,

     Defendant-Appellant.
____________________________

                   Argued October 29, 2018 – Decided November 26, 2018

                   Before Judges Sabatino, Haas and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 11-05-
                   0479.

                   Michael J. Confusione, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Michael J. Confusione, on the
                   brief).

                   Andre R. Araujo, Assistant Prosecutor, argued the
                   cause for respondent (Jennifer Webb-McRae,
                   Cumberland County Prosecutor, attorney; Andre R.
                   Araujo, of counsel and on the briefs).
              Appellant filed a pro se supplemental brief.

PER CURIAM

        After a jury trial in 2016, defendant Anthony M. Jackson was found guilty

of second-degree sexual assault as to victim D.B., 1 N.J.S.A. 2C:14-2(c)(1)

(count seven); second-degree aggravated assault attempting or causing serious

bodily injury upon another victim, S.P., N.J.S.A. 2C:12-1(b)(1) (count five);

third-degree aggravated assault attempting or causing significant bodily injury

upon D.B., N.J.S.A. 2C:12-1(b)(7) (count six); two counts of third-degree

criminal restraint as to both D.B. and S.P., N.J.S.A. 2C:13-2(a) (counts one and

two); fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a) (count three); third-

degree possession of a weapon (a baseball bat) for an unlawful purpose, N.J.S.A.

2C:39-4(d) (count twelve); and fourth-degree unlawful possession of weapon

(a baseball bat), N.J.S.A. 2C:39-5(d) (count ten). The jury found defendant not

guilty of various other charged offenses, including kidnapping and robbery.

        The court sentenced defendant to an extended custodial term of sixteen

years for the sexual assault of D.B., subject to a parole disqualifier under th e No

Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, plus an eight-year

consecutive term for the second-degree aggravated assault of S.P., also subject


1
    We use initials to protect the identities of the victims.
                                                                            A-4141-16T3
                                           2
to NERA. Defendant's sentences on the remaining charges were either merged

or ordered to run concurrently.

        Defendant's main argument on appeal is that the trial court misapplied

N.J.R.E. 608(b) when it precluded his trial counsel from presenting evidence to

the jury that D.B. had made similar, allegedly false, accusations of sexual assault

against him in a 2005 criminal matter and later recanted. As a related point,

defendant argues that N.J.R.E. 608(b) unconstitutionally curtails an accused's

rights of confrontation, in allowing a judge to bar such prior false accusation

evidence based on the judge's own assessment that the impeachment evidence is

untrue, even if reasonable jurors might find it to be credible. Apart from these

points involving N.J.R.E. 608(b), defendant presents various other arguments in

his appellate counsel's brief and his pro se supplemental brief. We affirm.

                                        I.

        The evidence at the eleven-day trial may be summarized as follows. On

the whole, the evidence concerned a violent encounter between defendant, his

former girlfriend D.B., and D.B.'s adult son, S.P., who lived with D.B. at her

home.

        On the date of the incident, July 27, 2010, D.B. arrived home from work

at approximately at 12:30 a.m. and S.P. was in his room when D.B. arrived.


                                                                           A-4141-16T3
                                        3
      D.B. had been in an on-and-off romantic relationship with defendant for

several years. As of the time of the incident, defendant and D.B. were not in a

relationship, and defendant was not welcome in D.B.'s home. According to

D.B., she and defendant had broken up approximately six weeks earlier.

      D.B. testified that she was awakened in her room by a noise at

approximately 4:00 a.m. According to D.B., when she awoke, she saw S.P. run

into her room and she also saw defendant. After S.P. ran into her room, she

began to yell at defendant and ask what he was doing there. According to D.B.,

defendant then punched S.P. An altercation involving defendant, D.B., and S.P.

ensued, in which all three persons wound up on the floor. D.B. attempted to call

9-1-1, but defendant took the phone out of her hands.

      According to D.B., defendant then hit S.P. in the head with a baseball bat

that D.B. kept in her room, which knocked him down. S.P. stayed down, and

defendant would not allow D.B. to check on her son to see how badly he was

hurt. D.B. stated that S.P. was quiet, but that she knew defendant had hit S.P.

in the head with a baseball bat. D.B. recalled she could see a blood stain near

S.P. on the floor grow in size. According to D.B., defendant tied up S.P., closed

the door, and locked the three of them in her bedroom.




                                                                         A-4141-16T3
                                       4
      D.B. further testified that, after defendant subdued her son, he forced her

onto her bed. She claimed he repeatedly sexually assaulted her vaginally, anally,

and orally. This described sexual assault occurred both on D.B.'s bed and on

the floor.

      According to D.B., defendant would not allow her to leave the room to

even go to the bathroom. Rather, she said he forced her to urinate in a coffee

cup. The assault occurred over the course of several hours, from approximately

4:00 a.m. until about 7:30 a.m., or around the time the sun was rising. She

recalled that S.P. was laying on the floor during the sexual assault, bleeding

from his head wound.

      S.P.'s trial testimony substantially echoed the testimony of his mother,

D.B. S.P. stated that, after he was hit by defendant the second time, he stayed

on the ground "playing possum." S.P. explained that he stayed down because

he "wasn't sure what [defendant] would do if [S.P.] got back up." S.P. testified

that he could hear defendant forcing himself on his mother and her begging him

to stop.

      According to S.P., he was not the aggressor. The first time defendant hit

him was with his fist. S.P. described the second hit to the back of his head as

something that "dug into [his] head." S.P. stated defendant also hit him in his


                                                                         A-4141-16T3
                                       5
abdomen with a baseball bat.      Defendant then allegedly tied him up after

assaulting him. S.P. testified he heard defendant sexually assaulting his mother

"for hours," while he was tied up on the floor. S.P. further recounted that

defendant made D.B. perform oral sex on S.P. S.P. kept his eyes closed when

this happened.

      D.B. and S.P. each testified they were allowed out of the room around the

time that the sun came up. D.B. stated that defendant then forced her to help

him clean up the scene by washing the sheets and their clothing and by wiping

surfaces with Lysol.

      At approximately 9:00 a.m., D.B. called out sick from work, while

defendant sat next to her. Later, around 10:00 a.m., a job coach came to the

door of her home to pick up S.P. to assist him in looking for work. Defendant

went to the door and told the job coach that S.P. would not be going out that

day, and the job coach left.

      At about 11:00 a.m., defendant said he needed to leave, but that he wanted

money first. Defendant consequently forced D.B. to drive him to a nearby bank

to retrieve money for him from an ATM. D.B. testified that defendant made

S.P. come with them in the car, and told S.P. to stay in the back seat.




                                                                          A-4141-16T3
                                        6
      According to D.B., after she withdrew funds from the bank and gave them

to defendant, he allowed her to drop him off somewhere near her home. She

then drove home with S.P. D.B. locked the doors and called a close friend for

help, while her son called his grandfather, D.B.'s father. S.P.'s grandfather

arrived at D.B.'s house shortly thereafter and contacted the police. The police

came to the house, as well as emergency medical technicians. 2

      Both D.B. and S.P. were treated for their injuries and taken to the hospital.

According to an EMS worker, S.P. had a one-and-a-half-inch semicircular

laceration to the back of his head and a large lump on his forehead, as well as

abrasions and lacerations to his arms, legs, and stomach.

      On cross-examination, S.P. acknowledged that although he had told a

police detective that he saw the assault of his mother occur through a "window,"

such a window did not exist. S.P. clarified that he meant to say to the officer

that he saw the assault through a mirror, not a window. Defense counsel also

elicited some confusing testimony from S.P. on cross-examination as to whether

he had been conscious during the alleged assault of his mother.




2
 Key aspects of defense counsel's attempts to impeach of D.B. are discussed in
more depth, infra, in Part II(A).
                                                                           A-4141-16T3
                                        7
      Dr. Tanvi Kothari was called by the State as an expert witness in forensic

serology. Dr. Kothari testified that she found staining that was "presumptive

positive for [the] presence of blood" on five pieces of paper towel found in

D.B.'s car. Dr. Kothari opined that the swab taken from defendant's left-hand

nail beds was presumptively positive for blood. Dr. Kothari further testified to

having found two small droplets of what was suspected to be blood stain on the

barrel of the baseball bat. The testing of these areas gave Dr. Kothari a "weak

positive [blood] result."

      The State also presented testimony at trial from Jennifer Thayer, a DNA

comparison expert. Thayer testified that the DNA sample taken from the blood

stain on the baseball bat matched the DNA profile of D.B. According to Thayer,

S.P. was "the major DNA profile contributor" for the general swab of the

baseball bat. Moreover, Thayer testified that D.B.'s DNA had been found on the

paper towels located in D.B.'s car.

      Defendant testified on his own behalf and denied assaulting either D.B. or

S.P. He also presented testimony from his mother and a cousin, neither of whom

had been in the residence when the alleged attacks on D.B. and S.P. occurred.

      The defense theme at trial was that D.B. and defendant had a turbulent,

on-and-off-again romantic relationship for years. The tempestuous relationship


                                                                        A-4141-16T3
                                       8
and fluctuating emotions, defense counsel argued, resulted in D.B.'s and S.P.'s

inconsistent and contradictory trial testimony.

      Defendant contended that he had come to D.B.'s house for a benign

purpose, to try to persuade her to resume their relationship. Defendant testified

he did not break into the residence, but rapped on a window, and S.P. woke up

and let him inside the residence through a door. Moreover, defendant contended

that he only struck S.P. in self-defense after S.P. swung at him.

      Among other things, defense counsel stressed in closing argument that

defendant's fingerprints were not found on the window, that D.B.'s DNA was

not found on the handle baseball bat, that D.B. did not seek help from anyone at

the bank or act in distress, and that S.P. did not run out of the car when his

mother went inside the bank. Nevertheless, the jury apparently credited the

State's proofs on most, but not all, of the charged offenses.

      On appeal, defendant raises the following points in his counsel's brief:

            POINT 1

            THE TRIAL COURT ERRED AND VIOLATED
            DEFENDANT'S RIGHT TO CONFRONT THE
            WITNESS AGAINST HIM BY LIMITING CROSS-
            EXAMINATION OF THE MAIN WITNESS, D.B.




                                                                         A-4141-16T3
                                        9
           POINT 2

           THE PROSECUTOR EXCEEDED FAIR COMMENT
           IN SUMMATION.

           POINT 3

           THE TRIAL COURT ERRED IN DENYING
           DEFENDANT'S  MOTION FOR  JUDGMENT
           NOTWITHSTANDING VERDICT.

           POINT 4

           DEFENDANT'S SENTENCE IS IMPROPER AND
           EXCESSIVE.

Defendant also makes these arguments in a pro se supplemental brief:

           POINT I

           THE TRIAL COURT COMMITTED REVERSIBLE
           ERROR IN OF [SIC] DENYING DEFENDANT OF A
           FAIR TRIAL WHEN HE VIOLATED THE CANNON
           OF RULES AND FAILED TO RECUSE HIMSELF
           ON (2) OCCASSIONS.

           POINT II

           THE TRIAL COURT ERRED WHEN IT ALLOWED
           THE     PROSECUTOR      TO     COMMIT
           PROSECUTORIAL     MISCONDUCT      WHEN
           PROSECUTOR MISLED THE JURY COMMENTING
           ON-MATTERS OUTSIDE THE EVIDENCE "IN THE
           RECORD." THE EVIDENCE AND /OR MATTERS
           WHICH WERE "ESOTERIC" AND REQUIRED
           EXPERT TESTIMONY WHICH CONSTITUTED
           REVERSIBLE ERROR.


                                                                       A-4141-16T3
                                    10
POINT III

DEFENDANTS SIXTEEN YEAR EXTENDED TERM
SENTENCE AND EIGHT YEAR CONSECUTIVE IS
MANIFESTLY EXCESSIVE AND UNDULY
PUNITIVE.    NOT    SUPPORTED  BY    A
QUALITATIVE    WEIGHING     OF    THE
AGGRAVATING AND MITIGATING FACTORS
AND MUST BE VACATED OR THE MATTER
REMANDED FOR RESENTENCING.

POINT IV

THE PROSECUTOR INTERFERED WITH THE
GRAND JURY DECISION MAKING PROCESS BY
WITHHOLDING   EVIDENCE    THAT   BOTH
NEGATES   GUILT    AND   IS   CLEARLY
EXCULPATORY.

POINT V

THE PROSECUTOR NEVER PROVED AT TRIAL A.
JACKSON POSSESSE[D] A BAT, SEXUALLY
ASSAULTED- [D.B.], CRIMINAL RESTRAINT,
CRIMINAL TRESPASS, AND AGGRAVATED
ASSAULT UPON [D.B.] AND [S.P.]. THE
CONVICTIONS MUST BE VACATED BECAUSE
THE STATE FAILED TO PROVE BEYOND A
REASONABLE    DOUBT    THE   ESSENTIAL
ELEMENTS THAT HE POSSESSE[D] BAT,
CRIMINAL RESTRAINT, SEXUAL ASSAULT,
AGGRAVATED ASSAULT[S].

A. THE VERDICT ON THE COUNT SEXUAL
ASSAULT, WAS PATCHWORK AND SHOULD BE
REVERSED BASED ON LACK OF EVIDENCE.
"CONVICTION BASED UPON [D.B.] SAYING SHE
KNOWS ME . . . YET REFUSED RAPE KIT, AND

                                           A-4141-16T3
                  11
            HER SON TESTIFYING HE FIRST SEEN ME
            THROUGH AN IMAGINARY WINDOW IN THE
            MIDDLE OF ROOM, THEN BROKEN MIRROR,
            THEN STATING HE SEEN [SIC] NOTHING BUT
            HEARD SOMETHING.

            POINT VI

            DEFENDANT ARGUES INEFFECTIVE COUNSEL
            BECAUSE ATTORNEY FAILED TO CALL KEY
            WITNESSES THAT WERE PARTIES TO INCIDENT
            AND WHOM TESTIMONY WAS VITAL TO HIS
            DEFENSE AND TRIAL.

                                        II.

                                        A.

      Defendant's primary argument on appeal concerns the trial court's

application of N.J.R.E. 608(b), and the court's decision after a Rule 104 hearing

to exclude impeachment evidence that defense counsel had proffered of D.B.

allegedly making similar false accusations of sexual assault against defendant

in the past. Defendant further argues that N.J.R.E. 608(b) unconstitutionally

curtails his constitutional rights of confrontation.

      For the reasons that follow, we are unpersuaded the court erred in its

application of N.J.R.E. 608(b), or that the terms of the Rule violate the

Confrontation Clause.




                                                                         A-4141-16T3
                                        12
                                       1.

     N.J.R.E. 608, entitled "Evidence of Character for Truthfulness or

Untruthfulness and Evidence of Prior False Accusation," provides:

           (a) The credibility of a witness may be attacked or
           supported by evidence in the form of opinion or
           reputation, provided, however, that the evidence relates
           only to the witness' character for truthfulness or
           untruthfulness, and provided further that evidence of
           truthful character is admissible only after the character
           of the witness for truthfulness has been attacked by
           opinion or reputation evidence or otherwise. Except as
           otherwise provided by Rule 609 and by paragraph (b)
           of this rule, a trait of character cannot be proved by
           specific instances of conduct.

           (b) The credibility of a witness in a criminal case may
           be attacked by evidence that the witness made a prior
           false accusation against any person of a crime similar
           to the crime with which defendant is charged if the
           judge preliminarily determines, by a hearing pursuant
           to Rule 104(a), that the witness knowingly made the
           prior false accusation.

           [N.J.R.E. 608 (emphasis added).]

Subsection (b) of the rule became effective in 2007, following the Supreme

Court's opinion in State v. Guenther, 181 N.J. 129 (2004), recommending the

adoption of an evidence rule authorizing the admission of certain such

impeachment proof in criminal cases.




                                                                       A-4141-16T3
                                       13
      In Guenther, a defendant sought to admit evidence that a crime victim had

previously admitted to falsely accusing her neighbor of sexually abusing her.

Id. at 131. The defendant was charged with sexual assault and other crimes

related to the abuse of his stepdaughter. Ibid. The Court observed that N.J.R.E.

608 "embodies the common law rule that generally forbids admission of specific

instances of conduct to attack a witness's character for truthfulness." Id. at 131-

32. Despite this common-law tradition, the Court considered in Guenther the

discrete question of "whether the credibility of a witness who has accused a

defendant of sexual abuse may be impeached by evidence that she made a prior

false criminal accusation [and] . . . whether that issue implicates a defendant's

state and federal constitutional right of confrontation." Id. at 132.

      Guenther recognized that, "[s]everal centuries ago, courts began to

prohibit the use of prior instances of conduct to attack the credibility of a witness

for two essential reasons: to prevent unfairness to the witness and to avoid

confusion of the issues before the jury." Id. at 141. Consistent with that long-

standing practice, the Court noted that N.J.R.E. 608 "was designed to prevent

unfair foraging into the witness's past, as well as unfair surprise." Ibid. In

addition, "[t]he second rationale for the bar on specific conduct evidence was

the concern that such wide-ranging collateral attacks on the general credibility


                                                                             A-4141-16T3
                                        14
of a witness would cause confusion of the true issues in the case." Id. at 141-

42. The Court observed that:

            Modern courts continue to cite that rationale – the
            avoidance of "minitrials" on collateral matters that
            "tend to distract and confuse the jury" – as the primary
            justification for the exclusion of prior acts evidence. It
            was not a lack of relevance that gave rise to the rule
            prohibiting evidence of prior instances of untruthful
            conduct to impeach the witness's credibility, but the
            "auxiliary policies" regarding unfairness to the witness,
            confusion of issues, and undue consumption of time.

            [Id. at 142 (emphasis added) (citation omitted).]

      On the other hand, Guenther recognized the importance of a criminal

defendant's countervailing right to confrontation.      Id. at 147.      The Sixth

Amendment to the United States Constitution and Article I, Paragraph 10 of the

New Jersey Constitution both guarantee criminal defendants a general right to

confront witnesses against them and "to have compulsory process for obtaining

witnesses in [their] favor." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.

Guenther recognized these constitutional rights, and observed that both rights

are "essential for a fair trial." Id. at 147. Additionally, the Court acknowledged

that a defendant's right to confrontation is commonly exercised through cross -

examination, "which is recognized as the most effective means of testing the

State's evidence and ensuring its reliability." Ibid.


                                                                           A-4141-16T3
                                       15
      A general attack on a witness's credibility occurs when cross examination

seeks to reveal possible biases, ulterior motives, and prejudices. Id. at 149. The

Court noted in this regard that the United States Supreme Court in Davis v.

Alaska, 415 U.S. 308, 316-17 (1974), "recognized that the exposure of a witness

motivation [such as bias] in testifying is a proper and important function of the

constitutionally protected right of cross-examination." Ibid.

      Given these competing considerations, the Court in Guenther adopted a

limited exception in New Jersey for the admission, in criminal cases, of certain

impeachment evidence of a victim's prior false accusations against defendant of

a similar criminal act. In doing so, the Court attempted to strike a balance

between a criminal defendant's right of confrontation and the interests of victim-

witnesses. Id. at 157.

      Procedurally, the Court in Guenther directed that "[i]n deciding whether

to permit the impeaching of a victim-witness who allegedly made a similar false

accusation in the past, trial courts must first conduct an admissibility hearing

pursuant to N.J.R.E. 104." Ibid. "At that hearing, the court must determine by

a preponderance of the evidence whether the defendant has proven that a prior

accusation charging criminal conduct was made by the victim and whether that

accusation was false." Ibid. The Court concluded this procedural approach


                                                                          A-4141-16T3
                                       16
"strikes the right balance, placing an initial burden on the defendant to justify

the use of such evidence while not setting an exceedingly high threshold of its

admission." Ibid.

      Guenther instructed that in situations where such a preliminary

determination is made following a Rule 104 hearing, various factors should then

guide whether the prior false accusation would be admissible. "[T]he admission

of this type of specific conduct evidence is an exception to N.J.R.E. 608 and

should be limited only to those circumstances in which the prior accusation has

been shown to be false." Ibid. (emphasis added). The Court listed in Guenther

the admissibility factors to be considered, as follows:

            1.    whether the credibility of the victim-witness is
            the central issue in the case;

            2.    the similarity of the prior false accusation to the
            crime charged;

            3.    the proximity of the prior false accusation to the
            allegation that is the basis of the crime charged;

            4.    the number of witnesses, the items of extrinsic
            evidence, and the amount of time required for
            presentation of the issue at trial; and

            5.    whether the probative value of the false
            accusation evidence will be outweighed by undue
            prejudice, confusion of the issues, and waste of time.

            [Ibid.]

                                                                         A-4141-16T3
                                       17
Guenther directed the Supreme Court Committee on Evidence to consider

drafting a proposed amendment to the New Jersey Rules of Evidence to codify

such a "false accusation" provision. Id. at 160.

      The Evidence Committee initially recommended that the new provision

be extended to civil cases as well as criminal cases, and that organizationally

the provision be inserted into N.J.R.E. 609 (regarding impeachment with

previous criminal convictions) rather than within N.J.R.E. 608 (regardi ng other

forms of witness impeachment).       The Committee's April 4, 2006 Report

contingently advised, however, that if the Court did not wish to extend the new

provision to civil cases and confine it only to criminal cases, the provision

should read as follows:

            For the purpose of affecting the credibility of any
            witness, the witness's prior false accusation against any
            person of a crime similar to the crime with which
            defendant is charged shall be admissible if the judge
            preliminarily determines, by a hearing pursuant to Rule
            104(a), that the prior accusation was made and was
            false.

            [Supreme Court Committee on the Rules of Evidence,
            Report on Prior False Accusation Evidence 3 (Apr. 4,
            2006).]




                                                                        A-4141-16T3
                                      18
The Committee's April 2006 recommendation did not place the " Guenther

factors" within the text of the Rule, but instead envisioned those factors would

be applied by trial judges in implementing the new provision.

      The Supreme Court thereafter decided to confine the new provision to

criminal cases, and also to place the provision organizationally within N.J.R.E.

608 rather than N.J.R.E. 609. See Supreme Court Committee on the Rules of

Evidence, Proposed Amendment to N.J.R.E. 609 to Permit Evidence of Prior

False Accusations 11 (Jan. 19, 2007). Among other things, the Court inserted

the adverb "knowingly" as a required facet of the witness's previous state of

mind in making a false accusation. The Court also replaced the Committee's

suggested phrasing that such proof "shall be admissible" if the predicates are

met, with the phrase "may be attacked." 3

                                       2.

      We turn to the trial court's application of N.J.R.E. 608(b) in the present

case. Before trial, defense counsel advised the court that the defense intended

to present evidence under N.J.R.E. 608(b) of D.B.'s alleged false accusations of

sexual assault against defendant in 2005, as proof to impeach her credibility in


3
  We need not decide whether the Court's linguistic change from "shall" to
"may" signifies that the application of the Rule is discretionary rather than
mandatory.
                                                                        A-4141-16T3
                                      19
this case. In July 2016, the trial court, following the procedure set forth under

the Rule, conducted a Rule 104 hearing. Defense counsel called D.B. as a

witness at that hearing.

      D.B. acknowledged in her testimony at the Rule 104 hearing that she had

been in a relationship with defendant in the past. She further acknowledged that

she had given statements to the police and testified in 2005 in a crimi nal

prosecution of defendant that he had sexually assaulted her. D.B. specifically

testified that she told law enforcement in 2005 that defendant committed an act

of sexual penetration on her, against her will.       Defendant was ultimately

convicted of criminal activity arising out of those allegations.

      Notably, D.B. admitted at the Rule 104 hearing to having written and

signed two letters to the trial court in July 2005 and October 2006 with the

purpose of "trying to attempt to get [defendant]'s charges reduced." D.B. also

acknowledged to having written a letter to the Parole Board for "[t]he same

reasons." Although defendant had already been sentenced on these charges by

that point, she explained that she wrote these letters because she was "[t]rying

to get his charges not as severe."

      D.B. stated at the Rule 104 hearing that she had intended to convey in her

2006 letter to the Parole Board her view that defendant was innocent of criminal


                                                                         A-4141-16T3
                                       20
restraint, but not that he was innocent of sexual assault or contact. According

to D.B., she typed and signed the letters, but defendant guided her on the phone

from jail as to "what to write." D.B. testified she was unable to remember if she

signed the certification that defense counsel presented to her, which stated that

the previously referenced letters were true and correct. D.B. testified at the

hearing that she wrote the letters "because [she] wanted [defendant] char ged

with just simple assault."

      During the Rule 104 hearing, defense counsel specifically asked D.B.

whether defendant had sexually assaulted her in 2005. D.B. replied, "Yes."

Defense counsel followed up by asking, "[defendant] sexually assaulted you

[then]?" To which D.B. responded, "He did."

      When cross-examining D.B. at the Rule 104 hearing, the assistant

prosecutor had the following exchange with her regarding her alleged

recantation:

               Q     [D.B.], what you reported to police in January
               2005, was that the truth?

               A     Yes.

               Q      And these letters that you wrote to the Parole
               Board, was your only purpose to assist him in getting a
               lesser sentence?

               A     Yes.

                                                                         A-4141-16T3
                                        21
            Q     But it is the truth that he did, in fact, sexually
            assault you?

            A     Yes, it is.

      After hearing argument from counsel, Judge D'Arrigo denied defendant's

motion to admit false accusation evidence under N.J.R.E. 608(b). The judge

provided his reasoning in a detailed oral opinion, as follows:

                   Now to the extent that Guenther sets out the
            factors that would make this information, I guess, fair
            fodder for cross-examination, those determinations are
            only made after the [c]ourt finds that there was, by a
            preponderance of the evidence, a false allegation made
            against this defendant by this witness, or by – actually,
            a false allegation made by this witness against anybody.
            That is really what the rule is talking about here, not
            necessarily just this defendant.

                   That said, this case is unique in that we have a
            great deal of information related to exactly the issue
            that counsel is pointing at in this application. As I
            indicated this is [an N.J.R.E.] 608(b) issue, not [one
            arising under N.J.R.E.] 803.            So under the
            circumstances, the rules sets forth that credibility of a
            witness in a criminal case may be attacked by evidence
            that a witness made a prior false accusation against any
            person of a crime similar to the crime for which the
            defendant is charged. If the judge preliminarily
            determines by a – by a hearing, pursuant to Rule 104(a),
            that the witness knowingly made a prior false
            accusation.

                   In this particular case, it is clear that even at the
            date of sentencing in the original offense back in 2005,
            this particular victim was owing to her relationship with

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                                        22
            . . . defendant, not in agreement with the [p]rosecutor
            as to the nature of the prosecution. That means in the
            degree and extent of charges. She reiterated that here
            today.

                   I am satisfied, from her testimony here today,
            number one, that the testimony she gave . . . [t]o law
            enforcement previously and particularly with regard to
            the DV hearing, was in fact truthful testimony. I do not
            find that anything indicates that any of the testimony
            that she gave previously, or the statements she made to
            police, or the accusations that she made were not
            truthful.

                     That said, it is clear that she signed certain
            documents at the behest of the defendant, the one of
            which, the most troubling of which, of course, is the
            certification. As pointed out by counsel under cross-
            examination, the document on its face says [that] it's
            being made under oath. The victim is a well-educated
            person, able to read and understand the English
            language. So it's not as if she did not understand it. But
            significantly, the documents she looked at other than
            the certification, she freely admitted that she had typed,
            albeit at the request and/or instruction of . . . defendant
            . . . [.]

After examining the documents at issue, i.e., D.B.'s letters and certification, the

judge found:

                  There is a consistency of typeface and
            organization with regard to D-2, D-3, D-5, and D-6.
            The one document that is substantially different both in
            typeface and organization is D-4, the certification.

                  Now all of these things – and what I'm – my
            decision with regard to this is predicated upon a totality

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                                       23
of circumstances here, all the things that present here to
me with regard to the accusations made back in January
of 2005. And what I have in front of me here is with
regard to her testimony here today, she indicates that
she did not recall typing the certification, under D-4,
but she did recall typing the other correspondence.

       She is aware, and I find that she does understand
what perjury is. However, I do find that the motivation
behind all of these documents was as she had stated,
both at the time of her testimony here today and before
[the judge who presided over the previous case] was to
lessen the severity of the charges against . . . defendant.
That was the primary purpose behind these documents.

      That said, the other factors that I have in front of
me are this, is that the charges were made back in
January of 2005, and . . . defendant entered a plea of
guilty to the criminal restraint. The references in all of
these documents refer to both the criminal restraint and
the sexual assault does not differentiate between the
two of them.

       I mirror [the prior judge's] observations that he
had never seen anything like that before. I have never
seen anything like that, per se, at sentencing. However,
have I seen situations where persons in domestic
relationships are reticent about proceeding in actions
against a paramour or former paramour. No, that is
extremely common. It happens all the time. So the
question here before me is was she lying when she made
the accusations at the time they were made. And I do
not find that there is evidence, by a preponderance of
the evidence, that those statements were untrue.

[(Emphasis added).]



                                                              A-4141-16T3
                           24
      Having determined that D.B. had not, in fact, made prior false accusations

against defendant, Judge D'Arrigo found no need to reach definitively whether

the Guenther factors were satisfied, although the judge stated in passing they

"probably would be."

                                         3.

      Defendant argues the judge's conclusion of non-admissibility under

N.J.R.E. 608(b) was erroneous and is not supported by the record. We disagree.

      In evaluating defendant's contention of error, we must be mindful of the

strong degree of deference we generally accord to criminal trial judges in their

rulings on evidential admissibility. Such rulings generally "should be upheld

'absent a showing of an abuse of discretion, i.e., there has been a clear error of

judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown,

170 N.J. 138, 147 (2001)). "An appellate court applying this standard 'should

not substitute its own judgment for that of the trial court, unless the trial court's

ruling is so wide of the mark that a manifest denial of justice results.'" J.A.C.,

210 N.J. at 295 (quoting Brown, 170 N.J. at 147).

      No such "manifest denial of justice" or clear error has been demonstrated

here. The testimony of D.B. at the Rule 104 hearing reasonably explains why

she signed a certification and letters attempting to reduce defendant's criminal


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                                        25
exposure in the previous sexual assault case. As the judge found, D.B. credibly

stated that she had only done so at defendant's request, and that she still

maintains that he sexually assaulted and penetrated her. Viewing the totality of

circumstances, the trial judge reasonably concluded that D.B. had not fully or

definitively recanted her original accusations, and that no "knowingly false"

assertions of wrongdoing by her had occurred.            We affirm that sound

determination.

                                        4.

      We now turn to defendant's alternative argument that N.J.R.E. 608(b) is

unconstitutional, insofar as it allows a trial judge to bar evidence of a victim-

witness's prior false accusation the judge finds unpersuasive, even though

rational jurors might disagree with such a finding. For historical context, we are

aware that the New Jersey Supreme Court's opinion in Guenther, which was

issued on August 9, 2004, does not discuss the March 8, 2004 opinion of the

United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004),

which substantially changed Confrontation Clause jurisprudence in our country.

The key innovation of Crawford, however, which focuses on whether a

declarant's hearsay statement afforded at trial against a criminal defendant is




                                                                          A-4141-16T3
                                       26
"testimonial," id. at 51, has no bearing on the validity of N.J.R.E. 608(b) or, for

that matter, the present case.

         As Guenther recognized, following the common law tradition, not all

states permit an accused to admit proof of specific instances of prior similar

false accusations by a victim-witness. Guenther, 181 N.J. at 151. Some states

do allow such false-accusation proof, but differ as to whether it can be adduced

only through cross-examination of the victim-witness, or whether it can be

separately proven through extrinsic evidence. Id. at 151-54. Our Court in

Guenther elected to join the jurisdictions that permit such impeachment

evidence in certain circumstances.

         The critical flaw in defendant's argument of unconstitutionality is that our

Supreme Court in Guenther, and in its later adoption of N.J.R.E. 608(b),

endeavored to advance, not weaken, a defendant's interests in confrontation, by

now allowing "false accusation" evidence to be used as impeachment in certain

limited situations where it previously could not be used before in this State. By

taking that step, the Court moved in the direction of a criminal defendant's

interests in confrontation. But the Court was not constitutionally obligated to

do so.




                                                                             A-4141-16T3
                                         27
      Indeed, defendant points to no federal or state court opinion that supports

his novel argument that state rules of evidence must allow such proof to be

admitted without the trial court performing a "gatekeeping" role in determining

whether the likely probative value of such evidence justifies its consideration by

a jury.    Such gatekeeping appropriately takes into account the competing

interests in avoiding "mini-trials" on collateral matters, juror confusion, and the

need to avoid discouraging some victim-witnesses from coming forward to

report new offenses. See Guenther, 181 N.J. at 142.

      In State v. A.O., 198 N.J. 69, 74 (2009), the Court extended the Guenther

exception to a witness's false allegations made after the allegations in the

criminal case at bar. In A.O., the Court specifically stated that Guenther remains

"good law." Id. at 94. As the Court in A.O. explained, "Guenther created a

narrow exception to N.J.R.E. 608 and held that 'in limited circumstances and

under very strict controls a defendant has the right to show that a victim-witness

has made a prior false criminal accusation for the purpose of challenging that

witness's credibility.'" Id. at 93 (emphasis added) (quoting Guenther, 181 N.J.

at 154).

      Notably, the Court in A.O. reiterated that our courts must be "mindful of

its concerns to avoid distracting mini-trials." Ibid. A.O. reflects that Guenther's


                                                                           A-4141-16T3
                                       28
delegation of a gate-keeping role to trial judges concerning such proof is

permissible and constitutionally acceptable.

                                         5.

      For all of these reasons, we reject defendant's various arguments

challenging the trial court's exclusion of the proffered "false accusation"

evidence from this jury trial. The court's decision to exclude such evidence was

soundly based in the record and the governing law, and did not violate his

constitutional rights.

                                         B.

      We have fully considered the balance of the arguments raised by

defendant on appeal, both in his counsel's brief and in his pro se brief. Having

done so, we conclude that none of these arguments have sufficient merit to be

discussed in this opinion, Rule 2:11-3(e)(2), except that defendant's claims of

ineffective assistance of his former trial counsel are reserved for a future petition

for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

      Very briefly, we simply note that the prosecutor's summation clearly did

not exceed the bounds of fair comment, given the tenor of defense counsel's own

closing argument inviting the jurors to consider the believability of the victims'

accounts in this case and the victims' reactions to defendant's alleged assaultive


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                                        29
behavior after it occurred. See State v. Scherzer, 301 N.J. Super. 363, 433-34

(App. Div. 1997) (noting the latitude generally given to prosecutors in closing

argument).

      Nor did the trial court err in this case in denying defendant's motion for

judgment of acquittal, as the State's evidence, including the testimony of the

victims, could reasonably support the jurors' findings of guilt. State v. Reyes,

50 N.J. 454, 458-59 (1967); see also R. 3:18-1. There was ample proof that

S.P.'s injuries were sufficiently shown to meet the element of "serious bodily

injury," or at least an attempt by defendant to inflict such an injury.

      We further discern no abuse of discretion or misapplication of the

statutory factors that would justify second-guessing the sentence the court

imposed. State v. Case, 220 N.J. 49, 65 (2014). The consecutive terms imposed

for the respective assaults on the two victims are justified under State v.

Yarbough, 100 N.J. 627, 643 (1985).

      Finally, we particularly reject defendant's frivolous contention that the

trial judge was disqualified because a physician who treated D.B. and S.P. at the

hospital emergency room happened to be related to the judge's wife. That

physician was not a witness in this case, and no disqualifying conflict of interest

was objectively present. DeNike v. Cupo, 196 N.J. 502, 517 (2008) (applying


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                                       30
an objective standard to judicial disqualification issues). The rest of defendant's

pro se arguments are clearly not worthy of comment. R. 2:11-3(e)(2).

      Affirmed.




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                                       31
