                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4080-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.P.D.,

     Defendant-Appellant.
____________________________

                    Submitted January 27, 2020 – Decided April 28, 2020

                    Before Judges Rothstadt, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Warren County, Docket No. 08-05-0215.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Seon Jeong Lee, Designated Counsel, on the
                    briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Regina M. Oberholzer, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant P.P.D. was charged in a four-count indictment with crimes

related to multiple sexual assaults of his niece-by-marriage, A.T., during

sleepovers at his house with her cousins, defendant's children, one of whom,

J.D., was A.T.'s age. The assaults commenced in October 1997 and ended in

February 2002; A.T. was between the ages of six and ten years-old.1 Defendant

was convicted by jury of two counts of first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a) (counts one and two), second-degree sexual assault,

N.J.S.A. 2C:14-2(b) (count three), and third-degree endangering the welfare of

a child related to the sexual assaults, N.J.S.A. 2C:24-4(a) (count four). We

affirmed his conviction in April 2016, remanding only for reconsideration of the

Sex Crime Victim Treatment Penalty imposed. State v. P.P.D., A-4941-12

(App. Div. Apr. 1, 2016). The Supreme Court denied defendant's petition for

certification. State v. P.P.D., 227 N.J. 251 (2016).

      Defendant appeals2 from the January 9, 2018 order denying his petition

for post-conviction relief (PCR). His sole point on appeal is:


1
  We use initials to protect the privacy of A.T. See N.J.S.A. 2A:82-46; R. 1:38-
3(c)(9), (12).
2
 We granted defendant's motion to file his notice of appeal as within time on
May 29, 2018. Both that motion and defendant's notice of appeal were filed on
May 15, 2018.


                                                                        A-4080-17T2
                                        2
            THIS COURT SHOULD GRANT DEFENDANT'S
            PETITION FOR [PCR] BECAUSE THE STATE'S
            [CHILD SEXUAL ASSAULT ACCOMMODATION
            SYNDROME (CSAAS)] EVIDENCE ADMITTED AT
            DEFENDANT'S TRIAL WAS UNRELIABLE
            EXPERT TESTIMONY, AS HELD RECENTLY IN
            STATE V. J.L.G., 234 N.J. 265 (2018)[,] REVERSING
            STATE V. J.Q., 130 N.J. 554 (1993), THAT
            FUNCTIONED TO BOLSTER A.T.'S TESTIMONY
            UPON WHICH DEFENDANT'S CONVICTION WAS
            SOLELY BASED, DEPRIVING DEFENDANT OF
            HIS     CONSTITUTIONAL             RIGHT       TO
            FUNDAMENTAL DUE PROCESS.

We determine the new rule of law announced by our Supreme Court should not

be applied with full retroactive effect and affirm.

      During the pendency of this appeal, our Supreme Court decided State v.

J.L.G., 234 N.J. 265 (2018), holding:

            Based on what is known today, it is no longer possible
            to conclude that CSAAS has a sufficiently reliable basis
            in science to be the subject of expert testimony. We
            find continued scientific support for only one aspect of
            the theory — delayed disclosure — because scientists
            generally accept that a significant percentage of
            children delay reporting sexual abuse.

                  We therefore hold that expert testimony about
            CSAAS in general, and its component behaviors other
            than delayed disclosure, may no longer be admitted at
            criminal trials. Evidence about delayed disclosure can
            be presented if it satisfies all parts of the applicable
            evidence rule. See N.J.R.E. 702. In particular, the
            State must show that the evidence is beyond the
            understanding of the average juror.

                                                                       A-4080-17T2
                                        3
            [Id. at 272 (emphasis added).]

      Our decision on direct appeal fully delineated the facts of this case and we

will not repeat them here except as germane to this case. Defendant did not

cease assaulting A.T. in 2002 because A.T. disclosed the attacks to anyone.

They stopped when defendant's wife advised A.T.'s parents that defendant was

arrested for sexually abusing three of J.D.'s friends during sleepovers at his

house. Although, after that arrest, A.T.'s parents asked her if anything

inappropriate occurred at defendant's house and they sent her to therapy, A.T.

did not disclose the abuse to her father until 2004. A.T.'s parents engaged her

in further counseling after her unspecific disclosure to her father. A.T. and her

family, sometimes aided by the therapist, periodically discussed pressing

charges against defendant but did not do so until 2008.

      At defendant's trial, the State called Dr. Anthony D'Urso who testified as

an expert in CSAAS. After explaining that the theory behind CSAAS was to

"help people understand [how] the dynamics of child sexual assault . . . might

differ from adult sexual assault," he testified at length regarding all five

component behaviors of CSAAS:          secrecy, helplessness, accommodation,

delayed disclosure and recantation, including explanations about coercion,



                                                                          A-4080-17T2
                                        4
entrapment, and psychological accommodation, as well as accidental and

purposeful disclosures.

      We recognize the CSAAS evidence ran afoul of the Court's holding in

J.L.G. because it encompassed four of the prongs now precluded from

admission, and also contravened the Court's admonition:

            Trial judges must exercise care to limit the testimony
            and bar any reference to "CSAAS," an abuse
            "syndrome," other CSAAS "behaviors" aside from
            delayed disclosure, or causes for delayed disclosure.
            The testimony should not stray from explaining that
            delayed disclosure commonly occurs among victims of
            child sexual abuse, and offering a basis for that
            conclusion.

            [234 N.J. at 303.]

      Further, the then twenty-year-old A.T. was clearly able to articulate at

trial her uncomplicated reasons for delayed disclosure.       She explained that

although she disclosed the abuse to her mother, father, and therapist in 2004,

she did not go to the police because

            I wasn't ready to. That was the first time my parents
            found out. That was the first time any of my loved ones
            knew. So I wasn't ready to, first of all, lose [J.D.] as a
            friend. I was scared to see their reactions. Scared of
            what [defendant] was going to do. I didn't want
            anything to change.




                                                                         A-4080-17T2
                                        5
She testified that she decided to disclose the abuse in 2008 after having multiple

discussions with her boyfriend, and after her mother asked if she was ready to

press charges.

      A.T.’s therapist testified: A.T. and she discussed going to the police for

"[a]n enormous amount of time"; A.T. told her that she did not disclose the abuse

earlier because she was concerned "[w]hat the process would be . . . and how

difficult that would be"; and that A.T's reservations about pressing charges were:

            What would happen, that there would be little or no jail
            time, that she would go through this horrific process of
            having to talk about the abuse in an open [c]ourt, how
            many people she would have to tell, versus what would,
            you know, what would be the outcome, would he be
            punished. She would never see the cousins.

      Those reasons were not "beyond the ken of the average juror," J.L.G., 234

N.J. at 304 (quoting State v. Kelly, 97 N.J.178, 208 (1984)). The J.L.G. Court

held it is the State's burden to make that showing before delayed-disclosure

expert testimony is admitted. Id. at 272. Under N.J.R.E. 702, "expert testimony

is not appropriate to explain what a jury can understand by itself." J.L.G., 234

N.J. at 305. As the Court explained:

            If a child witness cannot offer a rational explanation for
            the delay in disclosing abuse -- which may happen
            during the pretrial investigative phase or on the witness
            stand -- expert evidence may be admitted to help the
            jury understand the child's behavior. In this context, we

                                                                          A-4080-17T2
                                        6
             do not accept that jurors can interpret and understand
             an explanation that is not offered.

                   On the other hand, a young teenager's
             explanation from the witness stand may fall within the
             ken of the average juror and might be assessed without
             expert testimony.

             [Ibid.]

      Thus, if defendant's trial took place today, the expert delayed-disclosure

testimony would not have been admitted at trial. See ibid. (noting that the

victim’s reasons for her delayed disclosure fell within the ken of the average

juror where the victim testified she waited to disclose the abuse because "(a)

defendant threatened her with a gun, (b) she was embarrassed by the degrading

experiences, and (c) she feared that her mother would kill defendant . . .").

A.T.'s reasons for non-disclosure were clear and uncomplicated. The jury did

not need expert testimony to understand them.

      The admission of the CSAAS testimony was not harmless error in light of

the limited physical evidence of the charged crimes. The linchpin of this case

was A.T.'s credibility. "An error is harmless unless, in light of the record as a

whole, there is a 'possibility that it led to an unjust verdict' -- that is, a possibility

'sufficient to raise a reasonable doubt' that 'the error led the jury to a result it




                                                                                 A-4080-17T2
                                            7
otherwise might not have reached.'" Id. at 306 (quoting State v. Macon, 57 N.J.

325, 335-36 (1971)).

      In J.L.G., the Court determined the admission of the expert CSAAS

testimony constituted "harmless error," incapable of affecting the outcome of

the case, because the State presented an overwhelming amount of evidence at

trial corroborating the defendant's guilt which was not dependent on the jury's

assessment of the victim's credibility, including an audio recording of the

defendant's assault, an eyewitness account of the defendant sexually aroused

while lying on top of the victim, and police-recorded telephone conversations in

which the defendant offered the victim bribes to refrain from testifying. Ibid.

      In contrast, we recently determined that the admission of CSAAS expert

testimony in four different cases, consolidated on appeal, constituted harmful

error. See State v. G.E.P., 458 N.J. Super. 436, 449 (App. Div.), certif. granted,

239 N.J. 598 (2019). In each of those four cases we determined the admission

of expert CSAAS evidence at trial unduly bolstered the victim's credibility and

could not be considered "harmless error," observing there was little or no

corroborating physical evidence introduced at each trial, and the credibility of

each victim’s testimony was the linchpin of the State’s case. Ibid.




                                                                          A-4080-17T2
                                        8
      Here, the State's case predominantly relied on A.T.’s detailed testimony,

including the time and place of each assault occurred, how defendant positioned

her during the assaults, her reasons for both her delayed disclosure of the abuse,

and for going to the police. All the other State's witnesses testifying at trial

learned about the abuse from A.T. Although on one occasion, A.T.'s underwear

was found on the floor on the morning after an assault, no one observed any

assault. The admission of the CSAAS testimony, therefore, raised "a possibility

'sufficient to raise a reasonable doubt' that 'the error led the jury to a result it

otherwise might not have reached.'" J.L.G., 234 N.J. at 306 (quoting Macon, 57

N.J. at 335-36)

      Although defendant's counsel presciently argued during the new-trial

motion that "the Supreme Court has to revisit the issue because CSAAS goes

back to the [19]80's and really has been undercut in terms of the science and the

author's own discounting and disapproval of the way that it's used forensically,"

defendant did not raise a CSAAS issue on direct appeal. Of course, J.L.G. was

not filed until July 31, 2018, well after the resolution of defendant's direct appeal

and PCR petition before the trial court, and after we granted permission for this

late-filed appeal.




                                                                             A-4080-17T2
                                         9
      The issue becomes, therefore, the extent of retroactivity applied to J.L.G.3

"[R]etroactivity can arise only where there has been a departure from existing

law." State v. Burstein, 85 N.J. 394, 403 (1981). In determining whether a case

raises a new rule of law, there must be a "sudden and generally unanticipated

repudiation of a long-standing practice." State v. Afanador, 151 N.J. 41, 58

(quoting State v. Cupe, 289 N.J. Super. 1, 12 (App. Div. 1996)). That is, it must

"break[] new ground or impose[] a new obligation on the . . . government"; "if

the result was not dictated by precedent existing at the time the defendant's

conviction became final," it will be considered a new rule. State v. Lark, 117

N.J. 331, 339 (1989) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)).

      The J.L.G. Court reviewed de novo whether the reliability of CSAAS

testimony was established under the Frye test.4 234 N.J. at 301. Such testimony

had been widely utilized by prosecutors who relied on the cases endorsing its

use, G.E.P., 458 N.J. Super. at 447, beginning with State v. J.Q., 130 N.J. 554,


3
  Defendant did not argue for full retroactivity of J.L.G. until he filed his reply
brief. Although "a new issue cannot be raised in a reply brief" on appeal, Alpert,
Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 527 n.5
(App. Div. 2009), we will address the issue.
4
    Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding
admissibility of proposed expert testimony is conditioned on whether the
scientific basis for the opinion has "gained general acceptance in the particular
field in which it belongs").
                                                                           A-4080-17T2
                                       10
556 (1993) (finding CSAAS had a "sufficiently reliable scientific basis" to

justify presentation to a jury).   The Court's prohibition of the introduction of

CSAAS-related expert testimony on any of the five syndrome factors except

delayed disclosure, J.L.G., 234 N.J. at 303, cannot be viewed as anything but a

new rule of law.

      That having been determined, we can

            (1) make the new rule of law purely prospective,
            applying it only to cases whose operative facts arise
            after the new rule is announced; (2) apply the new rule
            to future cases and to the parties in the case announcing
            the new rule, while applying the old rule to all other
            pending and past litigation; (3) grant the new rule
            [pipeline] retroactivity, applying it to cases in (1) and
            (2) as well as to pending cases where the parties have
            not yet exhausted all avenues of direct review; and,
            finally, (4) give the new rule complete retroactive
            effect[.]

            [Burstein, 85 N.J. at 402-03.]

      In G.E.P, we concluded J.L.G.'s holding "should be given at least pipeline

retroactivity," G.E.P, 458 N.J. Super. at 448, rendering it applicable to all

prospective cases arising after the announcement of the new rule of law, parties

in the case considered, and pending cases in which "the parties have not yet

exhausted all avenues of direct review," Burstein, 85 N.J. at 403, when the Court

issued its opinion in J.L.G. Judge Koblitz cogently analyzed the three factors


                                                                          A-4080-17T2
                                       11
considered in determining whether a new rule of law should be made purely

prospective, prospective but applicable to the case announcing the new rule,

retroactive to cases in the pipeline or completely retroactive:

             "(1) the purpose of the rule and whether it would be
             furthered by a retroactive application, (2) the degree of
             reliance placed on the old rule by those who
             administered it, and (3) the effect a retroactive
             application would have on the administration of
             justice."

             [G.E.P., 458 N.J. Super at 445 (quoting Feal, 194 N.J.
             at 308).]

      The first factor is the "most pivotal" and requires the court to consider

whether "the purpose of the new rule 'is to overcome an aspect of the criminal

trial that substantially impairs its truth-finding function' and raises 'serious

question[s] about the accuracy of guilty verdicts in past trials [.]'" Ibid. (first

alteration in original) (quoting Feal, 194 N.J. at 308-09). If the purpose of the

new rule was to remedy an aspect of a criminal trial which substantially impaired

the "truth-seeking function" of the trial, retroactive effect generally should be

given; however, if the "new rule is designed to enhance the reliability of the

fact-finding process, but the old rule did not 'substantially impair' the accuracy

of that process, a court will balance the first [factor] against the second and third

[factors]." Id. at 446 (alterations in original) (quoting Feal, 194 N.J. at 309).


                                                                             A-4080-17T2
                                        12
      J.L.G. does not fall into that class of cases where "fundamental

constitutional implications" mandate full retroactivity, State v. Purnell, 161 N.J.

44, 54 (1999), such as those recognized by our colleagues in G.E.P., as striking

"at the heart of the truth-seeking function," 458 N.J. Super. at 445-46. Unlike

those cases where full retroactivity has been accorded, the severe curtailment of

CSAAS evidence imposed by the J.L.G. Court does not involve altering the

burdens of proof, Hankerson v. North Carolina, 432 U.S. 233 (1977); Ivan V. v.

City of New York, 407 U.S. 203 (1972) or the right to counsel at critical stages,

Arsenault v. Massachusetts, 393 U.S. 5 (1968); Pickelsimer v. Wainwright, 375

U.S. 2 (1963); see also Feal, 194 N.J. at 309.

       In contrast to those cases, full retroactivity has not been afforded to new

rules of law that simply "affect[] the jury's assessment of the victim's

credibility." State v. J.A., 398 N.J. Super. 511, 524 (App. Div. 2008) (refusing

to grant complete retroactive effect to a new rule because the old rule simply

"affected the jury's assessment of the victim's credibility, [and] was [not] a

'substantial' impairment of the truth-finding process" (citing State v. R.E.B., 385

N.J. Super. 72, 84-86 (App. Div. 2006))); see also Feal, 194 N.J. at 310 (refusing

to apply a new rule of law which recategorized "comments on a defendant's

presence at trial as interdicted under all circumstances," in part, because the "old


                                                                            A-4080-17T2
                                        13
rule was a well-settled and legitimate means of fairly attacking a

defendant's credibility").

      CSAAS testimony was previously admitted to explain a child victim's

reaction to sexual assault. Prior to J.L.G., the jury was instructed they can

consider CSAAS testimony to help "explain[] certain behavior[s] of the alleged

victim of child sexual abuse" and "help explain why a sexually abused child may

. . . delay reporting[,] . . . recant allegations of abuse . . . [or] deny that any

sexual abuse occurred[.]" Model Jury Charges (Criminal), "Child Sexual Abuse

Accommodation Syndrome" (rev. May 16, 2011); see also G.E.P., 458 N.J.

Super. at 462 n.5.

      Defendant argues that the admission of CSAAS testimony bolstered A.T.'s

testimony. In G.E.P., we discerned the purpose of J.L.G.'s holding was "to avoid

unjust convictions in which the State's proofs are unfairly bolstered by expert

opinion that lacks a reliable basis." 458 N.J. Super. at 447. Inasmuch as the

CSAAS-expert testimony cannot be used to establish a defendant's guilt, it is

our judgment that the J.L.G. Court's ruling was "designed to enhance the

reliability of the fact-finding process[,] but the old rule did not 'substantially

impair' the accuracy of that process." See Burstein, 85 N.J. at 408.




                                                                           A-4080-17T2
                                       14
      In balancing the two remaining factors—"the degree of reliance placed on

the old rule by those who administered it, and . . . the effect a retroactive

application would have on the administration of justice," Feal, 194 N.J. at 308

(quoting State v. Knight, 145 N.J. 233, 251 (1996))—we need not ford waters

already bridged by our holding in G.E.P., where we recognized the wide

utilization of CSAAS testimony by prosecutors who relied on the cases

sanctioning its use beginning in 1993, 458 N.J. Super. at 447; see also J.Q., 130

N.J. at 556 (finding CSAAS had a "sufficiently reliable scientific basis" to

justify presentation to a jury). Indeed, the J.L.G. Court indicated that the

introduction of CSAAS testimony at trial was widespread throughout the State

and country. 234 N.J. at 272 ("Courts across the nation embraced [CSAAS as

reliable] . . . pav[ing] the way for experts to testify about the syndrome in

criminal sex abuse trials").5

      While we cannot definitively analyze the impact retroactive application

would have on the justice system, not knowing the number of convictions in

which CSAAS evidence has played a part, we do know that experts have been

testifying in trials of defendants accused of child sexual abuse for almost three


5
    We noted there were, at minimum, forty pending appeals involving the
admissibility of CSAAS evidence when we decided G.E.P. See 458 N.J. Super.
at 448.
                                                                         A-4080-17T2
                                      15
decades. While such evidence may not have been "a staple of criminal trials"

like eyewitness identification testimony, see State v. Henderson, 208 N.J. 208,

302 (2011) (determining that "reopen[ing] the vast group of [eyewitness

identification] cases decided over several decades . . . would 'wreak havoc on

the administration of justice'" (quoting State v. Dock, 205 N.J. 237, 258

(2011))), it was introduced in cases where child-victims had to testify about

assaults, the disclosure of which, for many, were then delayed. Retroactive

effect would allow defendants who were convicted after trials in which CSAAS

evidence was introduced to collaterally attack those convictions. If PCR is

granted, the State would be required to marshal evidence if still available and

witnesses whose memory would be subject to attack. See ibid. (refusing to grant

full retroactive application to a new rule of law, in part, because doing so would

require eyewitness to retake the stand at a time where their memories have "have

long since faded"). It would also require those victims to recount attacks many

of them were initially reluctant to disclose.

      We see no reason to stray from our decision in G.E.P, concluding J.L.G.'s

holding should receive pipeline retroactivity, 458 N.J. Super. at 448, rendering

it applicable to all prospective cases arising after the announcement of the new

rule of law, parties in the case considered, and pending cases in which "the


                                                                          A-4080-17T2
                                       16
parties have not yet exhausted all avenues of direct review," Burstein, 85 N.J. at

403, when the Court issued its opinion in J.L.G. As such, J.L.G. should not be

accorded full retroactivity to afford defendant, who had exhausted all avenues

of direct review, relief. In such cases, courts "will not burden the criminal

justice system with the [PCR] and retrials that would result from a fully

retroactive application" of a new rule of law." Knight, 145 N.J. at 258.

      We determine the balance of defendant's arguments, including that made

in his reply brief that "[i]n J.L.G., the Court announced two holdings: one novel

and the other an application of well-established law under N.J.R.E. 702," the

latter of which was not a new rule of law, to be without sufficient merit t o

warrant discussion. R. 2:11-3(e)(2). Not only was this issue raised in a reply

brief, see Alpert, 410 N.J. Super. at 527 n.5, and was not raised to the PCR court,

see State v. Robinson, 200 N.J. 1, 19-20 (2009), it also improperly parses the

Court's decision in J.L.G. Moreover, that argument attacks the admission of the

CSAAS evidence as contravening N.J.R.E. 702. As the argument was not raised

on appeal, but was evident in the record, defendant cannot raise it in this PCR

proceeding. R. 3:22-4; see also State v. McQuaid, 147 N.J. 464, 483 (1997) ("A

defendant ordinarily must pursue relief by direct appeal, . . . and may not use




                                                                           A-4080-17T2
                                       17
post-conviction relief to assert a new claim that could have been raised on direct

appeal" (citation omitted)).

      Affirmed.




                                                                          A-4080-17T2
                                       18
