                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1084-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.K.,

     Defendant-Appellant.
___________________________

                    Argued September 23, 2019 – Decided November 8, 2019

                    Before Judges Sumners, Geiger and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 14-05-
                    0539.

                    Tamar Yaer Lerer, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Tamar Yaer Lerer, of
                    counsel and on the briefs).

                    Joie   D.    Piderit,  Special    Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Christopher L.C. Kuberiet, Acting
                    Middlesex County Prosecutor, attorney; Nancy Anne
            Hulett, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      After defendant P.K.'s first trial resulted in a mistrial, a second jury

convicted him of second-degree sexual assault upon a child less than thirteen

years of age, contrary to N.J.S.A. 2C:14-2(b), and third-degree endangering the

welfare of a child, contrary to N.J.S.A. 2C:24-4(a). On appeal, defendant raises

the following six points for our consideration:

            POINT I

            THE     ADMISSION    OF     REPETITIVE,
            CORROBORATIVE HEARSAY STATEMENTS,
            ADMITTED PURSUANT TO THE TENDER YEARS
            EXCEPTION, WAS CUMULATIVE, UNDULY
            PREJUDICIAL, AND REQUIRES REVERSAL OF
            DEFENDANT'S CONVICTIONS.

            POINT II

            BECAUSE THE DIVISION OF YOUTH AND
            FAMILY      SERVICES      CASEWORKERS
            DESTROYED    THEIR   INTERVIEW  NOTES,
            DEFENDANT WAS ENTITLED TO AN ADVERSE
            INFERENCE CHARGE. THE TRIAL COURT'S
            REFUSAL TO GIVE THAT CHARGE WAS
            REVERSIBLE ERROR.

            POINT III

            THE EXCLUSION OF STATEMENTS MADE BY
            THE COMPLAINANT'S SISTER THAT A FAMILY

                                                                        A-1084-17T1
                                       2
          MEMBER   MOLESTED     HER  PREVENTED
          DEFENDANT FROM PRESENTING A COMPLETE
          DEFENSE AND NECESSITATES REVERSAL OF
          DEFENDANT'S CONVICTIONS.

          POINT IV

          TESTIMONY THAT FALSE DISCLOSURES ARE
          NEVER MADE WHEN A CHILD IS INTERVIEWED
          USING THE TECHNIQUE EMPLOYED IN THIS
          CASE   WAS     INAPPROPRIATE    OPINION
          TESTIMONY. ITS ADMISSION NECESSITATES
          REVERSAL OF DEFENDANT'S CONVICTIONS.

          POINT V

          EVEN IF NONE OF THE ERRORS WOULD BE
          SUFFICIENT TO WARRANT REVERSAL, THE
          CUMULATIVE IMPACT OF THOSE ERRORS
          DENIED DEFENDANT DUE PROCESS AND A
          FAIR TRIAL.

          POINT VI

          DEFENDANT WAS DEPRIVED OF HIS RIGHT TO
          UNCONFLICTED COUNSEL AT SENTENCING,
          HIS SENTENCE IS EXCESSIVE, AND FINANCIAL
          PENALTIES WERE IMPROPERLY IMPOSED
          WITHOUT REGARD TO HIS ABILITY TO PAY.
          FOR ALL THESE REASONS, A REMAND FOR
          RESENTENCING IS REQUIRED.

     We have considered the record against the relevant legal principles and

applicable standard of review and disagree with defendant's arguments

contained in Points I-V. Accordingly, we affirm his convictions. We do,


                                                                    A-1084-17T1
                                    3
however, conclude that a remand is appropriate for the court to resentence

defendant after appointing new counsel who is unencumbered by any potential

conflict of interest.

                                     I.

      The facts underlying defendant's convictions relate to an incident where

he sexually assaulted then six-year-old S.W. (Sarah).1 At the time of the assault,

Sarah and her younger sister, then five-year-old J.W. (Jennifer), lived with their

mother M.F. (Mary) and maternal grandfather. Mary and the children often

visited Mary's friend, C.P. (Charlotte), who lived in an apartment in South River

and babysat the children.

      On December 14, 2013, Mary, Sarah, and Jennifer went to Charlotte's

apartment to eat dinner. When they arrived at the apartment, Charlotte asked if

her friend, K.D. (Katy), and her boyfriend, defendant, could join them. Mary

agreed, as Sarah and Jennifer were "familiar" with Katy and defendant.

      Defendant and Katy arrived at Charlotte's apartment while Mary was

cooking dinner. At one end of the small apartment was Charlotte's bedroom and



1
  We use pseudonyms for S.W., J.W., M.F., C.P., B.D., and K.D. to protect their
privacy and preserve the confidentiality of these proceedings. N.J.S.A. 2A:82-
46(a); R. 1:38-3(c)(9).


                                                                          A-1084-17T1
                                          4
a spare bedroom. A long hallway led from the bedrooms to a bathroom and the

kitchen. While Mary was cooking dinner in the kitchen, Sarah and Jennifer

played in the spare bedroom. At times, Mary left the kitchen to smoke cigarettes

in Charlotte's bedroom with the door closed, and Charlotte and Katy joined her.

      At one point in the evening, defendant was in the spare room with the

children watching a movie while Mary, Charlotte, and Katy were in the kitchen.

Jennifer sat on "the front of the bed," closest to the television, Sarah sat behind

her "in the middle of the bed," and defendant sat close behind Sarah. As they

watched the movie, defendant picked Sarah up under her armpits, pulled her

onto his lap, and began "rubbing" her in her vaginal area with his hand. Only

after Sarah repeatedly told defendant to stop did defendant cease rubbing Sarah's

vaginal area.

      Mary and Charlotte then entered the spare bedroom. Sarah did not tell

Mary about the incident because she was "scared to tell [Mary] while

[defendant] was still in the room." Afterwards, the group ate dinner together

without incident, and defendant and Katy left.

      Approximately one week later, Mary, Sarah, and Jennifer returned to

Charlotte's apartment. As they were sitting in Charlotte's bedroom, Charlotte

saw defendant's car approach the parking lot from her window and announced,


                                                                           A-1084-17T1
                                        5
"[o]h, [defendant is] here." Mary observed Sarah's "body language [change]"

and asked her what was wrong, to which Sarah responded, "why does

[defendant] like naked people?" When Mary asked Sarah why she asked that,

Sarah stated that defendant touched her, and then pointed to her vaginal area.

Mary asked Sarah if she was sure this happened, and Sarah responded "yeah."

      When defendant entered the apartment, Mary brought him to the spare

bedroom and "let him know that [Sarah] [said] . . . he tried to touch her." After

they spoke for approximately two minutes, Charlotte asked defendant to leave.

Defendant left, and Mary told Sarah that her allegation was "very serious," and

would have to be reported.

      Mary, however, did not immediately report the incident. At the second

trial, she testified that she failed to inform the police right away because:

            At the time[,] . . . I was dealing with a [Division of
            Family Services (DYFS)] case. I had willingly given
            up the children because I had gotten into an accident
            and hurt my leg and I couldn't take care of them
            anymore . . . . So, when my leg started getting better[,]
            . . . I was dealing with getting the custody back. There
            was a [c]ourt date set . . . to finalize the custody . . .
            [and] I was scared at that time that if I had reported this,
            that DYFS would find me as [an] unfit parent . . . .

      Mary stated she planned to report the allegation to the police after she

regained full custody. On December 29, 2013, however, Mary and her boyfriend


                                                                            A-1084-17T1
                                         6
at the time, B.D. (Bobby), were at Charlotte's apartment when Mary informed

Bobby about Sarah's allegation. Mary told him that she wanted to wait until she

regained custody of the children before reporting the incident. At that point,

Bobby became "very upset and angry . . . because he felt that . . . [they] needed

to tell the police right away." Their argument became physical, the police "were

called for a noise disturbance," and Mary was arrested for simple assault and

then brought to the hospital.

      Sergeant Jennifer Novak, one of the officers that responded to the

disturbance, spoke with Bobby, who informed her of the "allegation of child

abuse." When Novak questioned Mary at Charlotte's apartment and at police

headquarters about the allegation, Mary "wouldn't admit [that] anything that

[Bobby] was saying [was] truthful."

      After Mary was released from the hospital, she returned to Charlotte's

apartment. Shortly afterward, the police arrived at the apartment and brought

Mary and Charlotte to police headquarters to question them about the sexual

assault allegation.

      Later that night, Sharyn Walz, an intake supervisor with the now Division

of Child Protection and Permanency (Division), and a worker in the Special

Response Unit, which is responsible for "respond[ing] to child abuse and neglect


                                                                         A-1084-17T1
                                       7
allegations after hours," received a referral for the sexual abuse allegations

involving Sarah.     Walz contacted her partner, Michelle Mason, and they

immediately went to the residence of Sarah's and Jennifer's paternal

grandmother, where the children were staying for the weekend.

      Walz and Mason spoke with Sarah and began asking her a series of open-

ended questions.     After Walz asked Sarah if "anything happened with

[defendant]," Sarah responded that defendant "touched her." When asked where

defendant touched her, Sarah "pointed to her vaginal area." Sarah informed

Walz that defendant "did not touch [Jennifer], but he did touch her twice . . .

before dinner and then again . . . after dinner." Sarah also stated that Jennifer

"saw [defendant] touch her."

      Both Walz and Mason took notes during the interview and used them to

write their final reports, which they completed on the day of the interview. Once

the reports were written, they shredded their notes, which Walz testified was

Division "policy."

      After the interview, Walz and Mason contacted the office of the

Middlesex County Prosecutor. Later that day, Sarah and Jennifer were brought

to the prosecutor's office for a taped interview with Detective Karleen Duca.

Duca testified during defendant's second trial that she received training at


                                                                         A-1084-17T1
                                       8
Finding Words, "which is a training for law enforcement officers and [Division]

workers on a method to interview children that is not leading or suggestive in

any manner."

        During the interview, Sarah told Duca that she did not like touches to "the

vagina and the butt." When asked if she had been touched in those areas, Sarah

responded "yeah," and added that she "told [defendant] to stop, but he wouldn't

stop." Sarah also stated that defendant touched her "[t]wo times . . . in the same

day."

        On January 30, 2014, Frances B. Pelliccia, M.D., interviewed Sarah. Dr.

Pelliccia testified that Sarah informed her that she was touched "five times

before lunch, [and] two times after lunch."         During the interview, Sarah

"identified [defendant] by name [as] the person who . . . touched her."

        Approximately a year after defendant's indictment, the State sought a pre-

trial ruling deeming Sarah's repeated out-of-court statements to Mary, Charlotte,

Walz, Mason, and Duca admissible under the "tender years" exception. See

N.J.R.E. 803(c)(27). A motion judge, who was neither the first nor second trial

judge, conducted an evidentiary hearing after which she issued a written opinion

and conforming order granting the State's motion.




                                                                           A-1084-17T1
                                         9
      The court first acknowledged that "[i]n determining whether a statement

proffered under N.J.R.E. 803(c)(27) is admissible, the court must consider the

'totality of the circumstances' surrounding the statement to determine the

statement's trustworthiness." (quoting State v. R.M., 245 N.J. Super. 504, 517-

18 (App. Div. 1991)). The court recognized, however, that the "admissibility of

repetitive corroborative statements admitted under the . . . exception [was]

nevertheless subject to N.J.R.E. 403, and thus the probative value of the

corroborative statements must not be outweighed by their prejudicial effect."

      The court then found that "based on the totality of the circumstances,

[Sarah's] statements to [Mary], [Charlotte], and [i]nvestigators, all contained

significant indicia of reliability, and thus [were] trustworthy and reliable." The

court also determined there was no "support [for] [d]efendant's claim that

[Sarah's] statements were contradictory in nature." The court further found that

despite defendant's assertion that the delay in reporting the incident may have

caused manipulation of Sarah's statements, there was "no indicia of unreliability

given that the testimony provided to [the] [c]ourt indicate[d] there were several

repetitive corroborated statements made, which indicated that [Sarah] did not

speak to anyone besides the witnesses and no witness indicated that they spoke

with [Sarah], other than the time to which they testified."


                                                                          A-1084-17T1
                                       10
      The court also noted "that given the tactics, techniques, and procedures

employed by . . . Duca in conducting the interview, the interview lends credence

to the fact that [Sarah's] statements were not only reliable, but also consistent

with the information that she had provided to her mother and the caseworkers. "

The court concluded that "based on the lack of motive to fabricate in this case,

[Sarah's] age, the manner in which the interrogation occurred, and constant

corroborative statements," Sarah's hearsay allegations satisfied N.J.R.E.

803(c)(27).

      After the first jury advised the court that "[t]hrough a series of discussions

and knowledge [they had] not been able to come to a unified verdict," the court

declared a mistrial. At the second trial, the State presented the live testimony

of Sarah, Mary, Walz, Mason, and Duca. The State also played the videotaped

statement Sarah gave to Duca. Defendant called a single witness, Dr. Pelliccia.

      As noted, the second jury convicted defendant on both counts of the

indictment. Thereafter, defendant filed a motion for a judgment of acquittal or,

alternatively, a new trial. After hearing oral arguments, the court denied both

motions.

      At sentencing, the court merged count two with count one and sentenced

defendant to a nine-year term of incarceration, subject to an eighty-five percent


                                                                            A-1084-17T1
                                       11
period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2. Additionally, the

court imposed fees and penalties, including an $800 statewide sexual assault

nurse examiner program penalty, $100 sexual offender's surcharge, and $1000

sex crime victim treatment fund (SCVTF) penalty. This appeal followed.

                                       II.

      With respect to defendant's first point on appeal, he acknowledges that

although "some amount of out-of-court hearsay would have been permissible,"

he asserts that the court violated N.J.R.E. 403 by allowing into evidence Sarah's

statements in "six different forms."         Specifically, he contends that the

introduction of Sarah's hearsay allegations: 1) by Mary, Walz and Mason, 2) in

the videotaped interview with Sergeant Duca, 3) by a "physician that examined

her,"2 and 4) through her direct testimony, was "prejudicial" and "cumulative."

We find defendant's arguments without merit.

      The tender years hearsay exception, N.J.R.E. 803(c)(27), permits hearsay

statements from allegedly sexually abused children to be admitted in certain

circumstances, such as where the court finds "that on the basis of the time,



2
   In his merits brief, defendant fails to specifically identify Dr. Pelliccia as the
"physician that examined [Sarah]." As we cannot discern any other medical
professional who testified at the second trial, we assume defendant's reference
is to Dr. Pelliccia.
                                                                             A-1084-17T1
                                        12
content and circumstances of the statement there is a probability that the

statement is trustworthy . . . ." See State v. D.R., 109 N.J. 348, 378 (1988). On

appeal, defendant does not challenge the motion or trial judges' decisions to

admit any of Sarah's hearsay allegations under the tender years exception.

      As defendant's N.J.R.E. 403 argument was not raised at any time during

defendant's second trial, we review the issue for plain error. Under the plain

error standard, we disregard any error or omission by the trial court "unless it is

of such a nature as to have been clearly capable of producing an unjust result

. . . ." R. 2:10-2; see also State v. Santamaria, 236 N.J. 390, 404 (2019). "To

warrant reversal[,] . . . an error at trial 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. Funderburg, 225 N.J. 66, 79 (2016) (quoting State v.

Jenkins, 178 N.J. 347, 361 (2004)).

      Defendant appears to argue that the harmful error standard of review

applies because he unsuccessfully challenged the admissibility of Sarah's

statements under the tender years exception before the motion judge, and also

objected, in part, to the cumulative nature of the statements during his first trial.3


3
  At the first trial, during the direct examination of Mason, defendant objected
on the grounds that N.J.R.E. 803(c)(27) "[does not] allow repetition of the same


                                                                              A-1084-17T1
                                        13
Again, we disagree.

      The record clearly establishes that defendant did not object during the

second trial to the testimony of Sarah, Mary, Walz, Mason, Duca, and Pelliccia

on N.J.R.E. 403 grounds. Further, the motion judge's pre-trial ruling addressed

the admissibility of the testimony under the tender years exception but expressly

acknowledged that the admissibility of Sarah's hearsay allegations was still

subject to N.J.R.E. 403. As such, neither the motion judge nor the second trial

judge addressed the admissibility of Sarah's allegations under N.J.R.E. 403.4

      With respect to child sexual abuse cases, courts have recognized that

"testimony by the victim is often the indispensable element of the prosecution 's

case," as "[f]requently, there is no visible physical evidence that acts of sexual

molestation have occurred," and a "victim's account of the sexual abuse may be

the best and sometimes the only evidence that a sexual assault has taken place. "

D.R., 109 N.J. at 358-59. Trial judges, however, "must serve as gatekeepers



interview, of the same situation by two different witnesses . . . [and the jury was]
already hearing no less than four versions of what was said at different times."
The first trial judge "noted [the objection] for the record," but permitted the
testimony.
4
   We observe that because the harmful error standard requires a court to
determine whether "there is a reasonable doubt as to whether the . . . error
contributed to the verdict," our decision here would be unchanged under that
standard. State v. Macon, 57 N.J. 325, 40 (1971).
                                                                            A-1084-17T1
                                        14
when repetitive corroborating hearsay evidence is proffered pursuant to

[N.J.R.E] 803(c)(27)." State v. Smith, 158 N.J. 376, 391 (1999). Accordingly,

"a trial court should be cognizant of its right under N.J.R.E. 403, to exclude

evidence if it finds[,] in its discretion, that the prejudicial value of that evidence

substantially outweighs its probative value." Ibid. (quoting State v. D.G., 157

N.J. 112, 128 (1999)).

      N.J.R.E. 403 provides that "relevant evidence may be excluded if its

probative value is substantially outweighed by the risk of (a) undue prejudice,

confusion of issues, or misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence."           Trial judges have "broad

discretion to exclude evidence as unduly prejudicial pursuant to N.J.R.E. 403."

State v. Nantambu, 221 N.J. 390, 402 (2015). "[A] trial court's evidentiary

rulings are entitled to deference absent a showing of an abuse of discretion, i.e.,

there has been a clear error of judgment." Ibid. (quoting State v. Harris, 209

N.J. 431, 439 (2012)).

      Here, the jury considered the video statement of Sarah recorded by Duca

in addition to her live testimony at trial. In State v. Burr, 392 N.J. Super. 538,

573 (App. Div. 2007), we considered, and rejected, the defendant's argument

that a video was unduly prejudicial as a "repetitive, corroborative statement of


                                                                              A-1084-17T1
                                         15
[the child's] trial testimony." Id. at 564. We determined the tape to have

probative value as being "closer in time to the alleged sexual assault than the

trial" and because it demonstrated that the statements made to the prosecutor's

office were "largely consistent with those made . . . at trial." Id. at 573. We

find nothing in the current record preventing application of the Burr reasoning

and holding here.

      The four additional statements admitted without objection were from

Mary, Walz, Mason, and Dr. Pelliccia. In her testimony regarding the incident,

Mary stated that Sarah asked her "why . . . [defendant] like[s] naked people" and

stated that defendant "had tried to touch [her]." When asked where defendant

allegedly touched her, Mary testified that Sarah "pointed at her vagina." In

addition to corroborating Sarah's statements, Mary's testimony explained the

reasons why she delayed reporting the incident, and her relationship with Bobby.

      Walz and Mason's testimonies were very brief. Walz testified that she

asked open-ended questions and that Sarah informed Walz that defendant "did

not touch [Jennifer], but did touch [Sarah] twice . . . before dinner and then . . .

after dinner," and that Jennifer "saw [defendant] touch her."

      Similarly, Mason testified that Sarah informed Walz that defendant

"touched – scratched or touched [her] vagina, like a scratch, two times on the


                                                                            A-1084-17T1
                                        16
same day . . . [and that] it was snowing and it was before Christmas." Both

witnesses further testified regarding the circumstances surrounding their

response to Sarah's paternal grandmother's home, their training and the

subsequent contact with the prosecutor's office, and temporary placement of the

children, and provided the jury with an understanding of the circumstances

surrounding the State's investigation and Sarah's corroborative statements.

      As to Dr. Pelliccia, we first note that she was called by defendant, not the

State. Dr. Pelliccia's direct testimony totaled seven questions, inclusive of her

background. The only substantive inquiry made by defense counsel was Sarah's

statement that she was touched seven times by defendant, "five times before

lunch, two times after lunch." Defendant clearly cannot claim prejudice, under

N.J.R.E. 403 or otherwise, based on testimony his counsel affirmatively elicited

for the clear purpose to show inconsistencies in Sarah's description of the

incident.   We are therefore satisfied that no plain error occurred, nor any

violation of N.J.R.E. 403, as a result of the jury considering Sarah's hearsay

statements. See State v. C.H., 264 N.J. Super. 112, 124 (App. Div. 1993)

(permitting the testimony of six witnesses regarding statements made by the

sexual abuse victim); State v. E. B., 348 N.J. Super. 336, 346 (App. Div. 2002)




                                                                          A-1084-17T1
                                      17
(permitting the testimony of five witness statements pursuant to N.J.R.E. 803

(c)(27)).

      We also cannot ignore that during the second trial, defendant affirmatively

argued that multiple inconsistencies in Sarah's statements created sufficient

reasonable doubt to warrant a not-guilty verdict. In this regard, Dr. Pelliccia

was specifically called as a witness by defendant for this sole purpose. Further,

defendant's counsel repeatedly stressed Sarah's purported inconsistencies when

he stated in closing arguments that at one point, Sarah claimed the incident

"happened when it was raining in the spring and summer, [but that] [e]very other

version of it [was] in the winter when there [was] snow on the ground." Under

these circumstances, we conclude that no error, let alone plain error, occurred

when the trial court permitted the aforementioned statements upon questioning

by defendant's counsel to be considered by the jury.

                                     III.

      In his second point, defendant argues that the trial court committed

reversible error when it failed to issue an adverse inference charge, consistent

with the Model Jury Charges (Criminal), "Failure of Police to Preserve Notes"

(eff. May 27, 2011) and State v. W.B., 205 N.J. 588 (2011). Specifically,

defendant contends that because Walz and Mason were aware of an ongoing


                                                                         A-1084-17T1
                                      18
criminal investigation and "acted as an adjunct of law enforcement" by

"contact[ing] the prosecutor's office themselves and [observing the start of] the

criminal investigation" at the prosecutor's office, they were obligated to retain,

and not destroy, their interview notes prepared prior to creation of their final

report. We disagree.

      We initially observe that like defendant's first argument, he never

requested that the trial court during his second trial issue an adverse inference

charge. Rather, he raised the issue for the first time during his new trial

application. Accordingly, we similarly analyze the issue under the plain error

standard. R. 2:10-2.5

      In State v. W.B., 205 N.J. 588, 607 (2011), our Supreme Court held that

"law enforcement officers may not destroy contemporaneous notes of interviews

and observations at the scene of a crime after producing their final reports."

Ibid. (citing State v. Branch, 182 N.J. 338, 367 n.10 (2005); State v. Cook, 179

N.J. 533, 542 n.3 (2004)). The Court's reasoning acknowledged the direct

connection between law enforcement during the investigatory phase of a crime

and its prosecution, and determined that once "a case is referred to the prosecutor


5
  Defendant's counsel in the first trial requested an adverse inference charge due
to the destruction of the notes, which the court denied.


                                                                           A-1084-17T1
                                       19
following arrest by a police officer as the initial process, or on a complaint by a

police officer, local law enforcement [becomes] part of the prosecutor's office

for discovery purposes." Id. at 608 (citing R. 3:3-1; R. 3:4-1). Accordingly,

"[i]f notes of a law enforcement officer are lost or destroyed before trial, a

defendant, upon request, may be entitled to an adverse inference charge molded,

after conference with counsel, to the facts of the case." Id. at 608-09.

      The W.B. court recognized, however, that "[e]very opportunity when

contemporaneous notes are lost or destroyed does not necessitate an adverse

inference charge." Id. at 609 n.10 (citing State v. P.S., 202 N.J. 232 (2010)).6

In that case, the defendant was not entitled to an adverse inference charge

"because defendant neither requested an adverse inference charge before the

final jury instructions were given, nor raised the issue before filing his motion

for a new trial . . . ." Id. at 609.

      First, we reject defendant's argument that Walz and Mason acted "as an

arm of law enforcement." When Walz interviewed Sarah at her grandmother's

house, she was responding on behalf of the Division in an emergency setting

and described her investigation as "preliminary," the purpose of which was to


6
  In P.S., the court determined that the production of notes from an investigator's
forensic interview was unnecessary where sufficient evidence of reliability
existed in the record to deem the child's statement trustworthy. Id. at 254.
                                                                           A-1084-17T1
                                       20
ensure Sarah's safety generally, and in her grandmother's home. She specifically

stated that she did not consider herself a member of "law enforcement," but

described her responsibilities as "engag[ing] the family and . . . cooperat[ing]

with law enforcement" as necessary. In this regard, she acknowledged that if

she suspected a criminal act, she would contact the prosecutor's office.

      Mason testified similarly.     She stated that once Sarah disclosed that

defendant sexually assaulted her, they were obligated to contact the prosecutor's

office as the prosecutor was responsible for the "criminal aspect" of the

investigation, and once the prosecutor's office is contacted she "take[s] a step

back" because they act as "lead investigators at that point."

      Neither Mason's nor Walz's role bear any similarity to the law

enforcement officers in W.B. As noted, both worked for the Division and were

responding to a referral to ensure the safety of Sarah and her sister in their

grandmother's home. After Sarah informed them of the incident, they promptly

contacted the prosecutor's office. Mason testified that at the prosecutor's office,

she "observed the interview[s] of [Sarah] [and Jennifer] via closed circuit TV,"

but had no "other responsibilities at the [p]rosecutor's [o]ffice."

      Second, as the motion judge concluded, Sarah's statements were

sufficiently reliable to deem them trustworthy. See P.S., 202 N.J. at 254.


                                                                           A-1084-17T1
                                       21
Indeed, defendant makes no contrary claim on appeal, as he does not challenge

the motion judge's decision on that point.

      We find defendant's reliance on State v. Helewa, 223 N.J. Super. 40 (App.

Div. 1988) misplaced. In that case, we held that a Division caseworker "must

be equated with that of a law enforcement officer for purposes of triggering

Miranda" when conducting a custodial interview. Id. at 47. Here, neither Mason

nor Walz were conducting a custodial interview, and although we acknowledge

the ordinary and necessary relationship that exists between the Division and law

enforcement in their day-to-day functioning, neither caseworker here can fairly

be characterized as law enforcement officers, nor agents of the prosecutor or

police, for the reasons detailed.

      Finally, like in W.B., defendant failed to request an adverse inference

charge at his second trial, instead raising the issue for the first time in his new

trial application. Thus, we cannot conclude under these circumstances that an

adverse inference charge was warranted due to Mason and Walz destroying their

interview notes prior to incorporating them into their final report.

                                      IV.

      In defendant's third point, he argues that contrary to the first trial judge,

the second trial judge improperly precluded defendant from introducing


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                                       22
statements from Jennifer to Duca that her "abuelo," or grandfather, improperly

touched her.7 According to defendant, the statements should have been admitted

for the non-hearsay purpose that: 1) Sarah "present[ed] a mimicking theory, that

[she] had learned about sexual contact from her sister's statements and was

repeating them in her own allegations"; 2) "the family fabricated a story of

sexual assault by [defendant] to divert suspicion of misconduct from a family

member . . . especially since [Mary] was seeking custody . . . and the person

[Jennifer] accused of molesting her was her mother's boyfriend"; and 3) the State

"fail[ed] to follow up on [Jennifer's] allegations," which would "impeach the

thoroughness of the investigation" into Sarah's claims.

      During the second trial, the court sustained the State's objection to the

proposed testimony on hearsay grounds, and also concluded it was speculative.

Defendant argues that the second trial judge's decision to exclude the testimony

regarding Jennifer's allegations was in error, as the first trial judge's ruling was

the law of the case and was admissible for the aforementioned valid non-hearsay

purposes. See N.J.R.E. 801(c). We disagree with both arguments.




7
  It was not entirely clear from the trial record if Jennifer was referring to one
or two individuals when she described her "abuelo." For example, one of the
people identified was her mother's boyfriend.
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                                        23
      "The 'law of the case' doctrine is a discretionary rule . . . [that] is 'restricted

to preventing relitigation of the same issue in the same suit.'" State v. Munoz,

340 N.J. Super. 204, 219 (App. Div. 2001) (citation omitted) (quoting Slowinski

v. Valley Nat'l Bank, 264 N.J. Super. 172, 180-81 (App. Div. 1993)).

Accordingly, "the doctrine is to be applied flexibly in the interest of justice, even

if it requires relitigation of an earlier ruling prior to final judgment." Id. at 220

(citing Southport Dev. Group, Inc. v. Twp. of Wall, 295 N.J. Super. 421, 430

(Law Div. 1996)).      Further, when there is a mistrial, "the admissibility of

evidence is rendered nugatory, in which case 'law of the case' does not bind a

subsequent judge to the same ruling." Ibid. (citing State v. Hale, 127 N.J. Super.

407, 412-13 (App. Div. 1974)). "The discretionary nature of the . . . doctrine

calls upon a judge to balance deference toward a prior ruling with concern for

the pursuit of justice, especially, the search for the truth." Ibid. (citing State v.

Reldan, 100 N.J. 187, 205 (1985)).

      Here, it appears that defendant was permitted to introduce evidence of

Jennifer's out-of-court statements regarding her grandfather at the first trial.

Due to the mistrial, the second judge was not required to abide by the first

judge's evidentiary rulings.     Accordingly, it was within the second judge's

discretion to determine whether Jennifer's statements were admissible.


                                                                                A-1084-17T1
                                         24
      As noted, defendant argues that he sought to introduce Jennifer's

statements not to show that her "abuelo" molested Jennifer, but to show that

Sarah may have been seeking attention by making the allegations against

defendant, and for the other stated non-hearsay purposes.8 We need not address

whether the second trial judge correctly determined that the profferred testimony

was inadmissible hearsay, as we agree with the court's implicit N.J.R.E. 403

ruling that defendant's theories, including that Sarah mimicked Jennifer's

allegation for attention, was speculative, without foundation, unsupported by

other admissible evidence in the record, and risked confusing the jury. The

court's evidentiary rulings are amply supported by the record and are entitled to

our deference.     See Buda, 195 N.J. at 294 ("Trial court evidentiary

determinations are subject to limited appellate scrutiny, as they are reviewed

under the abuse of discretion standard."). Finally, we are satisfied that any error




8
  As noted, after the State objected to Jennifer's statements on hearsay grounds,
defendant argued that Jennifer's comments were relevant as they supported
defendant's mimicking theory and the fact that the State failed to properly
investigate Sarah's claims. Defendant did not, however, specifically claim the
proposed testimony was admissible as non-hearsay. See N.J.R.E. 801(c).
Although we could consider defendant's failure to reference N.J.R.E. 801(c) in
the trial court a waiver of his arguments on appeal, we nevertheless discuss the
merits of defendant's arguments.
                                                                           A-1084-17T1
                                       25
in the court's evidentiary decision on this point did not "contribute[] to the

verdict." Macon, 57 N.J. at 340.

                                      V.

      In defendant's fourth point, he argues that the second trial judge

committed error when he allowed Duca to inappropriately offer opinion

testimony "that went straight to the truth of [Sarah]'s allegations . . . ."

Specifically, defendant contends Duca's testimony that her interview technique

"allows for a disclosure [of abuse from a child] to be made if a child was

abused," was inappropriate. Defendant further asserts that "Duca provided . . .

expert testimony without being qualified as an expert." As defendant, again,

raises the issue for the first time on appeal, we apply the plain error standard of

review, see State v. Robinson, 200 N.J. 1, 20 (2009), and conclude these

arguments are sufficiently without merit to warrant extended discussion in a

written opinion. R. 2:11-3(e)(2).

      Lay witnesses are generally not entitled to offer opinion testimony unless

"it falls within the narrow bounds of testimony that is based on the perception

of the witness and that will assist the jury in performing its function. " State v.

McLean, 205 N.J. 438, 456 (2011). Further, neither experts nor lay witnesses

are permitted to "opine on the credibility of parties or witnesses." Id. at 453.


                                                                           A-1084-17T1
                                       26
      Here, contrary to defendant's assertion, Duca's testimony was not

improper lay opinion testimony. Rather, she explained that the Finding Words

program was designed to train interviewers to use "a method to interview

children that is not leading or suggestive in any manner." She explained that

she asked "open-ended questions" so that the children could provide as much

information as possible. Based on her experience interviewing children, Duca

testified that she had "experienced interviews where disclosures were not made

by children."   Additionally, she testified that the interview technique used

"allows for a disclosure [of abuse from a child] to be made if a child was

abused."

      Defendant misconstrues Duca's testimony to suggest that "the interview

technique used in the recording . . . was reliable and resulted only in accurate

disclosures of sexual abuse." Duca, however, merely stated that the technique

is designed to permit children to disclose their abuse by answering non-leading,

open-ended questions. She did not state that children that were abused always

disclosed it, or that children fabricating abuse never disclosed abuse.

      Further, we note that the court instructed the jury that they were "the sole

and exclusive judges of the evidence, of the credibility of the witnesses, and the

weight to be attached to the testimony of each witness." We have no reason to


                                                                          A-1084-17T1
                                       27
conclude that the jury did not heed the court's instructions, and we find no

support that the admission of Duca's testimony regarding her interview of Sarah,

and specifically the techniques she employed, was in any way erroneous or that

it was "clearly capable of producing an unjust result." R. 2:10-2.

                                      VI.

      Defendant next argues that if this court determines that the "series of

errors," detailed in points I-IV, are individually insufficient to warrant reversal,

the effect of each error in the aggregate denied defendant a fair trial. "[E]ven

when an individual error or series of errors does not rise to reversible error,

when considered in combination, their cumulative effect can cast sufficient

doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473

(2008).   As we have discussed, defendant has not demonstrated that any

prejudicial error occurred at trial. The principle of cumulative error, therefore,

has no application here. See State v. Weaver, 219 N.J. 131, 155 (2014) ("If a

defendant alleges multiple trial errors, the theory of cumulative error will still

not apply where no error was prejudicial and the trial was fair.").

                                      VII.

      Finally, defendant maintains that errors during the sentencing phase

necessitate a remand for resentencing.       First, he asserts that when "it was


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                                        28
revealed that [defendant] had filed an ethics complaint against his attorney . . .

the sentencing should have been adjourned" and that we should "remand for a

new sentencing in which defendant is 'represented by unencumbered counsel.'"

(quoting State v. Hayes, 205 N.J. 522, 541 (2011)). Second, he contends the

court "improperly found . . . aggravating factors [four and six], resulting in an

excessive term." Third, he argues that the SCVTF penalty "was imposed without

regard to [defendant's] ability to pay." We agree with defendant that a remand

is necessary so that defendant may be appointed new "unencumbered

[sentencing] counsel," and accordingly vacate defendant's sentence and remand

for further proceedings.

      At sentencing, the following colloquy took place between defendant's

counsel and the court:

            [DEFENDANT'S COUNSEL]: Judge, I'm going to be
            brief. I feel that my comments have to be measured,
            especially because when an ethics violation is filed –

            THE COURT:         You were charged with an ethics
            violation?

            [DEFENDANT'S COUNSEL]: He's filed an ethics
            violation and I only say that because I – you know,
            you're on a fence, you don't know what to say or not to
            say. That's – it doesn't happen often, but that's the
            situation now. I'll rely heavily on the sentencing letter
            I wrote . . . .


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                                       29
              [(emphasis added).]

      After taking a brief recess to review the referenced sentencing letter and

considering "over a dozen letters . . . submitted on behalf of defendant" that

defendant's counsel previously provided, the court considered the State's

sentencing arguments. The court also gave defendant an opportunity to speak,

to which defendant responded "[he] [had] nothing to say . . . ." The court then

proceeded to sentencing.

      It is well-established that a defendant has the right to counsel at

sentencing.    See State v. Jenkins, 32 N.J. 109, 112 (1960); accord State v.

Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002).          Further, "a criminal

defendant has the right to counsel 'whose representation is unimpaired and

whose loyalty is undivided.'" State v. Alexander, 403 N.J. Super. 250, 255 (App.

Div. 2008) (quoting State v. Murray, 162 N.J. 240, 249 (2000)). A "defendant's

right to effective assistance of counsel includes both adequate representati on

and right to attorney's conflict-free, undivided loyalty." State ex rel. S.G., 175

N.J. 132, 139 (2003) (citing U.S. v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991)).

      We have previously vacated a sentence when a trial court failed to address

a conflict between a defendant and his counsel. In State v. Vasquez, 432 N.J.

Super. 354 (App. Div. 2013), the defendant requested an adjournment during the


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                                       30
sentencing proceeding because he "was in the process of retaining new counsel."

Id. at 356. The defendant further informed the sentencing court that he could

not "accept [his] sentence because [he did not] think that [he had] legal

representation at th[at] moment," and his counsel stated he was "in a conflict

. . . because the [defendant was] saying he [didn't] want [counsel] to represent

him and [defendant] [would not] cooperate . . . with sentencing to go over the

presentence report . . . ." Id. at 357. Despite both defendant and his counsel's

reluctance to proceed with sentencing, and the defendant's specific request for

an adjournment, the trial court nevertheless sentenced the defendant. Id. at 357-

58.

       The Vasquez court vacated the sentence and remanded for further

proceedings because the court failed to address defense counsel's concern that

he was "in a conflict, [as] defendant had expressed his desire that defense

counsel no longer represent him and defendant was not cooperating with

[counsel] . . . ." Id. at 358-60. Additionally, defendant "expressed his agreement

that he no longer wanted his current defense counsel to represent him." Id. at

359.

       The court concluded that once the sentencing court denied the

adjournment request, it improperly "proceeded with sentencing without


                                                                          A-1084-17T1
                                       31
establishing any record that defendant had knowingly, intelligently[,] and

voluntarily waived his right to counsel and had elected to proceed with

sentencing, pro se." Ibid. The Vasquez court explained that the sentencing court

should have made appropriate findings to determine "whether a genuine conflict

of interest existed, and, if so, grant[ed] an adjournment, . . . [or] if the court

found no conflict, it could have ordered defense counsel to proceed to vigorously

represent defendant in seeking withdrawal of the guilty pleas and, if that

application were denied, then with equal vigor, advocate for the best possible

sentencing outcome." Id. at 360.

        We acknowledge that, unlike in Vasquez, defendant never made an

adjournment request at sentencing, nor did defendant or his counsel advise the

court of the details of the ethics complaint. It is clear, however, from counsel's

statements at sentencing that the filed ethics complaint affected his ability to

represent defendant zealously. Indeed, as counsel informed the sentencing

court, he believed that because of the ethics complaint, his "comments [had] to

be measured" and he was "on a fence" and did not "know what to say or not to

say."    We are satisfied that these statements sufficiently question whether




                                                                          A-1084-17T1
                                       32
defendant received "adequate representation" that was "conflict-free" and with

"undivided loyalty." S.G., 175 N.J. at 140 (2003).9

      In light of our decision to remand the matter for the appointment of new,

unencumbered and conflict-free sentencing counsel, we do not address

defendant's arguments that the court improperly weighed the aggravating and

mitigating factors, or that the court failed to consider, or make necessary factual

findings, regarding defendant's ability to pay the assessed fines and penalties.

On remand, defendant's new counsel may raise these, and any other applicable

arguments, affecting defendant's sentence, prior to resentencing. The court shall

consider the nature of the offense and defendant's ability to pay when assessing

the SCVTF, and shall provide a statement of reasons for the amount imposed.

State v. Bolvito, 217 N.J. 221, 233-35 (2014).

      Affirmed in part and remanded in part. We do not retain jurisdiction.




9
  The facts here are distinguishable from those in State v. Coclough, 459 N.J.
Super. 45 (App. Div. 2019). In that case, we affirmed a sentence despite a
defendant's threats to his counsel because prior to sentencing both defendant and
counsel indicated they "[were] ready to proceed" with sentencing. We also
noted that the fact that a "defendant [had] a conflict with his attorney does not
necessarily mean his attorney had a conflict of interest." Id. at 56. Here, unlike
in Coclough, counsel acknowledged that defendant's filed grievance restrained
his ability to advocate on his behalf at sentencing.
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                                       33
