                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0077-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

B.W.,

     Defendant-Appellant.
______________________________

                    Submitted January 31, 2019 – Decided May 28, 2019

                    Before Judges O'Connor and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 10-01-0010.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John A. Albright, Designated Counsel;
                    William P. Welaj, on the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Robert J. Wisse, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant B.W.1 appeals from the July 12, 2017 order of the Law Division

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm in part and remand in part.

                                       I.

      In 2012, a jury convicted defendant of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-

2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),

for numerous sexual assaults on his daughter beginning when she was eight

years old. The abuse stopped when the daughter moved out of State with her

mother at age eleven. The daughter first reported defendant's sexual abuse when

she was thirteen.

      We address only those aspects of the trial testimony relevant to the issues

on appeal. At the time of trial, defendant's daughter was sixteen. She testified

in detail with respect to three occasions on which defendant performed various

acts of sexual penetration. She stated that she did not report the crimes at the

times they occurred because defendant threatened to harm her mother if she

revealed his abuse.



1
   We use initials to protect the identity of the victim of defendant's sexual
assaults. R. 1:38-3(c)(9).
                                                                         A-0077-17T1
                                       2
      The child's mother also testified. She recounted having taken her daughter

to the emergency department on three occasions while they lived in New Jersey.

Once, after a visit with defendant, the mother noticed that her daughter was

crying from pain and unable to use the bathroom. The child was diagnosed with

a urinary tract infection. A separate visit to the emergency room also resulted

in a diagnosis of a urinary tract infection. A third visit was brought about by

the daughter's complaint of abdominal pain and mild discomfort during

urination. She was diagnosed with abdominal pain and constipation. The child

did not report sexual abuse during any of the visits.

      A physician who treated the daughter during one of the emergency

department visits also testified. During cross-examination, defendant's counsel

directed the physician's attention to the records of a 2009 medical examination

of the daughter. The examination, which took place out of State two years after

the daughter's last physical contact with defendant, resulted in a diagnosis of a

genital rash. Defendant's counsel asked the witness to identify the possible

causes of such a rash. The witness responded that a genital rash could be caused

by contact with another individual or by auto-inoculation from scratching a rash

in another area of the body.




                                                                         A-0077-17T1
                                        3
      Another physician testified as an expert in pediatric medicine. During

cross-examination, defendant's counsel asked the expert about the fact that the

daughter's medical records from the examinations in New Jersey did not indicate

findings of physical trauma to the anus. The expert testified that bleeding, pain

and hemorrhoid development may be consistent with anal rape, but that an

absence of physical trauma does not mean that sexual abuse involving the anus

did not occur.    The expert testified that the anus is equipped to adapt to

penetration, which could prevent physical injury during forced anal intercourse.

      The State also called a psychologist who testified as an expert on Child

Sexual Abuse Accommodation Syndrome (CSAAS).                He identified the five

characteristics   of   CSAAS:      secrecy;      helplessness;   entrapment     and

accommodation; delayed, conflicted, unconvincing disclosure; and recantation.

He testified that child victims often keep their sexual abuse secret out of fear

and may feel no one will believe them. During her summation, the assistant

prosecutor referred to this testimony, stating

            [y]ou heard about [CSAAS]. That's what happens.
            They accommodate. Children are growing up. They
            don't want to go to the doctor's for a shot. What do you
            say, "All right [sic], forget it. You're not going to go to
            the doctor's for a shot?" [Y]ou're going to go.




                                                                           A-0077-17T1
                                        4
Although defense counsel objected to other comments by the assistant

prosecutor during her summation, he did not object to this remark.

      After the jury reached its verdict, the trial court sentenced defendant to a

life term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.            At a

subsequent hearing, the court deemed the life sentence to be seventy-five years,

and calculated the statutory parole ineligibility period to be sixty-three years and

nine months. In his direct appeal, defendant raised several arguments, including

that the testimony regarding CSAAS was inadmissible under N.J.R.E. 702

because it was not based on reliable science.

      We affirmed defendant's conviction and sentence. State v. B.W., No. A-

4354-12 (App. Div. Apr. 22, 2015). We held, among other things, that the

admissibility of CSAAS testimony was well settled by the holding in State v.

J.Q., 130 N.J. 554 (1993). The Supreme Court denied defendant's petition for

certification. State v. B.W., 223 N.J. 281 (2015).

      On November 18, 2016, defendant filed a petition for PCR in the Law

Division. He argued that he was denied effective assistance of counsel at trial

because his attorney: (1) elicited damaging testimony during the cross-

examination of the State's medical witnesses as a result of his failure to consult

a medical expert prior to trial; (2) failed to object to the assistant prosecutor's


                                                                            A-0077-17T1
                                         5
comment during summation regarding the CSAAS testimony and should have

requested a retrial or a curative instruction; and (3) failed to investigate an alibi

defense by not interviewing two witnesses, defendant's brother and his girlfriend

at the time of the offenses. Defendant argued that his then-girlfriend would have

testified that she was with him whenever his daughter visited. Defendant argued

these errors separately and cumulatively warranted reversal of his convictions.

Finally, defendant argued that the CSAAS testimony should not have been

admitted under N.J.R.E. 702 because it is based on "junk science." Although

acknowledging that he raised this argument on direct appeal, defendant argued

that the PCR court should consider it anew.

      On July 12, 2017, the PCR judge, who presided at defendant's trial and

sentencing, issued a comprehensive oral opinion denying defendant's PCR

petition without an evidentiary hearing. The judge concluded that defendant had

not established a prima facie case of ineffective assistance of counsel.

      The judge found that defendant could not establish that he was harmed by

his counsel's cross-examination of the State's medical witnesses because their

testimony did not attribute the daughter's genital rash to contact with defendant.

Instead, the cross-examination elicited testimony identifying a number of

possible causes for the daughter's rash, noting that the rash was diagnosed more


                                                                             A-0077-17T1
                                         6
than two years after the daughter's last physical contact with defendant, and

highlighting the daughter's failure to mention sexual abuse during her medical

visits. In addition, the judge concluded that defense counsel could not have

avoided asking about the lack of physical trauma to the daughter's anus because

it was inevitable that the jury would have the same question.

      In addition, the judge concluded that the question of the admissibility of

CSAAS testimony was addressed in defendant's direct appeal, precluding its

consideration in a subsequent PCR petition. The judge found nothing improper

in the assistant prosecutor's reference to that testimony in her summation, given

the admissibility of the testimony. Thus, the judge concluded that defense

counsel's failure to object to the remark could not be seen as ineffective

assistance of counsel.

      With respect to the alibi witnesses, the judge noted that defendant had not

submitted certifications from the witnesses summarizing the testimony they

would have provided at trial. Moreover, the judge, having heard all of the

testimony at trial, recalled that the daughter visited defendant on multiple

occasions during which he had unrestricted access to the child. The judge

concluded that it was unlikely anyone could have testified truthfully that they

spent every possible minute with defendant when his daughter was visiting.


                                                                         A-0077-17T1
                                       7
      Thus, the judge concluded that defense counsel's "representation was

vigorous, forceful and as effective as it could be under all of these

circumstances." The judge noted that the daughter was "a compelling, consistent

and very credible witness" who "was affirmatively credible . . . despite . . . strong

efforts" by defense counsel during cross-examination to challenge the veracity

of her testimony. The judge concluded that the record contained "no evidence"

of ineffective assistance of counsel and that an evidentiary hearing was

unnecessary. On July 12, 2017, the judge entered an order denying defendant's

PCR petition.

      This appeal followed.        On appeal, defendant raises the following

arguments for our consideration:

             POINT I

             THE POST-CONVICTION RELIEF COURT ERRED
             IN DENYING THE DEFENDANT'S PETITION FOR
             POST-CONVICTION      RELIEF    WITHOUT
             AFFORDING HIM AN EVIDENTIARY HEARING
             TO FULLY ADDRESS HIS CONTENTION THAT HE
             FAILED TO RECEIVE ADEQUATE LEGAL
             REPRESENTATION FROM TRIAL COUNSEL.

             A.   THE PREVAILING LEGAL PRINCIPLES
             REGARDING    CLAIMS  OF  INEFFECTIVE
             ASSISTANCE OF COUNSEL, EVIDENTIARY
             HEARINGS AND PETITIONS FOR POST-
             CONVICTION RELIEF.


                                                                             A-0077-17T1
                                         8
            B.  THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            INEFFECTIVE CROSS-EXAMINATION OF TWO
            CRUCIAL WITNESSES PRESENTED BY THE
            STATE WHICH SERVED TO ELICIT TESTIMONY
            DAMAGING AND PREJUDICIAL TO THE
            DEFENDANT.

            C.  THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            FAILURE TO OBJECT TO A CERTAIN ASPECT OF
            THE PROSECUTOR'S SUMMATION WHICH
            EXCEEDED THE BOUNDS OF PROPRIETY.

                                       II.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014). To succeed on a claim of ineffective assistance of counsel, the defendant

must meet the two-part test established by Strickland v. Washington, 466 U.S.

668, 686 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987).

      Under Strickland, a defendant first must show that his or her attorney

made errors "so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at


                                                                         A-0077-17T1
                                       9
687. Counsel's performance is deficient if it "[falls] below an objective standard

of reasonableness." Id. at 688.

      A defendant also must show that counsel's "deficient performance

prejudiced the defense." Id. at 687. The defendant must establish that "there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different."        Id. at 694. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome"

of the proceeding. Ibid.

      A defendant is entitled to an evidentiary hearing on a PCR petition if the

defendant presents a prima facie case in support of PCR, the court determines

there are material issues of fact that cannot be resolved based on the existing

record, and the court finds that an evidentiary hearing is required to resolve the

claims presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354

(2013).

      Having carefully reviewed defendant's arguments in light of the record

and applicable legal principles, we affirm the July 12, 2017 order for the reasons

stated by the judge in her thorough and well-reasoned oral opinion with respect

to all issues, except those relating to the CSAAS testimony.




                                                                          A-0077-17T1
                                       10
      With respect to defendant's argument that the trial court erred by admitting

the CSAAS testimony, we note that Rule 3:22-5 provides:

            [a] prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction
            proceeding brought pursuant to this rule or prior to the
            adoption thereof, or in any appeal taken from such
            proceedings.

The Supreme Court has held that

            [p]reclusion of consideration of an argument presented
            in post-conviction relief proceedings should be effected
            only if the issue raised is identical or substantially
            equivalent to that adjudicated previously on direct
            appeal.

            [State v. Marshall, 148 N.J. 89, 150 (1997) (quoting
            State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div.
            1979)).]

It is understandable why the judge found defendant's argument with respect to

the CSAAS testimony should be barred. He raised, and we rejected, the issue

on direct appeal. Recent developments, however, require that the PCR judge

review the issue anew.

      During the pendency of this appeal, the Supreme Court issued its opinion

in State v. J.L.G., 234 N.J. 265 (2018).      In that case, the Court partially

overturned its holding in State v. J.Q. The Court held:



                                                                          A-0077-17T1
                                      11
            [b]ased 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.

            [Id. at 272.]

The Court noted that admissibility of CSAAS expert testimony on this limited

aspect of the syndrome "will turn on the facts of each case." Ibid. When a

victim gives "straightforward reasons about why she delayed reporting abuse,

the jury [does] not need help from an expert to evaluate her explanation.

However, if a child cannot offer a rational explanation, expert testimony may

help the jury understand the witness's behavior." Ibid. The Court, however,

concluded that the improper admission of CSAAS testimony may be harmless

"in light of the overwhelming evidence of defendant's guilt." Id. at 306.

      The Court did not opine with respect to whether its holding will be applied

retroactively. In State v. G.E.P., ___ N.J. Super. ___ (App. Div. Mar. 27, 2019)

                                                                         A-0077-17T1
                                      12
(slip op. at 11), certif. pending, we concluded that the holding in J.L.G. "should

be given at least pipeline retroactivity," rending it applicable to all cases in

which the parties have not exhausted all avenues of direct review when the

opinion in J.L.G. was issued. Because all four cases pending before the court in

G.E.P. were on direct appeal when the opinion in J.L.G. was issued, we decided

"only whether pipeline retroactively is appropriate." Id. at 8. We offered no

opinion with respect to whether the holding in J.L.G. should be given complete

retroactive effect, rending it applicable to all prior convictions. See State v.

Burstein, 85 N.J. 394, 402-403 (1981).

      If it is determined that the holding in J.L.G. is applied with complete

retroactivity then application of the holding to defendant would be a "ground for

relief not previously asserted [that] could not reasonably have been raised in any

prior proceeding" and, as a result, permitted in a PCR petition. See R. 3:22-

4(a)(1); State v. Reyes, 140 N.J. 344 (1995) (allowing defendant to seek PCR

relief based on retroactive application of appellate decision issued after direct

appeal); State v. Lark, 229 N.J. Super. 586, 592-93 (App. Div.) (same), rev'd on

other grounds, 117 N.J. 331 (1989).

      Because of the timing of the release of the decision in J.L.G., the parties

did not address in their briefs the Court's holding, or whether it should be applied


                                                                            A-0077-17T1
                                        13
with complete retroactivity. We therefore remand this matter to the PCR court

to analyze in the first instance whether the holding in J.L.G. applies with

complete retroactively.    If the court determines that J.L.G. is completely

retroactive, it will have to decide whether the introduction of CSAAS testimony

at defendant's trial was harmless error.

      Affirmed in part, remanded in part for proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                       A-0077-17T1
                                       14
