                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1686-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.M.,

     Defendant-Appellant.
_____________________________

                   Submitted October 31, 2019 – Decided April 28, 2020

                   Before Judges Nugent and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 16-06-0776.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stefan Van Jura, Deputy Public Defender II,
                   of counsel and on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Ian C. Kennedy, Assistant Prosecutor, of
                   counsel; Catherine A. Foddai, Legal Assistant, on the
                   brief).

PER CURIAM
        Defendant, P.M.1, appeals from a judgment of conviction entered after a

jury found him guilty of committing twelve sex-related crimes against his

stepdaughter, and a judge sentenced him to an aggregate twenty-eight-year

prison term and ordered him to make certain payments, including a $1000 Sex

Crime Victim Treatment Fund (SCVTF) penalty. He argues the following

points:

              Point I:

              DEFENDANT WAS DENIED HIS RIGHTS TO DUE
              PROCESS AND A FAIR TRIAL BY THE
              CUMULATIVE IMPACT OF THREE ERRORS: 1)
              IMPROPER OPINION RENDERED BY THE
              STATE'S EXPERT WITNESS; 2) UNFAIR
              ARGUMENT IN THE STATE'S SUMMATION; AND
              3) OVERLY-DETAILED "FRESH COMPLAINT"
              TESTIMONY.

              Point II:

              IF DEFENDANT'S CONVICTIONS ARE NOT
              REVERSED, THE MATTER MUST BE REMANDED
              FOR RESENTENCING DUE TO NUMEROUS
              ERRORS IN THE SENTENCE.

        We find the alleged trial errors were harmless, but the matter must be

remanded for two aspects of the sentence: the trial court's explanation for




1
    We use initials and pseudonyms to maintain the confidentiality of the parties.
                                                                          A-1686-17T3
                                         2
ordering less restrictive sentences to be served before more restrictive sentences,

and an ability-to-pay hearing concerning the SCVTF penalty.

                                        I.

                                        A.

      A Bergen County grand jury charged defendant in a 2016 indictment with

two counts of third-degree aggravated criminal sexual contact (counts one and

two), N.J.S.A. 2C:14-3(a), four counts of fourth-degree criminal sexual contact

(counts three through six), N.J.S.A. 2C:14-3(b), fourth-degree attempted

criminal sexual contact (count seven), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b),

second-degree sexual assault (count eight), N.J.S.A. 2C:14-2(c)(1), third-degree

criminal coercion (count nine), N.J.S.A. 2C:13-5, two counts of second-degree

endangering the welfare of a child (counts ten and eleven), N.J.S.A. 2C:24-4(a),

and third-degree endangering the welfare of a child by possessing an exploitive

photograph (count twelve), N.J.S.A. 2C:24-4(b)(5)(b).

      The trial court granted the State's pre-trial motion for leave to introduce

fresh complaint testimony from several witnesses. A jury convicted defendant

on all counts, and the trial court denied defendant's motion for a new trial.

      During defendant's sentencing proceeding, the court merged one child

endangerment count (eleven) into the other (ten). The court imposed concurrent


                                                                           A-1686-17T3
                                        3
four-year prison terms on counts one and two, third-degree aggravated criminal

sexual contact; concurrent one-year prison terms on counts three through six,

fourth-degree criminal sexual contact; and a concurrent one-year prison term on

count seven, fourth-degree attempted criminal sexual contact.

      The court imposed consecutive prison terms on the remaining counts,

consecutive to each other and to the counts for which the court had imposed

concurrent terms. The court imposed an eight-year prison term subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count eight, second-

degree sexual assault; a four-year prison term on count nine, third-degree

criminal coercion; an eight-year prison term on count ten, second-degree

endangering a child's welfare; and a four-year prison term on count twelve,

third-degree endangering a child's welfare by possessing an exploitive

photograph.

      Altogether, the court sentenced defendant to serve twenty-eight years in

prison, eight subject to NERA.     The court also imposed numerous fines,

penalties, and assessments; ordered defendant to comply with Megan's Law's

registration requirement, N.J.S.A. 2C:7-2; and ordered that an existing sex

offender restraining order remain in place. This appeal followed.

                                      B.


                                                                       A-1686-17T3
                                      4
      At trial, defendant's stepdaughter, whom we will refer to by the

pseudonym Amy, described in detail how defendant sexually abused her during

her first three years of high school. She testified that she and her mother met

defendant the summer before she started seventh grade, and her mother and

defendant later married. Defendant remained with the family until authorities

arrested him during Amy's junior year of high school. A paternal figure in

Amy's eyes at first, defendant's molestation of Amy began with groping outside

her clothes, escalated to more intense and sustained groping inside her clothes,

and culminated with Amy's disclosure to authorities after incidents of near or

actual digital penetration.

      Six months after moving into a River Edge apartment, defendant, Amy's

mother, Amy, and her brother moved into a house in River Edge, where they

lived until 2015, Amy's sophomore year of high school. From there the family

moved to a residence in New Milford.2 The abuse began in the River Edge

house.

      Amy's relationship with her mother had been poor.        Amy feared her

mother, who had abused Amy, verbally, emotionally, and physically, sometimes


2
  During the trial, Amy testified she moved into the New Milford residence in
2016. That appears to have been a mistake, as much of defendant's abuse of
Amy occurred there, and defendant was arrested in November 2015.
                                                                        A-1686-17T3
                                       5
hitting her, sometimes dragging her around the house by her hair. Their

relationship improved during the first year of her mother's marriage to

defendant. According to Amy, her mother seemed happy, which made Amy feel

good.    After a year of marriage, however, her mother reverted.         She and

defendant began to argue, and Amy's mother took her anger out on Amy. When

that began to happen, defendant became nicer to Amy and protective of her.

        Amy was really happy that she had a father figure who was exceptionally

nice to her, respectful, and protective. That too changed. When Amy started

high school, defendant "started getting a little hands on." Amy explained that

defendant was at first "very sly about it[,]" grabbing and slapping her buttocks

over her clothes when she was alone with him. She told defendant this made

her uncomfortable, but he said it "really didn’t mean anything to him." He would

get defensive and say "that's how I show my love," but he did not stop. Instead,

"things really started to take a nasty turn" with what Amy described as the "video

incident" involving her and her former boyfriend.

        Amy said she met her former boyfriend—former at the time of trial—in

eighth grade and continued to have strong feelings for him when she started high

school. They would "chat" through "KiK," a text messaging phone application.

When Amy was a fifteen-year-old high school sophomore, she and her former


                                                                          A-1686-17T3
                                        6
boyfriend made plans through face-to-face conversations and KiK chats to have

sex one day after school at Amy's River Edge residence.         Defendant, who

monitored Amy's cellular phone, learned of the planned meeting. Purportedly

to be a cool parent, he encouraged her to go through with it, assuring her no one

would be home.      Amy was pleased, because she knew her mother would

"probably kill [her]" if she knew.

      The next day, when Amy arrived at her home after school, she phoned her

former boyfriend, who said he could not come over. They decided to become

intimate through texts and photos they could transmit over their cellular phones.

After checking to see no one was home, Amy went to her room, undressed, and

began to engage in acts of self-stimulation, as did her former boyfriend. During

the episode, they transmitted four messages and four photos, the latter depicting

Amy's breasts and her former boyfriend's penis. Amy transmitted the messages

and photos on her Apple phone. The date stamp on the messages was February

12, 2015. Amy was sixteen years old. The episode ended when defendant

emerged from Amy's bedroom closet.

      Amy testified defendant emerged holding his cellular phone as if he were

recording. He told her he was recording her. He sat on the side of the bed and

told her "to finish in front of him." She refused, saying she would rather get in


                                                                         A-1686-17T3
                                       7
trouble with her mother. She began to cry and attempted to cover herself with

her hands and the covers. Using his phone—which according to Amy was not

an Apple phone—defendant took screen shots of the text messages and photos

on Amy's phone. He made fun of her but said he would not tell her mother. He

told her not to delete the messages from her phone and that he was going to save

the photos and put them in a safe "to use . . . whenever he wanted or whenever

it was convenient to him." He threw Amy's clothes at her and told her to get

dressed.

      After dressing, Amy went downstairs. Defendant told her "he was going

to keep this dirty little secret" from her mother and then he grabbed Amy and

kissed her on the mouth. He said he loved her, then told her to go pick up her

brother from school.

      Amy explained to the jury this incident not only crushed her confidence,

but also allowed defendant "to do whatever he wanted" because she could not

speak up given what he had. His sexual abuse of her intensified. He would grab

her breasts and buttocks often, over and under her clothes. He would come into

the bathroom while she showered, open the curtains, and strike up a

conversation. He would enter her bedroom and watch her undress. He said he

loved and cared for her and that is how he showed his love. Amy testified she


                                                                        A-1686-17T3
                                       8
eventually gave up and just "started letting it happen" because it made no

difference.

      In March of Amy's sophomore year of high school, the family moved to

the New Milford residence.        Amy testified that between the move and

defendant's November 2015 arrest, in addition to his ongoing groping, there

were five incidents when his abuse became more aggressive. The first incident

occurred one day when he told her to go to his bedroom. She initially refused,

but he reminded her he still had "those things," referring to the photos and the

video she thought he took. Amy relented. Defendant sat down on his bed with

his legs spread, pulled Amy close, groped her breasts over and under her clothes,

and rubbed her vagina over her jeans. Next, he bent her over the bed, stripped

to his underwear, and thrust himself against Amy's buttocks. She felt his penis

become erect beneath his underwear. Amy would not let defendant remove her

clothes. She ran out of the bedroom, locked herself in the bathroom, and began

dry heaving.

      The second incident occurred the next day. Defendant brought home

travel size liquor bottles, took a few sips, and gave the rest to her to drink. She

"became a little bit intoxicated." Defendant led Amy up to his bedroom, sat on

the bed with his legs spread, brought her backward between his legs, and began


                                                                           A-1686-17T3
                                        9
kissing her back and neck. He touched her breasts over and under her clothes,

and in a "heavy handed" manner he tried to stimulate her over her pants. Amy

slapped defendant's hands away when he tried to put them in her pants.

Defendant attempted to get Amy to touch his penis with her hand. Impaired by

the alcohol she had consumed, Amy began to feel sick. She also felt gross and

angry. She went to the bathroom and threw up.

      Amy testified that things "became very tense" after this incident because

defendant had "never been so direct." Three more incidents took place, two in

her bed. The first occurred one morning when Amy woke up and found her

underwear down around her ankles.          She had no recollection of how this

happened, and she was scared. Amy confronted defendant, and he "brushed it

off and that was it." The second occurred one morning at approximately five

o'clock. Defendant entered her bedroom, knelt beside Amy's bed, and began

touching her leg, sliding his hand toward her vagina. Not wanting to wake her

mother, who was in a room across the hall, or her brother, who was sleeping in

the same room as Amy, Amy pretended to be in a deep sleep. Defendant, who

was breathing heavy and grunting, put his hand under the covers, between Amy's

legs, and put his fingers between her "vaginal lips." Amy closed her legs "like

a vice grip" and defendant got frustrated and left her room.


                                                                       A-1686-17T3
                                      10
       Amy could no longer keep the abuse to herself. That afternoon she told

her current boyfriend about the ongoing abuse. She also telephoned defendant

and told him she was awake that morning. Defendant became silent, then denied

the accusation, called her a liar, and said she did not know it was him.

       During the fifth and final incident, defendant told Amy to follow him

downstairs to the kitchen in the dark. Once there, defendant turned Amy around

so her back was facing him, hugged and kissed her, and put his hand under her

shirt and bra. Amy pushed defendant off her, yelled she had had enough, and

said she intended to tell someone about his abuse. Defendant told her to go to

bed.

       The next day, defendant told Amy's mother to make sure Amy called him

after school. Amy did. She testified she told defendant she had had enough and

intended to disclose his abuse. He yelled at her, told her she was ungrateful, and

said no one would believe her because she did not have enough evidence. Amy

testified she continued going to school for approximately another week before

breaking down in her first period class on November 25, 2015, and running to

the nurse's office.

       Amy told the nurse, "[m]y stepdad has been molesting me for the past

three years." The nurse brought in the guidance counselor. Before the day


                                                                           A-1686-17T3
                                       11
ended, Amy disclosed the abuse to the guidance counselor, the school resource

officer, and a New Milford Police Officer, who notified the prosecutor's office.

Detective Dennis Conway, a detective employed by the Bergen County

Prosecutor's Office in the Special Victims Unit, interviewed Amy. That night,

law enforcement officers arrested defendant. Detective Conway obtained a

search warrant and the officers who executed it the next day seized three cellular

phones, one tablet, and one laptop computer from defendant's vehicle.

Defendant stipulated that two of the phones, the laptop, and the tablet were his.

      The State presented the testimony of two forensic experts who extracted

and analyzed data from defendant's cellular telephones and laptop. They found

nothing evidential on the cellular phones. On the laptop, they found the eight

images of the text messages and photo Amy had exchanged with her former

boyfriend during the video incident. Fairly construed, the forensic testimony

demonstrated defendant had used one of his cellular phones to photograph the

images on Amy's phone and then downloaded the images from his cellular phone

to his computer. One expert testified the cellular phone used to take the screen

images of the eight text messages and photographs was the same cellular phone

used to take a "selfie" picture of defendant. The text messages and photos on




                                                                          A-1686-17T3
                                       12
Amy's phone were "captured" on defendant's phone on March 5, 2015, at

12:42:55 a.m.

      One of the experts, Matthew Nathanson, testified he could extract no data

from defendant's tablet because it was encrypted. The following exchang e took

place between Nathanson and the prosecutor:

            Q    Why were you not able to do that with the
            Microsoft Surface tablet?

            A     This particular one had a full disk encryption.

            Q     Okay. Can you explain to us what encryption is?

            A     Encryption is a way of -- of locking data on a[n]
            electronic device. A simple way of putting it, on your
            iPhone if you have a six digit code you -- you’re
            entering that code, that’s a decryption key. If your
            phone’s locked, that’s -- it’s encrypted at that state.

            Q    Is encryption the same as, let’s say, having a
            password for your user name on Windows though?

            A     No. Full disk encryption is -- is completely
            different than that. Where –

            Q     Explain it for us, you said full disk encryption,
            correct?

            A     Yeah, correct.

            Q     Explain that concept for us, please.

            A    Full -- full disk encryption essentially locks down
            every file on that device, and unless you have a

                                                                       A-1686-17T3
                                      13
            decryption key to unlock it, you’re not able to see the
            contents of it or create an image of it to – to analyze.

            Q     Is full disk encryption something that
            automatically can happen on a computer or must it be
            user initiated?

            A      It’s usually user initiated, right, like you
            wouldn’t get -- you wouldn’t buy a device that was
            completely locked down and you wouldn’t have a key
            to unlock it. It would -- it would essentially be useless,
            so it’s something that you -- you would have to do, and
            you would have to save, and store, and remember that
            password because if you don’t have the decryption key,
            you won’t be able to use that device.

            Q     In -- in your training and experience as a forensic
            analyst in a number of roles, how common is full disk
            encryption for you to come across?

            A     Uncommon. I don’t -- at my time at the
            prosecutor’s office I only saw it a handful of times[.]

            Q      And in what context in the few times that you saw
            it did you actually see it?

            A      The -- the times I saw it were child pornography
            cases.

      The prosecutor completed his direct examination of Nathanson with the

last question and answer. The court took a short recess. When the trial resumed,

defendant moved for a mistrial based on the expert's reference to encrypted child

pornography. The court denied the motion, but gave the following curative

instruction, to which the prosecutor and defendant agreed:

                                                                         A-1686-17T3
                                       14
                  THE COURT: Ladies and gentlemen, we’re
            about to hear cross-examination of Mr. Nathanson.

                   You may recall testimony from Mr. Nathanson
            that in his training and experience he has encountered
            full disk encryption in the context of child
            pornography. There was no testimony that items of that
            nature, or otherwise, were recovered from the
            Microsoft Surface tablet. You may not infer from that
            testimony, in and of itself, the digital contents of that
            Microsoft Surface tablet contained child pornography.

      Amy's former boyfriend testified. He confirmed her testimony about their

relationship from middle school through their sophomore year of high school,

and he authenticated the eight images of his and Amy's message and photo

exchanges during the video incident.

      The State also presented three witnesses to establish "fresh complaints":

her current boyfriend at the time of the disclosure, the high school nurse, and

the high school guidance counselor.         In response to the school nurse's

notification that Amy was in her office and extremely upset, the guidance

counselor went to the nurse's office. The prosecutor questioned her about what

happened next and the following exchange occurred:

            A      The nurse's office is here. And, there's a chair
            sitting next to her. And there is this very pretty girl
            what I could tell with very long hair sitting in a chair
            with her legs to her chest and she was hysterically
            crying. And, I walked in. And, I didn't know who the
            girl was. And I just said, "What's the matter pretty

                                                                        A-1686-17T3
                                       15
girl?" Because I wasn’t sure what was going on. She
looked up at me, she was breathing very heavily, crying
and [the nurse] said, "This is [Amy]" And that was my
first clinical introduction to [Amy.]

Q     What happened next?

A     [The nurse] informed me that [Amy] came to her
and was discussing things that were going on in her life
that she was very, very unhappy about. And that [the
nurse] thought that it fell out of the scope of what her
position was. So, she asked me to meet with her.

Q     Did you meet with her?

A     Yes. I took [Amy] into the back room of the
health office because I couldn’t meet with [Amy] with
[the nurse] outside because the students were coming in
and out. I brought her into our back office of the health
room and I kept the door open. And, [Amy] was very
upset. She was breathing very heavily. I couldn't really
even understand what she was saying. So, we did some
deep breathing relaxations to try to get her to calm her
breathing down so I could understand. So, I said to her,
"Honey what can I help you with?" It was during that
time that she said to me that she's very unhappy about
what things are going on in her life. And, I still really
wasn't sure what was going on. It could've been a
boyfriend break up. It could have been something --
I’m like, "Well, what's going on in your life?" So, she's
rocking in her chair, and she's playing with her hair.
And, she said that she was being abused. And, I said,
"What do you mean you’re being abused." And she said
that her stepfather was sexually molesting her.

Q     Okay. . . . [How] was she sitting at the time that
you're talking to her at this point?


                                                            A-1686-17T3
                          16
            A      She -- I’m sitting at the end of the table here.
            And, she's sitting here. And she has her head down and
            she's rocking back and forth when she's speaking to me.
            She still – she still is crying but she has calmed down
            enough for me to understand what was being said.

            Q     Okay.

            A     She was basically trying to -- soothe herself
            through the rocking.

            Q     Okay. Just generally, if you could tell the jury
            [what she] said?

            A      Basically what happens is that in a school setting
            when a student starts talking about abuse we have to get
            as much information as we can to take the next step.
            There's so many things that fall outside the scope of a
            school that we can’t handle that we have to bring it onto
            the police or -- or to someone else who has expertise in
            the field. So, when I asked her what was going on she
            said to me that her step father who she identified as
            [P.M.] was rubbing her breasts . . . .

      Defendant objected and the attorneys proceeded to sidebar. For unknown

reasons, the sidebar discussion was not recorded.        Following the sidebar

conference, the prosecutor asked the guidance counselor, "could you please tell

the jury what [Amy] told you just very generally about what happened or what

she said happened?" The witness responded that "her breasts were rubbed, her

buttocks was rubbed, she would wake up in the morning and her . . . ."

      Defendant presented no witnesses. His defense was Amy had concocted


                                                                        A-1686-17T3
                                      17
her entire testimony.     He crafted his defense theory around his cross-

examination of the State's witnesses and several inconsistencies in the State's

case, and he presented his defense through his attorney's summation, the central

theme being Amy lied.

      The day before Amy disclosed the abuse to the school nurse and guidance

counselor, she had an argument with defendant and her mother. They wanted

her to become more involved in Civil Air Patrol, to excel, and to make it a

priority. Defendant said she was unmotivated and needed to push herself. They

cared little about what she wanted, they wanted her to focus on Civil Air Patrol.

Although Amy testified the argument had "absolutely nothing" to do with her

subsequent disclosure, defense counsel suggested the argument and its timing

were Amy's motivation for concocting her story.

      Defendant did not deny in summation that he used his cellular phone to

capture the eight screen shots on Amy's cellular phone. Rather, he pointed out,

as Amy had testified, that he periodically checked her cell phone as a condition

of its use. He did deny taking the screen shots after emerging from the closet in

Amy's bedroom. He noted that though Amy claimed the incident took place on

a February afternoon after school, between three and four o'clock, the State's

forensic expert showed defendant had taken the photographs after midnight in


                                                                         A-1686-17T3
                                      18
March 2015, "a completely different day," and in fact nearly a month after the

day Amy said the incident occurred. Defendant also pointed out he did not

download the photographs to his computer until nearly three months later, in

June 2015.

      Defendant emphasized that if Amy lied about the video incident—as

evidenced by the State's expert testimony about the date of the screen shots

defendant took—the jury could conclude she lied about everything else. He

added that Amy's reference to the events occurring in 2016 rather than in 2015

was more evidence that she had lied.

      Early in her summation, the prosecutor told the jury:

                    Before we go further I want to talk to you a little
             bit about where evidence comes from. The State
             doesn’t create evidence, generally. We gather the
             existing evidence. [P.M.], the defendant, he's the one
             that chose the crime scene. He chose where he was
             going to molest [Amy]. And just like other cases we
             have in the Special Victims Unit, when a perpetrator
             molests a child, anyone under the age of 18, and it's an
             interfamilial situation, there is shame and guilt and a
             delayed disclosure, just like in this case. And a
             defendant doesn't get to commit a crime against a child
             in secret and then later on claim that he gets to get away
             with it because we don't have all that great evidence that
             they have in the CSI shows and homicide cases. No
             physical evidence, no eyewitness testimony, no
             surveillance tapes or fingerprints or DNA.



                                                                          A-1686-17T3
                                        19
      To refute defendant's argument about when defendant took the screen

shots of Amy's phone, the prosecutor noted defendant had told Amy not to erase

the explicit messages and photos from her cellular phone. The prosecutor

suggested defendant photographed them with his phone again in March 2015, to

eventually load them onto his computer in June 2015.

      The trial court included the following instruction in its charge to the jury:

            Arguments, statements, remarks, openings and
            summations of counsel are not evidence and must not
            be treated as evidence.

                  Although the attorneys may point out what they
            think [is] important in this case, you must rely solely
            upon your understanding and recollection of the
            evidence that was admitted during the trial.

                   Whether or not the defendant has been proven
            guilty beyond a reasonable doubt is for you to
            determine based on all the evidence presented during
            the trial. Any comments by counsel are not controlling.

      The jury rejected defendant's defense, convicted him as charged, and the

judge imposed the sentence we have previously recounted.

                                        II.

      In his first argument, defendant contends that three errors, considered

cumulatively, deprived him of a fair trial. The errors were: the expert's reference

to his experience of seeing full disc encryption only in child pornography cases;


                                                                           A-1686-17T3
                                       20
the prosecutor's closing comment referencing delayed disclosure by other child

molestation victims; and the "overly-detailed" fresh complaint of Amy's high

school guidance counselor, which defendant claims "improperly inflamed the

passion of the jury."

      When addressing claims of cumulative error, the Supreme Court

            repeatedly [has] made clear that [t]he proper and
            rational standard [for the review of claimed trial errors]
            is not perfection; as devised and administered by
            imperfect humans, no trial can ever be entirely free of
            even the smallest defect. Our goal, nonetheless, must
            always be fairness. "A defendant is entitled to a fair
            trial but not a perfect one." Lutwak v. United States,
            344 U.S. 604, 619 (1953); accord, State v. Marshall,
            123 N.J. 1, 169-70 (1991), cert. denied, 507 U.S. 929
            (1993).

            [State v. Wakefield, 190 N.J. 397, 537 (2007) (second
            and third alterations in original) (quoting State v. R.B.,
            183 N.J. 308, 333-34 (2005)).]

      For that reason, "legal errors, which creep into the trial but do not

prejudice the rights of the accused or make the proceedings unfair, may [not] be

invoked to upset an otherwise valid conviction . . . ." State v. Orecchio, 16 N.J.

125, 129 (1954). Thus, "[i]f 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." State v. T.J.M., 220 N.J. 220, 238 (2015) (quoting State v.

Weaver, 219 N.J. 131, 155 (2014)). Conversely, if "legal errors are of such

                                                                          A-1686-17T3
                                       21
magnitude as to prejudice the defendant's rights or, in their aggregate have

rendered the trial unfair, our fundamental constitutional concepts dictate the

granting of a new trial before an impartial jury." Orecchio, 16 N.J. at 129.

"[T]he predicate for relief for cumulative error must be that the probable effect

of the cumulative error was to render the underlying trial unfair." Wakefield,

190 N.J. at 538.

      When deciding whether the probable effect of cumulative error was to

render the underlying trial unfair, we must "necessarily look to the significance

of the trial errors in light of the evidence presented to the jury." State v. Blakney,

189 N.J. 88, 96-97 (2006). Cumulative error cannot be viewed as harmless

"when cast against the less than overwhelming evidence supporting a . . .

conviction." Id. at 97. We must thus consider, among other factors, the quantum

of evidence of a defendant's guilt, State v. Koskovich, 168 N.J. 448, 540 (2001);

the phase of the trial in which the error occurs, ibid., (explaining that "a correct

charge to the jury is singularly important for ensuring that jurors discharge their

function accurately, fairly, and free from any impermissible influences"); and

whether the errors "pervaded the trial[,] . . . [or] permitted [a party] to shift the

jury's focus from a fair evaluation of the evidence to pursue instead a course

designed to inflame the jury, appealing repeatedly to inappropriate and


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                                        22
irrelevant considerations that had no place in the courtroom[,]" Pellicer ex rel.

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55-56 (2009).

      Nathanson's testimony—that he encountered full disk encryption on

defendant's tablet, that such encryption was rare, and he had only seen it in child

pornography cases—was arguably not prejudicial when considered in the

context of Amy's testimony and defendant's undisputed storage on his laptop of

the messages and photos Amy had exchanged with her former boyfriend during

the video incident. To be sure, a prosecutor is prohibited from eliciting improper

or inflammatory testimony from a witness. See State v. McGuire, 419 N.J.

Super. 88, 140-42 (App. Div. 2011). Here, however, Amy testified that as

defendant emerged from the closet, he held his phone in such a way that he

appeared to be recording her. Her impression was enforced by defendant saying

he had done so. Given defendant's behavior, coupled with his maintenance of

the screen shots he made of Amy's messages and photographs, a jury could infer

defendant stored the more graphic video in an encrypted file on his tablet. The

trial court's curative instruction was consistent with such an inference.

      Defendant now argues the instruction was "woefully inadequate," though

he agreed with it at the time of trial. He insists the trial court should have

instructed the jury that it could not use Nathanson's testimony concerning


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                                       23
encryption for any purpose. Yet, at trial, when in summation the prosecutor told

the jury, "[w]e don't know if the video existed, we don't know if it was on the

encrypted computer or if it existed at all[,]" defendant did not object.

      Of course, Nathanson's testimony concerning encryption and the

prosecutor's eliciting it were both unnecessary. The focus of the indictment's

twelfth count, possession of less than one hundred items depicting the sexual

exploitation or abuse of a child, centered on defendant's possession of the nude

screen shots he took of Amy and her former boyfriend. For that same reason,

however, and given virtually irrefutable evidence defendant had downloaded the

photographs from a cellular phone and maintained them on his laptop, any

prejudice to defendant by Nathanson's reference to child pornography withere d

to little more than a harmless irrelevancy.

      It was clearly improper, however, for the prosecutor to comment in

summation on her own experience concerning other child molestation victims.

By doing so, the prosecutor placed before the jury evidence relevant to Amy's

credibility that had not been presented during the trial. Nonetheless, defendant

did not object to the prosecutor's comment. The absence of a timely defense

objection to a prosecutor's remarks in summation generally signifies that the

remarks are not prejudicial. See State v. Ramseur, 106 N.J. 123, 323 (1987).


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                                       24
      Here, it is understandable why defendant did not object to the prosecutor's

comment. The reference to other children, and the context of the remark,

involved a relatively insignificant aspect of the State's proofs. Moreover, Amy

gave a clear, perfectly plausible explanation for her delayed disclosure of

defendant's abuse. Defendant possessed photographs and, in Amy's mind, a

video, all of which were humiliating to her. Thus, unlike situations of child

molestation in interfamilial situations referenced by the prosecutor, here the

threatened disclosure by defendant of the photographs and video provided a

compelling reason for Amy's delayed disclosure of defendant's abuse. That

evidence was particularly compelling considering defendant's undisputed

possession of the photographs on his computer. In view of such compelling

evidence, the prosecutor's reference to her experience with other child

molestation victims can hardly be said to have been so prejudicial as to have

prejudiced defendant's right to a fair trial, whether considered separately or in

conjunction with the other alleged errors.

      Nor do we find that the trial court's alleged error, if any, in permitting

"excessive" fresh complaint testimony, tips the balance of the cumulative error

scale in defendant's favor.    The fresh complaint testimony defendant now

complains of was cumulative of Amy's testimony, and only partially so. The


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                                      25
witness's discussion of Amy's emotional state could hardly be said to have the

same impact on the jury as Amy's detailed description of defendant's abuse and

molestation of her. Moreover, following the witness's testimony and again in

its general charge, the court instructed the jury it could consider the testimony

in the narrow context of negating any inference to be drawn from Amy's failure

to disclose the abuse, not as substantive or corroborative evidence.

      Our conclusion defendant received a fair trial is also informed by the trial

court's denial of a mistrial following the expert's testimony, and denial of

defendant's post-trial motion for a new trial. It has long been recognized that

"whether inadmissible evidence is of such a nature as to be susceptible of being

cured by a cautionary or limiting instruction, or instead requires the more severe

response of a mistrial, is one that is peculiarly within the competence of the trial

judge . . . ." State v. Winter, 96 N.J. 640, 646-47 (1984). That is because "the

trial judge, who has the feel of the case . . . is best equipped to gauge the effect

of a prejudicial comment on the jury in the overall setting." Id. at 647.

      For similar reasons, "a motion for a new trial is addressed to the sound

discretion of the trial judge, and the exercise of that discretion will not be

interfered with on appeal unless a clear abuse has been shown." State v. Russo,

333 N.J. Super. 119, 137 (App. Div. 2000).


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                                        26
      Here, the trial court, having the feel of the case, did not conclude the errors

now asserted by defendant—as well as the others defendant alleged in his motion

for a new trial—warranted disturbing the verdict. From our review of the trial

record, we do not reach a different result. Amy's testimony was detailed and

compelling.    The eight images defendant possessed and maintained on his

computer corroborated her testimony. It does not "clearly and convincingly

appear[] that there was a manifest denial of justice under the law." R. 3:20-1.

      Defendant's trial may not have been perfect, but it was fair. Accordingly,

we affirm his convictions.

                                        III.

      In his second argument, defendant raises four reasons why this matter

must be remanded for resentencing. First, the trial court improperly found

aggravating factors under N.J.S.A. 2C:44-1(a)(1) and (2). Second, the court

improperly imposed consecutive terms of imprisonment. Third, the judgment

of conviction erroneously orders a less restrictive sentence to be served before

a more restrictive sentence without any explanation by the trial court. Last, the

SCVTF penalty was mistakenly imposed without first conducting an ability-to-

pay hearing.




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                                        27
      When a trial court has followed the sentencing guidelines, and its findings

of aggravating and mitigating factors are supported by the record, we reverse

only if the sentence "shock[s] the judicial conscience" in light of the particular

facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). Here, with two

minor exceptions noted below, the trial court followed the sentencing guidelines

and its findings of aggravating and mitigating factors are supported by the

record. In view of defendant's relentless molestation of Amy over three years,

at a time she was particularly vulnerable, his sentence is hardly conscience-

shocking.

      The trial court explained its reasons for finding the aggravating factors in

N.J.S.A. 2C:44-1(a)(1) and (2), as well as its reasons for imposing consecutive

sentences. In considering the first two aggravating factors, the court was guided

by "the case law that says they should be considered jointly." With this preface,

the court found "aggravating factor two, the harm to a vulnerable victim,

specifically related to the defendant providing this young victim alcohol on . . .

one occasion leaving her particularly unable to . . . resist when she was

intoxicated." The court also found defendant was in a position of trust and had

been Amy's confidante. The court's finding was well-supported by the record.




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                                       28
      Concerning the consecutive sentences, the court conducted the analysis

required by State v. Yarbough, 100 N.J. 627, 643-44 (1985), and its fact finding

supporting that analysis is amply supported by the record.           Defendant's

arguments to the contrary are without sufficient merit to warrant further

discussion. R. 2:11-3(e)(2).

      The judgment of conviction requires defendant to serve a four-year

sentence on count one, and then an eight-year NERA term on count eight,

consecutive to count one. When "imposing a least restrictive or flat prison term

preceding a more restrictive prison term, the court is directed to explain the

consequence of any sequencing and to justify its exercise of discretion to impose

the specific real-time consequence based on the court's finding and weighing of

aggravating factors." State v. Pierce, 220 N.J. 205, 205 (2014). The State

concedes the trial court did not comply with these requirements. Accordingly,

we remand this matter to the trial court to either provide its reasoning or to

amend the judgment of conviction to the extent lesser restrictive or flat prison

terms are required to precede more restrictive prison terms.

      The trial court also imposed a SCVTF penalty of $1000 pursuant to

N.J.S.A. 2C:14-10(a) without adequate consideration of defendant's ability to

pay, contrary to the Supreme Court's directive in State v. Bolvito, 217 N.J. 221,


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234 (2014). Accordingly, that $1000 penalty in the judgment of conviction is

vacated and the matter is remanded for the trial court to make the appropriate

determination.

      In summary, we affirm defendant's convictions and sentence except for

the imposition of least restrictive or flat prison terms preceding more restrictive

terms, and the $1000 SCVTF penalty. Concerning these two issues, we remand

to the trial court to amplify its reasons and modify its decision if necessary.

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




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