STATE OF NEW JERSEY VS. S.G. (15-03-1094, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5627-16

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

S.G.,

     Defendant-Appellant.
_______________________

                   Submitted January 16, 2020 – Decided April 30, 2020
                   Remanded by Supreme Court December 8, 2020
                   Argued March 3, 2021 – Decided May 6, 2021

                   Before Judges Alvarez, Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 15-03-0194.

                   Stephen P. Hunter, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Stephen P. Hunter, of
                   counsel and on the briefs).

                   Mark Niedziela, Senior Assistant Prosecutor, argued
                   the cause for respondent (Camelia M. Valdes, Passaic
                   County Prosecutor, attorney; Christopher W. Hsieh,
            Chief Assistant Prosecutor, of counsel and on the
            briefs; Mark Niedziela, of counsel and on the briefs).

PER CURIAM

      Following a jury trial, defendant S.G. 1 was convicted of first-degree

aggravated sexual assault of a victim (B.C.) under the age of thirteen, N.J.S.A.

2C:14-2(a)(1); second-degree sexual assault of a victim (B.C.) over the age of

thirteen by an actor who was four or more years older than the victim, N.J.S.A.

2C:14-2(b); third-degree endangering, abuse, neglect, or sexual act by a non-

caretaker (B.C.), N.J.S.A. 2C:24-4(a); fourth-degree sexual assault of a minor

under the age of sixteen but over the age of thirteen by a defendant four or more

years older than the minor (A.E.), N.J.S.A. 2C:14-2(c)(4); third-degree

endangering, abuse, neglect, or sexual act by a non-caretaker (A.E.), N.J.S.A.

2C:24-4(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), with a

victim between the ages of thirteen and fifteen, when the actor was four or more

years older than the victim (N.T.), N.J.S.A. 2C:14-2(c)(4); and third-degree

endangering, abuse, or sexual act by a non-caregiver (N.T.), N.J.S.A. 2C:24-




1
   We use initials and pseudonyms to protect the privacy of the victim a nd
preserve the confidentiality of these proceedings. N.J.S.A. 2A:82-46(a); R.
1:38-3(c)(9).


                                                                           A-5627-16
                                       2
4(a).2 After merger, the judge imposed an aggregate sentence of thirty-three

years, subject to twenty-five years of parole ineligibility.

      On direct appeal, we rejected defendant's contention that under State v.

J.L.G., 

234 N.J. 265

(2018), the Child Sexual Abuse Accommodation Syndrome

(CSAAS) expert testimony prejudiced his right to a fair trial. State v. S.G., No.

A-5627-16, (App. Div. Apr. 30, 2020) (slip op at 9-10). We determined the

expert testimony was admissible under the exception set forth in J.L.G. because

it "shed light" on the victims' "general fear of disclosure, embarrassment, bribery

by defendant, or confusion as to whether an act constitutes abuse [that] may be

'beyond the ken of the average juror.'"

Id. at 10.

We further concluded that even

if the testimony was considered "to have been improperly admitted, any error

was harmless[,] R. 2:10-2," as "[t]he State's proofs were overwhelming." Ibid.3

      On December 8, 2020, the Supreme Court issued an order granting

certification and summarily remanded this matter for our reconsideration in light



2
   The jury could not reach a verdict on the charge of second-degree sexual
assault of a victim between the ages of thirteen and fifteen, when the actor was
four or more years older than the victim (N.T.), N.J.S.A. 2C:14-2(c)(4). The
State dismissed the charge after the trial.
3
  We also rejected defendant's contention that he was denied a fair trial when
the trial judge instructed the jury regarding his decision not to testify without
obtaining his consent. S.G., slip op. at 11. This issue is not before us.
                                                                             A-5627-16
                                         3
of State v. G.E.P., 

243 N.J. 362

(2020) (G.E.P. II). State v. S.G., 

244 N.J. 452

(2020).     Following the Court's directive, we have undertaken that

reconsideration and affirm the defendant's convictions.

      In our earlier opinion in this case, we considered State v. G.E.P., 458 N.J.

Super. 436, 447-48 (App. Div. 2019) (G.E.P. I), where we held that pipeline

retroactivity applied to the Supreme Court's decision in 

J.L.G., 234 N.J. at 272

,

which for the most part, barred the admission of expert testimony about CSAAS

except to explain a child victim's delayed disclosure that was beyond the ken of

the average juror. See S.G., slip op. at 9 (quoting 

J.L.G., 234 N.J. at 305

) (citing

G.E.P. 

I, 458 N.J. Super. at 447

). We then held that the admission of CSAAS

testimony at defendant's trial was permissible because it fell "within the

exception enunciated in J.L.G."

Id. at 10.

We did so in the same manner in

J.LG. where the Court found the non-CSAAS evidence establishing defendant's

guilt to be overwhelming, but unlike the four consolidated appeals that were

under review in G.E.P. I. See G.E.P. 

I, 458 N.J. Super. at 448-49

, 464-65.

      In G.E.P. I, we concluded that the admission of the CSAAS evidence in

the four consolidated cases was not 

harmless. 458 N.J. Super. at 464-65

. We

found in each case,

            the State relied almost entirely on the credibility of the
            victim. All victims gave "straightforward reasons" for

                                                                              A-5627-16
                                         4
            their delay in reporting. See 

J.L.G., 234 N.J. at 272

.
            Admission of the CSAAS expert testimony, which
            severely impaired the defense's ability to test the
            victim's credibility, was "clearly capable of producing
            an unjust result."

            [Ibid. (quoting R. 2:10-2).]

      In G.E.P. II, the Court affirmed that its holding in J.LG. should be given

pipeline 

retroactivity. 243 N.J. at 370

. The Court then carefully analyzed the

four cases affirming our reversal of the convictions of the defendants, R.P., C.P.,

and C.K. because

            [a]side from the CSAAS evidence presented, these
            cases were based largely upon the testimony . . . [of the]
            alleged victims[, and] CSAAS testimony bolstering the
            alleged victims' testimony was "sufficient to raise a
            reasonable doubt as to whether the error led the jury to
            a result it otherwise might not have reached. . . ."

            [Id. at 391-92 (quoting State v. Jordan, 

147 N.J. 409

,
            422 (1997)).]

As to R.P., other than the CSAAS testimony, the State's case relied upon the

victim's "testimony; the videos of [her] interviews with investigators describing

the abuse; and [her] mother's testimony, which was based on what [the victim]

told her."

Id. at 392.

In C.P.'s case, the evidence consisted only of the victim's

"testimony . . . and witnesses that repeated [her] allegations."

Ibid. As to C.K.,

"[n]one of the evidence directly corroborated [the victim's] allegations."

Ibid.

A-5627-16
5
As

to the fourth defendant, G.E.P., the Court reversed our decision in

G.E.P. I vacating his conviction, because it concluded that there was sufficient

evidence other than the CSAAS evidence and the victim's testimony to support

the defendant's conviction and that "the admission of CSAAS testimony did not

deny G.E.P. 'a fair decision on the merits.'"

Id. at 390

(quoting State v.

Mohammed, 

226 N.J. 71

, 87 (2016)). That other evidence consisted of "a

recorded phone call between [the victim] and G.E.P., and [items similar to what

he used in his assault, such as] the straps, clothespins, and other items seized

from G.E.P.'s office."

Ibid.

Prior to reconsidering

our earlier opinion, the parties submitted

supplemental briefs regarding the applicability of G.E.P. II to this case.

Defendant argues G.E.P. II contradicts two central holdings of this court's prior

opinion affirming his convictions.     He contends the State's CSAAS expert

testimony and the trial court's instructions on CSAAS did not satisfy the delayed

disclosure exception promulgated in J.L.G. He contends the jury's credibility

determination about the alleged victims was tainted by the improper "CSAAS

testimony bolstering the alleged victims' testimony." G.E.P. 

II, 243 N.J. at 392

.

The testimony constituted error "sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not have reached. . .


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                                        6
."

Ibid. (quoting Jordan, 147

N.J. at 422). Defendant maintains the CSAAS

testimony prevented the jury from determining whether the victims' belief that

he committed sexual assault was credible or the product of suggestion, since

defendant also performed massages on adult members of the victims' family,

both male and female.

       In opposition, the State contends there is no reason for us to disturb our

original decision upholding defendant's conviction. It asserts that the admission

of the CSAAS testimony was harmless error as there was not a "'possibility that

it led to an unjust verdict'[ – ] that is, a possibility 'sufficient to raise a reasonable

doubt' that 'the error led the jury to a result it otherwise might not have reached ,'"

and it comported with the narrow exception allowed under 

J.L.G., 234 N.J. at

306

.    Because G.E.P. II did not change or modify the decision in J.L.G.

affirming the defendant's convictions, the State argues this court properly

applied the holding of J.L.G., finding that the delayed disclosure aspect of "the

CSAAS testimony was admissible because it was beyond the ken of the average

juror." The victims here were unable to offer a rational explanation for the delay

in disclosing the abuse.

       Guided by the Court's ruling in G.E.P. II, we agree with the State's

position that there is no reason to alter our earlier affirmance of defendant's


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                                            7
convictions. The trial judge did not abuse his discretion in admitting the CSAAS

testimony because, as we previously ruled, it satisfied the exception enunciated

in J.L.G. S.G., slip op. at 10. Furthermore, as we earlier concluded, defendant's

convictions did not turn only on the CSAAS testimony because "[t]he State's

proofs were overwhelming."

Ibid. We described how

all three victims gave

graphic testimony detailing defendant's massages of their breasts and vaginal

areas occurring periodically for months.

Id. at 3-5.

In addition, N.T. testified

that defendant removed her clothing, and B.C. testified defendant's sexual

conduct included digitally penetrating her body.

Id. at 3, 5.

Considering the

totality of the evidence, outside of the CSAAS testimony, the evidence adduced

at trial was more than enough to sustain defendant's convictions. The admission

of the CSAAS expert testimony did not deprive him of a fair trial.

      Affirmed.




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