The opinion
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NOT FOR PUBLICATION WITHOUT THE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-0643-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN E. PEREZ, a/k/a
JONATHAN PEREZ,
Defendant-Appellant.
Submitted December 8, 2025 – Decided January 23, 2026
Before Judges Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 23-04-
0275.
Law Offices of Jonathan F. Marshall, attorneys for
appellant (Jeff Thakker, of counsel; William E.
Wackowski, on the briefs).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (James E. Moore, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jonathan E. Perez appeals from a judgment of conviction after
a jury found him guilty of two counts of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(a)(2)(a); second-degree
endangering the welfare of a child by a caretaker, N.J.S.A. 2C:24-4(a)(1); and
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), involving his
stepdaughter, D.T. 1 Having considered the arguments in light of the record and
applicable legal principles, we affirm.
I.
In April 2023, a Cape May County grand jury returned an indictment
against defendant charging him with multiple offenses, which resulted in final
charges against defendant under the above criminal statutes. The matter
proceeded to trial in April 2024. The jury convicted defendant on all counts. In
August 2024, the court denied defendant's motion for a new trial and imposed
an aggregate sentence of thirty years' imprisonment subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
The following facts were adduced from the evidence and testimony at
trial.
1
We use initials or pseudonyms for certain individuals referenced in this
opinion to protect the confidentiality of the victim. R. 1:38-3(d)(10) and (11).
A-0643-24
2
In 2010, D.T.'s mother D.A. and defendant met in New York at a homeless
shelter for women and children. At the time, D.T. lived there with her mother,
and defendant was employed there. Defendant had been involved in D.T.'s life
since "she was in diapers." Around June 2011, D.A. and defendant started dating
and moved in together. In 2013, D.A. and defendant shared a daughter, K.P.,
and in 2016 moved their family to Woodbine. They got married in 2017. D.A.
and defendant both worked as correction officers. They were in "sister squads"
working 12-hour shifts sequential to each other.
D.T. testified at trial regarding the sexual abuse inflicted upon her by the
defendant. D.T. had informed a former boyfriend about the abuse and the
boyfriend's mother informed D.A. After D.A. confronted defendant, who denied
the abuse, D.A. took D.T. to the New Jersey State Police Station in Woodbine
to speak with detectives about the abuse. At that time, she was unable to
verbalize the details of what had occurred, and as a result, she was provided a
pen and notepad. D.T. was instructed to write down everything she could
remember on a notepad.
At trial the following written statements of D.T. in the notepad were read
aloud to the jury by Detective Danielle Mitchell, the investigating detective, and
were admitted into evidence with no objection from defense counsel:
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3
He would lock the door as I was sitting on the bed at
this point and he would go to the opposite side of the
bed, and he would lay down and pull me by the waist
and get me [to] lay down with him. Then he would
slowly remove my pants and when I told him ["]to
stop["] or ["]what are you doing,["] he would just tell
me to shush and because I was scared, I did. And then
he would put his dick inside me. And then sometimes
I would try and stop him, again, he would try and get
me to stay quiet and so at that point I wouldn't know
what else to do so I stood quiet and let him whatever he
wanted to do so it would be over quicker. And so, once
he was done, I would go to the bathroom in my house
and clean myself up and then I would act like nothing
happened and he did the same. We acted like
everything was fine. Other things he would have me do
is blow jobs and he would do things to me like as it
would be called, eating me out. He's done stuff like this
to me for three and a half years. He would also try and
pull my shirt off to squeeze by boobs and he would suck
on my boobs also. When he started doing things to me,
I was 11 and when my sister would knock on the door,
like my little sister, [K.P.], he would say he was talking
to me and tell my sister to wait. He would do all this to
me while my mother was at work and afterwards would
allow me to do whatever I wanted, like stay[ing] out
late by myself and go to my friend's house. He would
guilt trip me into doing things. He would tell me that
he was lonely and stressed from work and he would ask
me to do things, like positions, and ask me if he could
give me cream pies. He also showed me porn and
would watch it while raping me. At times, I would push
him off of me and he would say things like ["]I'm
al[most] there["] or say ["]shush["]. He also asked me
to film porn videos with him so he can buy a house, and
he said with the money he would buy me pretty much
whatever I wanted. I told him no so many times that he
gave up. He would ask me to do anything and
A-0643-24
4
everything you could think of. I told him once that it
was rape and he told me that rape is when people were
hit and thrown on the floor and he said because he didn't
do that, it wasn't rape. He would give me alcohol and
call me a c[**]t if I didn't drink it. He would wait for
it to get me tipsy so I couldn't fight him as much. And
with him doing all this to me, I would be stressed that I
would drink it anyways on my own time. I would tell
him the things he did to me w[ere] wrong and then he
would say I thought you wanted to. After I told him no
as a response, he would apologize, say he wouldn't do
it again but then a later day would repeat his actions.
And sometimes I would tell him to leave my shirt be
and stop trying to lift it up. He would tell me I'm killing
his mood and get mad to make me feel bad. He would
act like my dad when he had to but then he would do all
this to me. One day I asked him if he would do what
he did to me to my sister. He said, "I'm not answering
that." I said answer my question and then he said again,
"I'm not answering that." It went back and forth like
that about three times until I yelled at him answer my
f[***]ing question. Then he stated firmly that he is not
answering that. So, by that, I had gotten my answer.
Another time I had asked him why he had done this to
me, he said "he thinks it's because his cousin, cousin
had done it to him and because I felt bad, didn't question
it." But now it seems like he told me all that just so I
would continue keeping my mouth closed about it.
Overall, he had manipulated and guilt tripped me into
doing thing[s].
After meeting with investigators and providing a written statement at the
police barracks, D.T. was taken to the Cape Regional Medical Center where she
was evaluated and a rape kit was taken. She was examined and background
information was taken by Nurse Lynne Rybicki who also prepared the rape kit.
A-0643-24
5
Later, D.T. was escorted to the Cape May Child Advocacy Center and
interviewed by Detective Mitchell. While D.T. was being interviewed by
Detective Mitchell, D.A. was interviewed by the Division of Child Protection
and Permanency and law enforcement. After the interview, D.A. consented to
a search of their residence to obtain evidentiary materials. Particularly, evidence
obtained from the residence included the sexual bondage harness described by
D.T. and her mother.
At trial, a New Jersey State Police forensic expert testified concerning
DNA testing of the harness. The expert testified that three DNA contributors
were found on the harness buckle, and four contributors were found on the
harness pad. Regarding the DNA profile for the buckle, the expert found, "it
would be impossible for one of the three to be [D.T.]." Regarding the DNA
profile from the pad, the expert testified she proposed a likelihood ratio under
two different hypotheses. The first being that the mixture of DNA came from
defendant, D.A., D.T., and an unknown individual. The second hypothesis
proposed the mixture comprised of defendant, D.A., and two unknown
individuals, excluding D.T. The expert testified the likely ratio of the DNA
profile containing D.T.'s DNA was "7,500 times more likely to have occurred"
A-0643-24
6
than without her. The expert concluded this established "moderate support" that
D.T. was one of the contributors to the DNA mixture on the pad.
Nurse Rybicki was also called by the State as a witness. When asked to
read the report and corresponding notes she contemporaneously prepared while
examining D.T., she testified D.T. named "Jonathan Edgar Perez" as her abuser
and his title was "stepdad, because a dad wouldn't do this . . . ." She also testified
"[t]he patient reports assault started around age eleven. I did not pursue the
issue with other incidents. Patient reports the stepfather—and they are my
words; I did not pursue the issue of other incidents."
D.T. also testified at trial and stated she was eleven years old the first-
time defendant sexually assaulted her in the bathroom of their home. The next
incident, which also occurred when D.T. was eleven, involved defendant asking
her to lay with him on his bed and give her a hug, holding her there when she
asked to leave, and persistently asking her to put a yellow and black razor into
her vagina. When she told him she did not understand what he meant, he made
her lie down on the bed and did it himself. D.T. testified that defendant used
the razor in this manner a "handful of times," and then "when eventually [she]
got used to it and it didn't hurt anymore then that's when he went from the razor
to using his penis." D.T. testified that this pattern occurred on a nearly daily
A-0643-24
7
basis during the COVID-19 quarantine. During certain incidents, defendant
would hold his phone in front of D.T. so she could view pornographic videos
that he was playing on the phone.
In addition to these incidents of vaginal penetration, D.T. testified
defendant attempted to penetrate her anally against her will several times as
well, beginning when she was in seventh grade. When asked on direct
examination why she did not tell her mother about the ongoing assaults, D.T.
testified that defendant told her he was giving her "experience at an early age,"
and that "any other girl would be lucky, would be happy to be in your position
right now."
Defense counsel cross-examined D.T. on several issues, including her
conversation with Nurse Rybicki and her written journal entries prepared during
her interview with Detective Mitchell. Specifically, defense counsel pressed
D.T. on whether she had been untruthful in her statements to Nurse Rybicki and,
if so, the reasons why. Similarly, defense counsel questioned D.T. on the
veracity of her written statements during her interview with Detective Mitchell ,
exploring discrepancies between D.T.'s written statement and her verbal
expressions to Detective Mitchell, particularly regarding D.T. 's alcohol use and
A-0643-24
8
the positioning and recording capabilities of surveillance cameras within the
house.
In addition, both Detective Mitchell's and Nurse Rybicki's testimonies
were subject to cross-examination, which included Detective Mitchell's
testimony regarding the notepad and Nurse Rybicki's testimony regarding her
examination of D.T., including her statements concerning defendant.
At the conclusion of trial, the jury returned a verdict finding defendant
guilty of both counts of first-degree aggravated sexual assault, second-degree
endangering the welfare of a child by a caretaker, and second-degree sexual
assault.
On appeal defendant raises the following points:
POINT I
WHAT D.T. WROTE ON THE LEGAL PAD WAS
INADMISSIBLE HEARSAY; IT WAS ADMITTED
BECAUSE OF INEFFECTIVE ASSISTANCE OF
COUNSEL.
POINT II
WHAT D.T. SUPPOSEDLY SAID TO NURSE
RYBICKI WAS INADMISSIBLE HEARSAY.
A-0643-24
9
II.
Where a party raises an objection to evidence for the first time on appeal,
the plain error standard applies that requires that the error must "clearly [be]
capable of producing an unjust result. . . ." R. 2:10-2; State v. Santamaria, 236
N.J. 390, 404 (2019) (citing R. 2:10-2). Harmless error analysis requires an
examination in light of the overall strength of the State's case. State v. Clark,
251 N.J. 266, 287 (2022).
Evidentiary rulings are reviewed for abuse of discretion. State v. Prall,
231 N.J. 567, 580 (2018); State v. Medina, 242 N.J. 397, 411-12 (2020).
Hearsay is defined as an out-of-court statement offered for the truth of the matter
asserted, unless it falls within a recognized exception. N.J.R.E. 801(c); N.J.R.E.
802.
For statements by sexual assault complainants under age twelve, N.J.R.E.
803(c)(27), the "tender years exception," applies if requirements of notice,
reliability findings and either testimony of the child or corroborating evidence
are met. State v. Michaels, 136 N.J. 299, 316-19 (1994). For statements to
medical providers, N.J.R.E. 803(c)(4) admits only those made in good faith for,
and reasonably pertinent to, medical diagnosis or treatment. State v. Gonzalez,
249 N.J. 612, 635-6 (2022).
A-0643-24
10
Claims of ineffective assistance of counsel are governed by the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687 (1984), as adopted by State
v. Fritz, 105 N.J. 42, 58 (1987): (1) counsel's performance must fall below an
objective standard of reasonableness, and (2) there must be a reasonable
probability that, but for counsel's errors, the result of the proceeding would have
been different. On direct appeal, such claims are typically reserved for post-
conviction relief proceedings unless the record is sufficiently developed. State
v. Preciose, 129 N.J. 451, 459-60 (1992); see also State v. Castagna, 187 N.J.
293, 313 (2006).
We first address defendant's argument that D.T.'s written statement
constituted inadmissible hearsay and did not qualify for any exception,
specifically noting it was created when D.T. was fourteen and that no N.J.R.E.
104(a) hearing was held to determine its trustworthiness. The record confirms
that D.T. was over the age threshold for the hearsay exception set forth in
N.J.R.E. 803(c)(27). The State does not seriously contest D.T.'s age, arguing
instead that defense counsel cross-examined D.T. on the discrepancies and
inconsistencies in the statement for strategic reasons and that any error was
harmless considering the other overwhelming admissible evidence proving
defendant's guilt.
A-0643-24
11
We conclude D.T.'s written statement, which defense counsel did not
object to, was hearsay. The statement did not satisfy the prerequisites of any
hearsay exception and specifically did not satisfy the hearsay exception under
N.J.R.E. 803(c)(27) because D.T. was over the age of thirteen when she made
the statement. State v. D.G., 157 N.J. 112, 125-27 (1999).
Defendant further contends Nurse Rybicki's testimony was inadmissible
hearsay as it did not satisfy the medical diagnosis/treatment exception at
N.J.R.E. 803(c)(4), as the examination was conducted in a forensic evidence-
gathering context, not for treatment. We agree with defendant that the
statements Nurse Rybicki relayed to the jury do not fit squarely within the above
hearsay exception because the statements were not offered by the State to show
a medical diagnosis or treatment, as the examination of D.T. was for forensic
purposes.
Nevertheless, based on our review of the record, we conclude the
admission of D.T.'s written statement and the testimony of Nurse Rybicki lacked
sufficient prejudice to overturn the jury verdict under the plain error standard as
this evidence was not "clearly capable of producing an unjust result" in the
context of the record as a whole. At trial, D.T. was subject to extensive cross-
examination regarding her direct testimony, her statements to Nurse Rybicki and
A-0643-24
12
the contents of her written statement. Defense counsel also cross-examined
Nurse Rybicki and Detective Mitchell, thoroughly testing the accuracy and
credibility of their testimony. In addition, defense counsel affirmatively utilized
D.T.'s written statement on cross-examination to discredit D.T.'s version of the
incidents, pointing to inconsistencies between her testimony and other evidence
when compared to the representations in her written statement.
At trial, the State called sixteen witnesses and produced significant
evidence against defendant including: (1) forensic evidence supporting D.T.'s
DNA on the sexual bondage harness pad; (2) defendant's internet search history
which included stepfather/stepdaughter fantasy pornography; (3) photographs
of D.T.'s genitalia which showed redness; (4) numerous inculpatory text
messages sent by defendant to D.T; and (5) direct testimony from D.T.
describing in detail the sexual assaults.
Our Court has held the admission of hearsay evidence may be found to
constitute harmless error. State v. Kemp, 195 N.J. 136, 156 (2008); see also
State v. Bankston, 63 N.J. 263, 272-73 (1973). When considering the
overwhelming evidence outside of the challenged hearsay statements, we
conclude the admission of the hearsay could not produce an unjust result.
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We now turn to defendant's assertion that trial counsel was ineffective for
(1) failing to object to the hearsay evidence; and (2) failing to request an
N.J.R.E. 104 hearing be held related to D.T.'s written statement. We determine
defendant's claim is not based solely on matters apparent in the trial record and
include facts outside the record, possibly concerning trial counsel's strategic
choices concerning this evidence. Under these circumstances, we have
previously held a review on direct appeal is not appropriate as the record does
not permit a fair evaluation. Castagna, 187 N.J. at 313.
Although defendant contends his trial counsel's performance may have
been less than optimal, particularly in failing to invoke objections or requesting
a hearing to determine the admission of the challenged evidence, we conclude a
full review of the record evidence supporting his ineffective assistance of
counsel claim is more appropriately determined through a PCR petition and not
through this direct appeal. In a PCR proceeding, trial counsel can be notified
and respond to defendant's allegations, including, but not limited to,
communications with defendant and any strategic decisions made at pre-trial
proceedings or trial. A post-conviction relief proceeding will permit an
expanded factual record to be developed that can more appropriately address the
claimed ineffective assistance of counsel assertions.
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To the extent we have not specifically addressed any of defendant 's
remaining legal arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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