# STATE OF NEW JERSEY VS. RAELITO PALAO (14-03-0185, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

> New Jersey Superior Court Appellate Division · October 27, 2020

URL: https://www.frixlaw.com/law-library/cases/4580852

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** October 27, 2020
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4580852

## How later opinions describe it (automated extraction)

- declining to apply the second prong of the Cofield test

## Opinion text

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NOT FOR PUBLICATION WITHOUT THE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-4422-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAELITO PALAO, a/k/a
RAEL PALAO,

Defendant-Appellant.
__________________________

Argued January 23, 2020 – Decided October 27, 2020

Before Judges Fuentes, Mayer, and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-03-0185.

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

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Robert J. Wisse, of counsel and
on the brief).
The opinion of the court was delivered by

FUENTES, P.J.A.D.

A Passaic County Grand Jury returned a six-count indictment charging

defendant Raelito Palao with second degree sexual assault of A.E. (Abigail), a

child under the age of thirteen, N.J.S.A. 2C:14-2b (Count 1); third degree

endangering the welfare of a child - Abigail and V.M. (Valerie), N.J.S.A. 2C:24-

4a, (Counts 2 and 6); fourth degree criminal sexual contact of K.D. (Kenzie) and

Valerie, N.J.S.A. 2C:14-3b, (Counts 3 and 5); and second degree endangering

the welfare of a child - Kenzie, N.J.S.A. 2C:24-4a (Count 4).1

Defendant was tried before a jury over four days. The jury found

defendant guilty of all the charges listed in the indictment. At the sentencing

hearing, the trial judge merged Counts 1 with Count 2 and sentenced defendant

to a term of seven years, subject to an eighty-five percent period of parole

ineligibility and three years of parole supervision, as mandated by the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. On the two convictions for third

degree endangering the welfare of a child, the judge sentenced defendant to a

term of five years, to run consecutive to the sentenced imposed on Count 1. The

1
Pursuant to Rule 1:38-3(c)(12), the three children allegedly sexually molested
by defendant are identified only by their initials. The names following their
initials are pseudonyms used here in the interest of clarity.
A-4422-16T4
2
judge also merged Count 5 with Count 6 and sentenced defendant to a term of

three years, to run concurrent with Count 4, but consecutive to Count 1.

In this appeal, defendant argues he was denied a fair trial because the trial

judge: (1) denied his motion to sever the charges involved in the three separate

alleged incidents with three different victims; (2) granted the State's motion to

admit prejudicial evidence under N.J.R.E. 404(b); (3) allowed the State to call

an expert witness to testify and opine on the reasons why the children did not

disclose the alleged sexual molestation sooner based on the now discredited

Child Sexual Abuse Accommodation Syndrome (CSAAS); and (4) imposed an

unwarranted and legally excessive sentence.

The Supreme Court held in State v. J.L.G. that "CSAAS does not satisfy

a basic standard of admissibility -- reliability -- because it is not generally

accepted by the scientific community. Expert testimony about CSAAS therefore

may no longer be presented to juries." 234 N.J. 265, 308 (2018). It is now also

definitively settled that the Court's holding in J.L.G. must be given pipeline

retroactivity. State v. G.E.P., ____ N.J. ____ (2020) (slip op. at 4). Based on

the record developed before the jury here, we conclude defendant was denied a

fair trial by the admission of expert testimony on the applicability of CSAAS.

We are thus bound to reverse defendant's conviction and remand this matter for

A-4422-16T4
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a new trial.

I

THE CASE INVOLVING ABIGIAL

In her opening statement to the jury, the prosecutor proffered that

defendant began sexually molesting Abigail in the Spring of 2013, when she was

eleven years old. The abuse was discovered when Abigail, while hiding in the

bathroom of her home, texted to a friend: "There's a perv in my house. He's my

father's friend. I'm scared." Although this electronic message was meant to be

read only by another child, Abigail's father inadvertently discovered it.

According to the prosecutor, this

disclosure would spread through a very tightknit church
community that both [Abigail] and her family and . . .
defendant belonged to, and it was her disclosure that
ultimately was passed down to two other girls by the
names of [Kenzie] and [Valerie], who were at the time
young adults when they heard about [Abigail].

Abigail was the first witness to testify at trial. At the time she testified,

Abigail was fifteen years old and attending the tenth grade of high school. She

resided with her parents, her younger brother and sister, and her grandmother.

Her family are members of the Bible Church International (BCI). She has been

a member of BCI since she was five years old and attends services on weekends.

Abigail testified that she knew Valerie and Kenzie as youth leaders at BCI. She

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was particularly close to Valerie.

Abigail first met defendant when she was approximately six years old.

She characterized her family's relationship with him as a "casual friendship."

Her initial interactions with him were during family children's parties. As she

grew up, defendant became more of a close family friend. She thus called him

by a Filipino word which she explained meant "uncle in Filipino, but usually it's

a sign of respect for anyone older than me." Although defendant left BCI at one

point, he continued his association with Abigail and her family.

Abigail testified she was about eleven years old the first time defendant

sexually molested her in the basement of her own home.

PROSECUTOR: Okay, and what was it that happened
between you and Mr. Palao?

ABIGAIL: There was an incident where he went to our
house to -- we had just moved in, and he went to our
house to visit or to look around, because a lot of people
were doing that since we had just gotten it, so I assumed
that it was just another person that wanted to see it. And
we were in the basement of my house and, while I was
playing a video game on my laptop desk downstairs,
and he came downstairs and I assumed that he was just
going to look around to see the basement and he came
up behind me and touched my breast under my shirt,
under my bra.

Abigail testified that defendant did not say anything or even acknowledge

when she said "no" and told him to stop. She said the incident lasted "maybe a

A-4422-16T4
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few seconds" and he finally stopped when she pushed him away. She thereafter

took refuge in the bathroom, where she remained for approximately thirty to

forty minutes. Defendant had left the house by the time she came out of the

bathroom. Abigail testified she did not say anything to her parents about

defendant's behavior at that time because she was "scared or embarrassed of

what they would say."

The second incident occurred one year later in the bedroom Abigail shared

with her younger sister, who was about five years old at the time. Abigail

testified that defendant came into the bedroom and "started like playing with me

. . . tickling me around my stomach, on like the sides, he was poking my sides,

and then all of a sudden he put his hand on my vagina." The second incident

also lasted "a few seconds[.]" She again told him "no . . . stop" and pushed him

away. When the prosecutor asked her how it ended, she stated: "When I was

pushing him away and telling him to stop, all of a sudden he did and he just left

the room."

In response to defense counsel's questions on cross-examination, Abigail

admitted that the guidance counselor in her school accused her of hacking into

another person's social media account and "posting nasty information about

another person in [her] class." Abigail also confirmed that the guidance

A-4422-16T4
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counselor told her she was facing suspension from school. When her father

found out about this incident in school, he became very angry. This prompted

him to go through Abigail's electronic device and discover the message she sent

to her friend purportedly documenting the first time defendant sexually molested

her.

The following exchange illustrates defense counsel's line of questioning

concerning this issue:

Q. In that text message, you refer to someone as a
pervert.

A. Yes.

Q. Your father asked you who you were referring to as
a pervert.

A. Yes.

Q. From that moment on, the focus was no longer on
the Instagram issue and your suspension in school; it
was on the pervert text message.

A. Yes.

Q. You didn't mention the name, "Raelito Palao," in that
text message.

A. No.

Q. Your father in fact suggested that [defendant] was
the pervert.

A-4422-16T4
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A. He didn't suggest it. He was -- I was -- I was the one
that told him who it was, but he didn't suggest that it
was him.

Abigail's father, N.E., also testified as a witness for the State. He

identified himself as a "born-again Christian" and a congregant of BCI since

about 2005. He has known defendant since 2006. Prior to this incident, N.E.

considered defendant a friend "close enough that I took him as one of my

godfather [sic] for my daughter." N.E. testified that defendant visited his home

"unannounced" on two separate occasions; the first time was in the summer of

2012 and the second in the spring of 2013. N.E. provided the following account

of what transpired during defendant's second visit.

I went to the basement to get the air condition, because
before we went for dinnertime I was putting . . . air
condition to every room, and that's why I went to the
basement to get that air conditioner.

....

I went to [Abigail's] bedroom with the air condition.

....

I was holding onto the air condition, went to . . .
[Abigail's] room.

....

A-4422-16T4
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I saw [defendant] in . . . [Abigail's] room and he was
playing [with] [Abigail], you know, touching her, and I
said, "What are you doing?"

....

I put down the . . . air condition[er] and I told him to
get out of her room.

THE CASE INVOLVING VALERIE

Valerie was twenty-four years old when she testified before the jury in

this case. Her family consists of her parents and three brothers. At the time of

trial, she resided with her parents and two younger brothers. Her father is a

coworker of Abigail's father and a Deacon of the BCI church. Her family has

belonged to BCI since she was two years old. Valerie testified that BCI was a

central part of her family's social and spiritual life. She described BCI members

"as a close-knit community . . . we know all the members, so it's like a family."

Her parents considered defendant as a friend of the family. "They would

talk to each other at church and also he was always invited to our house through

my parents. So it was very mutual. They were very close with him." Valerie

testified that during childhood, defendant was known as "The Tickle Monster."

But he was also called "Pastor." According to Valerie, although defendant was

not "technically" a pastor, "he received that title because, when our church first

A-4422-16T4
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started, our pastor -- our head pastor spoke in Tagalog 2 in our language through

messages, and he would translate into English."

As a child, Valerie respected defendant and viewed him as an "uncle."

Her relationship with him changed when she experienced certain encounters that

made her feel "uncomfortable." Valerie testified that defendant would "touch

[her] in places where [she] felt uncomfortable and inappropriate." She provided

the following account in response to the prosecutor's request for specificity:

For example, he would come to my house and he would
embrace me from behind, and I couldn't let go, and then
he would reach his . . . hand underneath my shirt and
underneath my bra and would try to fondle my breast.
And then I would try to let go, tell him to stop, and then
he would try to put his hands underneath my pants. But
he would be unsuccessful, because I would -- with all
my might I would scream and say, "Stop," or call my -
- whoever's in the house and try to let go of him.

According to Valerie, defendant began to sexually molest her in this

fashion when she was "about in 8th grade to freshman year in high school." She

testified that defendant sexually molested her in this fashion "about nine [to] ten

times." The abuse would occur when she was at home alone or when "certain

2
Tagalog is the native language of the people of the Philippines.

A-4422-16T4
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members of my family would be home[.]"3 When the prosecutor asked Valerie

why she did not disclose defendant's misconduct earlier to her parents, she

provided the following explanation:

Since I was that young, I was scared, because growing
up I kind of didn't want to disrupt what my parents built
for us, because they came from the Philippines, so they
wanted to essentially give us a better life here in
America, and things like this we don't speak about in
our household. So when this happened I kind -- I didn't
want to tell them. And so when . . . [Abigail's] case
came up, I knew I just had to tell them.

She testified that her father told her about Abigail's allegations in June

2013, when she was twenty-one years old. On cross-examination, the defense

established that as a "youth leader" at BCI, Valerie led discussions in groups

made up of young people. As Valerie explained:

[W]e have youth nights every Friday night, and . . . the
youth pastor, he says a short message in the evening,
and then the youth leader breaks off into different
smaller groups of . . . kids. So the youth group is from
middle school to high schoolers, so youth leader, their
role is to counsel or to guide the conversation after the
message that the youth pastor gave that night.

3
Valerie described a particular incident in which the only family members who
were home when defendant sexually molested her were her younger brothers,
who were six and eight years old at the time. She did not recall whether her
parents were home during any other incident.
A-4422-16T4
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The BCI youth groups Valerie described consisted of three to seven

adolescents and met almost every Friday, depending on what "the youth pastor

decides in terms of the curriculum for the month." Abigail participated in youth

groups since she was in sixth or seventh grade, although not directly under

Valerie's supervision. Valerie acknowledged, however, that she had "a big

sister-little sister relationship" with Abigail within the church. Against this

backdrop, defense counsel pursued the following line of inquiry:

Q. Now, your father told you that [Abigail] had accused
[defendant] of touching her inappropriately?

A. Yes.

Q. And your father told you that [Abigail] said
[defendant] lifted up her shirt.

A. Correct.

Q. And your father then said, "Did [defendant] do
anything like that to you?"

A. Correct.

Q. And, when you heard [Abigail's] allegation, you
were angry.

A. Yes.

Q. And one of the words that you used was, "Shocked."

A. Mmm-hmm.

A-4422-16T4
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Q. Now, you decided that you wanted to help
[Abigail][?]

A. Uh --

In the course of this line of inquiry by defense counsel, Valerie reaffirmed

that she provided the Clifton Police detectives who interviewed her complete

and accurate details of her own sexual molestation by defendant, which

included: (1) where these incidents occurred: (2) when they occurred; and (3)

who was around when they occurred. Valerie also maintained that she was

equally candid and truthful when she was interviewed by detectives from the

Passaic County Prosecutor's Office (PCPO). However, she admitted that she did

not tell the PCPO detectives that defendant had come to her house "claiming he

was hungry or thirsty" at a time her parents were not home.

Valerie also testified that she referred to defendant as "The Tickle

Monster" when she was a prepubescent girl between the ages of two to twelve

years old. During this time period, Valerie testified that all of the children in

BCI called defendant "The Tickle Monster" because he would run around to

tickle them, and they would scream. Valerie admitted "this was a common

occurrence." Defense counsel then asked Valerie the following questions:

Q. At some point you got older; you weren't two
anymore; you became a teenager; you became 13 years
old, right?

A-4422-16T4
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A. Correct.

Q. And [defendant] would still try to tickle you, right?

A. Yes.

Q. And you would tell him to stop?

A. Yes.

Q. And he would still try to tickle you.

A. Mmm-hmm.

Q. He would tickle you on your stomach?

A. It was usually underneath my armpits.

Q. And -- so on the side of your body he would tickle
you?

A. Yes.

Q. And he would tickle you on your ribs too?

A. Um --

Q. Like underneath your armpit?

A. Yeah, underneath my armpit.

Q. And, when he started to do that when you were 13
or 14 years old, you didn't refer to him as, "The Tickle
Monster," anymore, right?

A. Right.

A-4422-16T4
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Q. You referred to him as a creep.

A. Correct.

In an effort to impeach Valerie's credibility, defense counsel noted that

from 2007 to 2012, she did not tell anyone about defendant's sexual molestation.

In his closing argument to the jury, defense counsel emphasized that if Valerie's

testimony was true, she knowingly permitted a sexual predator to remain an

active member of the BCI community for over five years.

THE CASE INVOLVING KENZIE

Kenzie was twenty-four years old at the time she testified in this trial on

October 11, 2016. The State presented her testimony to prove defendant

sexually molested her between September 1, 2005 and August 31, 2007. Her

family were active members of BCI and she attended religious services with her

family as a child every Sunday. Her participation in BCI activities also included

"youth camp, church camping events, [and] Bible studies." However, Kenzie

stopped attending BCI religious services "around 2011, 2012."

Kenzie is the same age as Valerie; the two grew up together as "best

friends." When asked to elaborate, Kenzie testified: "I would see her every

week, like, at church and we'd hang out on the weekends or we'd have, like, play

dates growing up." Their families were also close friends and members of the

A-4422-16T4
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BCI community. Kenzie testified that her family was "acquainted" with

Abigail's family as part of the BCI community. Kenzie first met defendant and

his family when she was "around" six or seven years old. She referred to

defendant as Pastor [R.] because she "believed he was, like, a pastor in the

Philippines and we respected our elders, so . . . he was known as a pastor, but

not a pastor of Bible Church International."

Kenzie testified that she "looked up" to defendant and saw him as an

"uncle figure." The prosecutor followed up on this line of questioning:

Q. Okay. And what was it about him that led you to
look up to him?

A. Well, he was, like, nice to me. He . . . would take
me around, get me Dunkin' Donuts and buy me, like,
treats and gifts.

Q. What sort of things would he buy for you?

A. Well, like, at Dunkin' Donuts . . . drinks, he'd get
me, like, games, toys . . . Nintendo DS, he got me a cell
phone, and he would give me money sometimes.

Q. And how did you feel when he gave you these
things?

A. I was happy. I liked getting free things as a child.

Q. Do you remember when -- how old you were when
he first started to give you things?

A. Around 13-14 [years old].

A-4422-16T4
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According to Kenzie, defendant began spending more time with her when

she reached the age of fourteen. He offered to drive her to Bible study classes

at the church. Because her parents were working, they "were okay with it."

Kenzie testified defendant drove a black Ford "SUV type" vehicle. She always

sat in the front passenger seat. Kenzie testified that defendant worked for

Cablevision at the time; he told her he could probably get her a summer job

there. She enjoyed driving around with defendant because he would give her

"food, money, [and] gifts."

However, something happened one day that fundamentally changed the

tenor of their relationship.

During these car rides, when he'd be either bringing me
to church or driving me around for work, he -- while he
was driving, I'd be in the front seat and he'd out of
nowhere use his, like, right hand forcefully put his hand
by my vagina area and my breast area and he'd be
touching me, like, with his hands, moving it all around
with his fingers and he'd, like, go -- like, touch my skin
at the -- with -- under the waistband. And he would
also, like, be pinching and grabbing my breasts.

Q. Okay. And now did this -- did the incident happen
one time or was this more than one time?

A. It happened more than one time.

Q. Do you remember approximately how many times
something like this happened with [defendant]?

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A. Approximately 40 times.

Although she could not remember "a specific date," Kenzie testified that

whenever it happened, she would ask him to stop. She also claimed that

defendant commented on her then teenaged body by saying: "your boobs are

tiny," or "you have no . . . ass." She would typically tell him "stop it . . . stop

it[.]" According to Kenzie, he would just smile and keep doing it, "then

eventually he would . . . just stop." Despite these repeated incidents of sexual

abuse by defendant, Kenzie testified that she continued to spend time with

defendant because:

I really liked when he gave me, like, gifts, like the cell
phone, money, and he would treat me out. And I didn't
know as a child that him touching me and tickling me
in those areas [was] wrong. I didn't know what
molesting was at that age and I – I knew it felt
uncomfortable, but I didn't know it was a crime of any
sort.

Kenzie also described a particular incident in which she and K.H., a friend

from school, went to the Garden State Plaza Mall with defendant. Kenzie

testified she asked defendant for a ride to the mall because

[K.H.] was one of my best friends 4 and . . . we had
wanted to hang out and, like, go to the mall and, like,

4
In response to the prosecutor's question, Kenzie clarified that K.H. was also
fourteen years old when defendant took her and Kenzie to the mall.
A-4422-16T4
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buy stuff, and so I knew, like, [defendant] would
provide a ride for us, and so I invited her to come along
to go to the mall.

During the trip, Kenzie sat in the passenger seat and K.H. sat in the

backseat. Kenzie testified defendant purchased bracelets from the Hot Topic

store for her and K.H. They then went to Victoria Secret. According to Kenzie,

while in Victoria Secret, defendant offered to buy the girls underwear. K.H.

accepted the offer and allowed defendant to buy her "[s]everal pairs of

underwear." Kenzie declined defendant's offer.

Kenzie testified the sexual abuse eventually stopped because she

"eventually . . . grew tired of him tickling and touching me, so . . . I stopped

seeing him[.]" Defendant also stopped giving her gifts. Although they never

directly discussed the topic, Kenzie claimed that her and Valerie had a mutual

unspoken understanding of what defendant did to them. After Valerie told her

what happened to Abigail, Kenzie testified that she finally spoke openly with

Valerie about what happened to them when they were children. They decided

to jointly disclose what they knew to the police.

PCPO Detectives Sergeant James M. Stolz and Sabrina C. McKoy

investigated the allegations of sexual abuse made by the three complaining

witnesses, Abigail, Kenzie, and Valerie. On June 13, 2013, Kenzie and Valerie

A-4422-16T4
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gave sworn statements that described in detail defendant's alleged sexual

molestation. However, because the sworn statements provided by these two

complaining witnesses are not part of the appellate record, we have opted to rely

exclusively on their trial testimony.

II

CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME

Over defendant's objection, the State called Dr. Anthony Vincent D'Urso,

a licensed clinical psychologist, as an expert witness. During voir dire direct

examination, the prosecutor inquired into Dr. D'Urso's educational background

to establish the witness' specialized knowledge under N.J.R.E. 702. Dr. D'Urso

testified that he received his doctorate degree in psychology from the Graduate

School of Applied and Professional Psychology at Rutgers University. He

received his bachelor's and master's degrees in psychology and counseling from

Seton Hall University.

At the time he testified in this case, Dr. D'Urso was the section chief and

supervising psychologist at the Audrey Hepburn Children's House, and had been

practicing clinical psychology for a total of twenty-six years. He holds a similar

position at the Metropolitan Regional Diagnostic Center. Dr. D'Urso described

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this institution "as a state-mandated regional diagnostic center" where cases of

alleged child sexual abuse are referred for psychological and medical services.

Focusing on the "diagnostic" aspect of the facility, the prosecutor asked the

witness "to explain a little bit more" about this part of its function. According

to Dr. D'Urso:

[T]he four centers, we are supposed to provide medical
and psychological services for kids and families where
abuse has occurred or alleged to have occurred. That
includes the -- anything from physical examinations to
post-physical treatments. We also have mental health
services . . . [and] evaluations to establish what kids
need, what kids and their families need, and we provide
the therapy that is sometimes required.

[(Emphasis added)].

He co-authored the State of New Jersey's guidelines on how to conduct

clinical assessments of children who had suffered sexual abuse. Dr. D'Urso

testified that he has been involved in the clinical and research area of child

sexual abuse since 1982. Against this backdrop, the prosecutor asked Dr.

D'Urso if he was familiar "with something called the Child Sexual Abuse

Accommodation Syndrome?" He answered "yes." This opened the door for the

following exchange:

Q. And approximately how many times have you
testified as an expert in this field?

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A. In Child Sexual Abuse Accommodation Syndrome?

Q. Yes.

A. Over the last 30 years, probably 250 times.

At this point, the State moved to admit Dr. D'Urso as an expert witness

"in the area of Child Sexual Abuse Accommodation Syndrome." This prompted

the following line of inquiry from defense counsel:

Q. Doctor, what courses have you taken in the area of
Child Sexual Abuse Accommodation Syndrome?

....

A. If you're referring to a, like, a -- when you say
course, rather than a workshop or training, there are no
such courses.

....

Q. So, there are no courses in the area in which you're
being offered as an expert for?

A. Well, again I'm not trying to quibble with the word
course. We -- I run a grant on forensic interviewing and
we teach prosecutors, caseworkers, detectives to
interview kids forensically, and I teach the segment of
the class on Child Sexual Abuse Accommodation
Syndrome. So, it's not [a] course -- it's a training
program for a week, it's not a course.

[(Emphasis added)].

A-4422-16T4
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Through a series of questions, defense counsel adroitly identified the

scientific frailties and legal concerns the Supreme Court recognized in J.L.G.

Defense counsel objected to the admission of Dr. D'Urso as an expert witness in

CSAAS. The trial judge overruled defense counsel's objection and provided the

following explanation to the jury in support of his decision:

Okay. I am going to accept the doctor as an expert in
the area of Child Sexual Abuse Accommodation
Syndrome. The evaluation of the testimony is going to
be entirely up to you.

And I am now going to give you some legal instructions
before the doctor begins his testimony.

All right. Ladies and gentlemen, again, I am going to
give you a legal instruction regarding both expert
testimony in general and then as to the specific topic of
Child Sex [sic] Abuse Accommodation Syndrome.
Now, first, it's going to address just general expert
testimony.

[At this point, the trial judge gives the jury the model
charge on how to evaluate the testimony of an expert
witness.]

I'll now, ladies and gentlemen, instruct you as to how
to evaluate testimony regarding the Child Sexual Abuse
Accommodation Syndrome. Our law recognizes that
stereotypes about sexual assault complaints may lead
some of you to question an alleged victim's credibility
based solely on the fact that she did not complain about
the alleged abuse earlier.

A-4422-16T4
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I note, ladies and gentlemen, that there are three alleged
victims in this case and you consider the counts as to
each alleged victim separately. You may or may not
conclude that her testimony -- again, you consider this
testimony as to each of the three alleged victims here –
is untruthful based only on her silence slash delayed
disclosure. You may consider the silence slash delayed
disclosure, along with all other evidence, including her
explanation for her silence slash delayed disclosure, in
deciding how much weight, if any, to afford to
complainant's testimony. You may also consider the
expert testimony that will explain that silence slash
delay is one of the many ways in which a child may
respond to sexual abuse.

Accordingly, your deliberations in this regard should
be informed by the testimony which will be presented
regarding the Child Sexual Abuse Accommodation
Syndrome.

I note, ladies and gentlemen, that the expert does not
testify specifically about the case before you, nor does
he offer any opinion about it. The expert testifies about
the Child Sexual Abuse Accommodation Syndrome.
Now, you may recall evidence that each of the three
alleged victims explained why she did not report the
alleged abuse earlier. In this respect, Dr. D'Urso will
testify on behalf of the [S]tate. Again, this witness has
been qualified as an expert as to the Child Sexual Abuse
Accommodation Syndrome. You may only consider
the testimony of this expert for a limited purpose, as I
will now explain.

You may not consider Dr. D'Urso's testimony as
offering proof that child sexual abuse occurred in this
case. The Child Sexual Abuse Accommodation
Syndrome is not a diagnostic device and cannot
determine whether or not abuse occurred. It relates only

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to a pattern of behavior of a victim which may be
present in some child sexual abuse cases. You may not
consider expert testimony about the Accommodation
Syndrome as proving whether abuse occurred or did not
occur. Similarly, you may not consider that testimony
as proving, in and of itself, that an alleged victim in this
case was or was not truthful.

Dr. D'Urso's testimony may be considered as
explaining certain behavior of the alleged victim of
child sexual abuse. As I just stated that testimony may
not be considered as proof that abuse did or did not
occur. The Accommodation Syndrome, if proven, may
help explain why a sexually abused child may delay
reporting.

Now, to illustrate, in a burglary or theft case involving
an adult property owner, if the owner did not report the
crime for several years, your common sense might tell
you that the delay reflected a lack of truthfulness on the
part of the owner. In that case, no expert would be
offered to explain the conduct of the victim, because
that conduct is within the common experience and
knowledge of most jurors. Here, again, as I've
indicated, Dr. D'Urso will testify as to this syndrome.
This testimony is being admitted only to explain that
the behavior of the alleged victims was not necessarily
inconsistent with sexual abuse.

Now, the weight to be given to Dr. D'Urso's testimony
as to this syndrome is entirely up to you. You may give
it great weight, slight weight, or any weight in between,
or you may in your discretion reject it entirely.

Ladies and gentlemen, again, you may not consider the
expert testimony as in any way proving that the
defendant committed or did not commit any particular
act of abuse. Testimony as to the Accommodation

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25
Syndrome is offered only to explain certain behavior of
an alleged victim of child sexual abuse.

And again, ladies and gentlemen, as I have explained to
you in the past and will again explain to you, the burden
of proof is always upon the [S]tate. The defendant in a
criminal case has no burden of proof.

[(Emphasis added).]

With these instructions as backdrop, the prosecutor proceeded to question

Dr. D'Urso about CSAAS and how to detect the "clinical findings or clinical

symptoms that tend to occur" when a child does not disclose sexual abuse in a

timely fashion.

PROSECUTOR: And so, if you have no knowledge of
this case, what is the purpose of your testimony here
today?

DR. D'URSO: The purpose of Child Sexual Abuse
Accommodation Syndrome testimony is to provide
information about how kids disclose abuse and why
there -- what there are, if any, differences between adult
and child sexual assault, because it may seem illogical
or not consistent that a child victim may act in a
different way. So, the idea is to talk about the
landscape of child dynamics and how that would differ
to assist the jury in understanding about child sexual
assault.

When asked how the "syndrome" is characterized, Dr. D'Urso identified

"five sequences that occur in the disclosure process." According to Dr. D'Uro,

the first factor is secrecy. Without citing to any authoritative study, Dr. D 'Urso

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26
affirmed: "There is no credible study in the world that says kids typically tell

after the first time they're engaged in sexualized behavior. It is one of the few

findings that is unchallenged in all of child abuse."

Dr. D'Urso testified that the second factor of this syndrome is

"helplessness," which he defined as: "the things that occur within the child that

inhibit them from telling . . . there are things inside the child which cause them

not to tell and then there things outside the child that cause them not to tell." He

identified the "outside things" as the "third area, which is coercion, entrapment

or accommodation." Dr. D'Urso referred to incomplete disclosure as a

"piecemeal process . . . because kids are not likely and typically don't tell

everything that happened to them in their first interview . . . they're going to tell

more as time goes on." Finally, the fifth factor or "area" of the syndrome is

"retraction or recantation."

The prosecutor relied on Dr. D'Urso's expert testimony in her closing

argument to provide the jurors a scientifically valid basis to dispel any lingering

doubts they may have had related to: (1) the time it took for these three alleged

victims to disclose the sexual molestation; and (2) defendant's status within the

BCI community.

Now you also had the opportunity to hear from Dr.
Anthony D'Urso in this case. And as he mentioned, he

A-4422-16T4
27
wasn't here to prove to you whether or not any of these
girls were sexually assaulted. He was simply here to
explain to you why there is a delay in disclosure and
how cultural factors, how the relationship of the abuser
to the victim can have a role in how that person
perceives the abuse and why they may or may not feel
comfortable in coming forward. So when you consider
their testimony, you can either accept or reject Dr.
D'Urso's explanations of the ways in which victims
internalize and react to abuse.

[(Emphasis added).]

III

Against this factual backdrop, defendant raises the following arguments

in this appeal.

POINT I

THE TRIAL COURT'S DENIAL OF DEFENDANT'S
MOTION FOR SEVERANCE IS REVERSIBLE
ERROR BECAUSE THERE WAS NO VALID
REASON FOR JOINING CHARGES OF
INAPPROPRIATE SEXUAL TOUCHING FROM
THREE VICTIMS IN ONE TRIAL, AND THERE
WAS NO LIMITING INSTRUCTION PROHIBITING
THE JURY FROM USING THE JOINED OFFENSES
AS EVIDENCE OF DEFENDANT'S PROPENSITY
TO COMMIT SEXUAL OFFENSES OR TO
IMPROPERLY BOLSTER THE TESTIMONY OF
EACH VICTIM.

POINT II

OTHER-BAD-ACT EVIDENCE THAT DEFENDANT
HAD PURCHASED UNDERWEAR FOR A

A-4422-16T4
28
FOURTEEN-YEAR-OLD GIRL, WHO IS NOT ONE
OF THE VICTIMS IN THIS CASE, WAS
INADMISSABLE PROPENSITY EVIDENCE. THE
ADMISSION INTO EVIDENCE OF THE PAIRS OF
UNDERWEAR AND THE STATE'S
ENCOURAGEMENT TO THE JURY TO EXAMINE
THEM DURING DELIBERATION, COMPOUNDED
THE PREJUDICE TO DEFENDANT.

POINT III

EXPERT TESTIMONY ABOUT CHILD SEXUAL
ABUSE ACCOMMODATION SYNDROME WAS
NOT BASED ON RELIABLE SCIENCE, WAS
IRRELEVANT, AND WAS UNDULY
PREJUDICIAL. ITS ADMISSION NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV

A RESENTENCING IS WARRANTED BECAUSE
THE TRIAL JUDGE'S QUALITATIVE
ASSESSMENT OF AGGRAVATING FACTORS 3
AND 9 AND MITIGATING FACTOR 11 WAS
FLAWED.

As we made clear at the start of this opinion, the Supreme Court's holding

in J.L.G. unequivocally rejected the scientific validity of CSAAS. In G.E.P.,

the Court declared its holding in J.L.G. has pipeline retroactivity. Thus, the

presentation of expert testimony to the jury based on the now discredited

CSAAS constituted reversible error. J.L.G., 234 N.J. at 308.

In G.E.P., the Supreme Court carefully analyzed the four consolidated

A-4422-16T4
29
cases addressed by the opinion and concluded the convictions of the defendants

R.P., C.P., and C.K. could not stand. Writing for the Court, Justice Solomon

noted:

Aside from the CSAAS evidence presented, these cases
were based largely upon the testimony . . . [of the]
alleged victims. 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," State v.
Jordan, 147 N.J. 409, 422 (1997) (quoting State v.
Macon, 57 N.J. 325, 336 (1971))[,] and therefore was
clearly capable of producing an unjust result as to R.P.,
C.P., and C.K. Their convictions were thus properly
reversed by the Appellate Division.5

[G.E.P., ____ N.J. at ____, (slip op at 36) (emphasis
added).]

We reach the same conclusion in this case. Dr. D'Urso testified that in the

past thirty years, he had been admitted as an expert witness in CSAAS in over

250 judicial proceedings involving child sexual abuse. The introduction of

CSAAS evidence through Dr. D'Urso's expert testimony had the capacity of

bolstering the credibility of the three complaining witnesses. This alone is

sufficient to raise a reasonable doubt about the reliability of the jury's verdict.

5
State v. G.E.P., 458 N.J. Super. 436 (App. Div. 2019).
A-4422-16T4
30
We are thus compelled to reverse defendant's convictions and remand this matter

for a new trial.

In this light, we must also address defendant's argument that the trial court

erred by denying his motion to sever the charges related to the three complaining

witnesses and admitting the testimony of Kenzie's friend K.H., regarding

defendant's decision to buy her underwear at Victoria Secret. Defendant argues

that these decisions were highly prejudicial and constituted reversal error. The

State argues that both of these decisions constituted a proper exercise of the

judge's discretionary authority. We agree with the State.

Pursuant to Rule 3:7-6

[t]wo or more offenses may be charged in the same
indictment or accusation in a separate count for each
offense if the offenses charged are of the same or
similar character or are based on the same act or
transaction or on 2 or more acts or transactions
connected together or constituting parts of a common
scheme or plan. Relief from prejudicial joinder shall be
afforded as provided by R. 3:15-2.

[(Emphasis added).]

Here, the offenses charged in the indictment are of "similar character," and

therefore, joinder was proper under Rule 3:7-6. The issue that remains is

whether the trial court should have granted defendant's severance motion based

on Rule 3:15-2(b), which provides

A-4422-16T4
31
[i]f for any other reason it appears that a defendant or
the State is prejudiced by a permissible or mandatory
joinder of offenses or of defendants in an indictment or
accusation the court may order an election or separate
trials of counts, grant a severance of defendants, or
direct other appropriate relief.

Generally, "[a]lthough joinder is favored, economy and efficiency

interests do not override a defendant's right to a fair trial." State v. Sterling, 215

N.J. 65, 72 (2013) (citing State v. Coruzzi, 189 N.J. Super. 273, 298 (App. Div.

1983) ("The interests of economy and efficiency may require that similar or

related offenses be joined for a single trial, so long as the defendant's right to a

fair trial remains unprejudiced.")). Therefore,

[t]he relief afforded by Rule 3:15-2(b) addresses the
inherent "danger[,] when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would
be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all."

[Ibid. at 73 (quoting State v. Pitts, 116 N.J. 580, 601
(1988)).]

In assessing the prejudice, the trial court must determine whether the

separate crimes charged in the indictment have a sufficient nexus to each other

such that they would be otherwise admissible in separate trials pursuant to

N.J.R.E. 404(b). Ibid. "If the evidence would be admissible at both trials, then

A-4422-16T4
32
the trial court may consolidate the charges because 'a defendant will not suffer

any more prejudice in a joint trial than he would in separate trials.'" State v.

Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting Coruzzi, 189 N.J. Super. at

299).

When a trial court engages in a N.J.R.E. 404(b) analysis, "[e]vidence

relating to other crimes is handled with particular caution." State v. Reddish,

181 N.J. 553, 608 (2004). As our Supreme Court noted in Reddish:

"other crime evidence has a unique tendency to turn a
jury against the defendant," State v. Stevens, 115 N.J.
289, 302 (1989), and poses a "distinct risk" of
distracting the jury from "an independent consideration
of the evidence that bears directly on guilt itself.," State
v. G.S., 145 N.J. 460, 468 (1996) (citing Stevens, 115
N.J. at 302).

[Ibid.]

N.J.R.E. 404(b) is a rule of exclusion. State v. Marrero, 148 N.J. 469,

482-83 (1997). As such, it provides that:

evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.

[N.J.R.E. 404(b) (Emphasis added).]

A-4422-16T4
33
In an effort to "avoid the overuse of extrinsic evidence," the Supreme

Court established the following four-part test in State v. Cofield, 127 N.J. 328,

338 (1992) to determine whether the evidence should be admitted under N.J.R.E.

404(b):

1. The evidence of the other crime must be admissible
as relevant to a material issue;

2. It must be similar in kind and reasonably close in
time to the offense charged;

3. The evidence of the other crime must be clear and
convincing; and

4. The probative value of the evidence must not be
outweighed by its apparent prejudice.

If the evidence passes the scrutiny of the Cofield test, the trial court must

give the jury limiting instructions to ensure the proper application of the bad

conduct evidence. State v. Garrison, 228 N.J. 182, 200-201 (2017). The trial

court "should state specifically the purposes for which the evidence may be

considered and, to what extent necessary for the jury's understanding, the issues

on which such evidence is not to be considered." Stevens, 115 N.J. at 309.

Here, neither the second nor third prong are at issue. The Court has also

emphasized that the second prong of the Cofield test should not have universal

application. State v. Williams, 190 N.J. 114, 131-34 (2007); see also State v.

A-4422-16T4
34
Skinner, 218 N.J. 496, 515 (2014) (declining to apply the second prong of the

Cofield test).6 Furthermore, the third prong requires clear and convincing

competent evidence, which by definition excludes reliance on incompetent

hearsay. State v. Ingenito, 87 N.J. 204, 220 (1981) (Schreiber, J., concurring).

"To satisfy the first prong of the Cofield test, the 'proffered evidence must

be relevant to a material issue genuinely in dispute.'" Garrison, 228 N.J. at 194

(quoting State v. Gillispie, 208 N.J. 59, 86 (2011)). Relevant evidence is defined

as "evidence having the tendency in reason to prove or disprove any fact of

consequence to the determination of the action." N.J.R.E. 401. "In determining

whether [N.J.R.E.] 404(b) evidence bears on a material issue, the [c]ourt should

consider whether the matter was projected by the defense as arguable before

trial, raised by the defense at trial, or was one that the defense refused to

concede." State v. P.S., 202 N.J. 232, 256 (2010).

This type of evidence is especially important if it is "critical to the

establishment of the truth as to a disputed issue . . . where the prosecution's

6
In Cofield, the issue was whether subsequent incidents of drug dealing were
admissible to establish defendant's possession of illegal drugs in the charged
offense. 127 N.J. at 330. The Court reasoned that the second prong of the Cofield
was important there because of the generic nature of drug transactions. 127 N.J.
at 337.

A-4422-16T4
35
access to significant information is limited." State v. Krivacska, 341 N.J. Super.

1, 39 (App. Div. 2001). Additionally, our Supreme Court has noted:

[i]n criminal prosecutions, New Jersey courts
generally admit a wide range of evidence when the
motive and intent of the accused is material. State v.
Roger, 19 N.J. 218, 228 (1955). That includes
evidentiary circumstances that "tend to shed light" on
defendant's motive and intent or which "tend fairly to
explain his actions," even though they may have
occurred before the commission of the offense. Ibid.

[State v. Covell, 157 N.J. 554, 565 (1999).]

The fourth prong of the Cofield test is considered the most difficult to

overcome. State v. Rose, 206 N.J. 141, 160. N.J.R.E. 404(b) "'seeks to strike a

balance between the prejudice to a defendant that is inherent in other-crime

evidence and the recognition that the evidence may be highly relevant to prove

a defendant's guilt of the crime charged.'" Id. at 159 (quoting State v. Barden,

195 N.J. 375, 388 (2008)). Therefore,

evidence of uncharged misconduct would be
inadmissible if offered solely to prove the defendant's
criminal disposition, but if that misconduct evidence is
material to a non-propensity purpose such as those
listed in [N.J.R.E.] 404(b), it may be admissible if its
probative value is not outweighed by the risk of
prejudice.

[Ibid.]

A-4422-16T4
36
This inquiry "necessitates a more searching inquiry than that required by

N.J.R.E. 403." Reddish, 181 N.J. at 608. Under N.J.R.E. 403(a), "relevant

evidence will be precluded only if the risk of undue prejudice substantially

outweighs its probative value." Ibid. However, "[w]ith respect to other crimes

evidence . . . the potential for undue prejudice need only outweigh probative

value to warrant exclusion." Ibid.

Thus, due to its potential for misuse, "in determining the probative worth

of other-crime evidence, 'a court should consider . . . whether its proffered use

in the case can adequately be served by other evidence.'" Marrero, 148 N.J. at

482 (quoting Stevens, 115 N.J. at 303). Stated differently, "[a]n important factor

in weighing the probative value of other-crime evidence is whether other, less-

inflammatory evidence can prove the same fact in issue." State v. Oliver, 133

N.J. 141, 151 (1993).

Other bad act evidence is admissible as evidence of intent if the conduct

of a defendant can be viewed as either culpable or benign. State v. Mulero, 51

N.J. 224, 228 (1968). Here, defendant's intent when he "tickled" or "touched"

the three complaining witnesses is at issue to negate the claim of an innocent

intent. The court reasoned that this testimony was not admitted to show the

defendant had a propensity to sexually molest girls. It was admitted to provide

A-4422-16T4
37
the jury with evidence of intent and absence of mistake. See State v. Cusick,

219 N.J. Super. 452, 464-65 (App. Div. 1987).

In Stevens, 115 N.J. at 293, a police officer was charged with official

misconduct and criminal coercion after he conducted sexually motivated

searches of two women in custody. The trial court admitted evidence of three

separate incidents where the defendant used his position as a police officer to

intimidate female suspects into undressing and performing sexual favors as

evidence of plan and intent. Ibid. at 295-97.

Here, the trial court properly applied the Cofield test to allow the joinder

of offenses involving three separate complaining witnesses. The first Cofield

prong was satisfied because the testimony of each witness was relevant to a

material issue in dispute. In both in his opening statement and closing argument,

defense counsel maintained that any touching of these girls was nothing more

than innocent tickling. The State had the burden to prove, beyond a reasonable

doubt, that defendant had a sexual motive and a purpose of sexual gratification

as elements of the offenses charged. Finally, the trial court properly found the

complaining witnesses' testimony constituted relevant evidence of intent and

absence of mistake, and was thus admissible under the fourth Cofield prong.

A-4422-16T4
38
The trial judge also properly exercised his discretionary authority to admit

K.H.'s testimony concerning defendant's decision to purchase underwear for her

from Victoria Secret and to admit the actual item as evidence in the trial. This

young woman was a minor at the time this occurred. Although she is not a

complaining witness in this case, the salacious nature of this garment reveals

defendant's state of mind with respect to teenaged girls. Defendant's intent was

a critically important part of both the State's case and defendant's defense.

As the trial judge explained in his decision to admit the evidence:

With respect to the testimony regarding the alleged
offer to buy underwear for [Kenzie] and allegedly
actually buying it for [K.H.] . . . I believe this evidence
is admissible under [N.J.R.E.] 404(b)[.]

....

Again, I'll explain again why I'm admitting it. First, it
is relevant in this [c]ourt's view as to a material issue in
dispute. The primary issue in dispute is the defendant's
intent [or] state of mind when he allegedly engaged in
touching the alleged victims. There are three alleged
victims in the case. I am limiting the jury's
consideration of this evidence to his state of mind or
intent when allegedly touching or making other
remarks to [Kenzie]

....

As previously noted, it is very clear that a . . .
substantial aspect of the defense in this case is that any
touching/tickling while possibly inappropriate was not

A-4422-16T4
39
sexual; hence, this [c]ourt concludes that the alleged act
of attempting to purchase underwear for [Kenzie],
allegedly purchasing it for the second girl, . . . , is
relevant in this case regarding his alleged state of mind
and intent.

Second, the evidence proffered is certainly close in
time, if not actually during the general time period
when [Kenzie] alleges the actual touching was
occurring. I would note also that the case law has
indicated that this second prong is not even required.
It's relevant if it's present, but the close in time is not
even required, although I do believe it was close in
time.

Third, this [c]ourt finds that the evidence presented as
to this alleged incident is clear and convincing. I found
[Kenzie] to be credible. And any judge has to make
credibility findings during a pretrial hearing. I do my
utmost to give both sides a fair trial. When [defendant]
may have had concern that I make credibility findings,
that's present in every case. It's completely up to the
jury to make the ultimate determination.

Fourth, as to this evidence, I do conclude that the
probative value, which I believe is significant,
outweighs the prejudice of its admission. Any
inculpatory evidence is prejudicial. The issue is, as the
case law has defined it, would the [jurors] be so
inflamed by its admission that they could not fairly
consider all of the evidence in the case. I do not
consider that in any way to be a consequence of
admitting this evidence. So I will admit it for purposes
only as to [Kenzie] and for purposes of evaluating his
state of mind and intent when allegedly touching her or
making other -- and/or making other remarks to her.

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The trial court also gave detailed limiting instructions both before these

witnesses testified and as a part of the general jury instructions.

Summary

The now discredited CSAAS testimony provided by the State's expert

witness had the capacity to bolster the complaining witnesses' credibility. We

therefore reverse and remand this matter for a new trial. We reject de fendant's

remaining arguments related to the trial. Our decision obviates the need to

reach defendant's argument related to the sentence imposed by the court.

Reversed and remanded. We do not retain jurisdiction.

A-4422-16T4
41

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4580852. Public record. Not legal advice.