STATE OF NEW JERSEY VS. JEROME BOYNTON (15-11-2015, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2574-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME BOYNTON,

Defendant-Appellant.

_______________________

Submitted May 17, 2021 – Decided September 13, 2021

Before Judges Sabatino, Gooden Brown and

DeAlmeida.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No. 15-11-

2015.

Joseph E. Krakora, Public Defender, attorney for

appellant (John P. Flynn, Assistant Deputy Public

Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Monmouth County

Prosecutor, attorney for respondent (Lisa Sarnoff

Gochman, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second-degree sexual

assault, N.J.S.A. 2C:14-2(b), and third-degree child endangerment, N.J.S.A.

2C:24-4(a). He was sentenced to an aggregate term of ten years' imprisonment,

subject to an eighty-five percent period of parole ineligibility pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a special sentence of parole

supervision for life, N.J.S.A. 2C:43-6.4, and restrictions under Megan's Law,

N.J.S.A. 2C:7-1 to -23.

The convictions stemmed from an incident during which defendant had

sexual contact with a seven-year-old girl, L.M.,1 in a house occupied by several

related and unrelated individuals. At trial, the State produced the victim who

recounted the incident, the victim's videotaped statement elicited during a

forensic interview pursuant to the tender years exception, N.J.R.E. 803(c)(27),

defendant's statement following the administration of his Miranda2 rights

denying the allegations, and DNA evidence that could not exclude him as a

suspect.

On appeal, defendant raises the following points for our consideration:

1

We use initials to protect the confidentiality of victims. R. 1:38-3(c)(11).

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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POINT I

THE TRIAL COURT DEPRIVED [DEFENDANT] OF

A FAIR TRIAL BY ADMITTING [THE VICTIM'S]

FORENSIC INTERVIEW PURSUANT TO N.J.R.E.

803(C)(27) BECAUSE THE STATEMENT WAS NOT

TRUSTWORTHY.

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR

BY ALLOWING CONFUSING EXPERT

TESTIMONY WITH LIMITED PROBATIVE VALUE

REGARDING Y-STR DNA TESTING. (NOT

RAISED BELOW).

A. The DNA Testimony.

B. The Trial Court's Failure To Strike The

Y-STR Testimony Under N.J.R.E. 403

Warrants The Reversal Of [Defendant's]

Convictions.

POINT III

THE TRIAL COURT DEPRIVED [DEFENDANT] OF

A FAIR TRIAL BY FAILING TO REDACT

PREJUDICIAL HEARSAY BY THE OFFICERS

FROM THE RECORDING OF THE CUSTODIAL

INTERROGATION.

A. The Trial Court Failed To Redact

Prejudicial Hearsay Implying That

[Defendant's] Friends Believed He

Committed The Offense.

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B. The Trial Court Failed To Redact

Hearsay That Impermissibly Bolstered

[The Victim's] Credibility.

C. Despite The Limiting Instruction, The

Prejudicial Hearsay Was Harmful.

POINT IV

THE CUMULATIVE EFFECT OF THE ABOVE

ERRORS DEPRIVED [DEFENDANT] OF DUE

PROCESS AND A FAIR TRIAL AND WARRANTS

THE REVERSAL OF HIS CONVICTIONS. (NOT

RAISED BELOW).

POINT V

THE MATTER SHOULD BE REMANDED FOR

RESENTENCING BECAUSE THE COURT

IMPROPERLY FOUND AGGRAVATING FACTORS

AND IMPOSED A SEX CRIME VICTIM

TREATMENT FUND [SCVTF] PENALTY

WITHOUT ENGAGING IN THE REQUIRED

ANALYSIS.

We have considered these arguments in light of the record and applicable

legal principles. Other than the imposition of the SCVTF penalty, we reject

each of the points raised and affirm.

I.

Following the adjudication of various pre-trial motions, a seven-day jury

trial was conducted on various dates in September 2018. We glean these facts

from the trial record.

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In 2015, then seven-year-old L.M.,3 her two older brothers, her two older

sisters, and her mother needed a place to stay. Floyd Hicks, a family friend,

allowed them to stay at his home located in Tinton Falls. 4 On the evening of

May 9, 2015, Hicks also allowed some other friends, including defendant, to

sleep over.

L.M. testified that while she was in her bedroom at Hicks's house on the

night of May 9, she was awakened by someone touching her on her "private

part." According to L.M., "[t]he person that touched [her]," who was later

identified as defendant, "licked his finger, and . . . put it on . . . [her] private

part, and then . . . licked [his finger] again." She specified the person touched

her "[u]nder [her] clothing" and his "wet finger" was "kind of inside" her

"private part." L.M. said that during the incident, the person asked her if she

was "going to tell." When she responded that she would, he left the room.

Although L.M. did not know the person's name, she described him as having

"poofy hair" and dark skin, a description that matched defendant's physical

characteristics. She testified she had seen him "[o]nce or twice" before as "[h]e

3

L.M. was born in January of 2008.

4

The house was owned by Hicks's godmother.

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was living in the basement" at the house. According to L.M., the following

morning, she told her brother, A.M., who called their mother at work.

During a forensic interview conducted by Detective Delisa Brazile of the

Monmouth County Prosecutor's Office on the afternoon of May 10, L.M. gave

a consistent account of what had transpired. The video recorded interview was

played for the jury at trial. The jury was also shown the anatomically correct

drawings L.M. had marked during the interview, demarcating where she had

been touched.

A.M.,5 L.M.'s brother, testified at trial that he and his brother, J.M., slept

in a room on the main floor of the Hicks house. On the morning of May 10,

2015, L.M. came into their room and told them that during the night, "the guy

that got us candy," with a "short Afro," and "a beard," had "licked his finger and

. . . put it in [her] cooch." She said she told him to stop, but that he did it again

before leaving the room. A.M. asked if it was defendant and she responded,

"yeah." A.M. then called their mother, N.M., and told her what L.M. had said.

N.M., who was out delivering newspapers when she received the call,

spoke to L.M., who was crying "hysterically." N.M. came back to the house

with Hicks's sister and called the police after speaking to L.M. again. N.M.

5

A.M. was fourteen years old when the incident occurred.

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testified she had seen defendant at the house the day before and he had told her

"he had purchased some snacks for [her] daughters" and "[h]oped [she] didn't

mind."

Blake Rutherford, a Sergeant with the Tinton Falls Police Department,

responded to the call on the morning of May 10. After speaking to N.M. and

L.M., Rutherford and another officer located defendant in the basement of the

Hicks house and took him into custody, escorting him outside to a patrol car

where a crowd had gathered. Elena Mazzeo-Ignaczak, another Tinton Falls

police officer, transported L.M. to the Jersey Shore Medical Center where she

underwent a forensic sexual assault examination.

Hicks testified that on the evening of May 9, he was playing cards in the

basement with friends. At some point, he went upstairs to the third floor and

went to sleep. Talek Lane, a friend of Hicks and defendant, testified he stayed

at Hicks's house on the evening in question and slept in the basement. He stated

defendant and another person, Parlette Wakefield, slept there as well.6

According to Lane, at one point late that evening, he and defendant went to

defendant's cousin's house in Asbury Park but later returned to Hicks's basement.

6

During his testimony, Wakefield confirmed that he slept in the basement on

the night in question.

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After they returned, between 2:30 and 3:00 a.m. on the morning of May

10, defendant went upstairs. A couple of minutes later, Lane went upstairs to

the main floor "to get a cigarette" and saw defendant coming "from the back

area." Lane described the back area as a hallway that divided the bedrooms on

the first floor. Lane went back downstairs to the basement, and, about fifteen

minutes later, defendant returned to the basement as well.

After defendant was arrested and transported to police headquarters, he

was administered Miranda warnings and questioned by Detective Brazile and

Detective Corporal Robert Wilson at approximately 6:00 p.m. on May 10.

Defendant's recorded custodial interview was played for the jury during

Detective Brazile's testimony.7 In the statement, defendant, born in 1991,

admitted staying at Hicks's house at the time of the incident, admitted buying all

the kids snacks the day before, and admitted seeing L.M. "laying in the bed" in

her room on the night in question. However, defendant denied going into L.M.'s

room or touching her. Defendant maintained his innocence despite Brazile

telling him L.M. had been consistent in her account.

7

Defendant does not challenge the admission of his statement, only the trial

judge's failure to redact certain portions of it.

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Defendant also stated he went from the basement to the first floor twice

on the evening in question, once to get water and the other time to get his

headphones. When Brazile told him his friends had seen him come upstairs

"more than twice," he denied doing so.

During the interview, Brazile told defendant Hicks was "apologizing to

[N.M.] about [defendant] being there" and saying he had "checked on the kids"

but did not "know [defendant] was down there." Brazile added, "I'm only telling

you what your people are telling me" and commented "it's amazing that your

boy [Hicks] even believes that you did it." Defendant responded that it was

"bullshit" and stated, "everybody [was] throw[ing his] ass under the damn bus."

Debrann Petrizzo, a registered nurse, testified for the State as an expert in

forensic sexual assault examinations. She performed an examination on L.M.

on the afternoon of May 10 at the Jersey Shore Medical Center. She observed

"a little bit of white fluid" on the external genitalia and took a swab of the fluid.

She also "swabbed the external genitalia" and took a buccal swab from L.M. for

DNA identification and testing.

Allison Lane, a forensic scientist, testified for the State as an expert in

forensic serology. She examined the genital specimen collected by Petrizzo as

well as L.M.'s clothing. On L.M.'s clothing, Lane detected "amylase," an

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"enzyme found in high concentrations in saliva." Lane detected "two areas of

the amylase activity" on L.M.'s "underwear," and "two areas" on L.M.'s "T-

shirt." Lane submitted these samples along with L.M.'s DNA reference sample

for DNA testing.

Christopher Szymkowiak, a forensic scientist, testified for the State as an

expert in forensic DNA analysis. 8 He examined the four samples for both

autosomal as well as Y-short tandem repeat (Y-STR) DNA. Szymkowiak

explained that using autosomal DNA testing, an analyst can conclude that

someone is the source of a DNA profile, meaning the analyst is "confident that

the individual to the exclusion of all . . . [other] people has left that DNA." In

contrast, because Y-STR DNA profiles are not unique to a specific person and

will be identical for all males in a "paternal line," an analyst can only conclude

that "someone matches a profile" or that "they [are] excluded," but "[cannot] do

any source attribution because we know . . . that [the] male line all [have] that

same profile."

Based on autosomal DNA testing, Szymkowiak determined L.M. was the

sole contributor on one T-shirt sample and the major contributor on the other T-

shirt sample, where he identified a mixture of DNA. Szymkowiak explained "a

8

Defendant did not object to Szymkowiak being qualified as an expert.

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mixture is a sample where there [is] more than one person present." Regarding

the underwear, Szymkowiak determined L.M. was the sole contributor of DNA

on one underwear sample and the major contributor on the other underwear

sample, where he again identified a mixture of DNA.

After Szymkowiak obtained a reference sample of defendant's DNA,9

based on autosomal DNA analysis, Szymkowiak excluded defendant as "a

possible contributor to the minor DNA profile obtained" from the mixture found

on both the underwear and the T-shirt samples. However, Szymkowiak testified

"the [Y-STR DNA] profile of [defendant] matche[d] the major [Y-STR] DNA

profile obtained" in both underwear samples. Based on the data, Szymkowiak

concluded defendant "[could not] be excluded" as a contributor but conceded on

cross-examination his conclusion did not have much statistical value in

determining whether or not somebody should be included or excluded because

"a lot of people could potentially have a match too." Szymkowiak testified

further that his testing revealed there was "a second male who had contributed

9

To obtain defendant's DNA, Monmouth County Prosecutor's Office Detective

Robert Flanigan took a buccal swab from defendant on December 16, 2015, after

the State's application for an order compelling physical exemplars was granted

by the trial court on December 11, 2015.

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to the DNA . . . found on the underwear" but he had no "reference" sample "to

compare that minor profile to."

Defendant did not testify or present any witnesses. His motion for a

judgment of acquittal at the close of the State's case, R. 3:18-1, was denied.

Following the jury's guilty verdict, defendant moved for a judgment of acquittal

notwithstanding the verdict, R. 3:18-2, or a new trial, R. 3:20-1, which was also

denied. Defendant was sentenced on January 4, 2019, and a memorializing

judgment of conviction was entered on January 9, 2019. This appeal followed.

II.

In Point I, defendant argues the trial judge abused his discretion in

admitting L.M.'s forensic interview because the totality of the circumstances,

including outside influences and leading questions, established her "out-of-court

statements" were "inherently unreliable." We disagree.

Under N.J.R.E. 803(c)(27), "[a] statement by a child under the age of

twelve relating to sexual misconduct committed with or against that child is

admissible" if "the court finds, in a hearing conducted pursuant to Rule 104(a),

that on the basis of the time, content and circumstances of the statement there is

a probability that the statement is trustworthy." Thus, N.J.R.E. 803(c)(27)

requires a trial court to make a preliminary finding that an out-of-court statement

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is sufficiently reliable based on its trustworthiness. State v. D.G., 157 N.J. 112,

128 (1999).

"[I]n making the determination whether a statement offered under the Rule

is trustworthy, the trial court should evaluate the 'totality of the circumstances'

surrounding the statement." State v. Burr, 392 N.J. Super. 538, 569 (App. Div.

2007) (quoting State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991)),

aff'd as modified on other grounds, 195 N.J. 119 (2008). Factors for the court

to consider "include whether the statement was made spontaneously, whether

the account is repeated with consistency, the mental state of the declarant, the

use of terminology unexpected of a child of similar age, lack of a motive to

fabricate, use of interrogation, and manipulation by adults." Id. at 570. This

"list is non-exhaustive, and courts are afforded considerable leeway in their

evaluation of appropriate factors." Ibid.

Additional factors related to "improper interrogations" conducted by the

State may taint the reliability or trustworthiness of the child's statement . State

v. Michaels, 136 N.J. 299, 311 (1994); see D.G., 157 N.J. at 130-34 (applying

the Michaels principles to assessing the reliability of a videotaped statement for

admission under N.J.R.E. 803(c)(27)). "If a child's recollection of events has

been molded by an interrogation, that influence undermines the reliability of the

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child's responses as an accurate recollection of actual events." Michaels, 136

N.J. at 309. "A variety of factors bear on the kinds of interrogation that can

affect the reliability of a child's statements concerning sexual abuse." Ibid.

[A]mong the factors that can undermine the neutrality

of an interview and create undue suggestiveness are a

lack of investigatory independence, the pursuit by the

interviewer of a preconceived notion of what has

happened to the child, the use of leading questions, and

a lack of control for outside influences on the child's

statements, such as previous conversations with parents

or peers.

[Ibid.]

In reviewing a trial court's determination regarding the admissibility of a

child's statement under N.J.R.E. 803(c)(27), "the judge's factual findings are

entitled to deference" as long as they are "supported by sufficient credible

evidence in the record." State v. P.S., 202 N.J. 232, 250 (2010) (quoting State

v. Elders, 192 N.J. 224, 243 (2007)). The "determination of reliability or

trustworthiness" should not be disturbed "unless the judge's determination

amounted to an abuse of discretion." Ibid. An abuse of discretion arises when

"the finding is 'clearly a mistaken one and so plainly unwarranted that the

interests of justice demand intervention and correction . . . .'" Id. at 250-51

(alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

"Only in those circumstances may 'an appellate court "appraise the record as if

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it were deciding the matter at inception and make its own findings and

conclusions."'" Id. at 251 (quoting Elders, 192 N.J. at 244).

During the pre-trial hearing conducted on November 29, 2017, Detective

Brazile testified that as a veteran member of the Monmouth County Prosecutor's

Office's Special Victims Bureau, she had undergone specialized training in

conducting forensic interviews of children under the age of twelve. Brazile

described a forensic interview as "a semi-structured interview . . . conducted

with a child . . . to elicit information about an incident that may have occurred,"

or that the child "may have witnessed, or . . . may potentially be a victim of."

Brazile stated she had conducted "[w]ell over 100" forensic interviews

throughout her career within the Special Victims Bureau.

Prior to conducting L.M.'s forensic interview, Brazile was briefed about

the allegations by another officer, whom she instructed to have L.M. undergo a

forensic sexual assault examination. Immediately following the examination,

L.M. was transported along with her mother and brothers to the Child Advocacy

Center where Brazile conducted the interview the afternoon of May 10, 2015.

The interview was audio- and video-recorded and played for the judge during

the hearing.

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During the interview, initially, when asked whether "something

happen[ed] today or yesterday" that she had "told mommy or . . . someone else

about," L.M. responded she had told "mommy." L.M. also acknowledged she

had told her brothers about something that had happened to her that she did not

like. However, L.M. stated she "forg[o]t what [she] told them." After L.M.

identified on an anatomically correct drawing the parts of the body that nobody

was supposed to touch and described the vaginal area as her "potty," she was

asked whether anyone had "ever touched [her] or tried to touch [her] on any of

those parts of the body." At that point, L.M. nodded her head in the affirmative

and said it was "one of the boys that [was] in the house." L.M. was then asked

whether it was one of the boys that she "call[ed] the man." L.M. replied "[y]es"

and said his name was "Jerome." L.M. described Jerome as "[t]all" with "a

beard" and "a[n] afro."10

When asked to explain what had happened, L.M. proceeded to disclose

the incident to Brazile. L.M. told Brazile that while she "was asleep inside of

[her] room" the previous night, Jerome had "licked his finger and . . . put it in

[her] potty." She added she "woke up when it was happening" and said, "get off

10

L.M.'s description matched defendant's physical characteristics.

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of me" and then "stop it." L.M. stated she was wearing "a green shirt," "pink

leggings," and "underwear" at the time. She said that Jerome placed his hand

"[i]nside of [her] pink leggings" and "[u]nder [her] underwear," and put his

finger "[o]n top of" her "potty."11 After she told him to stop, Jerome left the

room. According to L.M., she "went back to sleep" and told her mother and her

brothers the following morning.

L.M. also told Brazile that Jerome stayed at the house a lot and slept in

the basement. She stated that Jerome had gotten her and her sister "snacks" the

day before. L.M. was then given "an anatomically correct doll" and

demonstrated what Jerome had done to her on the doll.

L.M.'s brother, A.M., also testified at the hearing. He stated one morning

in May 2015, L.M. came into the room where he and his brother had been

sleeping and said, "last night that boy came in the room and he licked his finger

and put it in my cooch." L.M. said to A.M. she told the "boy" to stop, but he

did it again before leaving the room. When A.M. asked L.M. "who she was

talking about," she responded "the guy who got us candy." A.M. asked L.M.

"what . . . he look[ed] like," and she responded he had "a short afro and a beard."

11

During the course of the interview, L.M. also stated that Jerome placed his

hand "[o]ver" rather than underneath her underwear, and she did not see him lick

his fingers but knew he did because her underwear was wet.

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According to A.M., because the only individual in the house who fit that

description was defendant, he asked her if it was Jerome, and L.M. responded

"yeah."

Following the hearing, the judge granted the State's motion to admit

L.M.'s statements at trial and memorialized the decision in an order dated

January 18, 2018, that was accompanied by a written statement of reasons. In

ruling that L.M.'s statements were "trustworthy" and therefore admissible under

N.J.R.E. 803(c)(27), the judge stated that other than arguing "Detective Brazile

used improper techniques during the forensic interview,"

[d]efendant has put forth no argument that L.M.'s

statements were unreliable . . . . This [c]ourt viewed

the forensic interview of L.M. and heard testimony of

L.M.'s brother, A.M., regarding her initial disclosure to

him. Based on this evidence, the [c]ourt finds that the

statements of L.M. were spontaneous and consistent

with the type of statement that would be made by

someone her age. Therefore, this [c]ourt finds a

probability that L.M.'s statements are trustworthy.

In specifically rejecting defendant's assertion that Brazile had used

improper techniques during the interview, the judge reasoned:

As for [d]efense [c]ounsel's assertion . . . that

Detective Brazile used improper techniques during the

forensic interview[] because there was a lack of

spontaneous recollection, repeated questioning,

improper body language and inflection, leading

questions, and the use of positive reinforcement, the

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[c]ourt does not find this assertion to be supported by

the current record. . . . Based on [the court] viewing

[the video recording of the forensic interview], the

[c]ourt does not find that leading questions or improper

body language and inflection were used. The [c]ourt

did observe Detective Brazile use repeated questioning

and positive reinforcement, but [d]efense [c]ounsel did

not establish that these techniques, as employed by

Detective Brazile, were contrary to proper protocol or

in some way coercive.

Similarly, the [c]ourt observed Detective

Brazile's use of anatomically correct drawings and dolls

during the forensic interview[], but [d]efense [c]ounsel

has failed to establish how the use of these drawings or

dolls could have corrupted the statements of L.M. . . . .

Anatomically correct drawings and dolls are commonly

employed by detectives during forensic interviews.

We are satisfied the judge's factual findings are supported by sufficient

credible evidence in the record, and his conclusion that the statements were

sufficiently reliable to justify admission under N.J.R.E. 803(c)(27) was sound.

Contrary to defendant's contention, the judge's findings were not "cursory" but

reflected thoughtful consideration of the applicable factors. See State v. Smith,

158 N.J. 376, 389-91 (1999) (holding closeness in time between incident and

interview, consistent answers, no evidence of a motive to fabricate the charges,

and absence of bias against defendant by interviewer supported determination

that the statement was sufficiently reliable to satisfy the trustworthiness

requirement of N.J.R.E. 803(c)(27)); see also State v. Delgado, 327 N.J. Super.

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137, 148 (App. Div. 2000) (finding the child sex assault victim's statements

trustworthy and admissible under N.J.R.E. 803(c)(27) because "the statements

were spontaneous, made under non-stressful conditions and were consistent").

We also reject defendant's argument that "outside influences" on L.M.

prior to the forensic interview weighed against a finding of trustworthiness,

influences such as L.M.: (1) being "provided the name 'Jerome'" by A.M.; (2)

seeing defendant being taken out of the house and "placed into the back of a

police car"; and (3) "likely hear[ing] adults, her siblings, and officers discuss

the allegations" during the gathering "outside of the home." Notably, L.M. had

identified defendant to A.M. as the perpetrator before the police were even

called to the scene. Although L.M. did not know defendant's name, defendant

was the only person in the house who matched L.M.'s descriptions.

Likewise, we reject defendant's argument that the statements were

unreliable because they were only elicited with the use of "pointed" and "leading

questions" by Brazile. "Indeed, the use of leading questions to facilitate an

examination of [a] child witness[] who [is] hesitant, evasive or reluctant is not

improper." Smith, 158 N.J. at 390. "Due to a child's natural hesitancy around

strangers and authority figures, . . . the presence of leading questions in an

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interview may be necessary and does not automatically make the child's

statement untrustworthy." Delgado, 327 N.J. Super. at 147-48.

Furthermore, contrary to defendant's assertion, allowing the recording of

the forensic interview to be played for the jury in addition to L.M.'s trial

testimony was not unduly prejudicial. See Smith, 158 N.J. at 391 (cautioning

that "a trial court should be cognizant of its right under N.J.R.E. 403, to exclude

evidence if it finds in its discretion, that the prejudicial value of that evidence

substantially outweighs its probative value" (quoting D.G., 157 N.J. at 128)).

III.

In Point II, defendant argues for the first time on appeal that it was error

for the judge to permit Szymkowiak's expert testimony regarding the Y-STR

DNA testing because the testimony was "riddled with internal inconsistencies ."

Defendant asserts that "[e]ven in the absence of an objection, the trial court, sua

sponte, should have stricken Szymkowiak's testimony" under N.J.R.E. 403

"because [of its] limited probative value" and "risk of confusing or misleading

the jury."

Inasmuch as there was no objection at trial, we review for plain error,

which is error that "is 'clearly capable of producing an unjust result.'" State v.

Singleton, 211 N.J. 157, 182 (2012) (quoting R. 2:10-2). Under the plain error

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standard, "the possibility of injustice [must be] '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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon,

57 N.J. 325, 336 (1971)). When a defendant does not object, our Supreme Court

"has held 'to rerun a trial when the error could easily have been cured on request,

would reward the litigant who suffers an error for tactical advantage either in

the trial or on appeal.'" State v. Weston, 222 N.J. 277, 294-95 (2015) (quoting

Macon, 57 N.J. at 333). Thus, "[i]t is defendant's burden to demonstrate that the

trial courts' procedures constituted plain error." Id. at 295. In determining

whether the defendant has met his burden, "we assess the overall strength of the

State's case." Ibid. (citations and quotation marks omitted).

Defendant contends the improper admission of the Y-STR DNA expert

testimony "was clearly capable of producing an unjust result." Y-STR DNA

analysis involves the testing of the male Y chromosome, as opposed to

autosomal STR DNA testing, which involves the testing of all twenty-three pairs

of chromosomes. State v. Calleia, 414 N.J. Super. 125, 143-44 (App. Div.

2010), rev'd on other grounds, 206 N.J. 274 (2011). While Y-STR is not the

preferred method of DNA analysis, it "is extremely useful . . . in excluding

someone" as a suspect "since an individual cannot be the source of the DNA if

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the profiles do not match." Id. at 146-47. "If the Y-STR DNA profiles do match,

then all that can be said is that the individual cannot be excluded as the DNA

donor." Ibid.

"[T]he strength of Y-STR DNA testing derives from the fact that only

males have a Y chromosome." Id. at 146. "[W]hen forensic scientists are

confronted with a mixed DNA sample," meaning a sample from two or more

individuals, "[a]utosomal STR DNA analysis is problematic. . . ." Ibid.

An autosomal STR DNA profile generated from the

stains will have a combination of both individuals'

DNA patterns and it is not possible to attribute which

traits go with which person. Further, one individual's

profile often overwhelms the other and renders it un-

detectible. When one individual is male and one is

female, however, it is possible to perform a Y[]-STR

DNA analysis and focus solely on the DNA of the male.

[Ibid.]

Unfortunately, the fact that only males have a Y chromosome is also the

source of the Y-STR DNA "test's weakness." Id. at 146.

Because only males possess Y chromosomes, a

mother does not contribute to the genetic code of her

son's Y chromosome. The DNA sequence on the Y

chromosome is passed in complete form from

grandfather, to father, to son and on down the male

lineage. . . . In other words, barring random mutations,

all men in a paternal lineage will possess the same Y[]-

STR DNA profile. Thus, fathers, sons, brothers,

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uncles, and paternal cousins cannot be distinguished

from one another through a Y[]-STR DNA profile.

[Id. at 146-47.]

In Calleia, we held Y-STR DNA evidence was "relevant" and "probative"

because "it show[ed] that [the] defendant could not be excluded from the class

of individuals who could have 'contributed' th[e] biological material" in

question. Id. at 150. We concluded that "although th[e] evidence [could not]

unequivocally establish that defendant was the person who killed his wife, it

[did] show that defendant [could not] be excluded from the class of individuals

who could have been the killer." Ibid. We explained the fact that the expert in

that case12 "could not say with certainty that defendant was the source of the

DNA [did] not render the test results irrelevant." Id. at 151.

Rather, we noted there were "still sufficient variations within the

population to make any particular profile distinct." Ibid. We expounded:

The coincidence that this profile matches that of

defendant is probative of his guilt in the same manner

as if he had owned shoes that matched a foot imprint

found at the crime scene. It was up to the jury to weigh

the probative value of that evidence in light of the fact

that a significant number of other individuals may

possess the same profile.

[Id. at 152.]

12

As in this case, Szymkowiak was the expert.

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24

Likewise, here, we are satisfied the Y-STR DNA expert testimony was

relevant and had probative value because it showed defendant could not be

excluded from the class of individuals who could have contributed the biological

material found on the victim's underwear. Relevant evidence is that which has

"a tendency in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401. Under N.J.R.E. 401, "[e]vidence

need not be dispositive or even strongly probative in order to clear the relevancy

bar," State v. Buckley, 216 N.J. 249, 261 (2013), and "if evidence . . . support[s]

the existence of a specific fact, even obliquely, it is relevant and admissible."

Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).

"Once a logical relevancy can be found to bridge the evidence offered and

a consequential issue in the case, the evidence is admissible, unless exclusion is

warranted under a specific evidence rule." State v. Burr, 195 N.J. 119, 127

(2008). N.J.R.E. 403 is one such exclusionary rule, "mandat[ing] the exclusion

of evidence that is otherwise admissible 'if its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading

the jury or (b) undue delay, waste of time, or needless presentation of cumulative

evidence.'" State v. Cole, 229 N.J. 430, 448 (2017) (quoting N.J.R.E 403)).

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Defendant asserts Szymkowiak's testimony, particularly his statistical

conclusions, had "limited probative value" and "was substantially outweighed

by the risk of confusing and misleading the jury" as evidenced by the fact that

the jury requested a play-back of the expert's cross-examination. However, we

are satisfied the testimony was not confusing or misleading, but simply reflected

the inherent limitations of Y-STR DNA analysis, limitations that Szymkowiak

explained during his testimony. Moreover, any deficiencies in Szymkowiak's

testimony went to the weight to be given to the testimony, not its admissibility.

Indeed, defense counsel capitalized on the limitations of Y-STR DNA analysis

by arguing in summations that "there [were] significant problems with the

sample, the testing, and the statistical evaluation of th[e] evidence," and that

Szymkowiak's finding was not "definitive" and was not "reliable."

The weight to be given expert testimony is within the purview of the trier

of fact. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004). "It may

well be that a jur[y] will refuse to accept scientific testimony which i t cannot

understand; however, that does not affect admissibility but only the weight that

such testimony will be given." State v. Williams, 252 N.J. Super. 369, 377 (Law

Div. 1991); see Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 284 (1990)

("[U]nreliable methods of forming an opinion affect the weight of expert

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26

testimony but not its admissibility."); see also State v. Koedatich, 112 N.J. 225,

242, 245 (1988) (upholding admission of evidence of matching fibers even

though manufacturers produced hundreds of yards of such fibers in a given year

because the quantity of the fibers went to the weight, not the admissibility, of

the evidence).

In addition, in the final charge, the judge instructed the jury:

You are not bound by [the] expert's opinion, but

you should consider each opinion and give it the weight

to which you deem it is entitled, whether it be great or

slight, or you may reject it.

....

The value or weight of the opinion of the expert

is dependent upon and is no stronger than the facts on

which it is based. . . . You may . . . determine from the

evidence in the case that the facts that form the basis of

the opinion are true, are not true, or are true in part only,

and in light of such findings you should decide what

effect such determination has upon the weight to be

given to the opinion of the expert.

The judge gave a similar instruction at the conclusion of Szymkowiak's

testimony.

Moreover, following the play-back of Szymkowiak's cross-examination

and re-direct examination, the jurors had no further questions or requests,

suggesting that they were not confused to such a degree that it impeded their

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ability to render a verdict. See State v. McClain, 248 N.J. Super. 409, 421 (App.

Div. 1991) ("The failure of the jury to ask for further clarification or indicate

confusion [after readback of jury charge] demonstrates that the response was

satisfactory.").

In sum, we find no error in the admission of Szymkowiak's expert

testimony. Even if there was error, we are satisfied the error was not "clearly

capable of producing an unjust result," given the substantial evidence of

defendant's guilt. R. 2:10-2. In that regard, the victim gave consistent accounts

of the incident, accounts that were corroborated by her brother's fresh complaint

testimony as well as the testimony of Lane, who observed defendant coming

from the area of the house where L.M.'s bedroom was located at the time in

question. As a result, any erroneous admission of Szymkowiak's expert

testimony did not rise to the level of plain error. See State v. Sowell, 213 N.J.

89, 107-08 (2013) (affirming conviction given strength of evidence against

defendant despite admission of improper expert testimony).

IV.

In Point III, defendant argues the judge erred in rejecting his request to

redact "prejudicial hearsay" from his custodial interview before the statement

was presented to the jury. According to defendant, the challenged remarks

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28

include the interrogators' comments that "[defendant's] friends believed he was

guilty," as well as comments that defendant claims "impermissibly bolstered

L.M.'s credibility." Defendant further asserts that the limiting instruction given

by the judge failed to "cure[]" the error.

Defense counsel asked the judge to redact the portions of defendant's

statement in which the interrogators referred to defendant's friends' opinions of

his guilt and L.M.'s consistent repetition of her "story." As to the former, Brazile

asked defendant why Hicks was "apologizing" to the victim "for [defendant's]

actions" and commented that defendant's "boy even believe[d] that [he] did it."

As to the latter, Brazile stated the victim told the same story "[four] times" and

did not "over embellish" or "make it extreme," implying that the victim was

credible.

In denying counsel's request, the judge stated:

It appears that defendant is seeking to redact . . . any

statements the detectives attribute to the victim or to

Mr. [Hicks] or anyone else in the course of their

investigation.

I don't think there's anything inappropriate about

an interrogation tactic that draws upon information

allegedly uncovered in the course of the investigation.

And the defense cites to no case law that stands for the

opposite proposition.

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29

However, the judge agreed to give a limiting instruction and gave the jury

the following instruction prior to playing the statement and in the final charge :

Over the course of the interview, you may hear

officers make reference to various statements allegedly

given to them by certain persons. You should not

consider these statements as attributed to others by the

officers conducting the interview as proof or evidence

of those persons' actual thoughts or beliefs, nor are

those statements offered for the truth of the matters

asserted in those statements.

Credibility determinations are made by you and

you alone and should be made by you after you have

had an opportunity to see and hear the statements and/or

testimony of the person or persons who allegedly made

such statements attributed to them by the officers.

Defense counsel did not object to the limiting instruction. The judge also

instructed the jury: "[I]f I gave a limiting instruction as to how to use certain

evidence, that evidence must be considered by you for that purpose only. You

cannot use it for any other purpose." 13

Defendant argues the judge abused his discretion in denying his request

to redact the objectionable portions of defendant's statement. "[A] trial court's

13

Defendant also raised the judge's failure to redact the objectionable statements

in his motion for a new trial. In denying the motion, the judge concluded "the

inclusion of the[] statements" did not "constitute a manifest denial of justice,"

and noted the limiting instruction "specifically addressed defendant's . . .

concerns."

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evidentiary rulings are 'entitled to deference absent a showing of an abuse of

discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170

N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

"Under that standard, an appellate court should not substitute its own judgment

for that of the trial court, unless 'the trial court's ruling "was so wide of the mark

that a manifest denial of justice resulted."'" Ibid. (quoting Marrero, 148 N.J. at

484).

Applying that standard of review, we agree the comments were

objectionable. Although officers' statements during the interrogation of a

suspect may often be relevant for the limited, non-hearsay purpose of giving

context to a suspect's responses, through the statements, the officers essentially

conveyed to the jury the opinion that defendant's friends believed he was guilty

and the victim was credible based on her consistent repetition of her story. "That

is not allowed." State v. Frisby, 174 N.J. 583, 593-94 (2002).

However, we are persuaded that the judge's limiting instructions cured any

prejudicial error in the interrogators' statements. Prejudice may be cured by the

court "delivering a timely and effective limiting instruction." State v. Jackson,

211 N.J. 394, 413 (2012). "Through a limiting instruction, the jury should be

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31

told the permissible and prohibited purposes of the evidence." State v. Scharf,

225 N.J. 547, 581 (2016).

Here, the jury was instructed to "not consider the[] statements . . . as proof

or evidence of those person[]s['] actual thoughts or beliefs, nor . . . for the truth

of the matters asserted in th[e] statements." The jurors were also told they were

the sole judges of credibility and they should only make credibility assessments

after they "had an opportunity to see and hear the . . . testimony of the . . . persons

who allegedly made such statements." Additionally, the judge told the jurors

they were to adhere to the limiting instructions given during the trial. "T here

can be no assumption that the jury did not faithfully follow the admonition."

State v. Manley, 54 N.J. 259, 271 (1969); see State v. Burns, 192 N.J. 312, 335

(2007) ("One of the foundations of our jury system is that the jury is presumed

to follow the trial court's instructions.").

V.

In Point IV, defendant argues, "[e]ven if the [c]ourt does not find that any

one error alone warrants a new trial," the cumulative effect of the purported

errors deprived him of a fair trial. "We have recognized in the past that even

when an individual error or series of errors does not rise to reversible error,

when considered in combination, their cumulative effect can cast sufficient

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32

doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473

(2008). However, here, because we conclude there were no reversible errors

either alone or combined, defendant's cumulative error argument must also fail.

VI.

In Point V, defendant challenges his aggregate ten-year NERA sentence,14

arguing the judge "abused [his] discretion" by applying aggravating factors that

were "not supported by the record." Defendant also asserts the judge "did not

engage in the proper analysis" in imposing the maximum $1000 SCVTF penalty.

We review sentences "in accordance with a deferential standard," State v.

Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute

[our] judgment for those of our sentencing courts.'" State v. Cuff, 239 N.J. 321,

347 (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will

affirm the sentence unless (1) the sentencing guidelines

were violated; (2) the aggravating and mitigating

factors found by the sentencing court were not based

upon competent and credible evidence in the record; or

(3) "the application of the guidelines to the facts of [the]

case makes the sentence clearly unreasonable so as to

shock the judicial conscience."

14

The judge sentenced defendant to a ten-year term of imprisonment, subject to

NERA, on the second-degree sexual assault conviction and merged the

endangering conviction into the sexual assault conviction.

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33

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Here, the judge found aggravating factors three and nine. 15 See N.J.S.A.

2C:44-1(a)(3) (the risk of re-offense); N.J.S.A. 2C:44-1(a)(9) (the need to deter

defendant and others). Regarding aggravating factor three, the judge cited

defendant's classification in the Adult Diagnostic and Treatment Center

evaluation 16 as an "average risk" for sexual recidivism, and defendant's

statement in the pre-sentence report that "he had consumed alcohol 17 and

marijuana on a daily basis before his incarceration." Regarding aggravating

factor nine, the judge found the need to deter was heightened by the

circumstances of the offense as well as "the fact that notwithstanding the jury's

verdict, [defendant] continues to deny that he committed any offense and

remains . . . unrepent[ant]."

15

The judge found no mitigating factors.

16

See N.J.S.A. 2C:47-1 (requiring the completion of "a psychological

examination" of persons convicted of designated sex offenses to determine

"whether the offender's conduct was characterized by a pattern of repetitive,

compulsive behavior").

17

Defendant had a prior conviction for driving while intoxicated, N.J.S.A. 39:4-

50.

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34

Defendant argues the judge erred in considering his refusal to

acknowledge guilt and in engaging in impermissible double counting of the

elements of the offense in finding aggravating factor nine. First, we discern no

impermissible double counting. Further, in State v. Rivers, 252 N.J. Super. 142,

153-54 (App. Div. 1991), we held the trial court properly found aggravating

factor nine given the defendant's "consistent denial of involvement and his lack

of remorse . . . ." See also State v. Carey, 168 N.J. 413, 427 (2001) (finding the

defendant's denial of responsibility for the crime "does not irrefutably prove that

defendant is likely to reoffend, but it does provide support for the trial court's

conclusion"); cf. State v. Marks, 201 N.J. Super. 514, 539-40 (App. Div. 1985)

(noting in dicta that a defendant's refusal to express remorse and acknowledge

guilt following conviction is "generally not a germane factor in the sentencing

decision"). Defendant also asserts the judge erred in finding aggravating factor

three based on his marijuana and alcohol use. However, in State v. N.A., 355

N.J. Super. 143, 154-55 (App. Div. 2002), we held a "history of poly-substance

abuse" supported a finding that the defendant "would commit another

crime . . . ."

Finally, defendant contends, and the State concedes, that the judge erred

in applying the maximum SCVTF penalty without the requisite analysis. Under

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35

N.J.S.A. 2C:14-10(a)(2), "a person convicted of a [second-degree] sex

offense . . . shall be assessed a penalty" for that offense "not to exceed" $1000.

In imposing such a penalty, the trial court should consider "the nature of the

offense" and "the defendant's ability to pay the amount assessed." State v.

Bolvito, 217 N.J. 221, 233-34 (2014). "[A] defendant's ability to pay should not

be measured only by current circumstances, but assessed over the long term."

Id. at 234. In addition, the court "should provide a statement of reasons" for the

assessed penalty to "facilitate appellate review." Id. at 235. Because the judge

failed to comply with these requirements, we remand for a statement of reasons

to support the imposition of the SCVTF penalty. Accordingly, we affirm the

convictions and sentence, but remand for a statement of reasons to support the

imposition of the SCVTF penalty.

Affirmed in part; remanded for a statement of reasons to support the

imposition of the SCVTF penalty. We do not retain jurisdiction.

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