STATE OF NEW JERSEY v. SCOT SCHNABEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1075-04T51075-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOT SCHNABEL,

Defendant-Appellant.

_________________________________

 

Argued March 20, 2006 - Decided April 28, 2006

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of

New Jersey, Law Division, Warren County,

03-02-049-I.

Richard S. Lehrich argued the cause for appellant.

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Ms. Henderson, of counsel and on the brief).

PER CURIAM

Following trial, a jury convicted defendant, Scot Schnabel, of offenses committed against two sisters, specifically, five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Counts Four, Five, Eight, Nine, and Sixteen); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Two, Six, Ten, Thirteen, and Fourteen); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Seven and Eleven); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Counts Three and Fifteen); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Counts One and Twelve).

After appropriate mergers, defendant received an aggregate term of thirty years, consisting of two consecutive fifteen-year terms on the two counts of aggravated sexual assault, with all other sentences running concurrently. He was ordered to comply with applicable Megan's Law procedures, including no contact with the victims. A DNA sample was ordered and appropriate fines and penalties imposed. Following sentencing, an amended judgment of conviction was entered on March 7, 2005. Defendant appeals and we affirm.

In the summer of 1995, defendant and the victim's mother, Jane Doe, began dating and became engaged in February 1996. At the time, Jane had three children: a minor son, born in November 1982; a daughter, J.L., born in May 1984; and a daughter, C.L., born in February 1987. In late May or early June 1996, defendant and his two minor sons moved in with Jane and her children. The relationship fractured, and defendant and his sons moved out of Jane's residence in February 1998.

In August 2001, while attending drug abuse counseling, C.L., then fourteen years old, disclosed that she had been sexually abused by defendant while he was involved with her mother. J.L., then seventeen years old, subsequently disclosed that she too had been sexually abused by defendant. Jane was alerted by C.L.'s counselor, and an investigation commenced after Jane contacted the New Jersey State Police. Sergeant Stephen Spiers of the Warren County Prosecutor's Office and State Trooper Fortunato were primarily in charge of the investigation. J.L. and C.L. were interviewed by Spiers on September 20, 2001, and defendant was interviewed by both Sergeant Spiers and Trooper Fortunato on September 25, 2001. Defendant denied the allegations.

Prior to trial, defendant moved to be permitted to question J.L. and C.L. as to "prior instances of sexual assault," pursuant to the Rape Shield Law. Defendant's initial request was based on a videotaped interview by Spiers of both J.L. and C.L. in October 2001, wherein "[b]oth victims indicate that they were sexually abused prior to any alleged abuse suffered by defendant's conduct." The transcripts of J.L.'s interview indicate that she had been molested by someone she knew other than defendant prior to defendant's conduct. Although she was reluctant to identify the person, she told Spiers that both she and her sister had been molested by that person, who was someone she knew and with whom she still had contact.

In her interview, C.L. stated that she had been molested by another person prior to the time she was molested by defendant. C.L. was reluctant to identify the other individual but stated that the abuse occurred when she was in first through third grade and was perpetrated by a minor, with whom she and her sister still have contact. She stated that the abuse by defendant occurred while she was in fourth or fifth grade. It involved similar acts and different acts. She also related that the prior abuse occurred in different places within the house, specifically the bedroom.

Oral argument was held on defendant's motion on September 18, 2003. At that time, defense counsel pointed out that additional statements by the victims indicate that the sexual abuse was perpetrated by their brother and that it spanned a period of perhaps one year. He also pointed out that the victims' brother admitted in testimony before the grand jury, prior to the return of the indictment charging defendant, that he had sexually abused his sisters when he was ten or eleven, one or two years before his mother began dating defendant. At the time, J.L. was about nine or ten years old and C.L. was six or seven.

Defendant argued that the evidence was admissible to show an alternate source, specifically, that their knowledge was based upon what their brother had done. The State countered, pointing out that, at the time C.L. and J.L. gave their statements, the victims were not of tender age, but were high school teenagers, respectively 14 and 17 years old. The State also argued that the evidence was not relevant, had the potential to distract the jury from the genuine issues in the case, and had no probative value.

Following oral argument on the motion, the judge essentially found that the tender age exception to the Rape Shield Law, N.J.S.A. 1C:14-7, did not apply in view of the age of the children and the information was not relevant because the abuse by the victims' brother occurred one year prior to the time defendant began dating their mother.

Jury selection commenced on March 22, 2004. At trial, J.L., then nineteen years old, testified that defendant was her former soccer coach. While defendant was dating her mother, he started kissing her "[o]n my lips and on my neck." This conduct began at defendant's house while Jane was at work or at school. According to J.L., defendant's conduct progressed to "touching . . . [m]y breasts [and] [m]y vagina" underneath "a blanket." Defendant would continue "until someone . . . was coming." After defendant and his sons moved in, defendant continued to touch J.L. when she was in the living room and laundry room. She stated that defendant would "grab me or rub me," and eventually he started touching "underneath my clothing." J.L. described defendant putting his fingers in her vagina and moving them in and out, and that later he "put his mouth on [her] vagina" and moved his tongue "all around." She felt "[t]rapped," "really scared," and "miserable." J.L. also described how defendant made her touch his penis by putting her hand down his pants after he "[p]lay[ed] with himself."

During one encounter, J.L. noticed a scar "between his hip and his penis." She stated that she did not know exactly how many times defendant touched her, but that she knew that it was more than once. She did not want to go to the prosecutor's office, and stated, "[i]f it was my choice I would have taken it to the grave."

C.L., then seventeen years old, testified that after defendant started dating her mother, he would babysit her after school. C.L. stated that defendant "would touch me over my clothes, touch my breasts, my vagina, and under my clothes. And he also penetrated me with his finger." She stated that this started "[a]t his house . . . ." Defendant started by acting "like he was doing it by accident. Like he would . . . brush against me." She testified that defendant would touch her under her clothing a "couple of times a week." Defendant then began using "his finger and penetrated my vagina . . . [and] moved it back and forth a little bit." According to C.L., defendant would "put his hands down his pants" and would make her put her hands down his pants. C.L. described how defendant would stop when someone was coming or when he ejaculated. The encounters with defendant made C.L. feel "uncomfortable and scared. . . . I told him to stop and I didn't like it and sometimes I would cry. . . . He would tell me to shut up or to be quiet. And he would just keep doing it."

Neither girl told anyone, including each other, about the abuse. They remained silent until 2001 when C.L. advised her psychologist. C.L. began using drugs when she was twelve years old. In 2001, she had a five-to-ten bag per day heroin habit when she underwent psychological counseling. When she told her counselor about the abuse, she assumed it would remain confidential. The psychologist told C.L. and her mother, however, that she would have to tell the Division of Youth and Family Services and/or the prosecutor's office.

Jane testified that when she and defendant first began dating, they would go out with all five children. Jane worked at a YMCA camp. Her hours were 9:00 a.m. to 2:30 p.m., September to December, and 9:00 a.m. to 4:30 p.m., January to August. She also attended college three nights per week from 6:00 p.m. to 9:30 p.m. A few months after they started dating, defendant began watching the children because of Jane's busy schedule. Defendant's work hours were from 2:30 a.m. to 2:30 p.m. until he went on disability in the fall of 1996, after which he stayed home. In the spring of 1997, Jane stopped attending classes, and began working until 4:30 p.m. each day. Jane testified that defendant had undergone hernia surgery sometime during their relationship. When asked, however, "[d]o you ever remember the defendant showing that scar to your children," she responded, "[n]o."

Sergeant Spiers testified that he was informed that J.L. had "observed a scar" on defendant, which was "towards the penis." Spiers subsequently verified that defendant had a scar in that location and photographed it.

Dr. Anthony D'Urso testified on behalf of the State as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). He testified generally about the "five sequence" behaviors that are part of the syndrome, namely: (1) secrecy; (2) helplessness; (3) entrapment, coercion or accommodation; (4) delayed disclosure; and (5) recantation. He stated that CSAAS is not a diagnostic tool, and that a child does not have to suffer from all sequences to be suffering from the syndrome.

After testimony by the State's CSAAS expert, defendant renewed his motion to cross-examine J.L. and C.L. about the prior acts of sexual abuse by their brother. In addition to his earlier arguments, defendant asserted that the State's presentation of the CSAAS expert and his testimony concerning the fourth factor as to why the victims waited so long to tell anyone opened the door. He argued that the evidence of prior abuse should be admitted because the underlying reasons for the CSAAS expert's analysis may not have been complete and as "an alternate explanation for why [the victims are] acting like this."

The judge reconsidered his prior ruling and granted defendant's motion, stating:

The evidence is relevant. In this case the defendant's defense is I didn't do it and the statements by the children are lies or fabrications. It's his right to bring that defense.

However, that defense is irrelevant in a case where at least one hand is tied behind defense counsel's back about what really happened. What was the . . . context of this whole situation? Should cross-examination be allowed? Should evidence be allowed to be presented? I think it's clear in this case that the relevance of the testimony of the abuse by the brother a year prior -- about a year prior to the alleged offenses with which [defendant] has been charged . . . is relevant.

It may have offered an opportunity for the witness to fabricate a story. It may have offered an opportunity for the witness to have the descriptive information available. In the family situation the relationship between . . . the alleged abuser and the mother of the children as well as the children may have been motivated by a failure of that relationship.

The judge then granted the State's request for a stay of his ruling while it sought emergent relief. R. 2:9-8. We denied the State's application for emergent relief, however, permitted it to recall and reexamine its witnesses to elicit responses to the testimony offered by defendant regarding prior sexual abuse. Eight days later, on April 22, the Supreme Court granted leave and summarily reversed the trial judge's order without prejudice to defendant's right to raise the issue on appeal if subsequently convicted.

Following the Supreme Court's remand, defendant's eighteen-year-old son, Matthew, testified. He stated that he did not remember seeing his father alone with C.L. or J.L., that Jane and his father would get into fights, and eventually they were escorted out of Jane's house by the police. He acknowledged on cross-examination that his own schedule kept him away from the house so he could not say defendant was never alone with the girls.

Defendant testified on his own behalf. He indicated that he had a scar as a result of hernia surgery. He claimed that, following his hernia surgery in 1996, everyone in the household knew he had a scar and wanted to see it. Defendant denied ever babysitting the girls in his house and denied ever acting inappropriately with either J.L. or C.L. The following exchange took place during the State's cross-examination of defendant:

Q. Would it be fair to say that you had a good relationship with [C.L.]?

A. I believe so, yes.

Q. So then why would [C.L.] three years after your relationship with Jane make up these allegations?

A. You have to ask her.

Q. So you have no . . . reason why [C.L.] would lie?

A. Can I answer that?

Defense counsel requested a sidebar and told the judge that he thought defendant would answer that "she was raped by her brother . . . ." The State asked for an N.J.R.E. 104 hearing outside the presence of the jury. When asked whether he knew of any reason why C.L. would lie, defendant responded, "because she didn't want to say who really did it." He was then asked, when he was first approached with the allegations in 2001, did he then know a reason for C.L. to lie. Defendant responded that he "gave them . . . three possibilities, that she's making up a total lie, either I did it or somebody else did it."

Following the 104 hearing, the State offered to withdraw the question. Defense counsel, however, responded that, regardless of whether the State withdrew the question, he had a right to cover the issue on re-direct because it was raised by the prosecutor's questions. The judge then ruled that defendant could answer the question as he did outside of the hearing of the jury that somebody else did it without mentioning the victims' brother. Citing the Supreme Court's directive, the judge precluded defendant from inquiring on re-direct as to who that someone else might be. After the jury returned, when asked by the prosecutor if he knew of any reason C.L. would lie, defendant responded, "[y]es, because she didn't want to say who really did it."

On appeal, defendant raises the following points:

POINT ONE

ON THE FACTS, DEFENDANT WAS SEVERELY PREJUDICED BY THE PRECLUSION OF EVIDENCE PROFFERED PURSUANT TO THE RAPE SHIELD LAW, REQUIRING THE REVERSAL OF HIS CONVICTIONS AND A NEW TRIAL.

POINT TWO

THE EXPERT TESTIMONY REGARDING CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME IN THIS CASE WAS UNDULY PREJUDICIAL, DEPRIVING DEFENDANT OF A FAIR TRIAL, AND REQUIRING THE REVERSAL OF HIS CONVICTIONS. (NOT RAISED BELOW.)

POINT THREE

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, REQUIRING THE REVERSAL OF HIS CONVICTIONS. (NOT RAISED BELOW.)

POINT FOUR

THE AGGREGATE LEGAL ERRORS BELOW DENIED DEFENDANT A FAIR TRIAL, REQUIRING A REVERSAL OF HIS CONVICTIONS. (NOT RAISED BELOW.)

We address these issues seriatim. Defendant first argues that preclusion of evidence of the victims' brother's abuse represented an improper application of the Rape Shield Law.

The Rape Shield Law protects victims from the humiliation caused by unwarranted public revelation of their prior sexual activity. State v. Budis, 125 N.J. 519, 528 (1991). N.J.S.A. 2C:14-7(c) and (d) proscribe the use of such evidence of previous sexual conduct "unless it is material to proving the source of semen, pregnancy or disease" or "probative of whether a reasonable person . . . would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of." Although traditionally the Rape Shield Law focused on precluding "character assignation[s]" by invading a victim's prior sexual experience, prior sexual abuse is considered "squarely within its ambit." State v. Ross, 249 N.J. Super. 246, 250 (App. Div.), certif. denied, 126 N.J. 389 (1991); see also Budis, supra, 125 N.J. at 529.

By contrast, the rights to confront and cross-examine are "among the minimum essentials of a fair trial . . . ." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973); accord State v. P.H., 353 N.J. Super. 527, 537 (App. Div. 2002), aff'd, 178 N.J. 378 (2004). Thus, there is unavoidable tension between the right of confrontation and the Rape Shield Law. Generally, where an examination of the competing interests reveals that its application would severely curtail a defendant's constitutional rights of cross-examination and confrontation, the Rape Shield Law must yield. State v. Cuni, 159 N.J. 584, 598 (1999); Budis, supra, 125 N.J. at 530-32; State v. Scherzer, 301 N.J. Super. 363, 417 (App. Div.), certif. denied, 151 N.J. 466 (1997).

In deciding whether the right to confrontation should prevail over the exclusionary rule of the Rape Shield Law, a trial court must engage in a two-part analysis to determine whether the evidence is relevant to the defense and, if relevant, whether its probative value outweighs its prejudicial impact. Cuni, supra, 159 N.J. at 600; Budis, supra, 125 N.J. at 532. If the answer to both questions is yes, the evidence may not be excluded under the Rape Shield Law. Cuni, supra, 159 N.J. at 600. "[O]nly in situations where the relevance and probative worth of . . . sexual experience are clear and substantial should the Rape Shield Law bend to the confrontation rights of the defendant." Cuni, supra, 159 N.J. at 608.

Placing significant reliance on Budis, defendant argues that J.L. and C.L. were not appreciably older than the child in Budis. He also asserts that the precluded evidence allowed the prosecutor to argue, effectively, that the emotional reactions the sisters demonstrated on the witness stand, together with the descriptive detail they provided, supported the conclusion that they must have endured the sexual abuse they attributed to defendant. He claims that the barred evidence of the previous sexual abuse "effectively deprived defendant of the opportunity to argue to the jury that the reason they were able to describe [the abuse] so vividly . . . and persuasively" was because they lived through it with their brother.

Utilizing the two-part test, we consider first whether the evidence sought by defendant is relevant. Cuni, supra, 159 N.J. at 601. Evidence is relevant if it has "a tendency . . . to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In Budis, the court observed, "[w]hen evidence is offered to show a child's knowledge of sexual acts, its relevance also depends on whether the prior abuse closely resembles the acts in question." Budis, supra, 125 N.J. at 533. Here, defendant dwells essentially on the similarity of the acts perpetrated by the brother and those allegedly performed by defendant. The likeness of the abuse, however, is only relevant if there is some question as to the child's knowledge of sexual acts or the like.

In Budis, the child victim was nine years old at the time she complained that defendant performed oral sex on two occasions. She had been similarly abused by her stepfather the year before. The defendant claimed that, on the first occasion, he woke up in the middle of the night with the child stroking and kissing his penis. He reacted by throwing her off of him. The defendant described the second incident occurring when he was changing into his bathing suit. According to the defendant, unbeknownst to him, she followed him into the room and started stroking and kissing his penis. He again pushed her away. Id. at 525-26.

Citing the tender age of the victim, the Court indicated that it doubted whether a child so young would have knowledge of the sexual activities she described, and thus the prior abuse by her stepfather was relevant to show her consequential knowledge. Id. at 534-36. Because "[t]he crux of the defense" was not that the victim "fabricated the incidents, but that she initiated them," the Court concluded that the defendant's claim that the victim knew how to initiate the sexual acts was "'exquisitely important . . . .'" Id. at 537 (quoting State v. Budis, 243 N.J. Super. 498, 510 (App. Div. 1990)). Moreover, in Budis, the State argued that the defendant's version was unbelievable because of the victim's age. Thus, the prior knowledge and the similarity of the prior abuse was all relevant, given the age of the victim, the defendant's version, and the theory of the State.

Here, by contrast, the victims first described the abuse in 2001, when they were both high school students, age fourteen and seventeen. Neither was of a tender age, nor can one say that their ages in today's world of movies, sexual education, television, the world-wide web, and magazines were such that either child would not possess knowledge of the acts they described when they first described them. Their descriptive trial testimony, characterized as persuasive by defendant, was given when they were seventeen and nineteen years of age. "As children mature, they likely will learn about sexuality from many sources." Id. at 533-34. The victims' knowledge of sexual conduct was not in issue. There was no evidence bearing upon their knowledge or ability to remember the abuse they suffered. There is nothing in the record to establish that they were either confused about who perpetrated the abuse they suffered or that they lacked sufficient knowledge of the type of conduct they described.

Moreover, the brother's admitted abuse is not relevant to prove or disprove the abuse they suffered from defendant, which began between one to two years later and spanned a two to three year period. Defendant's claim that the precluded evidence prevented him from proving that the offenses for which he was charged were perpetrated by someone else is unpersuasive. In order to succeed on the theory that the offense was committed by a third person, "there must be specific evidence linking the third-person [sic] to the crime." State v. Timmendequas, 161 N.J. 515, 620 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Simply stated, there is no such link.

Lacking relevancy, the admission of testimony concerning the prior abuse perpetrated by the brother has no probative value other than to "compel the admission of evidence that will distract the jury, obscure the issues, and create undue confusion," contrary to the confrontation clause. Cuni, supra, 159 N.J. at 604. "[E]vidence of prior sexual experience is less probative in cases involving older children." Budis, supra, 125 N.J. at 534.

Defendant's argument that the precluded evidence was probative to the issue of motive to fabricate or lie likewise lacks merit. Both the victims and their brother conceded that prior abuse occurred. There is nothing in the record to suggest that the victims sought to protect their brother by blaming defendant. Indeed, the entire gist of defense counsel's closing argument to the jury was that both girls were lying. He argued that C.L., an admitted heroin addict, was under the influence of drugs when she revealed the abuse for the first time to her psychologist and Sergeant Spiers. He asserted that J.L., who often times took care of C.L. in her mother's absence, lied to bolster C.L.'s lies and protect C.L. He maintained that defendant was being used as a scapegoat by the victims due to the failed relationship between defendant and the victims' mother. Defense counsel amply argued that evidence in the record bore upon the sisters' credibility. The prosecutor's remarks were in response to those very issues raised in defendant's closing. We are satisfied that the precluded evidence did not have a significant bearing upon credibility, but instead its overwhelming value was to "divert the jury's attention from the behavior of . . . defendant . . . ." Ibid. As such, it is not probative.

At oral argument on appeal, defendant asserted that the prosecutor opened the door to permit defendant to inquire further as to defendant's thoughts about why he believed C.L. had reason to lie. He argued that it was unfair to limit defendant's answer. We disagree. Defendant answered his question in the same way he answered it when it was asked outside the hearing of the jury. More importantly, the question and answer did not prejudice defendant, but instead suggested and permitted counsel to argue that there was another reason for supporting defendant's contention that C.L. was not telling the truth.

Defendant's next assertion, which he raises for the first time on appeal, that the CSAAS evidence was unduly prejudicial by "effectively and persuasively vouch[ing] for the credibility of [the] victims," is devoid of merit. He bases his assertion on the claim that Dr. D'Urso, as a witness, had a significant impact on the jury, notwithstanding his testimony that CSAAS is not "diagnostic" and the judge's appropriate instructions. Defendant did not object to D'Urso's testimony at the time it was given. Therefore, we review this contention in accordance with the plain error standard. R. 2:10-2.

A CSAAS expert is limited to dealing with the five traits that characterize Child Sexual Abuse Accommodation Syndrome, namely "secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction." State v. J.Q., 130 N.J. 554, 574-75 (1993). Although an expert witness is permitted to explain CSAAS and its characteristics, testimony must be carefully limited to explain that secrecy or delay in reporting sexual abuse may be typical post-sexual abuse behavior and bears no meaningful correlation to the fact of sexual abuse itself. Id. at 579. The testimony is not admissible as proof that a child was abused. Id. at 563-64. Accordingly, "[t]he expert should not be asked to give an opinion about whether a particular child was abused. . . . Care should be taken to avoid giving the jury an impression that the expert believes based on CSAAS . . . [that] a particular child has been abused." State v. Michaels, 264 N.J. Super. 579, 599 (App. Div. 1993), aff'd 136 N.J. 299 (1994).

Reiterating that the limited nature of CSAAS evidence "is . . . solely to rebut the natural tendency to question the credibility of a child witness who has been a victim of sexual abuse due to a delay in reporting," State v. R.B., 183 N.J. 308, 324 (2005), our Supreme Court recently summarized the purpose for introduction of CSAAS testimony, stating:

[E]xpert testimony may serve a "useful forensic function" when used in a rehabilitative manner to explain why many sexually abused children delay in reporting their abuse, or later recant allegations of abuse. That is, it helps to dispel preconceived, but not necessarily valid, conceptions jurors may have concerning the likelihood of the child's truthfulness as a result of her delay in having disclosed the abuse or sought help. . . . CSAAS expert testimony should be admissible to assist a jury in evaluating evidence about an alleged victim's post-assault conduct or behaviors when that conduct may be misperceived by jurors as inconsistent with the truthfulness of the claim of assault. Such testimony properly can be used to explain why a victim's reactions, as demonstrated by the evidence, are not inconsistent with having been molested. However, when CSAAS evidence is admitted, the jury must receive a specific instruction that such testimony does not answer the ultimate question whether the victim's molestation claims are true.

[Id. at 322-23 (quoting P.H., supra, 178 N.J. at 395-96.]

We have combed the record and are satisfied that D'Urso's testimony and the judge's instructions complied with the purpose and limitations required of CSAAS proofs. Defendant's contentions and supporting arguments to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). There was no error, much less plain error, that was clearly capable of producing an unjust result. R. 2:10-2.

We address defendant's last two points summarily. He asserts that he received ineffective assistance of counsel. He claims that counsel's cross-examination of the CSAAS expert was deficient because he failed to expand upon the testimony that CSAAS is "not diagnostic" and failed to adequately inquire into the victims' mother's lack of awareness that the claimed abuse was taking place between defendant and her daughters during the years she lived with defendant in her home. Additionally, he asserts that counsel was deficient in failing to call character witnesses.

We are satisfied from our review of the record that defense counsel's cross-examination neither fell below an objective standard of reasonableness nor prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Indeed, the jury was well aware of the facts that defendant now claims counsel failed to cover. Moreover, counsel adequately addressed those issues in his closing arguments.

The decision not to call character witnesses involves assertions and evidence beyond the trial record and is best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, defer further consideration. Finally, defendant's last point that aggregate legal errors requires a reversal of his conviction is rendered moot, given our conclusions here.

Affirmed.

 

N.J.S.A. 2C:7-1 to -19.

The amended judgment of conviction deleted the requirement that defendant serve a five-year period of parole supervision following incarceration because defendant's offenses occurred prior to the 2001 amendment to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We refer to the victim's mother using the fictitious name "Jane Doe."

N.J.S.A. 2C:14-7.

(continued)

(continued)

24

A-1075-04T5

RECORD IMPOUNDED

April 28, 2006