STATE OF NEW JERSEY v. J.D.

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0739-07T40739-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.D.,

Defendant-Appellant.

_____________________________

 

Argued December 2, 2008 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-11-1639.

John A. Young, Jr., argued the cause for appellant (Willis & Young, attorneys; Peter R. Willis, on the briefs).

Gina Giordano, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Ms. Giordano, on the brief).

PER CURIAM

On November 15, 2005, defendant J.D. was charged by a Hudson County Grand Jury under Indictment No. 05-11-1639 with having committed various acts of aggravated sexual assault and related offenses upon K.E., a girl, on diverse dates between April 19, 2000 and August 29, 2005, when K.E. was between ten and fifteen years old. Specifically, defendant was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Counts One and Four); four counts of endangering the welfare of a minor, N.J.S.A. 2C:24-4a (Counts Two, Five, Eight and Eleven); four counts of child abuse, N.J.S.A. 9:6-1 and -3 (Counts Three, Six, Nine and Twelve); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c (Counts Seven and Ten).

Defendant moved pre-trial to bar the admission of the Y-short tandem repeat (Y-STR) DNA test results, asserting that the probative value of the evidence was substantially outweighed by the risk of undue prejudice to him. N.J.R.E. 403(a). Before ruling on the motion, the trial court conducted a Frye hearing to determine the reliability of the Y-STR DNA test results. Following the Frye hearing on March 21, 2007, the court ruled that the DNA test results were admissible, determining that the method used to test the DNA sample taken from K.E. on August 30, 2005, was generally accepted by the scientific community; and that the probative value of the evidence was not substantially outweighed by the risk of prejudice to defendant.

Tried to a jury, defendant was convicted of one count of second-degree sexual assault (Count Ten) and one count of second-degree endangering the welfare of a child (Count Eleven). He was acquitted of all other charges, either by the jury or by the court. On September 28, 2007, the court denied defendant's motion for a new trial and sentenced him to a nine-year term of imprisonment on Count Ten and to a concurrent seven-year term of imprisonment on Count Eleven.

On appeal, defendant argues:

THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AS THE TRIAL COURT SIGNIFICANTLY RESTRICTED THE DEFENSE'S USE OF INCONCLUSIVE DNA TEST RESULTS AND CONSEQUENTLY DEPRIVED THE JURY OF HIGHLY RELEVANT AND MATERIAL EVIDENCE THAT HAD REAL POTENTIAL TO ALTER THE VERDICT IN THE CASE.

A. THE TRIAL COURT ERRED IN APPLYING THE NEW JERSEY'S RAPE SHIELD STATUTE BECAUSE, BY ITS OWN TERMS, IT IS NOT IMPLICATED HERE.

B. ASSUMING ARGUENDO THAT THE RAPE SHIELD STATUTE APPLIES, THE DEFENSE'S PROPOSED USE AND INTERPRETATION OF THE DNA TEST RESULTS WOULD NOT HAVE VIOLATED THE STATUTE.

We affirm.

I.

J.D. and C.D. (collectively, the D's) are K.E.'s godparents. K.E., born in 1990, was seventeen years of age at the time of trial. K.E. began sleeping overnight at the D's home at the age of five and continued to do so until age fifteen. K.E. alleged that when she was between the ages of ten and twelve, defendant digitally penetrated her vagina on numerous occasions, and when she was approximately twelve or thirteen years old, he had sexual intercourse with her.

The convictions in this case stem from an incident that occurred at approximately 1:00 a.m. on August 29, 2005, while K.E., then fifteen years old, slept with defendant's daughter Mary in the guest bedroom. According to K.E., defendant entered the bedroom while she was sleeping; awoke her; took her from the second-floor bedroom to the first floor living room where defendant kissed her on the lips and neck; requested that she remove her underwear; and had sexual intercourse with her. K.E. described defendant's kiss on her neck as him sucking on it. K.E. further testified that defendant did not ejaculate in her, but rather he pulled out and ejaculated on her buttocks. After completing sexual intercourse, they said goodnight, and K.E. returned upstairs to the guestroom where Mary was asleep. K.E. stayed at the D's house the following night and again slept in the guestroom with Mary. Nothing transpired between K.E. and defendant that evening.

On August 30, 2005, K.E.'s mother noticed a "hickey" on K.E.'s neck. K.E.'s mother questioned her regarding who had given it to her. Although K.E. refused to tell her mother what happened, K.E. informed her maternal grandmother that defendant had given her the hickey. In turn, K.E.'s grandmother informed her daughter, who contacted the police. Medical technicians and the police responded to the grandmother's residence. After an initial interview, K.E. was transported to Christ Hospital for an examination.

At approximately 7:00 p.m., a Jersey City police officer contacted Lieutenant Honey Spirito of the Hudson County Prosecutor's Office Special Victims Unit, and informed her of K.E.'s allegations. Spirito alerted the Sexual Assault Response Team (SART), requesting that Detective Maria Dargon respond to the hospital to investigate the matter. While at the hospital, Dr. Francis Pelliccia performed a sexual assault examination of K.E. at 8:30 p.m. The examination disclosed a superficial abrasion of the posterior fourchette. The doctor also performed a cervical swab, vaginal swab, and buccal swab of K.E. The swabs were placed into the sexual assault examination kit and delivered to Detective Dargon. The doctor found K.E.'s injury to the posterior fourchette consistent with the history of penile penetration.

On October 13, 2005, the New Jersey State Police Office of Forensic Sciences analyzed the vaginal and cervical swabs taken by Dr. Pelliccia. A forensic scientist used the STR methodology to analyze the vaginal and cervical swabs. He concluded that, although the samples contained K.E.'s DNA, "there was not enough sperm to form a conclusion about the male DNA present." The DNA samples were forwarded to Bode, and the same vaginal and cervical swabs were analyzed using the Y-STR methodology.

On January 16, 2007, the court conducted a conference on defendant's motion challenging the admissibility of the Y-STR DNA test results. The court scheduled a Frye hearing. On the same day, defense counsel announced that if the DNA test results were found admissible, he intended to introduce evidence that a third party may have been the source of the sperm found on K.E.'s vaginal swab. The court instructed counsel that if defendant intended to raise that issue, he must do so by filing a motion no later than February 5, 2007.

On March 21, 2007, the trial court conducted the Frye hearing at which Michael Cariola testified. Cariola testified that he had supervised the testing of the DNA samples taken from K.E, and that all appropriate protocols were followed in testing the samples. Tests were conducted on the vaginal and cervical swabs obtained from K.E. and then compared to the male DNA found on the buccal swab taken from defendant. The DNA could not be specifically matched to defendant. Instead, Cariola testified that similar results were present in 240 out of 4,004 samples or in 5.99 percent of the United States population. Accordingly, when compared with a database of other African-American males, this profile was observed in 7.58 percent of African-American males in the United States. Because the entire DNA sample was consumed during testing, defendant was not able to conduct his own DNA test.

Following the Frye hearing, the court ruled that the Y-STR methodology of testing DNA was scientifically reliable. Further, because it had been represented that K.E. was going to testify that J.D. sexually assaulted her, the court found "the fact that 94 percent of the male population can be excluded is somewhat corroborative of her testimony." After determining that the DNA test results had sufficient probative value outweighing any substantial prejudice to defendant, the court denied defendant's N.J.R.E. 403(a) motion.

After the court issued its ruling, defense counsel again raised the possibility that K.E. had engaged in sexual intercourse with an unnamed person who could have been the source of the male DNA. The court reminded counsel that a formal motion was required if he intended to question K.E. on issues involving the Rape Shield Law (RSL). The court granted defendant an additional ten days to file an in limine motion with advice that, unless filed within the ten days, it would be barred. No motion was filed.

On May 7, 2007, during a pretrial conference, defense counsel again raised the issue stating:

[B]ecause of a lack of certainty in this case, statistically, it would also be appropriate . . . to ask the victim whether or not she had any sexual relations between the time the event occurred and the time that she was swabbed . . . [a]nd [that is] not suggesting her promiscuity, [it is] not suggesting that she did or [did not], but it certainly is an appropriate question . . . when there [is not] an immediate medical exam . . . .

Defense counsel questioned K.E.'s credibility, stating that she had lied about not being sexually active, and that defendant's daughter could testify concerning comments made to her by K.E. indicating that K.E. was sexually active. Counsel argued that he intended to offer testimony as to K.E.'s prior sexual activities for "classic impeachment" purposes. The court responded that this appeared to be an effort to circumvent the RSL and that defendant had not filed a motion as previously instructed.

Counsel informed the court that he did not intend to file a motion under the RSL because he did not have any witnesses to produce at a hearing, not possessing a name, incident, or date of any event involving K.E.'s sexual activities at or about the time of the August 29, 2005 incident. The prosecutor informed the court that K.E. had been "asked on the sexual assault examination kit if she had consensual intercourse within the last five days," and she responded in the negative. At the end of the hearing, the court instructed defense counsel that if he intended to question K.E. about her prior or subsequent sexual activities, he would not only need a "good faith basis," but also need to file a brief by May 10, 2007.

Defense counsel again argued at a hearing on May 14, 2007, that defendant's daughter, as well as other witnesses, should be permitted to testify as to K.E.'s conversations regarding her sexual activities. Defendant's counsel proffered that witnesses would testify that K.E. lied to the police about not being sexually active; therefore, the testimony was relevant on the issue of K.E.'s general credibility, not her past sexual history. The court ruled that the proposed testimony was barred by the RSL, advising that testimony would not be admitted unless defendant produced specific evidence, by affidavits or otherwise, demonstrating that the evidence was sufficiently probative.

During trial, K.E. testified in accord with the previously described sexual incidents between her and defendant that had occurred since she was ten years old, including the August 29, 2005 incident. When questioned why she had not told her mother of the incidents, K.E. testified that "I didn't want it to break up the family." When asked why she kept going back to the D's house if defendant was sexually abusing her, she responded "[b]ecause I knew that if I stopped going somebody would realize that -- you know, they would think well, why isn't she going there anymore."

K.E. testified that at the time the August 29, 2005 incident occurred her best female friend was L.M., an individual known by her to be an admitted lesbian at the time of trial. Although she did not know L.M. was a lesbian in 2005, K.E. acknowledged that she and L.M. kissed or bit each other on the cheeks. However, she denied that she and L.M. ever engaged in any type of sexual activity, including touching of the other's breasts, vagina, or buttocks. When specifically questioned whether L.M. was the individual who had given her the hickey observed by her mother and grandmother on August 30, 2005, she testified that it was not given to her by L.M., but by defendant. Lastly, K.E. testified that she never had sexual relations or allowed anyone other than defendant to place a finger inside her vagina during the relevant timeframe.

L.M., eighteen years of age at time of trial, testified that she and K.E. had been best friends since approximately 2000. L.M. confirmed that K.E. had previously informed her that she and defendant were "having sexual intercourse" on several occasions, but that L.M. had not informed Detective Dargon of the prior complaints because she was nervous at the time she was interviewed by the detective. However, contrary to K.E.'s testimony, L.M. testified that she was the individual who had given the hickey to K.E. that was noticed by K.E.'s mother and grandmother. According to L.M., she and K.E. were at Liberty State Park on August 28, 2005, when she sucked on K.E.'s neck giving her the hickey. Although L.M. was aware that K.E. denied having a romantic relationship with her, L.M. considered K.E. to be her lover when they were sixteen years old. However, L.M. denied engaging in any sexual activities with K.E. other than kissing.

Dr. Richard Saferstein, a forensic science consultant, testified as an expert for defendant. Saferstein testified that:

In this particular case when one looks at the statistics based on the Bode database, one finds that these three markers are found in approximately 240 out of 4,004 or roughly close to six percent of the . . . Bode database.

What that all means when it comes down to it is that if you want to depend on that finding, there are . . . over ten million candidates in our country that would fit into that category. Given that type of possibility that there are ten million candidates, and also contrasting it with the typical type of DNA analysis that we generally get in a typical DNA case where we get one in hundreds of millions or one in billions. And obviously, this is nowhere near that.

Given that situation, and given the vast number of people that are candidates based on the Bode database, I've determined that [it is] not reasonable to conclude that this defendant . . . could be determined with reasonableness that this defendant's DNA was linked to the victim's vaginal secretion with a reasonable degree of scientific certainty.

At close of the evidence, the jury found defendant guilty of one count of sexual assault and one count of endangering the welfare of a child.

Defendant filed a motion for a new trial, arguing that the interests of justice required a new trial because the trial court erroneously interpreted the RSL to bar admissible, relevant evidence that was critical to his defense. Defendant contended that the court improperly applied the RSL because he sought to question K.E. about her sexual activities between the date of the alleged incident and her examination at Christ Hospital, and the law only applies to prior sexual conduct. In denying the motion, the court reasoned:

I understood this argument to be though since [the court] let that [DNA] evidence in, [j]udge, you should have permitted [defendant] to suggest that the semen that was found was from another man.

. . . .

And I think we also went around that several times and I instructed the defense on numerous occasions that if they wanted to file a motion under the [RSL] that they do so by date certain. And each of those dates . . . I let, you know, go by and heard the argument again. The bottom line is, is that there was no evidence that . . . was competent under the law for me to have admitted it. In fact, defense went off on a different tact, suggesting sexual conduct that could not have resulted in semen being deposited.

The statistical analysis was made clear to the jury by both Mr. Cariola . . . and Dr. Saperstein. Dr. Saperstein was permitted to testify at length in terms of the . . . statistics. So -- and counsel was permitted to argue at length about the relevance of the statistics.

What counsel was not permitted to do was suggest that the victim in this case had other male sexual partners who could have deposited that semen because there was no evidence to suggest that she had had sexual relations with a man within the required time period prior to the analysis -- prior to the specimen having been taken. So in that absence it would just have [flown] in the face of everything that the [RSL] stands for to allow counsel to suggest that the girl had multiple male sexual partners that could have deposited this specimen that was found and analyzed.

So if [that is] what this motion is about again, I say bring me the evidence that is needed to be done under the [RSL], which I gave defense ample opportunity to do on numerous occasions during the very lengthy pendency of these proceedings, that was never done.

II.

Defendant argues that the "trial court committed reversible error in limiting [his] strategy and cross-examination and in denying [his] motion for a new trial based on the DNA evidence and its critical influence on the ultimate issue of [his] guilt or innocence." Defendant contends that the court improperly applied the RSL and disregarded "the true meaning of the inconclusive DNA results and handcuffed [his] ability to establish [his] defense that another man may have been the source of the DNA."

A trial court's evidentiary rulings are reviewed by an appellate court using the abuse of discretion standard. State v. Jenewicz, 193 N.J. 440, 456 (2008). Therefore, "[a] trial court's determination on the admissibility of evidence . . . is entitled to great deference and ordinarily should not be disturbed unless it is 'wide of the mark.'" State v. Fortin, 189 N.J. 579, 597 (2007). The denial of a motion for a new trial is also reviewed under the abuse of discretion standard. State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004). The appellate court's "scope of review is limited to a determination of 'whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)). Deference will be given "to the trial judge's feel for the case since he [or she] presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." Ibid.

Usually, the appellate court will not "consider allegations of error not brought to the trial judge's attention." State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006). However, if the error or omission "is of such a nature as to have been clearly capable of producing an unjust result," then "the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2.

Defendant argues that the trial court improperly applied the RSL to bar him from introducing evidence of K.E.'s sexual activities after the alleged August 29, 2005 incident, but before K.E. reported the incident and was examined at Christ Hospital. We disagree.

The purpose and breadth of the RSL was recently reviewed by the Supreme Court.

This case requires us to consider the right of a defendant to present a possible defense at trial in the face of the [RSL], which protects a victim from unwarranted intrusions into his or her past. Under the [RSL], evidence of the victim's previous sexual conduct is presumed inadmissible at trial. We have explained that the overarching purpose of the [RSL] is to protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant. The [RSL] is designed to deter the unwarranted and unscrupulous foraging for character-assassination information about the victim and does not permit introduction of evidence of the victim's past sexual conduct to cast the victim as promiscuous or of low moral character. Those concerns apply equally to a child-victim.

[State v. Schnabel, 196 N.J. 116, 128 (2008) (internal citations and quotations omitted).]

The RSL "attempts to strike a balance between those competing interests by setting forth the limited circumstances in which evidence of a victim's previous 'sexual conduct' is admissible in the prosecution of a sexual assault case." State v. Garron, 177 N.J. 147, 166 (2003) (quoting N.J.S.A. 2C:14-7a to -7d), cert. denied, sub nom., New Jersey v. Garron, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). When applicable, a defendant "is required to make application for an in camera hearing to determine the admissibility of the evidence. Ibid.; N.J.S.A. 2C:14-7a. "At the hearing, the trial court must determine whether the evidence falls within one of the few exceptions to the general rule prohibiting the use of the victim's prior sexual conduct." Ibid. With these principles in mind, we turn to defendant's argument that the trial court improperly applied the RSL in this matter.

When construing a statute, the primary goal is to discern the Legislature's intent. State v. Gelman, 195 N.J. 475, 482 (2008). First, the actual words of the statute must be examined and given "their ordinary and commonsense meaning." Ibid. "Only if the statutory language is susceptible to 'more than one plausible interpretation' do we turn to such extrinsic aids as legislative history for help in deciphering what the Legislature intended." Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).

The RSL provides in pertinent part:

In prosecutions for . . . sexual assault, . . . [and/or] endangering the welfare of a child . . . evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly material and meets the requirements of subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.

[N.J.S.A. 2C:14-7a.]

Section c of that statute identifies the following exception:

Evidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease.

[N.J.S.A. 2C:14-7c.]

The RSL defines "sexual conduct" as "any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, sexual activities reflected in gynecological records, living arrangement and life style." N.J.S.A. 2C:14-7f (emphasis added).

The RSL prohibits a defendant from introducing evidence or cross-examining a victim at trial concerning the victim's "prior" sexual conduct. Garron, supra, 177 N.J. at 165. Although the RSL references "previous sexual conduct" in its first paragraph, N.J.S.A. 2C:14-7a, it defines "sexual conduct" as "including but not limited to previous or subsequent experience of sexual penetration or sexual contact." N.J.S.A. 2C:14-7f. Accordingly, the definition of sexual conduct in subsection a, when read together with the Legislature's desire to protect the rape victim's privacy by prohibiting the introduction of certain evidence at trial, indicates that the phrase not only applies to sexual activities that occurred prior to the sexual assault for which defendant is on trial, but to all non-relevant sexual conduct occurring after the assault and prior to trial.

Other jurisdictions with like statutes have similarly interpreted them to bar the introduction of any evidence, save exceptions in the statutes themselves, of the victim's previous sexual history prior to trial. United States v. Torres, 937 F.2d 1469, 1472 (9th Cir. 1991) (concluding that "the term 'past sexual behavior' as used in Fed. R. Evid. 412 [the Federal RSL] includes all sexual behavior of the victim of an alleged sexual assault which precedes the date of the trial") cert. denied, 502 U.S. 1037, 112 S. Ct. 886, 116 L. Ed. 2d 789 (1992); People v. Stull, 338 N.W.2d 403, 405 (Mich. App. 1983) (stating that Michigan's RSL, Mich. Comp. Laws 750.520j (2009); Mich. Comp. Laws Ann. 28.788(10) (2009), "not only bar[s] evidence of complainant's sexual activity prior to the alleged rape," but with two narrow statutory exceptions, it bars "evidence of all sexual activity by the complainant not incident to the alleged rape").

We are satisfied the trial court correctly exercised its discretion in barring defendant from introducing non-specific evidence concerning K.E.'s alleged sexual activities that might have occurred between the incident complained of and her examination at Christ Hospital. To have allowed defendant to introduce evidence through general and vague innuendos without first presenting concrete, specific evidence that K.E. had engaged in sexual activities with another male in that forty-three and one-half hour window would have subjected K.E. to the type of character assassination that the RSL was intended to prevent. State v. Budis, 125 N.J. 519, 533 (1991). The trial court offered defendant at least four opportunities to file a motion with supporting documentation. Three times defendant failed to do so. When defendant finally filed a brief, it was not supported by affidavits or certifications of what the proffered evidence would encompass.

III.

Defendant argues that even if the RSL is applicable to the facts of this case, evidence of K.E.'s sexual conduct with others was admissible under N.J.S.A. 2C:14-7c which provides that "[e]vidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen . . . ." In Point III of his reply brief, defendant contends that, even though "a formal motion to admit evidence of K.E.'s prior sexual conduct" was never filed, it does not defeat his challenge. This is so, according to defendant, because barring the evidence offered on procedural grounds violated his right of confrontation. The State counters that defendant never produced evidence to support his allegations that another source of the semen was possible, and therefore, he was properly barred from questioning K.E. about her prior sexual history under N.J.S.A. 2C:14-7c.

When a defendant is seeking to introduce evidence under N.J.S.A. 2C:14-7c, "he must apply for an order of the court before the trial or preliminary hearing." N.J.S.A. 2C:14-7a. The Court has held that enforcing this requirement is not contrary to either the United States or New Jersey Constitutions. See Garron, supra, 177 N.J. at 168-69. "A criminal defendant has the right 'to be confronted with the witnesses against him' and 'to have compulsory process for obtaining witness in his favor.'" Ibid. (quoting U.S. Const. amend. VI; N.J. Const. art. I, p. 10). However, such Constitutional rights "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedures designed to ensure the fairness and reliability of criminal trials." Id. at 169 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)). Therefore, although constitutional rights are involved, the defendant is still "required to make application for an in camera hearing to determine the admissibility of the evidence." Id. at 166.

As we held in State v. Rowe, a defendant must lay "the proper groundwork" in order to preserve the right to appeal a denial of a request to introduce evidence under N.J.S.A. 2C:14-7c. 316 N.J. Super. 425, 434 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999). During the pretrial hearing to determine the admissibility of evidence, defendant must specifically prove the points he intents to present at trial. See ibid. The motion should be supported by a certification or other evidence as to the circumstances of the sexual acts alleged. Id. at 436-37. "Absent unusual circumstances, the defendant may not rely on an attorney's 'certification,' no matter how detailed that hearsay document might be." Id. at 436.

The sufficiency of the evidence supporting the motion "is a matter that will rest in the sound discretion of the trial court," although the trial court will not make credibility determinations. Ibid. For example, see Garron, supra, 177 N.J. at 154, where the defendant produced five witnesses at the pretrial hearing to support his contention that evidence of his prior relationship with the victim was more probative than prejudicial.

Here, unlike Garron, defendant did not produce any certifications, affidavits, or witnesses in support of the legal arguments presented in his brief. When considered under the abuse of discretion standard, the record indicates that the trial court was not "wide of the mark" when it barred defendant from questioning K.E. Even without a formal motion, the court gave defendant various opportunities to present evidence to support his application. Nonetheless, the trial judge was not presented with any evidence from which to make a sufficiently informed determination as to the appropriateness of defendant's questioning of K.E.'s sexual history.

 
Affirmed.

Because of the sexual nature of the crimes, either initials or pseudonyms are used for the defendant, co-defendant, the victim and her family and friends.

Defendant's wife C.D. was charged as a co-defendant under the same indictment with endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Thirteen) and with child abuse, N.J.S.A. 9:6-1 and -3 (Count Fourteen), for failing to report K.E.'s allegations of sexual abuse by defendant. The State dismissed Count Fourteen, and C.D. was found not guilty by the jury of Count Thirteen.

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

On appeal, defendant neither challenges the methodology used in testing the DNA evidence, nor the reliability of the Y-STR test results. Thus, the following description of the Y-STR technique used to test the DNA evidence, as testified to by Michael Cariola, Vice President of Forensic Operations at Bode Technology Group (Bode), the company that performed the DNA testing on behalf of the State, will suffice for purpose of this opinion. Cariola testified at the March 21, 2007 Frye hearing that Y-STR testing follows the same methodology as the STR technique. For a discussion of the STR DNA methodology, see State v. Deloatch, 354 N.J. Super. 76 (Law Div. 2002). The difference is that the Y-STR methodology focuses on the Y-chromosome and is, therefore, more useful in cases where male and female DNA have mixed, and the female's DNA significantly outnumbers the male DNA. By isolating the Y-chromosome, the analyst can narrow down the number of individual males to whom the DNA belongs and thus exclude possible donors. Accordingly, the test is one of exclusion, not inclusion.

Defendant is an African-American male.

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

Although a copy of defendant's brief is not contained in the record, it appears that it was not accompanied by affidavits or certifications from the proposed witnesses as to any knowledge they had concerning K.E.'s sexual activities, and when such alleged activities occurred in relation to the August 29, 2005 incident.

(continued)

(continued)

25

A-0739-07T4

RECORD IMPOUNDED

July 20, 2009