STATE OF NEW JERSEY v. W.H.G.

Annotate this Case

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.H.G.,

Defendant-Appellant.

_____________________________________

October 10, 2014

 

Submitted March 26, 2014 Decided

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0337.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant W.H.G. was tried before a jury over a period of six days and convicted of two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and two counts of second degree sexual assault, N.J.S.A. 2C:14-2b. The victims were defendant's stepdaughters, who were ten and eight years old at the time the sexual assaults occurred in the summer of 2005.

After merging the second degree sexual assault convictions with the two convictions of first degree aggravated sexual assault, the court sentenced defendant to serve two consecutive terms of eighteen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), and two concurrent terms of ten years on the two convictions for second degree endangering the welfare of a child, for an aggregate sentence of thirty-six years, with an eighty-five percent period of parole ineligibility. The court also imposed a total of $6000 in penalties under the Sex Crime Victim Treatment Fund (SCVTF), created by the Legislature to "be used for the provision of counseling and treatment services to victims of specified sex offenses[.]" N.J.S.A. 52:4B-43.2a.

In this appeal, defendant argues the trial court erred in allowing a detective to testify about hearsay statements made by one of the victims shortly before the trial began in May 2011. Defendant also claims certain parts of the prosecutor's summation were highly improper and deprived him of his constitutional right to a fair trial. With respect to the sentence, defendant argues the length of the sentence imposed by the court was excessive and unduly punitive and the court erred in imposing a $6000 penalty under the SCVTF without first determining his ability to pay.

After reviewing the record developed before the trial court and being mindful of the prevailing legal standards, we discern no reason to overturn defendant's conviction. We also reject defendant's argument challenging the length of the custodial sentence imposed by the trial court. With respect to the $6000 penalty imposed by the court under the SCVTF, consistent with the Supreme Court's recent decision in State v. Bolvito, 217 N.J. 221, 223 (2014), we are compelled to remand this aspect of the sentence for the trial court to consider defendant's ability to pay the penalty during the term of his custodial sentence and after his release.

I

Defendant met his victims' mother, "Greta,"1 "online"2 in 2002. She was twenty-nine years old at the time and living with her parents. Greta had two girls from a previous relationship "Lori," who was seven years old at the time, and "Mary," who was five. Defendant was twenty-nine years old in 2003. Greta and defendant married in 2003, and soon thereafter purchased a house where all four would reside as a family. Indeed, Lori testified that during the time her mother was "dating" defendant before she married him in 2003, defendant treated her and her sister "like he was the father [we] never had."

According to Lori's and Mary's initial statements to law enforcement authorities, however, this fa ade of normal family life only concealed the reality of sexual abuse these two children endured from the man they regarded as their father. The issue first surfaced in November 2005, when Lori told her fifth-grade classmate, K.V., that her stepfather had sexually molested her. K.V. was sixteen years old and a sophomore in high school at the time she testified at defendant's trial in 2011. When asked directly by the prosecutor to repeat what Lori had told her six years earlier, K.V. responded: "She told me that her stepfather raped her." K.V. also testified that Lori asked her "not to tell anybody."

After overcoming the initial shock of her friend's disturbing revelation, and despite Lori's request to keep this terrible secret just between them, K.V. decided to tell her mother a few days later. As K.V. explained at trial, it was "[b]ecause I couldn't keep that a secret." K.V.'s mother immediately reported what her daughter had told her to the principal of the elementary school, who in turn notified the New Jersey Division of Youth and Family Services (DYFS or Division)3 and the local police department. In the early evening hours of November 28, 2005, Brenda Taylor, a Division caseworker assigned to the Special Response Unit (SPRU), received a formal referral from law enforcement to investigate the allegations of sexual abuse involving Lori and Mary.

Escorted by local police officers, Taylor visited the children's home at approximately 9:00 p.m. that same evening. Taylor first spoke privately with Greta. After getting Greta's permission, Taylor then spoke to Lori and Mary individually in the living room, which unfortunately did not have doors to provide a private and secure environment. Both girls initially denied that they were being sexually molested by defendant or anyone else. Despite these verbal assurances, Taylor noted that the children seemed guarded. Taylor also recommended in her report that the girls be re-interviewed at a future date "out of the home and outside the presence of the stepfather."

Following up on Taylor's recommendation, Division caseworker Saffiyah4 Baldwin interviewed the girls at their school on December 1, 2005. Baldwin testified at trial that Lori told her that defendant sexually abused her and her sister when they were at home alone with him while their mother was at work. According to Baldwin, Lori in particular told her that defendant "had told her that he would kill himself or that she would get in trouble if she was to tell on him. And that he would tell her mother that she made him do it." Despite defendant's threats and attempts at intimidation, Baldwin testified that Lori told her she did not want her stepfather "to go away" or "go to jail." In response to the prosecutor's question at trial, Baldwin denied ever pressuring Lori to incriminate defendant or saying to her that she and her sister would be taken away from their mother.

Baldwin also separately interviewed Mary at the school. In contrast to her older sister's somber mood, Baldwin described Mary's demeanor as "friendly and open." After engaging in general conversation covering innocuous, age-appropriate topics, Baldwin asked Mary what were her "favorite things about her stepfather." According to Baldwin, this line of questions caused Mary to tell her that her stepfather "had forced her to put his private part in hers. And that he would buy her new things if she did." From this point on, Baldwin testified that Mary described graphic details of sexual activity that is ordinarily beyond the scope of knowledge associated with an eight-year-old girl.

After completing her interview of the girls, Baldwin telephoned Greta at approximately two o'clock in the afternoon of December 1, 2005, and requested that she "immediately" go to her daughters' elementary school. The trial record reflects that Greta's testimony about Baldwin's telephone call appeared to be less than fully cooperative. Given the highly disturbing nature of Baldwin's revelations, Greta's recollection of the event that led to her being summoned by the Division caseworker that day was surprisingly sketchy. The following colloquy between Greta and the prosecutor illustrates this point

PROSECUTOR: Okay. And when you met with her at the school, the DYFS worker, did she explain to you why you were called to the school?

A: Not really. She said it concerned my daughters, and that was it.

PROSECUTOR: [Greta], again drawing your attention to your December 1st, 2005 statement, the fourth question and answer

"QUESTION: When you arrived at the school, who did you speak with?

ANSWER: I spoke to [Saffiyah]. She told me what my daughters had told her, that they had been touched by their stepfather on their private -- private parts. She told me everything, that they were touched by their stepfather for a long period of time and we have to come and see the prosecutor, and that is when we drove there."

PROSECUTOR: Is that right?

A: I - - I don't recall that statement.

PROSECUTOR: Okay. Well, after you talked to [Saffiyah] at the school, where did you go?

A: She took me to the principal's office.

PROSECUTOR: Okay. And after the principal's office, where did you go?

A: Then she said, I'm going to take you someplace that they're going to help you.

PROSECUTOR: Okay. So you didn't know you were going to the prosecutor's office.

A: I did not know.

PROSECUTOR: Okay. So you're saying today that you weren't aware that this -- the DYFS worker had been told by your daughters that your husband was sexually abusing them and that's why you were at school and that's why you were going to the prosecutor's office. You're saying no one ever told you that.

A: I don't recall her saying that.

PROSECUTOR: All right. So you just kind of blindly followed this woman to wherever she took you without knowing any information? Is that your testimony of what happened that day?

A: Well, it had to do with my daughters, so I was willing to do whatever it takes. So I just followed her.

PROSECUTOR: Where did you end up going?

A: She took me to the prosecutor's office.

As reflected in above exchange, Baldwin took Greta and the two girls to the Union County Prosecutor's Office on December 1, 2005, to be interviewed by detectives who specialize in child sexual abuse cases. In response to a detective's questions, Lori at first denied that defendant had ever attempted to insert or had actually inserted his penis into her vagina. She claimed he had only touched her vagina over her clothes with his fingers. At this point, the detective revealed to Lori that her younger sister, Mary, had told him that "she walked in one time and you were on top of him and you didn't have any pants on." Confronted with Mary's statement, Lori finally revealed the full scope of the molestation in graphically disturbing details.

This then ten-year-old girl described how the man she viewed and considered her father stripped her of her pants and attempted to have vaginal intercourse with her while she was straddled on top of him. Lori's initial statement concerning whether there was actual penile penetration can be characterized at some points as equivocal. However, as the interview continued, Lori gradually revealed sufficient details of this emotionally painful experience to support a finding that defendant actually penetrated her vagina with his penis.5

Despite being two years younger than Lori, eight-year-old Mary's account of the molestation she endured from her stepfather was far more graphic and direct. This child of tender years provided the detective who interviewed her devastatingly disturbing details of the sexual assault committed against her by defendant. These details are so graphic, that we decided not to describe them here. Suffice it to say, that if the statement Mary gave to law enforcement authorities on December 1, 2005 was accepted by the jury as reliable and credible, this evidence is more than sufficient to support defendant's conviction of first degree aggravated sexual assault.

Mary also told the detective that she suspected defendant had done to her sister, Lori, the same thing he had done to her. In response to the detective's questions, Mary gave the following description of what she did and saw when she walked into defendant's bedroom

MARY: And I was saying like, "Ah ha, you're cheating on mom," because I thought something was going on with them, and then I said, "what is happening?"

DETECTIVE: Okay.

MARY: And then my sister, she got off, grabbed her pants, went to, to my room and we talked about it. And she was saying that he pulled down her pants and got on top of him, but then my father said something else about it.

DETECTIVE: What did he say?

MARY: That they were playing a game, and then my dad touches my sister's private part and then he sticked [sic] it.

DETECTIVE: Okay. Then he sticked [sic] it, and when you say sticked it, what do you mean? Do you mean, do you mean, go ahead, you can tell me.

MARY: His penis in my sister's private part.

DETECTIVE: Okay, and you saw them on his bed?

MARY: Yeah. (Nods head yes).

DETECTIVE: And she was, her, she had no pants on?

MARY: She had no pants on.

DETECTIVE: Did you see his penis at that time?

MARY: Yes.

DETECTIVE: You did, okay. And tell me what you said to him again. You said to him something about cheating on mom.

MARY: Yeah. (Nods head yes).

DETECTIVE: What did you say exactly?

MARY: Like, "Ah ha, you're cheating on mom," because I didn't know what was happening, because they were like running upstairs and it was like, I wonder what's going on upstairs, and then I went upstairs quietly, and then I saw them.

. . . .

DETECTIVE: Well, how did the conversation go, what did you guys [Mary and Lori] say to each other?

MARY: That, I said to my sister, "Why did you do that, didn't you know that was bad?" And I never knew that, because only adult men and adult girls could do that, and not girls, like little girls.

DETECTIVE: You know you didn't do anything wrong, right?

MARY: Yeah.

Defendant did not return home from work on December 1, 2005. Greta told Union County Prosecutor's Office Detective Tim Durkin that she received a text from defendant at 8:57 p.m. on December 1, 2005, that stated: "Well, mommy, I love you very much. Take care of my baby."6 Based on Mary's account of what defendant did after he finished molesting her, the investigating detectives executed a search warrant of defendant's residence at approximately 9:30 p.m. that same day. The detectives were specifically searching for forensic evidence in the form of white socks allegedly used by defendant to wipe semen off his penis after engaging in or attempting to engage in sexual intercourse with the eight-year-old child.

As part of the State's investigation, Detective Durkin interviewed and took a sworn statement from Lori's fifth-grade teacher concerning the contents of the child's school journal, which contained a number of entries in Lori's handwriting describing the molestation and the emotional anguish she was experiencing at the time over these events. Specifically, Lori described feeling emotionally and psychologically tormented by the general upheaval and economic disruption her revelations against defendant had caused her entire family, and her mother in particular.

On December 15, 2005, both girls recanted the statements they had given to law enforcement authorities two weeks earlier accusing defendant of having had sexual relations with them. Lori in particular steadfastly maintained that she had concocted these insidious allegations because she was jealous of the time defendant spent with her mother; she thus allegedly made up this horrific tale to induce her mother to break up with him. Mary told the detective interviewing her that she was concerned for the safety of her then future baby brother. She also claimed that Lori threatened that unless she accused defendant of molesting her, "she'll tell my mom that I had a boyfriend in school."

Defendant's employer confirmed that defendant did not report to work the following morning on December 2, 2005. Detective Durkin called defendant on his cell phone that same day and was able to speak to him directly. Durkin informed defendant of the serious allegations of sexual abuse made against him by his stepdaughters. Durkin testified that defendant "sounded disoriented and extremely distraught." Defendant absconded immediately after the December 2005 text messages to Greta. His whereabouts remained unknown until he was located and apprehended by law enforcement authorities in the State of Arizona on November 5, 2009.

Defendant's trial started on May 26 and ended on June 8, 2011. The State called a total of fourteen witnesses, including Lori and Mary, who were by then sixteen and fourteen years old respectively, their mother, Greta, a number of law enforcement officers, DYFS caseworkers, other lay persons with relevant knowledge of the events, and two expert witnesses in the field of child sexual abuse.

The girls reaffirmed at trial the recantations they gave to law enforcement investigators nearly six years earlier. When the prosecutor confronted Lori with the journal she kept in school in 2005, in which she described the details of what defendant had allegedly done to her when she was ten years old, Lori, by then age sixteen, refused to look at the journal entries, stating: "I don't want to read it at all, out loud, to myself, nothing."

In her testimony before the jury, Greta admitted that in December 2005 she "probably" told her daughters that she would have to sell the house because defendant's absence made it economically impossible for the family to remain in their home. The State also called Lori's fifth-grade friend, K.V., and her fifth-grade teacher. The teacher testified that in November 2005, Lori came into the classroom appearing sad and pensive. When she approached her to inquire if anything was wrong, Lori confided to her that police officers and DYFS caseworkers had been to her home the previous night because "her stepdad had done sex stuff to her and [Mary]."

The principal of the elementary school corroborated the teacher's testimony describing Lori's emotional state at the time. He also testified about a conversation he had with K.V.'s mother on December 12, 2005.7 K.V.'s mother told the principal she was "concerned" because, according to K.V., Lori planned to lie to the police if she was asked any further questions about what defendant had done to her.

The trial court also admitted, without objection from defense counsel, Dr. Linda Shaw as the State's expert witness "in the field of child abuse pediatrics." In addition to being a practicing pediatrician, Dr. Shaw was at the time the Medical Director of the Dorothy B. Hersh Regional Child Protection Center.8 Dr. Shaw spoke with Greta and interviewed the girls individually on December 7, 2005. Dr. Shaw first spoke with Greta, who indicated that she was particularly concerned "that the family was in some state of crisis, specifically that there was concern about finances[.]" Dr. Shaw next interviewed Lori and gave the following response when asked to describe Lori's physical health

She denied that she had started her menstrual periods. [Lori was ten and a half years old at the time.] She mentioned that she had been concerned about while the problem was going on that she'd been concerned that she might be getting pregnant.

. . . .

She also mentioned that she was concerned that her body might be going through the changes of puberty early because of what had happened to her.

. . . .

She did say she mentioned a couple of things. She mentioned that she had felt like she was going to throw up when there was penile contact of her mouth. And she also mentioned that there had been penile contact of her genital area.

When asked by the prosecutor whether Lori had given her any "information that was relevant to her diagnosis and treatment of any potential mental or emotional health issues[,]" Dr. Shaw indicated that Lori was "worried" about school activities "where fathers were going to be involved." She was also "angry or mad at her friend [K.V.] that she had talked to that led to this being discovered or being discussed here today." Lori also told Dr. Shaw that her "mother was doing badly."

Finally, when asked whether she found any forensic or physical signs that Lori's vagina was actually penetrated by an adult penis, Dr. Shaw explained that young girls often refer to having had "penile contact with their vaginas" when they are actually referring to the area known as "the vaginal vestibule." Dr. Shaw further explained that "the vaginal vestibule [is] . . . a tissue that partially [covers] the vaginal opening, which is called the hymenal tissue. . . . [M]any times kids are talking about [the vaginal vestibule]; not necessarily it may be involving the vaginal opening; but not necessarily what we adults think of as contact of the vagina meaning inside the vagina."

Dr. Shaw also spoke to and examined Mary. Dr. Shaw testified that Mary "related that there had been contact of her mouth by penis, of her chest by mouth, of her genital area by fingers and penis. And that there had been discomfort associated with a touching." Her physical examination of Mary yielded the same information and anatomical findings as her examination of Lori. Dr. Shaw concluded her direct testimony by noting that the research and medical literature in the field of child sexual abuse has found "that it's less than five percent of children have specific findings of the anogenital area who allege contact."

The State's other expert witness was Dr. Alejandra Morales, a psychologist and Director of a child and adolescent out-patient clinic in the Department of Psychiatry of the Trinitas Regional Medical Center. The court admitted Dr. Morales as an expert in the field of child sexual abuse accommodation syndrome (CSAAS).9 On cross-examination, defense counsel emphasized that CSAAS is "a collection of patterns" of children exhibiting certain behavior. Psychologists do not, however, consider CSAAS as being determinative of whether abuse occurred.

The final witness to testify for the State was one of defendant's coworkers on December 1, 2005. He testified that defendant received a telephone call at lunch time that day that "something went down at home." After the call ended, the coworker suspected something was amiss, and he asked defendant whether "something was wrong." He told defendant, "if you got to go, just go. That was the last time I saw him."

Defendant did not call any witnesses in his own defense.

II

Against this record, defendant now appeals raising the following arguments

POINT I

COURT ERRED IN ALLOWING DURKIN'S TESTIMONY REGARDING L.P.'S APRIL 26, 2011 STATEMENT UNDER N.J.R.E. 803(c)(3) THE STATE OF MIND EXCEPTION TO THE HEARSAY RULE. (Partially Raised Below)

POINT II

THE PROSECUTOR'S MISCONDUCT IN SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., Art. I, Par. 1, 9, and 10. (Not Raised Below)

POINT III

THE COURT ERRED IN IMPOSING $6000.00 IN SEX CRIME VICTIM TREATMENT FUND FINES WITHOUT CONSIDERING [W.H.G.'S] ABILITY TO PAY THAT ASSESSMENT. (Not Raised Below)

POINT IV

THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

We reject these arguments and affirm. Defendant argues in Point I that the trial court erred in allowing Detective Durkin to testify about a conversation he had with Lori on April 26, 2011, in which she allegedly told him that "she's been praying and praying and that she's forgiven the defendant." The trial court admitted these statements as a state-of-mind exception to the hearsay rule under N.J.R.E. 803(c)(3), which excludes from the bar against hearsay evidence

A statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

We start our analysis by noting that Lori testified at trial and was subject to cross-examination by defense counsel. Although called by the State in its case-in-chief as one of the two child victims in this case, Lori had recanted the accusatory statements she made against defendant on December 1, 2005, and thus clearly met the definition of a "hostil[e] or unresponsive[] witness" under N.J.R.E. 611(c), permitting the prosecutor to conduct her direct examination through leading questions, "subject to the discretion of the court." Ibid. Here, the prosecutor confronted Lori during her direct examination with the April 26, 2011 statement she made to Detective Durkin. The following exchange between the prosecutor and Lori during direct examination captures her level of resistance and hostility, within the meaning of N.J.R.E. 611(c)

Q: [D]id your stepfather ever touch you in a way that made you feel uncomfortable or that made - - that you didn't like?

A: I don't - - I don't remember. I don't know.

Q: You don't remember?

A: I don't remember.

Q: Well, let me ask a more specific question. Was there ever a time that your stepfather touched you on your vagina with either his hand or his penis?

A: I don't remember. I really don't.

Q: Well, do you want to be here today?

A: No.

Q: Is this stuff hard to talk about?

A: No, it's not hard to talk about. It's just I don't - - I don't remember.

Q: Are you saying you don't remember because you truly don't remember or because you don't want to remember?

A: I really don't remember.

. . . .

Q: [Lori], let me ask you this. Do you remember last month talking to Detective Durkin and me at your home . . .?

A: Yes.

Q: Okay. How long were we at your house?

A: Oh, an hour maybe.

Q: What were we talking about?

A: About today.

Q: About these allegations against your stepfather?

A: Yeah.

Q: What did you tell us about these allegations against your stepfather?

A: That I didn't want to be here and that - - I don't want to be here and didn't want to come.

Q: Did you tell us that you forgive him?

A: Yeah, I did.

Q: What else did you tell us besides that?

A: Nothing else. I said I forgave him. I forgave him - - I - - I - - there was a point where I hated him because I grew up without my father and seeing him taking my mother away and marrying my mother, I felt like I was losing her. But then I grew older, and I - - and I got attached to him, and I realized that he was there, that he was - - he just wanted to be a father to us, and I forgave - - I ended up forgiving him for marrying my mom.

Against this backdrop, the State called Detective Durkin to rebut Lori's trial testimony that she forgave defendant for marrying her mother, not for having sexually assaulted her and her younger sister. As Detective Durkin explained to the jury: "She said she's gotten on with her life. She wants to put all this stuff behind her."

In State v. McLaughlin, 205 N.J. 185 (2011), the Court made clear that "to be admissible under the state of mind exception to the hearsay rule, the declarant's state of mind must be 'in issue.'" Id. at 206 (internal citations omitted). After this threshold determination is satisfied, we must then ascertain whether: "a) the statement reflects a mental or physical condition of the declarant which constitutes a genuine issue in the case or b) the statement is otherwise relevant to prove or explain the declarant's conduct." Ibid.

Here, Lori's state of mind was directly and unmistakably at issue. Detective Durkin's statement was thus necessary for the jury to appreciate the pressure this then sixteen-year-old child was under and determine what effect if any that may have on the credibility of both her in-court testimony and her 2005 accusatory statement. The trial judge thus correctly ruled to admit this evidence under N.J.R.E. 803(c)(3).

We next address defendant's argument in Point II attacking the prosecutor's remarks during her summation concerning the credibility of certain witnesses. Defense counsel's failure to object at the time of trial requires us to review this argument under the plain error doctrine. R. 2:10-2. Under this standard, we must find that the error or omission "is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. See also State v. Ross, 218 N.J. 130, 143 (2014). Here, not only is there no basis to conclude the prosecutor's remarks during summation amounted to plain error, we are thoroughly convinced that defendant's argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's argument in Point III concerns the trial court's imposition of penalties under the SCVTF, N.J.S.A. 2C:14-10. The record shows the court imposed two $2000 penalties and two $1000 penalties, for a total of $6000, without first ascertaining defendant's ability to pay. In Bolvito, supra, the Court identified "two factors that should be considered in a sentencing court's application of N.J.S.A. 2C:14-10." 217 N.J. at 233. The court should first consider the nature of the offense. Ibid. Second, in setting the SCVTF penalty, the court "should consider the defendant's ability to pay[.]" Id. at 234. As the Court emphasized

An uncollectible SCVTF penalty provides no treatment for crime victims and their families. If a substantial penalty is assessed against a defendant who has no realistic prospect of satisfying it, that penalty is destined to become an unsatisfied judgment that benefits no one. In contrast, a penalty below the statutory maximum that is paid over time from a defendant's modest income may impose a more meaningful punishment than a higher penalty assessed against a defendant of substantial means.

[Ibid.]

Because the trial judge sentenced defendant before the Court decided Bolvito, he did not have the benefit of the Supreme Court's analysis of this recently enacted statute. We thus vacate the $6000 penalties under the SCVTF, N.J.S.A. 2C:14-10, and remand for the trial judge to apply the standards established in Bolvito in determining the amount of these mandatory penalties. Defendant's arguments attacking the remaining aspects of his sentence, including the custodial part, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's conviction is affirmed. The matter is remanded for the limited purpose of permitting the court determine anew the amount of penalties under the SCVTF, N.J.S.A. 2C:14-10. We do not retain jurisdiction.


1 This name and the names we use in this opinion for the two victims are fictitious. We do this to safeguard their identity and protect their privacy. N.J.S.A. 2A:82-46a; State v. Harris, 141 N.J. 525, 534 (1995).

2 Although Greta did not explain what she meant by having met defendant "online," we infer from this cryptic statement that the two met through some type of internet dating service.

3 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of DYFS as the "Division of Child Protection and Permanency." L. 2012, c. 16, eff. June 29, 2012. N.J.S.A. 9:3A-10b.

4 In its brief before this court, the State identifies the name of this Division caseworker as "Safiyyah Baldwin." In the course of conducting Greta's direct examination, the prosecutor referred to this same person as "Sophia Baldwin." However, in the transcript of her trial testimony, Baldwin spelled her first name "S-a-f-f-i-y-a-h." We have therefore decided to use the name "Saffiyah," as spelled by the witness herself.

5 Sexual penetration, whether penile or by other means such as digital, is an element of first degree aggravated sexual assault. N.J.S.A. 2C:14-2a(1); N.J.S.A. 2C:14-1(c).

6 Greta was pregnant at the time with defendant's baby. The child, a boy, was five years old at the time this case came to trial in 2011.

7 The court granted the State's motion to admit the substance of the conversation as exceptions to the hearsay rule under N.J.R.E. 803(c)(5), a written account of the conversation made by the principal in his own handwriting at the time the conversation took place, and under N.J.R.E. 803(c)(6) as a writing kept by the principal in the regular course of his duties and function as the chief administration of the elementary school.

8 As described on its website, "[t]he Dorothy B. Hersh Regional Child Protection Center, a program of The Children s Hospital at Saint Peter s University Hospital since 1998, serves the seven counties of Hunterdon, Mercer, Middlesex, Monmouth, Ocean, Somerset and Union. The Center s mission is to provide evaluative and therapeutic services to families affected by child abuse, and field expertise to the New Jersey Department of Child Protection and Permanency (formerly known as the Division of Youth and Family Services), the state Prosecutor s Office and other professionals involved with child maltreatment cases. The Center is made up of a multidisciplinary staff that includes pediatricians, social workers, psychologists and nurses with specialized training. Our professional staff works collaboratively to effectively intervene in child abuse and neglect cases." About the Dorothy B. Hersh Regional Child Protection Center, St. Peter's Healthcare Sys., http://www.saintpetershcs.com/News-and-Events/News/2013/About-Child-Protection-Center/ (last visited Sept. 27, 2014).

9 "The use of Child Sexual Abuse Accommodation Syndrome (CSAAS) expert testimony is well settled." State v. W.B., 205 N.J. 588, 609 (2011). In State v. J.Q., 130 N.J. 554 (1993), the Court permitted expert testimony in the area of CSAAS in order to "explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred." Id. at 579.