STATE OF NEW JERSEY VS. C.E.L. (11-03-0672, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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  •                              RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5783-13T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    C.E.L.,1
    Defendant-Appellant.
    ___________________________
    Argued October 19, 2017 – Decided August 31, 2018
    Before Judges Simonelli, Haas and Rothstadt.
    On appeal from Superior Court of New Jersey,
    Law Division, Bergen County, Indictment No.
    11-03-0672.
    Louis H. Miron, Designated Counsel, argued the
    cause for appellant (Joseph E. Krakora, Public
    Defender, attorney; Louis H. Miron, on the
    briefs).
    Annmarie Cozzi, Senior Assistant Prosecutor,
    argued the cause for respondent (Gurbir S.
    Grewal, Bergen County Prosecutor, attorney;
    Annmarie Cozzi, of counsel and on the brief).
    1
    Because this matter involves the sexual assault of defendant's
    minor daughter, we use initials to identify those individuals
    involved in this matter pursuant to Rule 1:38-3(c)(9) and N.J.S.A.
    2A:82-46.
    PER CURIAM
    Following a jury trial, defendant C.E.L. was convicted of
    first-degree aggravated sexual assault of a victim less than
    thirteen years (his four-year-old daughter, C.L.), N.J.S.A. 2C:14-
    2(a)(1) (count one); second-degree sexual assault of a victim less
    than thirteen years old,      N.J.S.A. 2C:14-2(b) (count two); second-
    degree sexual assault of a victim less than thirteen years old,
    N.J.S.A. 2C:14-2(b) (count three); second-degree sexual assault
    of a victim less than thirteen years old, N.J.S.A. 2C:14-2(b)
    (count four); second-degree endangering the welfare of a child,
    N.J.S.A.     2C:24-4(a)      (count    five);      third-degree       hindering
    prosecution by preventing or obstructing the child victim from
    providing testimony or information that might aid in his discovery
    or apprehension or in the lodging of a charge against him, N.J.S.A.
    2C:29-3(b)(3) (count six); fourth-degree endangering the welfare
    of a child by possessing or viewing child pornography, N.J.S.A.
    2C:24-4(b)(5)(b) (count seven); and fourth-degree tampering with
    evidence by attempting to delete images of child pornography from
    a   computer,   with   the    purpose       of   impairing   its     verity    or
    availability in an official proceeding or investigation, N.J.S.A.
    2C:28-6(1) (count eight).
    The trial judge denied defendant's post-trial motion for
    judgment   of   acquittal    or   a   new   trial.    The    judge    sentenced
    2                                A-5783-13T1
    defendant to a fifteen-year term of imprisonment on count one; a
    consecutive term of seven years on count two; concurrent terms of
    seven years on counts three, four, and five; a consecutive term
    of three years on count six; a consecutive term of one year on
    count seven; and a concurrent term of one year on count eight.
    Megan's Law, parole supervision for life, and the No Early Release
    Act (NERA), N.J.S.A. 2C:43-7.2, applied to various counts.              Thus,
    defendant's    aggregate   sentence       was   twenty-six   years,   with    a
    twenty-two-year period of parole ineligibility.
    On appeal, defendant raises the following contentions:
    I.     THE TRIAL COURT ERRED IN ADMITTING THE
    [STATE v. MICHAELS, 
    136 N.J. 299
     (1994)]
    INTERVIEW INTO EVIDENCE AND PERMITTING
    THE JURY TO REVIEW THE VIDEO RECORDING
    FOUR   TIMES   DURING  THE   TRIAL   AND
    DELIBERATIONS.
    A.   The Recording of the Michaels
    Interview Should Have Been Ruled
    Inadmissible Based Upon the
    Totality    of     Circumstances,
    Particularly      Where     C.L.'s
    Statements      Following      the
    Suspicious   and     Inexplicable
    "Blackout"       Period       Were
    Materially      Different      and
    Diametrically Opposed to Every
    Other Statement Made by C.L.
    Prior    To    and    After    the
    "Blackout" Period.
    B.   The Trial Court Should Not Have
    Permitted the Jury to Review the
    Michaels Interview Recording on
    Four Separate Occasions During
    3                               A-5783-13T1
    the Trial and Deliberations in
    Violation of [State v. Burr, 
    195 N.J. 119
     (2008)] and its Progeny
    Because It Resulted in The
    Jury's Giving More Weight to
    C.L.'s Statements After the
    "Blackout" Period Than to C.L.'s
    Testimony During Trial.
    II. THE TRIAL COURT ABUSED ITS DISCRETION
    WHEN IT RULED THAT [DEFENDANT] WOULD
    NOT BE PERMITTED TO USE THE AUDIO
    RECORDINGS MADE BY [DEFENDANT'S] WIFE,
    M.L., AT THE AUDREY HEPBURN CHILDREN'S
    HOUSE   AND   THE   EXCLUSION OF   THE
    RECORDINGS VIOLATED [DEFENDANT'S] DUE
    PROCESS RIGHTS AND HIS SIXTH AMENDMENT
    RIGHT TO CONFRONTATION.
    III.    THE TRIAL COURT SHOULD HAVE GRANTED
    [DEFENDANT'S] MOTION FOR A MISTRIAL OR
    A CONTINUANCE UPON LEARNING THAT THE
    STATE DID NOT PRODUCE THE DISCOVERY
    CONCERNING [W.K.'s] CELL PHONE, WHICH
    CONTAINED    SIGNIFICANT    IMPEACHMENT
    INFORMATION     ABOUT    [W.K.]     AND
    EXCULPATORY EVIDENCE FOR [DEFENDANT],
    UNTIL DURING THE TRIAL.
    IV.    THE TRIAL COURT ERRED IN FAILING TO
    INSTRUCT    THE   JURORS    FULLY   AND
    ADEQUATELY CONCERNING THEIR [AVOIDING]
    EXTRANEOUS INFORMATION FROM OUTSIDE OF
    THE COURTROOM AND IN FAILING TO VOIR
    DIRE THE JURORS UPON THEIR RETURNING TO
    THE COURTROOM FOR TRE TRIAL MORE THAN
    ONE MONTH AFTER THE JURY HAD BEEN
    SELECTED. [(Not raised below).]
    V.     THE [TRIAL] COURT ABUSED ITS DISCRETION
    IN DENYING [DEFENDANT'S] MOTION [TO]
    SEVER THE SEXUAL ASSAULT COUNTS (ONE
    THROUGH SIX) FROM THE COUNTS RELATING
    TO THE CHILD PORNOGRAPHY (SEVEN AND
    EIGHT).
    4                        A-5783-13T1
    VI. THE TRIAL COURT ERRED IN NOT GRANTING
    [DEFENDANT'S] MOTION TO DISMISS THE
    INDICTMENT BECAUSE THE STATE FAILED TO
    PRESENT MATERIAL EXCULPATORY EVIDENCE
    TO THE GRAND JURY.
    VII. THE TRIAL COURT ABUSED ITS DISCRETION
    IN DENYING [DEFENDANT'S] MOTION FOR
    JUDGMENT OF ACQUITTAL AND FOR A NEW
    TRIAL OR, ALTERNATIVELY, [DEFENDANT'S]
    CONVICTION SHOULD BE VACATED AND THIS
    COURT SHOULD ORDER A NEW TRIAL BASED
    UPON THE CUMULATIVE EFFECT OF THE TRIAL
    COURT'S ERRORS THROUGHOUT [DEFENDANT'S]
    PRE-TRIAL PROCEEDINGS AND THROUGHOUT
    HIS TRIAL.
    VIII.    THE TRIAL COURT ABUSED ITS DISCRETION IN
    SENTENCING   [DEFENDANT]   TO   SUCH   A
    DRACONIAN AND UNJUST SENTENCE BASED UPON
    THE RECORD AND, THEREFORE, [DEFENDANT'S]
    SENTENCE SHOULD BE VACATED.
    We reject these contentions and affirm.
    I.
    Trial Testimony Relevant to the Issues
    Raised On Appeal
    On October 6, 2010, C.L.'s nanny, W.K., was caring for C.L.
    and her brother, E.L., while defendant and the children's mother,
    M.L., attended a baseball game.    W.K. testified she began working
    for the family in May or June 2010, but knew them for much longer
    because her mother and cousin preceded her as the children's nanny.
    That afternoon, the children had an after-school playdate at their
    home with some friends.    The friends' father, J.M., stayed for the
    playdate and looked after the children with W.K.         At some point
    5                            A-5783-13T1
    C.L. defecated in her underpants, so W.K. took her upstairs to
    shower. W.K. testified that C.L. frequently urinated and defecated
    in her underpants, and she always had to be very gentle with C.L.
    because she was unusually sensitive and never liked to be wiped
    in her genital area.
    Before taking C.L. out of the shower, W.K. asked if anybody
    had ever "touched her there [meaning the genital area] on the
    playground or in school[.]"      W.K. had twice asked C.L. this
    question in the past because of her concern about C.L.'s unusual
    objections to being wiped, and C.L. said "no" each time.        This
    time, however, C.L. hesitated and was silent for a few seconds.
    Then, looking at her feet, she said "yes, Daddy does."
    W.K. froze and pretended not to hear what C.L. said because
    it was so unexpected.   She told C.L. she was going to get her new
    underwear and they would go back to play.        She then got C.L.
    dressed and they went downstairs to rejoin the playdate.        W.K.
    remained shocked and told J.M. what C.L. said.   J.M. suggested she
    speak more with C.L., and expressed that maybe C.L. simply meant
    her father sometimes wiped her too hard.
    Later that evening, W.K. took the children upstairs for E.L.'s
    shower.    While E.L. showered, W.K. spoke to C.L. in her parents'
    bedroom.    C.L. answered "no" when W.K. asked if she remembered
    what she told W.K. earlier and if she meant that her daddy washed
    6                          A-5783-13T1
    or wiped her.   W.K. then asked C.L. "when does that happen?," and
    C.L. answered "usually, when nobody is home."       W.K. asked where
    her mother and brother were, and C.L. said they were "out shopping
    or something like that."    C.L. was behaving normally while she
    spoke and at some point jumped off her parents' bed and began
    walking around.
    W.K. then asked C.L. if she could tell her what her daddy
    does.   C.L. climbed back on the bed and said "Daddy tell[s] me to
    take the winky into my hands and go really, really, really,
    fast[,]" moving her hands quickly up and down while making this
    disclosure. "Winky" was C.L.'s word for penis.2       C.L. then came
    close to W.K., as if she were going to whisper in her ear, and
    said "I'll tell you something."       W.K. asked "what happened?" and
    C.L. said "I don't know what's inside; and she pointed on the
    private area; but, something white comes out."      C.L. then started
    giggling and W.K. giggled with her.     C.L. then pointed to the left
    side of her parents' bed, indicating it happened there.
    W.K. asked if there was anything else, and C.L. said "Daddy
    puts medicine on his winky."    C.L. then started looking for the
    medicine, which she found in a nightstand on her mother's side of
    the bed.   She showed it to W.K., who saw it was a tube of KY
    2
    The word is spelled winky or winkie, interchangeably, throughout
    the record, and sometimes the word "weenie" is used instead.
    7                           A-5783-13T1
    lubricant.     While C.L. made these statements she was acting
    normally, no differently than if she were telling her something
    that happened at school.         W.K. then asked if there was anything
    else, and C.L. took W.K. by the hand and led her to the doorway
    of her bedroom. C.L. pointed to her bed and said that "last Sunday
    she took winky to her mouth.        And she went ill."
    W.K. brought C.L. back to her parents' bedroom, sat on their
    bed, and told C.L. "you know that Daddy's not supposed to do this."
    C.L. responded "yes, Daddy told me that it was wrong" and she
    "should not say anything to Mommy.            Because she would throw me and
    Daddy out of the house."         C.L. got quiet for a second, and then
    said to W.K., "But you won't; right?," to which W.K. answered "no;
    of course not."
    At this point, E.L. exited the shower and W.K. put C.L. in
    the shower.    W.K. put the children to bed after they showered and
    were in their pajamas.          W.K. then spoke to J.M., who testified
    that W.K. seemed "upset" and "shaken" by what C.L. told her.                     He
    advised her to act as normally as possible when the children's
    parents came home, explaining he did not want them to coach C.L.
    or tell her not to repeat what she told W.K.                W.K. followed J.M.'s
    advice and did not speak with M.L. about what C.L. told her,
    explaining    she   did   not    think       M.L.   would    believe   C.L.   over
    defendant.
    8                                A-5783-13T1
    After leaving defendant's home that night, W.K. went to J.M.'s
    home and he gave her a cassette recorder to document what C.L.
    said.    However, W.K. never recorded or wrote down anything.     J.M.
    also told W.K. that he would speak with a friend of his who was a
    police officer to ask for advice.
    The next day, W.K. returned to defendant's home to work.
    After dropping E.L. off at school, she allowed C.L. to play at the
    playground.    She then took C.L. to her mother's house and then to
    a nearby park.     W.K. did not speak to C.L. about anything they
    discussed the previous day, but spoke with her mother about the
    situation.
    Meanwhile, that morning J.M. went to the police and told
    Sergeant Daniel Kellogg what occurred the previous day, including
    C.L.'s disclosures of sexual abuse.     He did not identify W.K. or
    C.L. by name because he was friendly with defendant and his family,
    and W.K. was frightened to speak with the police.       Kellogg told
    J.M. he had to speak with the child and her nanny immediately.       He
    also advised J.M. not to use the tape recorder, and asked him to
    contact the nanny and encourage her to contact him, which J.M.
    did.
    Kellogg then contacted the Bergen County Prosecutor's Office
    (BCPO) regarding how to proceed.      He was advised to identify the
    child and have her brought to the Audrey Hepburn Children's House
    9                           A-5783-13T1
    (AHCH) to be interviewed.3
    Kellogg subsequently received a call from W.K. She identified
    herself as the nanny J.M. spoke to him about, and told Kellogg
    what C.L. had told her.      Kellogg asked to meet with her so that
    the BCPO could conduct an investigation; however, she would not
    reveal her identity or agree to meet. She testified she was scared
    to put the children through an investigation or have them taken
    away from their parents when she "didn't know if it was even true."
    Kellogg gave W.K.'s cell phone number to the BCPO, which
    provided him with her name and home address. Kellogg then searched
    for W.K. in the Police Department's in-house record management
    system and discovered she had been involved in a minor motor
    vehicle accident eight days earlier, with E.L. and C.L. in the
    vehicle.
    Kellogg called W.K. and told her he knew her name and address,
    knew the family she worked for, and needed to speak with her that
    day.   Kellogg also contacted M.L. and told her to meet him at the
    AHCH in connection with an investigation of child abuse or neglect.
    After hearing that M.L. was going to the AHCH, W.K. agreed to meet
    with the police.    She told C.L. only that they "were going to meet
    3
    The AHCH is a regional diagnostic center where investigators
    conduct forensic interviews of children related to alleged sexual
    and physical abuse, and where the children can be seen by doctors
    and psychologists.
    10                           A-5783-13T1
    up with Mommy."
    M.L. called defendant after she spoke with Kellogg.    Between
    1:19 p.m. and 5:42 p.m., she and defendant exchanged eight phone
    calls and two text messages.       However, defendant testified to
    knowing only that M.L. would be meeting with the police with
    respect to W.K. and C.L.    He also testified he believed W.K. may
    have done something wrong and said he and M.L. discussed possibly
    hiring a new babysitter and that he would have to pick up E.L.
    after school.    Defendant denied knowing or suspecting he was under
    investigation.     When presented with evidence he was in contact
    with three attorneys that afternoon, while he claimed he was with
    E.L. at Dunkin' Donuts and a toy store, he denied any recollection
    of those calls.
    Detectives Cora Taylor and Barbara Stio from the BCPO's sex
    crimes unit were assigned to investigate C.L.'s allegations of
    sexual abuse.     Taylor worked at the BCPO for fourteen years,
    including eight years in the sex crimes and child abuse unit,
    where she was trained in how to conduct forensic interviews of
    children.   She conducted over 100 interviews of young children.
    Stio worked as a law enforcement officer for twenty-five
    years, the first thirteen with the Bergen County Sheriff's Office,
    and the last twelve with the BCPO.       She worked on sex crimes
    investigations for seven years, was trained in conducting forensic
    11                          A-5783-13T1
    interviews of children, and conducted over 400 interviews.
    When Taylor and Stio arrived at the AHCH, they first spoke
    with    Kellogg,    Detective    Mike    Musto   from    the   Wyckoff    Police
    Department, and Olivia Troche from the New Jersey Division of
    Youth and Family Services (Division),4 and explained                     how the
    investigation would proceed.          The officers and Troche next briefly
    met with W.K., with Stio questioning her, in order to discover the
    nature of the allegations she heard from C.L.               From this meeting,
    Taylor understood "there was touching of the private parts."
    After meeting with W.K., the group spoke with M.L.                    Stio
    testified that M.L. was advised "why we were there and that a
    forensic interview was about to take place of her daughter to find
    out what the nature of the allegations truly were."               M.L. was also
    advised   that     defendant    was   the    suspected   perpetrator.        M.L.
    remained in the waiting room with W.K. while C.L. was interviewed.
    They did not discuss what C.L. told W.K.
    Taylor conducted the forensic interview of C.L. while Stio
    watched by closed circuit television from an observation room,
    along with Troche, Kellogg, and Musto.           Taylor's interview of C.L.
    was    videotaped    and   transcribed,      except   for    an   approximately
    twenty-minute portion that was not taped because the recording
    4
    The Division is presently known as the New Jersey Division of
    Child Protection and Permanency.
    12                               A-5783-13T1
    equipment malfunctioned.       The malfunction was resolved and the
    videotaping resumed.     Taylor was not advised of the malfunction
    until after the interview concluded.
    Because it is protocol to interview a child only one time,
    start to finish, Taylor's interview of C.L. continued during the
    break in recording.     The observers could not watch the interview
    during that time period, but could hear it.       Therefore, that part
    of   the   unrecorded    interview     was   memorialized     in     Stio's
    contemporaneous notes and officers' reports.
    Taylor testified she used the rapport, anatomy, touch, abuse
    scenario, and closure (RATAC) format during the interview.            RATAC
    is "a protocol that's used to elicit information from a child in
    a credible and reliable way."     Interviewers using this format are
    trained to pose open-ended, free recall questions, and not leading
    or suggestive questions, so the child has the opportunity to give
    a    narrative.     However,     interviewers    may   pose        "[f]ocus
    questions[,]" once the child has described some type of abuse, in
    order to obtain additional information and discover whether any
    abuse actually occurred.    Interviewers also must take into account
    the age and cognitive ability of the child.
    During the rapport stage, the interviewer tries to make the
    child comfortable and establish communication.      During the anatomy
    stage, the interviewer finds out what terms the child uses to
    13                                A-5783-13T1
    identify his or her body parts, so those terms may be used during
    the interview.      During the touch stage, the interviewer explores
    the child's understanding of touches and what touches the child
    likes or does not like.       During the abuse scenario stage, the
    interviewer explores whether any kind of abuse occurred.         Finally,
    in the closure phase, the interviewer closes the interview and
    establishes a safety plan for the child, so the child knows he or
    she has someone to tell if anything were to happen again.
    During the touch stage of C.L.'s interview, she responded
    "no" when Taylor asked whether anyone had touched her "peepka"
    (C.L.'s word for vagina) in a way she did not like.                 Taylor
    proceeded with the interview nonetheless because the RATAC format
    provides a process of inquiry, and she knew that "disclosure is a
    process."
    Soon   after    this   question     and   response,   the   recording
    equipment   malfunctioned,    but   the   interview   continued.       Stio
    testified that Taylor's tone of voice remained the same during the
    break in recording, Taylor never cajoled C.L., showered her with
    praise, or offered her rewards, and C.L. made no requests to
    terminate the interview.
    Stio and Taylor testified that during the break in recording,
    Taylor moved from questioning C.L. about body parts to questioning
    her about who assisted her in cleaning her body.           C.L. said her
    14                             A-5783-13T1
    mother was her primary caretaker, with her nanny also assisting,
    and her father cleaned her only when her mother was not home. Stio
    testified that C.L. said that her mother sometimes touched her
    peepka in order to apply a special ointment when she had accidents
    or when her peepka burned.    However, her father did not do this;
    her mother did all the work. C.L. also said there were two special
    ointments.
    Taylor next spoke with C.L. about boys' body parts, and C.L.
    stated she had seen her brother's winky but never touched it.
    Taylor next asked C.L. if she knew why she was there, and C.L.
    said that W.K. drove her and she was there because she needed her
    mommy's help.    Taylor then asked C.L. about her conversation with
    W.K. the day before, about whether anyone had touched her "dupee"
    (C.L.'s word for butt) or peepka, and C.L. responded that she had
    talked to W.K. about touches and "yucky things."   Taylor told C.L.
    that W.K. shared with her what C.L. told W.K., but did not tell
    C.L. what W.K. said.
    C.L. then told Taylor that her mother uses a special ointment
    that is white when she has accidents, or because her peepka burns,
    and her father sometimes uses ointment because he "just wants to."
    She then disclosed that her father sometimes puts his finger into
    her peepka.     Taylor asked C.L. where these things happened, and
    what people were wearing.    C.L. responded that it happened in her
    15                         A-5783-13T1
    father's bedroom, on his bed, her father was wearing no clothing,
    so she could see his winky and dupee, and they were watching
    Princess Dora on television.   She also said she lay down on the
    bed, her father told her to open the winky ointment, and he touched
    his winky and also touched her peepka with his finger.   According
    to Taylor, C.L. also described straddling her father's body and
    rubbing winky ointment on his winky.
    Taylor asked C.L. if her father ever asked her to do anything
    funny to his winky, and C.L. said sometimes "white stuff" comes
    out of "the little hole."    Taylor asked what was going on, and
    C.L. said her father sometimes touched his winky while putting his
    finger in her peepka.   However, C.L. said her father's winky had
    never touched her peepka or dupee.
    At this point, the recording resumed.     C.L. said that her
    father sometimes "touches wrong" by touching his winky while
    putting his finger in her peepka, and that while he was doing that
    he is also "texting and watching tv" with her.      She said that
    "white stuff" comes out of his winky, after which he walks to the
    bathroom and washes off.
    Taylor asked C.L. if her father ever used anything on his
    winky, and C.L. responded that he used a special winky ointment
    that was in one of his drawers, like she showed her nanny.    Taylor
    asked C.L. to describe the bottle of ointment, and she said "it
    16                            A-5783-13T1
    has the spell on it[,]" but she did not know how to spell it.
    Stio understood C.L. to be saying that the bottle had letters on
    it, causing her to jot down a question in her notes as to whether
    C.L. was referring to KY lubricant.               Taylor asked C.L. how she
    felt about this, and C.L. responded that "[a]fter it makes me feel
    lame, dumb."    She also said it made her feel "[b]ad[,]" "[b]ecause
    it's private" and "a bad occasion."
    Taylor asked C.L. if her father ever talked to her about
    whether she should tell somebody about what he was doing with her.
    She responded that her father said to her "please, please, [C.L.]
    don't say no."        C.L. also said he made her promise not tell
    anybody.
    Taylor then asked C.L. if her father had ever asked her to
    touch his winky, and C.L. initially said "no," looking away from
    Taylor as she said it.        However, after Taylor said "Remember, what
    I told you, everything that we talk about in here is the truth[,]"
    C.L. changed her answer and said "sometimes he tells me to touch
    it." Taylor denied she was chiding C.L., or suggesting that her
    answer was untruthful.        She testified she made this remark about
    truthfulness in the context of C.L.'s demeanor in turning away
    from her and backing into a corner.
    Taylor    then   asked    C.L.   to   tell    her   about   it,   and   C.L.
    responded that her father would put the special ointment on her
    17                                A-5783-13T1
    hand, and at his request she would put the ointment on his winky
    and just above his winky and then get on top of him.    Taylor next
    asked C.L. if her father's winky had ever touched her peepka and
    she said "For that - - no."   C.L. responded "no" when Taylor asked
    if her father's winky had ever touched her dupee or her butt, or
    if her peepka ever got on her father's weenie.
    Using anatomically correct dolls, Taylor then went through
    C.L.'s statement about what her father did with her.    Just before
    using the anatomical dolls, however, C.L. asked Taylor if she
    could tell her mother something.      Taylor answered no, but added
    that they were going to talk to her mother after they were done.
    C.L. asked when they would be done, and Taylor said in a few
    minutes. Taylor also asked C.L. if there was any reason she needed
    to talk to her mother at that moment, and C.L. said no.
    Using the anatomically correct dolls, C.L. took off all of
    their clothing, explaining that this was what she and her daddy
    did while her mother and brother were not home.   She said that "we
    both stand up before we do it and then we give kisses."    She then
    explained how her daddy lay down on the bed and she sat on top of
    him, he touched his weenie, she put her hands on his weenie, and
    his weenie touched her peepka.
    In response to Taylor's questions, C.L. said it hurt when her
    father put his hand in her peepka, and that his hand was not wet,
    18                         A-5783-13T1
    but his weenie was.   She also described going to the bathroom with
    her father and watching him pee on the potty.    Taylor asked C.L.
    how all of this made her feel, and C.L. said it made her feel
    "disgusted[.]"    She also said she never told her father how it
    made her feel.
    Taylor asked C.L. when was the last time she and her father
    had lay down and he put his finger in her peepka, and she said
    yesterday morning, while her mother was at work and her brother
    was at school and before the nanny arrived.   Taylor testified that
    in asking this question she understood that four and five-year-
    old children are generally unable to answer questions about timing
    of their abuse.   Moreover, C.L. said these incidents happened more
    than once.
    Taylor then asked C.L. if her father ever said what would
    happen to her if she told somebody, and C.L. responded that he
    told her she would "get in trouble" and "Get kicked by . . . mom."
    C.L. said she believed this would happen because her father said
    it, and she said she loved her father, mother, brother, W.K., and
    grandmother.
    Finally, Taylor asked if everything C.L. had told her about
    what she did with her father was the truth, and C.L. responded it
    was.   Taylor asked C.L. if there was anybody she could tell if she
    was being touched in a way she did not like, and C.L. responded
    19                          A-5783-13T1
    she could tell Taylor.      Taylor asked C.L. if she could talk to her
    mom, and C.L. said no, because her mom would be upset because it
    was not a proper thing to do.
    Taylor asked if C.L. ever told her nanny about this, and C.L.
    said she did yesterday.          Taylor then told C.L. that she did not
    do anything wrong, and she did a good thing by talking and telling
    someone.     She also told C.L. she could always speak with the
    police, a teacher, or her mother, and assured her that her mother
    would not be upset.
    Cross-examined about the length of the interview, which was
    eighty-three minutes, between 3:12 and 4:35 p.m., Taylor and Stio
    conceded that the guidelines suggested interviewing four-year-old
    children for only twenty-five minutes.           However, they also said
    the guideline was not absolute, and their practice was to continue
    interviews    for    as   long    as   the   children   were   engaging    in
    conversation.       In this regard, Taylor testified that throughout
    the interview C.L. "was very engaged" and never lost interest.
    After the interview concluded, Taylor, Stio, Kellogg, Musto,
    and Troche spoke with M.L. and advised her of C.L.'s disclosures.
    According to Stio, M.L. cried, was unable to speak, and broke out
    in hives.    When she got her emotions under control and was able
    to speak, she said she did not understand how this could have
    happened in her home.
    20                           A-5783-13T1
    M.L. consented to C.L. being physically examined. No injuries
    or evidence of trauma were found during the examination.              A small
    amount of fecal matter was found around C.L.'s anus, and she had
    some mild redness in her genital area.             However, the doctor who
    examined her, Dr. Julia De Bellis, opined that the presence of
    fecal matter was merely indicative of poor hygiene, which was
    common in young children, and the genital redness was a nonspecific
    finding, meaning there could be many explanations for it.
    De Bellis further opined that the absence of physical trauma
    neither confirmed nor denied the validity of C.L.'s allegations
    of abuse.     She stated the child's genitalia could appear normal
    even   if   there   had   been   some    degree   of   penetration,   and   any
    superficial injuries could heal quickly without a scar or any
    deformity.    She testified that in the majority of cases she has
    worked on involving alleged digital penetration of a child's
    vagina, she found no physical injury.             She also stated that the
    use of lubricant would decrease the likelihood of injury.
    At 5:40 that evening, Taylor and Musto took a statement from
    W.K.    Meanwhile, Stio and Kellogg went to defendant's home in an
    attempt to locate him.      Stio testified they arrived at defendant's
    home at approximately 6:00 p.m., defendant answered the door, and
    she advised him they had to speak with him in reference to his
    daughter being interviewed at the AHCH.            Defendant and E.L. then
    21                            A-5783-13T1
    left with the officers, who first transported E.L. to the AHCH to
    be with M.L. and then transported defendant to the BCPO, where
    they placed him under arrest.
    W.K. drove C.L. home, while M.L. drove with E.L.     When they
    arrived home, W.K. told M.L. to give her a call if she needed
    anything.    The next day M.L. texted W.K. and asked her to take the
    children out of the house, which W.K. did, taking them to J.M.'s
    house to play.    W.K. worked for the family for another three or
    four days, after which she never saw C.L. again.          She never
    discussed with M.L. what had happened.
    At approximately 8:30 p.m. on October 7, 2010, Stio returned
    to defendant's home along with another detective.      M.L. allowed
    the officers into the home and consented to their searching the
    home for the two ointments C.L. discussed during her interview.
    In a nightstand in defendant's bedroom, they found a bottle of KY
    lubricant.    M.L. also gave them the ointment she used on C.L.   The
    following day, Stio returned to defendant's home with a search
    warrant and retrieved a desktop computer and a laptop computer.
    Yanal Bachok, a computer forensic analyst in the BCPO's
    computer crimes unit, testified as the State's expert in computer
    forensics.   He testified that he reviewed hard drives from the two
    computers seized from defendant's home, and on his first preview
    found no child pornography in the "allocated" space.   He explained
    22                          A-5783-13T1
    that information in "allocated" space has not been deleted by the
    user,    whereas   information       in   "unallocated"     space   consists    of
    deleted     information.        He    further      explained    that   although
    information in unallocated space has been deleted, it has not been
    erased.      Rather, the deleted information remains in the hard
    drive's unallocated space until it has been overwritten, even
    though the user cannot see it anymore.
    Bachok testified he found no user data or personal information
    in    the   allocated   space   on    the      laptop   computer,   meaning    "no
    pictures, no documents, no audio, like songs or video.                  Nothing
    that would indicate that this computer has been used practically
    at all[,]" which he said was "an unusual condition. . . ."                      To
    Bachok, this computer looked as though it had just arrived from
    the manufacturer because "[t]here was nothing except the operating
    system."5     He therefore suspected the hard drive "must have gone
    through a process called system recovery[,]" which restores the
    hard drive "back to the factory image."
    Bachok verified his suspicion by starting up the laptop
    computer after imaging the hard drive and replacing it into the
    laptop.      When he turned the computer on with the hard drive
    replaced, and was able to crack the password ("Nurse"), he received
    5
    Defendant testified that he purchased the laptop in 2008.
    23                             A-5783-13T1
    a message on the screen stating "Preparing your desktop," which
    indicated the system restore was in its final stages and the laptop
    was being prepared for an initial use.    He testified that someone
    has to affirmatively access the computer and initiate the system
    restore process, and it appeared the system restore was initiated
    at 5:52 p.m. on October 7, 2010, i.e., just ten minutes after
    defendant's last phone call to M.L. and shortly before Stio arrived
    at his home at 6:00 p.m.   Defendant denied he initiated the system
    restore.     He testified that E.L. was using the laptop computer
    when the officers arrived, which he claimed was only a minute or
    two after his last phone call to M.L.
    Bachok testified that when the system restore process occurs,
    the hard drive is restored to the factory image, and all of the
    allocated information is erased.      However, this "doesn't mean
    gone"; rather, the information "moves to the unallocated space."
    Bachok next performed a review of unallocated space on the
    two computer hard drives, using a special forensic program called
    NCASE.     In particular, he looked for images (jpeg and gif), and
    "keywords" that relate to child pornography.     He explained that
    finding a keyword on the computer means the word is in the
    computer's memory because the keyword had been "searched or looked
    for or existed as part of like an internet history or a document
    or it could be even a dictionary word."
    24                         A-5783-13T1
    In unallocated space on the laptop computer hard drive, Bachok
    found "hits" for the keywords "Lolita," "Preteen, "PTHC," which
    stands for Preteen Hardcore, "R@ygold," and "Underage."    He also
    found hits for "Jenny Lays With Dog," "Asian Street Meat," "Dasha-
    Models," "Indexlolita," "Little Caprice," "Littleliana," "Little
    Virgins," "Nymphets," and "Teenburg."   He found 152 "hits" for the
    keyword "Limewire," explaining that Limewire "is a peer-to-peer
    program for file sharing between computers" that is often used for
    sharing illegal content, such as child pornography.   He also found
    numerous images of suspected child pornography, as well as images
    of defendant and his family, and "website banners" that included
    key words related to child pornography.   The images were shown to
    the jury, with the child pornography separated from the family
    photos.   Because of the system restore, however, Bachok was unable
    to recover the internet history for these items, the dates and
    times when the files were downloaded or viewed, where the photos
    were downloaded from, or the user profile associated with the
    files.
    Regarding the desktop computer hard drive, Bachok testified
    that "[i]t looked like the computer has been used almost every day
    since it was purchased[,]" because there was "[a] lot of user
    information, whether it's pictures, documents, MP3 files, like
    audio, songs, videos and things like that[,]" in both the allocated
    25                          A-5783-13T1
    and unallocated space.          He found no child pornography images on
    the   desktop,   but    found    many   "hits"   for   keywords,    mostly      in
    unallocated space, including "Lolita" (4341 hits), "preteens" (320
    hits), "PTHC" (14 hits), "Underage" (58 hits), "Teenburg" (27
    hits), "Nymphets" (103 hits), and "Index Lolita" (68 hits).                     He
    also found 152 hits for "Limewire."
    Finally, Bachok testified he found the program "Cyberscrub"
    installed on the desktop computer, and explained that Cyberscrub
    is advertised as a program that deletes your internet history.                  He
    further stated he found 10,089 hits for Cyberscrub on the laptop
    computer, indicating that Cyberscrub had also been installed on
    this computer, although it was removed to unallocated space during
    the system restore.
    C.L.'s Recantations
    Defendant retained a private investigator, Lisa Reed, to
    interview   C.L.       Reed   had   prior    experience   working   as    a   law
    enforcement officer in a sex crimes unit and was trained in
    interviewing children.          She stated that four-year-old children
    generally have an eight-minute attention span, but also admitted
    "[y]ou interview them until you realize you've lost them or until
    you have no other questions."
    Reed interviewed C.L. on November 30, 2010, with the interview
    lasting twenty-three minutes, between 2:29 and 2:52 p.m.                         A
    26                               A-5783-13T1
    videotape of that interview was shown to the jury.        During the
    interview, C.L. mentioned that her brother saw her father in
    handcuffs.   When asked why he was in handcuffs, C.L. responded
    that "somebody thought that daddy did a bad thing. . . . Like me
    and my dad, like did something."      When asked "What'd you do?[,]"
    C.L. responded she had taken her clothes off in her parents' bed,
    with her father in it, but he had not asked her to do it, and he
    was wearing clothes at the time.     Reed asked C.L. if she told "the
    ladies something that made them arrest your daddy?[,]" and C.L.
    responded she did not know "if he really got arrested."
    Thereafter, in response to direct questions (e.g., "Did daddy
    ever touch your ah, peepka when you were laying in bed, in, in his
    bed?" and "Did you ever touch daddy's weenie?"), C.L. denied her
    father ever touched her peepka or put his finger in it, that she
    had ever seen or touched his winky/weenie, or seen anything come
    out of his winky, or that she sat on top of her father when she
    had no clothes on.   She also denied ever telling anyone that any
    of those things happened.    She said her father would clean her
    peepka in the shower, but he was wearing a bathing suit when he
    did so.   C.L. also claimed that W.K. pulled down E.L.'s underwear
    in front of his friends, in order to embarrass him, but stated she
    never saw this happen, and her brother would tell Reed about it.
    At trial, C.L. denied she told W.K. about things that happened
    27                            A-5783-13T1
    between her and her father.    She also repeated what she told Reed
    about W.K. pulling down her brother's pants in order to embarrass
    him, adding that W.K. also hung her brother upside down.     She also
    said she told her mother about this event, after which W.K. was
    no longer her babysitter.6
    C.L. testified that she spoke to Taylor and told Taylor her
    father "didn't do anything."   She denied that anybody ever touched
    her private parts, and said her father only did so in order to
    apply a Neosporin-type ointment.      She also denied her father ever
    made her touch his winkie, touched her peepka, or touched his
    winkie to her body.     She said she only told Taylor these things
    happened because W.K. told her to, which was the same reason she
    told Taylor that she and her father lay on the bed with no clothes
    on.    She testified that she told Taylor only what W.K. told her
    to say, which was "[t]hat my dad touched me in a place that I
    wouldn't want to get touched[,]" and that she touched him.
    C.L. claimed that W.K. pulled her into the mudroom, told her
    "to tell that my dad touched me in a place that I don't like to
    get touched[,]" and when she resisted W.K. told her "well, then
    you won't like what's going to happen."       She did not know what
    W.K. was planning to do to her, but said W.K. had threatened to
    6
    W.K. denied ever doing this to E.L.
    28                           A-5783-13T1
    stuff cheese down her brother's throat, and "[s]he would make me
    and my brother clean, top to bottom, the house."
    When questioned whether she ever talked to Taylor about
    "winkie ointment," C.L. admitted she had and explained that "one
    night I walked in and he -- my dad screamed at me, and then I went
    back to my room.   I cried, and then nothing happened after that."
    When questioned further, she said that when she walked into her
    parents' bedroom in the middle of the night, her father was lying
    on his side on his bed, wearing only a t-shirt and watching a
    movie on his laptop computer, and she saw him putting ointment on
    his winkie, which she described as appearing "like silk and gooey
    kind of."   However, she immediately contradicted herself by saying
    she never saw him put the ointment on his body and that the
    ointment container was merely lying behind him on the bed.
    C.L. testified she told her mother about this incident, and
    the incident in which W.K. pulled her into the mudroom and told
    her what to say, and also told her therapists about both incidents.
    She said she was sad that her father could not be home and she
    could not see him.   She said that she loved her father and "he's
    a good dad[,]" and she wanted him to come home.      She also knew
    that her mother wanted her father home because it was hard to be
    a single mom of two kids, and she knew that her grandfather
    (defendant's father), who lived with her, also wanted defendant
    29                           A-5783-13T1
    to come home.
    C.L. testified her mother told her they would "try to get him
    home together[,]" but also that she was "the main part of this,
    and you're the one that will help get him home."     Based on what
    her mother told her, C.L. believed her father would "be home soon,"
    after her therapy was finished and they had a final court date,
    "like we are right now."   Asked how she felt to be the main part
    of this, she responded, "Well, I feel really confident in myself
    because I know I can make my dad come home . . . [b]y telling the
    truth and not telling a lie to anybody."   She said she was in the
    courtroom "to get my daddy home[,]" and believed the jurors were
    there "to make the decisions if my daddy can come home."
    On cross-examination she responded "Yes" when asked: "Would
    you say anything you could, no matter whether it was true or not,
    to get your daddy to come home?"     Following up, defense counsel
    asked if she "would lie to us to get your daddy to come home?[,]"
    and she responded "No."    Thereafter, on redirect, she expressed
    her belief that because she testified her father had not touched
    her peepka and she had never touched his winkie, "[h]e's going to
    come home."   When asked what she thought would happen if she said
    that her father touched her peepka, or he had her touch his winkie,
    she responded "[h]e's not going to come home[,]" and that would
    make her feel sad.
    30                          A-5783-13T1
    The Defense
    Defendant testified and denied committing the acts alleged
    in the indictment and any of the acts alleged in C.L.'s statement
    to Taylor.   He testified to the incident C.L. spoke of at trial,
    where C.L. walked in on him while he was masturbating in his
    bedroom, and to the incident C.L. spoke of with Reed, that is, his
    getting into the shower with C.L. while wearing shorts, in order
    to clean her up after toileting accidents.
    Defendant presented character witnesses, who testified he had
    a reputation for truthfulness.    Defendant also contested whether
    C.L. had ever been sexually abused.      As to those issues, C.L.'s
    pediatrician, Dr. Kimberly Kinney, testified she reviewed C.L.'s
    medical records and found no evidence she suffered any trauma from
    sexual abuse.
    Defendant also contested the validity of C.L.'s disclosures
    to W.K. by attacking W.K.'s credibility and claiming she influenced
    the child to accuse him of abuse.     He also attacked the validity
    of C.L.'s statements to Taylor based upon the length of the
    interview, the nature of Taylor's questioning, and the gap in the
    recording.
    Dr. Phillip W. Esplin, an expert in forensic psychology,
    testified about the validity of C.L.'s statements to W.K.    Esplin
    testified that children between three and six years old "have
    31                         A-5783-13T1
    difficulty sorting out the origin of their belief . . . [s]o that
    they can become confused in terms of what they may have heard from
    somebody or what they may have overheard as opposed to what comes
    from their direct experience."      They are also socialized to
    acquiesce and defer to adults, so they tend to answer a question
    even if they do not know the answer, and to change their answer
    if their initial answer is not accepted.
    Esplin opined one must be wary that an adult might have
    influenced the child either by questioning the child, or having
    the child overhear the adult's conversations, including negative
    statements about the suspected perpetrator, or having the child
    observe the adult's demeanor, attitude, or concern, because "all
    those factors can influence what the child may say during that
    forensic interview."   Esplin also opined that when questioning
    such young children, the interviewer must be careful that the
    child comprehends the basic rules of the interview (e.g., "If I
    ask you a question and you don't know the answer, don't guess."),
    and the interviewer should exercise caution when using option-
    posing questions (e.g., "were your clothes on, or off, or something
    else?"), because such questions "are very difficult for that age
    group to understand[,]" so sometimes the child will "just begin
    to guess and choose one of the alternatives."
    Esplin testified that when interviewing children, the focus
    32                           A-5783-13T1
    should   be   on    "invitational    questions"       (e.g.,    "tell    me     what
    happened[.]").        He stated that leading questions, also referred
    to as "tag questions," are permissible; however, they should not
    be the "focus" of the interview, and generally they should not be
    posed until later on in the interview, if necessary.
    Esplin    further     testified    that    the   recommended        time    for
    interviewing children between three and five years old is between
    fifteen and twenty-five minutes.             If the interview exceeds this
    time-frame "[t]he risk is that the child may reach a point where
    they decide that they're going to tell you what you want to hear
    so they can get out of there."              They will also lose focus, pay
    less attention, and sometimes give confusing answers.                   He stated
    that anyone interviewing a child should keep track of the time,
    and also observe whether the child is showing signs of fatigue.
    Esplin        acknowledged,     however,     there        are   individual
    differences between children, so each situation must be evaluated
    on a case-by-case basis.      While he believed that forty minutes was
    the outside limit for an interview of a child between three and
    five years old, he conceded an interview of that length could
    continue, after a break, if the interview was productive.
    Regarding breaks generally, Esplin opined that ideally an
    interview     would    continue    uninterrupted.       However,     a    child's
    request for a break should be respected.               Esplin said it was a
    33                                  A-5783-13T1
    judgment call as to whether a break should be taken in the event
    of a malfunction of the recording equipment, as there were numerous
    factors to consider, including the safety of the child and whether
    the malfunction occurred at a critical time.
    Finally, Esplin testified with respect to the use of dolls
    in child interviews that on the one hand "there's some information
    that the use of the dolls increases some detail."         "At the same
    time, it increases the frequency of errors."        Also, with school
    age children, age six and up, the use of dolls tends "to lessen
    the amount of verbal memories you receive."       Ultimately, he said
    there have "been no studies to demonstrate that the use [of dolls]
    increases the yield of reliable information about what may have
    happened."   Thus, he would not use dolls, or diagrams, unless he
    had "exhausted every other avenue of getting verbal memories."
    Defendant   blamed   his   father-in-law,   K.W.   for   the     child
    pornography found on his laptop computer.7        Both defendant and
    K.W. testified that on two occasions when K.W. visited defendant's
    home, in 2003 and 2008, defendant discovered K.W. was using his
    computers to view child pornography and angrily confronted K.W.
    about it.    On both occasions defendant limited K.W.'s access to
    7
    Bachok testified that K.W.'s last name had 285 hits on the
    desktop computer, and 271 hits on the laptop, which meant only
    that the name appeared somewhere on each computer, e.g., an email,
    an email address, or a document.
    34                                A-5783-13T1
    the computers and monitored K.W.'s internet history although after
    the second incident he never found any evidence that K.W. was
    accessing child pornography.   In addition, K.W. promised defendant
    he would not access child pornography again, and gave defendant
    money to replace the computers.
    Defendant testified that in 2003 he threw out the old computer
    and purchased a new one with money K.W. provided.    Thereafter, in
    2008, he used K.W.'s money to purchase the laptop computer, which
    was kept in the family room and "pretty much everyone used[;]"
    however, he did not discard the desktop computer, which was kept
    upstairs.   Instead, he chose to run Cyberscrub on the desktop
    computer, in order to eliminate unwanted material while retaining
    everything else.   Initially, he claimed to have run Cyberscrub in
    2007 or 2008.   However, when confronted with his purchase record,
    he conceded he did not purchase the program until 2010.
    K.W. testified that he used defendant's computers to view
    child pornography and claimed he had "a sickness, an addiction"
    to child pornography.    However, he testified he only viewed child
    pornography maybe once a month, or three times per week, and
    claimed he only began viewing it in 2006, and completely stopped
    viewing it in 2009.     He denied having any preference for viewing
    any particular sexual acts or body parts, downloading any photos
    or emailing them, keeping a collection of child pornography, or
    35                         A-5783-13T1
    trading it with collectors, and using the program Lime Wire.8                         He
    also said he never went to any particular website, and only
    accessed the child pornography through search engines. He recalled
    some of the keywords found on the computers, and recalled viewing
    some of the photos recovered from the laptop computer's hard drive.
    On the other hand, in 2011, K.W. denied to the Division that
    the   child    pornography   belonged      to    him.      Moreover,      on     other
    occasions, he indicated he only accessed child pornography twice,
    once in the fall of 2003, and the second time in the fall of 2008.
    He also claimed that in 2008 he viewed only Japanese comic book
    style drawings depicting people engaged in sexual activity with
    underage persons, but no pictures of live persons.
    II.
    Defendant filed a motion to suppress C.L.'s statement to
    Taylor.    Following a N.J.R.E. 104 hearing, at which W.K., Stio,
    and Taylor testified, the court issued a written opinion, finding
    the   statement      trustworthy,    notwithstanding         the    gap    in       the
    recording.     The court rejected defendant's argument that Taylor's
    questioning     of   C.L.   was   "inept,       coercive   and     manipulative,"
    stating:
    The court disagrees with defendant's
    analysis of Taylor's interview of C.L. While
    she did employ leading questions, it is
    8
    Defendant also denied using Lime Wire.
    36                                        A-5783-13T1
    apparent that such questions occurred only
    after the child made a disclosure, and that
    the leading questions were geared to clarify
    or to assist the child to specify the
    disclosure. The court finds the interview of
    . . . C.L., and her resulting statements were
    not the product of threats, bias, or
    misleading questions.    To the contrary, the
    court is satisfied that C.L. was able to
    articulate the alleged sexual conduct without
    prompting or suggestive questioning; that she
    was able to describe specific events; that she
    did not use words or phrases 'beyond her
    years,' but demonstrated her naivety to the
    sexual acts portrayed; that she was able to
    identify with clarity the parts of her anatomy
    and defendant's anatomy involved in the acts;
    that she was able to recall events, both as
    to time and place, although not with time-
    specificity due to her age.
    Therefore, based upon the totality of the
    circumstances, the court is satisfied that
    C.L.'s statement is trustworthy, and should
    therefore be admitted at trial, pursuant to
    [N.J.R.E. 803(c)(27)].
    The fact that this court finds C.L.'s
    statement    trustworthy   for   purposes   of
    admissibility at trial in no way reflects upon
    whether   or    not  the  incidents   actually
    occurred.     Her statements are subject to
    cross-examination at trial, as well as Stio's
    notes regarding the gap and Taylor's method
    of questioning the child. Whether or not the
    incidents actually occurred, is reserved
    solely for the jury's providence.
    On appeal, defendant contends in Point I that the court erred
    in admitting C.L.'s videotaped statement to Taylor.   He argues the
    statement was untrustworthy because: (1) twenty crucial minutes
    of the statement, during which C.L. first made allegations of
    37                           A-5783-13T1
    sexual abuse, went unrecorded, and therefore there is no verbatim
    record of what questions Taylor asked or what statements she made
    to C.L., and no recording of the tone of Taylor's voice; (2) C.L.'s
    failure to make any abuse allegations in the first half of the
    statement, and her post-interview recantations of the sexual abuse
    allegations, indicate her statements to Taylor were fabrications;
    (3) the interview was excessively long for someone of C.L.'s young
    age; and (4) Taylor's denial of C.L.'s request to see her mother,
    just prior to using the anatomical dolls, "was clearly an abuse
    of Taylor's ability to reward or punish C.L. for the child's
    responses to Taylor's questions."        Only a few of these arguments
    were raised before the trial judge.
    Defendant further argues the court compounded the error by
    permitting the State to play the video twice on its direct case
    and during summation, and allowing the jury to watch the video for
    a fourth time during deliberations.       Defendant claims this enabled
    the State to give undue weight to C.L.'s statement and effectively
    prevented the jury from considering her sworn trial testimony and
    other out-of-court statements denying defendant engaged in any
    improper conduct.     Alternatively, for the first time on appeal,
    defendant   argues   that   when   the   jury   viewed   the   tape    during
    deliberations, "[a]t a minimum," C.L.'s trial testimony and her
    interview with Reed should have been read back to the jury along
    38                                 A-5783-13T1
    with her statement to Taylor.
    "[I]n     reviewing     a    trial    court's      evidential     ruling,        an
    appellate court is limited to examining the decision for abuse of
    discretion."         State    v.   Kuropchak,      
    221 N.J. 368
    ,     385    (2015)
    (citation omitted). Under that standard, "[c]onsiderable latitude
    is   afforded    a    trial    court   in       determining     whether    to     admit
    evidence," and "an appellate court should not substitute its own
    judgment for that of the trial court, unless 'the trial court's
    ruling was so wide of the mark that a manifest denial of justice
    resulted.'"      
    Id. at 385-86
     (alteration in original) (citations
    omitted).
    Our review of a trial court's decision on a motion to suppress
    is limited.      State v. Robinson, 
    200 N.J. 1
    , 15 (2009).                      As our
    Supreme Court has held:
    Appellate review of a motion judge's factual
    findings in a suppression hearing is highly
    deferential.   We are obliged to uphold the
    motion judge's factual findings so long as
    sufficient credible evidence in the record
    supports   those   findings.   Those   factual
    findings are entitled to deference because the
    motion judge, unlike an appellate court, has
    the "opportunity to hear and see the witnesses
    and to have the 'feel' of the case, which a
    reviewing court cannot enjoy."
    [State v. Gonzales, 
    227 N.J. 77
    , 101 (2016)
    (citations omitted).]
    39                                   A-5783-13T1
    We will "reverse only when the trial court's determination is 'so
    clearly mistaken that the interests of justice demand intervention
    and correction.'"     State v. Gamble, 
    218 N.J. 412
    , 425 (2014)
    (citation omitted).    However, we owe no deference to the trial
    court's   legal   conclusions   or    interpretations   of   the     legal
    consequences flowing from established facts, and review questions
    of law de novo.   State v. Watts, 
    223 N.J. 503
    , 516 (2015).
    N.J.R.E. 803(c)(27) provides as follows:
    A statement by a child under the age of 12
    relating to sexual misconduct committed with
    or against that child is admissible in a
    criminal . . . proceeding if (a) the proponent
    of the statement makes known to the adverse
    party an intention to offer the statement and
    the particulars of the statement at such time
    as to provide the adverse party with a fair
    opportunity to prepare to meet it; (b) the
    court finds, in a hearing conducted pursuant
    to [N.J.R.E.] 104(a), that on the basis of the
    time, content and circumstances of the
    statement there is a probability that the
    statement is trustworthy; and (c) either (i)
    the child testifies at the proceeding, or (ii)
    the child is unavailable as a witness and
    there   is    offered   admissible    evidence
    corroborating the act of sexual abuse;
    provided that no child whose statement is to
    be offered in evidence pursuant to this rule
    shall be disqualified to be a witness in such
    proceeding by virtue of the requirements of
    [N.J.R.E.] 601.
    Here, the court considered the evidence and relevant factors
    in determining that C.L.'s interview was sufficiently trustworthy
    to warrant admission under N.J.R.E. 803(c)(27), including the gap
    40                                A-5783-13T1
    in the recording and the other arguments defendant raised.                  See
    Idaho v. Wright, 
    497 U.S. 805
    , 821-22 (1990); State v. P.S., 
    202 N.J. 232
    , 248-54 (2010). On the evidence presented at the N.J.R.E.
    104 hearing, we discern no reason to second-guess the court's
    factual    findings,    and   defendant    has   not   shown   an   abuse     of
    discretion in the court's evidentiary ruling.
    Regarding defendant's complaint about the number of times the
    video was played to the jury, the record reflects the video was
    played in full twice during the State's direct case, first during
    Stio's testimony, and second during Taylor's testimony.             The court
    inquired as to whether defense counsel had any objection to the
    video being played twice, and defense counsel answered he did not.
    Thereafter, defense counsel used the video extensively when
    cross-examining Stio and Taylor, as he was critical of the length
    of the interview, Taylor's demeanor, her statements to C.L., the
    nature of her questions, C.L.'s behavior during the interview, and
    Taylor's denial of C.L.'s request to see her mother.9
    The   court   overruled    defense    counsel's    objection      to   the
    prosecutor   using     two,   two-minute   clips   of   the    video    during
    summation.     Defense counsel did not use the video during his
    9
    This string of citations is not meant to reflect a complete
    list of times defense counsel played the videos during cross-
    examination.
    41                                 A-5783-13T1
    summation; however, in attacking Taylor's credibility, he reviewed
    the interview in detail with the jury, highlighting particular
    questions and particular portions of the interview he argued were
    problematic.
    During deliberations, the jury requested a playback of a
    portion of the video.       The court discussed the request and its
    proposed response with counsel.          During that discussion, defense
    counsel did not object to the jury watching the video, or request
    that the court require the jury to have a playback or readback of
    any other testimony.   However, counsel objected to the jury having
    the transcript of the video as an aid.
    Thereafter, the jury was brought to the courtroom, and the
    judge inquired as to which video the jury wanted to watch, "the
    Cora Taylor video or the Lisa Reed video," to which the jury
    foreperson responded the "Cora Taylor video[.]"           The court then
    inquired: "[I]s it the entire video that you want to see[,]" and
    the foreperson responded: "We don't need the beginning, we would
    like it maybe four or five minutes prior to when the tape goes out
    and then, obviously we don't want to watch a blank tape for
    [twenty] minutes, but then the end of the tape[.]" Finally, jurors
    responded   affirmatively    when   the    court   inquired   whether   the
    foreperson's response was "everybody's choice[.]"
    42                             A-5783-13T1
    The court then replayed the portion of the video the jury
    requested, in open court, subject to the court's supervision.
    After the playback, the court instructed the jury as follows:
    Members of the jury, you've requested a play
    back of the testimony of [C.L.] The recorded
    testimony has been played for you. In your
    deliberations you're instructed to consider
    all the evidence presented and not give undue
    weight to the testimony you heard and seen
    played back and now you can go back into the
    jury room and continue deliberations. Thank
    you.
    The jury then deliberated for another hour, at which time the
    court adjourned for the day.       The next day the jury resumed its
    deliberations.      The jury reached its verdict, which the court
    accepted, and the court adjourned at 1:04 p.m.
    Since defendant did not object to the jury watching the video
    twice during trial, or to the jury watching a portion of the video
    for a third time during deliberations, we review those issues for
    plain error, that is, whether the error was "clearly capable of
    producing an unjust result[.]"          R. 2:10-2; State v. Weston, 
    222 N.J. 277
    , 294 (2015).    Defendant bears the burden of proving plain
    error.   Weston, 222 N.J. at 295.
    Under the unique circumstances of this case, where there was
    a   twenty-minute    break   in   the     video   due   to   the   recorder
    malfunctioning, we find no plain error in the court's permitting
    the jury to watch the video during the testimony of both Stio and
    43                               A-5783-13T1
    Taylor.        Defendant's failure to object to this procedure, and
    defense    counsel's         extensive          use   of    the      video      during       cross-
    examination,         indicates       his       belief      that      repetition       and     close
    analysis of the video would be helpful, not harmful, to defendant's
    case,     as    it     would       reveal       misconduct           or    mistakes      on      the
    investigators' part.
    There also was no error in the court allowing the prosecutor
    to use two short clips from the video during summation.                                           The
    prosecutor used those clips to focus the jury's attention on C.L.'s
    statements      that       were    supportive         of    counts        in    the   indictment
    alleging specific acts of sexual abuse.                           Thus, there was nothing
    inappropriate in the prosecutor's use of the video.                               See State v.
    R.B., 
    183 N.J. 308
    , 330 (2005) (stating that summations should be
    limited to discussion of the evidence); State v. C.H., 
    264 N.J. Super. 112
    ,       134    (App.       Div.    1993)      (finding        no    error      in    the
    prosecutor's commenting on evidence that showed sexual assault by
    penetration).
    Regarding             the     jury's       review          of    the       video        during
    deliberations,         the        law     provides         that       videotaped         pretrial
    statements of witnesses are a special type of exhibit, akin to
    trial    testimony.              Burr,    
    195 N.J. at 134
    .         Therefore,        they
    "require[] special consideration by a court overseeing a trial
    that has reached the deliberation stage."                             Weston, 222 N.J. at
    44                                          A-5783-13T1
    289.
    "[T]here is no per se rule against the replay of video
    recordings during jury deliberations and . . . the decision to
    replay a recording is vested in the discretion of the trial judge."
    State v. A.R., 
    213 N.J. 542
    , 560 (2013).                    Indeed, absent some
    unusual circumstances, a request by the jury to replay a videotaped
    statement should be granted, State v. Miller, 
    205 N.J. 109
    , 119-
    20 (2011), and the court "should honor a jury's specific request
    to hear only limited parts" of a video.              
    Id. at 123
     (noting that
    when a limited playback of testimony is requested, court should
    ensure    that     playback     includes      relevant      direct    and    cross-
    examination).
    Nevertheless,        certain   procedures      should     be     followed.
    Specifically,      in   order   to    avoid    the   jury    overemphasizing        a
    particular segment of a video, or viewing a video out of context,
    "a trial court should not permit a jury to have unrestricted access
    during deliberations to the videotaped pretrial statements of
    witnesses."      Weston, 222 N.J. at 289, 292-93.           Rather, any "replay
    of a videotaped statement during deliberations should only be
    conducted upon the jury's request, and after a determination that
    the    jury's    concerns    cannot   be    addressed    with   a    readback      of
    testimony."      Id. at 293.     In making that determination, the court
    also should consider whether testimony from additional witnesses
    45                                   A-5783-13T1
    should be replayed in order to provide context.     A.R., 213 N.J.
    at 560.    Moreover, any replay "must be conducted in open court,
    under the careful supervision of the trial judge."     Weston, 222
    N.J. at 293.     Finally, "at the time the testimony is repeated,
    judges should instruct jurors to consider all of the evidence
    presented and not give undue weight to the testimony played back."
    Miller, 
    205 N.J. at 109
    .
    Here, the court complied with the governing law to the extent
    that it did not permit a playback of C.L.'s statement except upon
    the jury's request, and it required the playback occur in open
    court.    However, the court did not inquire of the jury whether it
    would like a playback or read back of any trial testimony from
    C.L. or another witness.
    Defendant argues it was plain error to not sua sponte provide
    the jury with C.L.'s trial testimony and her interview with Reed,
    along with her statement to Taylor.   However, the above-cited case
    law did not require such an action, defendant did not request it,
    and under the circumstances of this case, we perceive no error in
    the failure to inquire about a playback or read back of additional
    testimony.     See Weston, 222 N.J. at 294-300 (engaging in case-
    specific inquiry when considering whether trial court committed
    plain error in allowing jury unsupervised access to witnesses'
    videotaped pretrial statements).
    46                         A-5783-13T1
    C.L.'s statement to Taylor accused defendant of sexual abuse.
    Therefore, a read back of C.L.'s trial testimony or a playback of
    her interview with Reed would not have provided the jury with the
    information it requested.
    Furthermore, the defense was that Taylor pressured C.L. to
    disclose abuse through her conduct of the interview.   The defense
    also argued that C.L. was of such a young age she could not stay
    focused during an interview exceeding twenty-five minutes.    To the
    extent the jury was considering those arguments, none of that
    information could be gleaned from a read back of the transcript
    of C.L.'s videotaped statement to Taylor, nor from a replay of
    C.L.'s trial testimony or her statement to Reed.   Cf., A.R., 213
    N.J. at 561 (finding no error in allowing the jury unsupervised
    access to video of witnesses' statements where defense counsel
    invited the error by encouraging the jury to review video recorded
    statements and urged the court to submit statements to the jury
    during deliberations).
    We conclude there was no abuse of discretion in the court's
    admission of C.L.'s pretrial statement to Taylor under N.J.R.E.
    803(c)(27); no plain error in the court's allowing the video to
    be played twice during trial; no error in the prosecutor's limited
    use of the video during summation; and no plain error in the
    court's handling of the jury's request for a replay of a portion
    47                            A-5783-13T1
    of the video during its deliberations.
    III.
    Defendant contends in Point II that the court erred in barring
    audio recordings made by M.L., and exclusion of the recordings
    violated his right to due process and his right to confrontation.
    We disagree.
    The court held a N.J.R.E. 104 hearing to determine the
    admissibility of various audio recordings made by M.L.           M.L.
    testified that the Family court ordered her and her children to
    attend therapy sessions at the AHCH. On July 5, 2012, she recorded
    a therapy session, where C.L. was also present.        She gave the
    recording to defendant, who copied it onto a CD and prepared a
    transcript.
    M.L. also testified she recorded a therapy session on December
    27, 2012, where C.L. was also present.     She also recorded ten or
    fifteen other therapy sessions, as well as her conversation with
    Anthony D'Urso, Ph. D. in December 2011.    M.L. did not advise the
    individuals that she was recording them.    She gave the recordings
    to defendant.     At some point in 2012, M.L. advised the Family
    court attorneys that she made the recordings, and gave them the
    audiotapes.    She testified she made the recordings because she did
    not feel comfortable with how the therapy was progressing and
    believed the therapy was not being accurately reported to the
    48                          A-5783-13T1
    court.
    M.L. testified that on several occasions at home, C.L. said
    that W.K. told her what to say about defendant, although C.L. did
    not give any details about what W.K. instructed her to say.           C.L.
    first made such a statement about two months after defendant's
    arrest.   A few months later, C.L. told M.L. about the incident
    when she walked in on defendant masturbating.
    Based upon C.L.'s statements to her, as well as defendant
    having passed a polygraph and a psychosexual test, M.L. believed
    he was innocent, and W.K. was responsible for C.L.'s fabricated
    accusations of sexual abuse.     M.L. stated she did not speak with
    C.L. about what happened since the therapy session recorded on
    December 27, 2012.    The only things C.L. said to her since then
    was that she missed her father and wanted him to come home.
    In its oral and written opinions, the court set forth its
    understanding that defendant's "application involves the interplay
    between   the   various   statutory    privileges   which   protect   the
    disclosure of therapeutic records . . . particularly in a Title
    Nine case, against a defendant's Constitutional Rights of Due
    Process insured by the Fifth Amendment, and his Sixth Amendment
    Right of Confrontation in criminal proceedings."
    Reviewing the governing law and weighing the legal issues,
    the court concluded that M.L. "had no authority to waive C.L.'s
    49                             A-5783-13T1
    victim counselor privilege and disclose the conversations between
    the child and her therapist to third persons" because she had an
    interest in the outcome of the litigation.       Specifically, M.L.
    believed W.K. told C.L. to fabricate the allegations of sexual
    abuse, and "[s]he [was] convinced defendant [was] innocent of all
    charges and want[ed] defendant reunited with her and the children."
    The court further held that, even if M.L. had the right to waive
    C.L.'s privilege, the overriding policy reasons which established
    the confidentiality of Title Nine proceedings would defeat such a
    waiver, which was not in the best interests of the child.
    Nevertheless,   in   considering   defendant's   rights   to   due
    process and confrontation, the court held he could admit some
    evidence of C.L.'s recantations during the July and December 2012
    therapy sessions, but only through therapy progress notes, which
    was "a less intrusive avenue than playing the recorded therapy
    sessions. . . ."     Thus, the court issued a protective order
    regarding all of M.L.'s recordings, such that they would remain
    under seal with the court and defendant would not be permitted to
    use them at trial, or take testimony from the AHCH therapists.
    However, the court permitted defendant to present evidence of
    C.L.'s alleged recantations of the sexual abuse allegations during
    therapy through information from therapy progress reports.
    In addition, the court ruled that a thirty-two second, non-
    50                             A-5783-13T1
    confidential recording M.L. made of a conversation with C.L.,
    either immediately before or after a therapy session, could be
    used at trial.    The court noted that during this conversation,
    C.L. could be heard crying while telling her mother she knew about
    the recorder in her mother's pocket.
    After issuing this ruling, the court held another hearing on
    these issues on September 9, 2013, at which it addressed how C.L.'s
    alleged recantations could be introduced into evidence at trial,
    i.e., either through a stipulation between the parties or limited
    testimony from a therapist.       Thereafter, in a September 25, 2013
    order, the court memorialized its above rulings and additionally
    held that the therapy progress reports themselves could not be
    admitted into evidence. The court also allowed for reconsideration
    of its rulings based upon issues that might arise at trial.
    The court later issued a supplemental opinion, detailing the
    contents of four therapy progress reports.       In addition, finding
    there were no therapy progress reports for the July 5 and December
    27, 2012, therapy sessions, the court ruled that defendant could
    introduce   information   about   C.L.'s   recantations   during     those
    sessions through testimony of the therapists in attendance, and
    if those therapists were unavailable or denied any recantations
    occurred, then defendant could renew his request to present M.L.'s
    recordings to the jury.
    51                              A-5783-13T1
    At trial, C.L. testified on both direct and cross-examination
    that she told both her mother and therapists that W.K. coerced her
    into    making      the    abuse   allegations.             Moreover,       on     cross-
    examination, defense counsel specifically asked C.L. about her
    statements    at     the   July    and   December      2012       therapy    sessions.
    Thereafter, defense counsel did not call M.L. or any therapists
    to testify, or request admission of any of M.L.'s recordings or
    therapy progress notes.
    On defendant's motion for a new trial, he argued the court
    erred in excluding M.L.'s recordings of the therapy sessions.                            In
    denying    the   motion,     the    court     noted    the    jury     heard       C.L.'s
    recantations through her trial testimony, and M.L.'s recordings
    of   the   therapy    sessions     would      have   been    of    little    value       to
    defendant in light of the recording M.L. made of her conversation
    with C.L., in which C.L. indicated she knew M.L. was recording the
    conversation.
    Both   the     Federal      and   State       constitutions          protect       a
    defendant's rights to due process and to confront the witnesses
    against him.       U.S. Const. amends. V, VI, XIV; N.J. Const. art. 1,
    ¶¶ 1, 10; State v. Garron, 
    177 N.J. 147
    , 168-69 (2003).                          Notably,
    however, the right of confrontation is not absolute.                         Sometimes
    it must give way to accommodate competing interests, such as rules
    of evidence and procedure, so long as application of those rules
    52                                       A-5783-13T1
    does not deprive a defendant of his right to a fair trial. Chambers
    v. Mississippi, 
    410 U.S. 284
    , 295 (1973); Garron, 
    177 N.J. at
    169-
    72.
    Here, the interests competing with defendant's rights of due
    process and confrontation are the statutory confidentiality of
    Title Nine proceedings, as well as the privilege that protects
    victim-counselor therapy sessions.                 Specifically, under N.J.S.A.
    9:6-8.10a, Division records are maintained subject to a "strict
    confidentiality        requirement"        that     serves       as   "a   procedural
    safeguard to protect victim children from unnecessary disclosure
    of    his/her   abuse    which     may     cause    the    child      further    guilt,
    vulnerability or humiliation."             N.J. Div. of Youth & Family Servs.
    v. J.C., 
    399 N.J. Super. 444
    , 447 (Ch. Div. 2006).
    There    are     limited     exceptions        to     the      confidentiality
    requirement, including that records may be produced to a court
    "upon its finding that access to such records may be necessary for
    determination of an issue before it[.]"               N.J.S.A. 9:6-8.10a(b)(6).
    Under no circumstances, however, shall the Division "release any
    information     that    would     likely    endanger       the     life,   safety,     or
    physical or emotional well-being of a child . . . ."                         N.J.S.A.
    9:6-8.10a. The statute states, in pertinent part:
    a.   All records of child abuse reports
    . . . all information obtained by the
    Department of Children and Families in
    53                                     A-5783-13T1
    investigating such reports . . . and all
    reports of findings forwarded to the child
    abuse   registry  .    .  .   shall  be   kept
    confidential and may be disclosed only under
    the circumstances expressly authorized under
    subsections b., c., d., e., f., and g. herein.
    The department shall disclose information . .
    . that is relevant to the purpose for which
    the   information   is   required,   provided,
    however, that nothing may be disclosed which
    would likely endanger the life, safety, or
    physical or emotional well-being of a child
    or the life or safety of any other person or
    which may compromise the integrity of a
    department investigation or a civil or
    criminal     investigation     or     judicial
    proceeding. . . .
    b.   The department may and upon written
    request, shall release the records and reports
    referred to in subsection a., or parts
    thereof, . . . to:
    . . . .
    (6) A court . . . upon its finding that access
    to such records may be necessary for
    determination of an issue before it, and such
    records may be disclosed by the court . . .
    in whole or in part to the law guardian,
    attorney, or other appropriate person upon a
    finding that such further disclosure is
    necessary for determination of an issue before
    the court . . . .;
    . . . .
    Any individual, . . . court . . . or other
    entity which receives from the department the
    records and reports referred to in subsection
    a., shall keep the records and reports, or
    parts thereof, confidential and shall not
    disclose the records and reports or parts
    thereof except as authorized by law.
    54                          A-5783-13T1
    . . . .
    The   department   shall  not   release   any
    information that would likely endanger the
    life, safety, or physical or emotional well-
    being of a child or the life or safety of any
    other person.
    [N.J.S.A. 9:6-8.10a (emphasis added).]
    See also N.J.R.E. 515 (prohibiting disclosure of official State
    information "(a) if disclosure is forbidden by or pursuant to any
    Act . . . of this State, or (b) if the judge finds that disclosure
    of the information in the action will be harmful to the interests
    of the public").
    In addition, N.J.S.A. 2A:84A-22.13 and N.J.R.E. 517 codify
    the victim-counselor privilege, such that "it is the public policy
    of this State to extend a testimonial privilege encompassing the
    contents of communications with a victim counselor and to render
    immune from discovery or legal process the records of these
    communications maintained by the counselor."   A person may waive
    a privilege they hold. N.J.S.A. 2A:84A-29; N.J.R.E. 530. However,
    a parent's ability to waive the victim-counselor privilege held
    by their child is limited under N.J.S.A. 2A:84A-22.15 and N.J.R.E.
    517(1), which set forth that:
    In any instance where the juvenile is, in the
    opinion of the judge, incapable of knowing
    consent, the parent or guardian of the
    juvenile may waive the privilege on behalf of
    the juvenile, provided that the parent or
    55                         A-5783-13T1
    guardian is not the defendant and does not
    have a relationship with the defendant such
    that he has an interest in the outcome of the
    proceeding.
    [(Emphasis added).]
    As a general rule, evidentiary privileges are to be narrowly
    construed.      State v. Szemple, 
    135 N.J. 406
    , 413 (1994).                    Since
    they    may   undermine    the   administration        of   justice,   "they      are
    accepted only to the extent that they outweigh the public interest
    in the search for truth."         
    Id. at 413-14
    .
    In terms of case law, most relevant are Pennsylvania v.
    Ritchie, 
    480 U.S. 39
     (1987), and State v. L.J.P., 
    270 N.J. Super. 429
     (App. Div. 1994).       In Ritchie, 
    480 U.S. at 54
    , the Court held
    the State did not violate the Sixth Amendment's Confrontation
    Clause by withholding a child protective services file, where
    defense counsel was able to cross-examine his accuser.                  See also
    State    v.   Nyhammer,    
    197 N.J. 383
    ,       411-14   (2009)   (finding       no
    Confrontation     Clause    violation        in   admitting   child    sex     abuse
    victim's statement to police where victim testified at trial and
    was subject to cross-examination).                However, the Court concluded
    that in order to protect a defendant's due process rights, it may
    be necessary for a court to review such protective services records
    in camera, and order that any material information be disclosed.
    Ritchie, 
    480 U.S. at 56-60
    .
    56                                   A-5783-13T1
    Similarly, in L.J.P., 
    270 N.J. Super. at 436-38
    , the defendant
    appealed from his conviction of sexual assault and endangering the
    welfare of a child, arguing the trial court erred in finding the
    psychologist-patient      privilege    prevented   him   from   introducing
    evidence, contained in Division reports already in his possession,
    that the child victim had recanted her allegations of sexual abuse
    during a conversation with her psychologist.
    Considering the issue, we noted that the psychologist-patient
    privilege may be defeated if necessary to protect a defendant's
    rights to a fair trial and to confront the witnesses against him.
    
    Id. at 439-40
    .     However, in order to pierce the privilege, the
    defendant must show: (1) a legitimate need for the protected
    information; (2) that the information is relevant and material to
    an issue before the court; and (3) no less intrusive source for
    the information exists.      
    Id. at 440
    .
    We also noted that at trial a witness testified to the
    victim's recantation, and the victim was also cross-examined about
    the recantation.     However, the victim dismissed the recantation
    "as the product of coercion and misguided hopes for a reunified
    family."    
    Id. at 442
    .     Thus, we found the recantation allegedly
    contained in Division reports "was not otherwise available to the
    defense[,]" and its exclusion could not be viewed as harmless
    error.     
    Ibid.
       Accordingly, we reversed and remanded for a new
    57                            A-5783-13T1
    trial, 
    id. at 444
    , stating: "[T]he defendant's legitimate need for
    critical evidence and his right to confront his accuser with her
    repudiation of her allegations was far more compelling than the
    interests of confidentiality."            
    Id. at 443
    .
    The present case is significantly different than Ritchie and
    L.J.P.    Unlike in those cases, defendant did not seek Division
    records   in   a   manner   permissible       under   the   law,    specifically
    N.J.S.A. 9:6-8.10a(b)(6).          See N.J. Div. of Youth & Family Servs.
    v. N.S., 
    412 N.J. Super. 593
    , 637-38 (App. Div. 2010) ("[T]he
    mechanism      employed     by     our    Legislature       to     preserve   the
    confidentiality of [the Division's] records and protect a victim's
    privacy interests is to require judicial review of a party's
    written request of the need for disclosure.").                     Instead, M.L.
    surreptitiously     recorded       therapy    sessions      and    provided   the
    recordings to her attorney and defendant, who then provided them
    to his attorney, all in contravention of the law. These recordings
    only came to the criminal court's attention when defendant sought
    additional discovery and to admit the recordings into evidence at
    trial.
    We cannot condone or encourage M.L.'s behavior, as it violates
    the public policy set forth in the statutes and evidentiary rules
    previously discussed.            Moreover, given M.L.'s relationship to
    defendant and her belief that he was innocent of the charges, the
    58                              A-5783-13T1
    court correctly ruled she could not waive C.L.'s victim-counselor
    privilege.       Therefore,   in   its    rulings,    the     court    reasonably
    attempted to avoid introduction of the surreptitious recordings
    of therapy sessions and instead relied solely on Division records
    or testimony from the therapists.
    Ultimately, however, no such evidence was necessary because,
    unlike in L.J.P., C.L. recanted her allegations of abuse at trial.
    She also testified that W.K. coerced her into making allegations
    of abuse and told this to her therapists in the July and December
    2012, therapy sessions, with defense counsel questioning her about
    her statements during those therapy sessions.
    Therefore, unlike in L.J.P., defendant did not need M.L.'s
    recordings at trial.        Through C.L.'s testimony, he got what he
    wanted -- C.L.'s multiple recantations presented to the jury,
    along   with   her    allegation   that    W.K.    was   the    source    of   her
    statements to Taylor.10
    In   sum,       the   court   provided       defendant     with     relevant
    information from the Division's records, and defendant had a full
    10
    Defendant argues he should have been permitted to use the
    recorded therapy sessions "to confront the State's witnesses."
    However, the only State's witness he could have confronted was
    C.L., in order to defuse her allegations of sexual abuse.     No
    other State's witnesses appeared on the recordings or had any
    connection to C.L. at the time the recordings were made in 2012,
    two years after defendant's arrest.
    59                                   A-5783-13T1
    and   fair     opportunity   to   cross-examine        C.L.   and   explore   the
    recantations with her, even without the recordings.                   Therefore,
    there    was    no   violation    of   his    rights    to    due   process   and
    confrontation.       Ritchie, 
    480 U.S. at 54, 56-60
    ; Nyhammer, 
    197 N.J. at 411-14
    .      Moreover, under the circumstances presented, C.L.'s
    prior consistent statements to her therapists would not have been
    admissible under the Rules of Evidence. See N.J.R.E. 607; N.J.R.E.
    803(a)(2); Neno v. Clinton, 
    167 N.J. 573
    , 580 (2001).
    Finally, as the court cogently noted on defendant's post-
    trial motion, there were risks associated with introduction of the
    therapy recordings at trial.                Specifically, if defendant had
    renewed his request for introduction of the July 5 and December
    27, 2012 recordings, then the prosecution likely would have sought
    introduction of the recording of C.L.'s conversation with M.L.,
    in which C.L. tearfully told her mother she knew she was being
    recorded. Introduction of that mother-daughter conversation would
    have seriously diluted the value of the July 5 and December 27,
    2012 recordings, and supported the State's argument that C.L.'s
    family influenced her to recant her accusations.                    Indeed, that
    strategic risk-benefit analysis is the most likely explanation as
    to why, once C.L. recanted at trial, defense counsel did not renew
    his motion to introduce the recordings, as the court permitted him
    to do.
    60                                A-5783-13T1
    As for the recordings of M.L.'s own therapy sessions, which
    defendant argues for the first time on appeal should have been
    ruled admissible at trial, defendant has made no showing those
    recordings would have affected the outcome of the case.            R. 2:10-
    2.   Accordingly, we find no abuse of discretion in the court's
    evidentiary ruling with respect to M.L.'s surreptitious recordings
    of confidential therapy sessions.
    IV.
    Defendant contends in Point III that the court erred in
    denying his motion for a mistrial or a continuance upon learning
    the State did not produce discovery from W.K.'s cellphone until
    after   trial   began,   since   the    cellphone   contained   significant
    impeachment information about W.K.
    As set forth in greater detail below, defendant did not move
    for a mistrial or a continuance based on late discovery of the
    information found on W.K.'s cellphone.         Rather, he moved only for
    admission of certain photos and text messages exchanged between
    W.K. and her boyfriend, which the court found irrelevant and
    therefore inadmissible under N.J.R.E. 401.
    At trial, the prosecutor belatedly produced digital discovery
    of the contents of W.K.'s cellphone.          The court held a N.J.R.E.
    104 hearing to determine whether evidence of "sexting" between
    W.K. and her boyfriend was admissible.              At the hearing, W.K.
    61                           A-5783-13T1
    testified that she used the cellphone while working for defendant's
    family, and gave it to the police for analysis on October 8, 2010.
    W.K. testified that on September 29 and 30, 2010, her then-
    boyfriend sent her three photos of his penis, including two with
    semen on it.   Also on September 30, 2010, she sent her boyfriend
    a photo of herself posing in underwear in defendant's bathroom.
    She explained she took the photo while in the bathroom, with the
    door locked. The cellphone also contained other texted photographs
    and W.K. explained the messages were a form of entertainment for
    them.
    W.K. testified that her cellphone was always in her pocket
    or her purse, and she knew of only one occasion when E.L. accessed
    it in order to answer a call from his father when W.K. had left
    the children in the car for two minutes while she dropped off some
    insurance documents. However, that incident occurred in the summer
    of 2010, before the photos at issue were taken.
    In terms of accessing the cellphone, W.K. testified that an
    incoming phone call could be answered while the cellphone was
    locked by simply pressing the green headphone button.     However,
    in order to access the entire phone, the user had to press both
    the send button and the star button at the same time.       If the
    cellphone was unlocked in that manner, the text messages could
    then be accessed by opening the menu and selecting messages.       To
    62                           A-5783-13T1
    her knowledge, neither C.L. nor E.L. had ever seen the photos at
    issue.    She never showed them the photos, and never saw them
    looking at the photos.
    The court barred the photos and text messages from W.K.'s
    cellphone under N.J.R.E. 401 because there was no evidence that
    C.L. ever saw them and nothing showing the photos and text messages
    were relevant to W.K.'s motives.     However, the court permitted
    defendant to renew his application if other evidence came to light
    that made this information relevant.
    When trial resumed, defense counsel questioned W.K. about
    text messages that showed she and her boyfriend were arguing on
    October 6, 2010, and she needed money for a deposit on a new
    apartment.   Counsel also suggested that W.K.'s nanny job was in
    jeopardy, although she denied knowing it was.   Thereafter, defense
    counsel renewed his request to admit the photos and text messages.
    Counsel argued the photos were relevant to establish W.K.'s motive
    to coerce C.L. into accusing defendant of sexual abuse because
    W.K. needed money and was afraid of losing her job.      The court
    denied the motion under N.J.R.E. 401, for the same reasons it
    previously expressed.
    Defendant raised this evidentiary issue on his post-trial
    motion.   In denying the motion, the court declined to address the
    contents of W.K.'s cellphone, other than to note the "issue was
    63                          A-5783-13T1
    fully developed at a [N.J.R.E.] 104 hearing."
    As previously discussed, we review evidentiary rulings for
    an abuse of discretion.      Kuropchak, 221 N.J. at 385.         We review
    motions for a mistrial or a continuance abuse of discretion. State
    v. Smith, 
    224 N.J. 36
    , 47 (2016).
    Whether a mistrial is required will depend upon "the unique
    circumstances of the case." 
    Ibid.
              If there is a reasonable
    alternative to a mistrial, such as "a curative instruction, a
    short adjournment or continuance, or some other remedy," then
    granting a mistrial would constitute an abuse of discretion.
    
    Ibid.
    Depending upon the facts of the case, late discovery may form
    the basis for grant of a continuance or a mistrial.
    Late discovery can cause unfair surprise and
    raise due process concerns.      When a party
    fails to comply with its obligations, the
    discovery rule expressly states that the court
    may "grant a continuance or delay during
    trial" or "enter such other order as it deems
    appropriate."    A court's failure to take
    appropriate action to remedy a discovery
    violation can implicate the defendant's right
    to a fair trial.
    [Id. at 48 (citations omitted).]
    Here, because there was no basis for concluding that C.L.
    ever saw the photos on W.K.'s cellphone, the court did not err in
    concluding   they   were   irrelevant   under   N.J.R.E.   401    and   not
    64                               A-5783-13T1
    exculpatory of defendant.         Moreover, the photos did not depict the
    sexual acts C.L. alleged defendant committed during her interview
    with Taylor.    Thus, there was nothing tying the photos on M.L.'s
    cellphone to C.L.'s disclosures of sexual abuse.          See N.J.R.E. 401
    ("'Relevant evidence' means evidence having a tendency in reason
    to prove or disprove any fact of consequence to the determination
    of the action."); Burr, 
    195 N.J. at 126-27
    .
    The photos were produced to defendant after C.L. testified.
    However, C.L. never mentioned any photos in her pretrial statements
    or trial testimony.        Had defendant wanted to explore the photos
    issue with C.L., he could have requested that she testify at the
    N.J.R.E. 104 hearing, but did not do so.
    Also contrary to defendant's argument, the photos did not
    constitute impeachment evidence with respect to W.K. because they
    did not constitute extrinsic evidence relevant to the issue of her
    credibility.    N.J.R.E. 607; State v. Hockett, 
    443 N.J. Super. 605
    ,
    615-16 (App. Div. 2016).          Introduction of the photos would have
    served only to distract the jury from the issues presented, that
    is, whether defendant committed the criminal acts alleged in the
    indictment, by presenting it with salacious details of W.K.'s
    consensual, adult sexual relationship with her boyfriend, none of
    which   was   known   to   C.L.     Accordingly,   we   find   no   abuse   of
    discretion in the court's evidentiary ruling, excluding the photos
    65                             A-5783-13T1
    and text messages from W.K.'s cellphone, and thus no plain error
    in the court not sua sponte granting a mistrial or a continuance
    based upon the State's late production of discovery.
    V.
    Defendant contends for the first time on appeal in Point IV
    that the court erred in failing to instruct the jurors fully and
    adequately concerning their avoiding information from outside of
    the courtroom and voir dire the jurors upon their returning to the
    courtroom for the trial more than one month after the jury had
    been selected.   This contention lacks merit.
    During jury selection in December 2013, prospective jurors
    were asked whether they had any knowledge of the case or anyone
    involved in the case. The court also admonished prospective jurors
    to not discuss the case with anyone and to not do any research
    regarding the case.   Once the jury was empaneled, the court gave
    a more detailed instruction, stating:
    It is extremely important that you do not
    discuss the case amongst yourselves.       You
    don't discuss it at home with your families
    or friends. Don't go online. Don't use any
    Internet sites or . . . do any research of us,
    of the defendant, of the attorneys.       And,
    . . . again, . . . don't go on any online
    sites to look for any of us, and particularly
    the three of us -- the attorneys and myself
    and the defendant, or don't discuss the law
    or try to find out what the law is all about
    or the facts, anything like that.
    66                          A-5783-13T1
    And the reason I say that is obvious.
    You haven't heard . . . anything yet. But,
    also, understand that if there's any outside
    influence it will taint this trial completely.
    And, . . . unfortunately it's happened
    before where we've been through a trial two
    or three weeks and somebody -- one of the
    members of the jury did some outside research
    or researched about . . . information about
    one of the parties and that got circulated and
    everybody wasted their time and we had to
    start all over. Not with that jury, because
    that jury had to be discharged.     Not happy
    because they had to spend time out of their
    lives.
    So, it is critically important that
    . . . your deliberations are based solely on
    what happens inside this Courtroom, without
    any interference from anybody.     And don't
    discuss, as I said, the case with family or
    friends.   You really don't know anything.
    What you have are only allegations. You know
    nothing else about that.
    In time you will hear all the facts.
    You'll hear argument of counsel. You'll be
    instructed on the law from me and then you
    guys can talk amongst yourselves.
    Compare   with   Model      Jury   Charges     (Criminal),   "Preliminary
    Instructions to the Jury" (May 12, 2014).
    Trial reconvened in January 2014.          Throughout the trial the
    court admonished the jurors to avoid outside information about the
    case,   including   media    coverage    and   independent   research    or
    discussions with other jurors or family members or friends.              In
    the final charge, the court also instructed the jury that its
    67                            A-5783-13T1
    verdict must be based solely upon the evidence produced at trial.
    Here, there is no basis whatsoever to conclude the jury was
    tainted by outside influences.           We must presume that the jurors
    followed the court's instructions to avoid outside sources of
    information, State v. Ross, 
    218 N.J. 130
    , 152 (2014) because there
    is nothing in the record suggesting otherwise.                     Defendant was
    arrested   in   2010,    and    the   trial   did    not   occur    until     2014.
    Defendant produced no evidence this trial received extensive news
    coverage or that the jury was tainted by such coverage.
    Moreover, the jurors in this case were diligent about their
    obligations.     In another instance, they advised the court of a
    juror's    misconduct    (prematurely       discussing     his   belief      as    to
    defendant's guilt or innocence), which resulted in that juror
    being excused.    Therefore, it is reasonable to conclude the jurors
    also would have informed the court if it appeared a juror was
    tainted by outside information.         We find no error, let alone plain
    error in the court's failure to sua sponte voir dire the jury
    regarding that issue.
    VI.
    Defendant contends in Point V that the court erred in denying
    his motion to sever the sexual assault charges (counts one through
    six)    from    the     child    pornography        and    tampering/attempted
    destruction of evidence charges (counts seven and eight).                    Before
    68                                   A-5783-13T1
    trial, he moved to sever counts seven and eight from the rest of
    the indictment. In a written opinion, the court denied the motion,
    stating:
    In this case, the Cofield[11] factors weigh
    in favor of the State such that the child
    pornography and destruction of evidence
    charges should not be severed from the sexual
    assault charges.
    Defendant argues that the sexual assault
    charges have nothing in common, either in fact
    or by way of proof, with the child pornography
    and destruction of evidence charges.       The
    court disagrees, as these allegations are
    intertwined and there is a sufficient nexus
    to each other to justify joinder. [State v.
    Morton, 
    155 N.J. 383
    , 451 (1998); State v.
    Chenique-Puey, 
    145 N.J. 334
     (1996)].      C.L.
    stated that defendant was "texting and
    watching TV" while performing the alleged
    sexual conduct. The two separate charges are
    similar in kind to each other and occurred
    within a reasonably close time from each
    other. Moreover, the alleged destruction of
    evidence demonstrates defendant's state of
    mind and intent relative to any charges
    pertaining to deviant sexual conduct. While
    the evidence of one crime vis a vis the other
    crime is prejudicial, such prejudice does not
    outweigh its probative value.
    The court also agrees with the State's
    position that the evidence between the two
    allegations of sexual assault and child
    pornography/destruction    of   evidence    is
    "intrinsic" to each other. As set forth in
    [State v. Rose, 
    206 N.J. 141
    , 181-82 (2011)
    (citing United State v. Green, 
    617 F.3d 233
    (3d   Cir.   2010)),]   evidence    which   is
    intrinsically intertwined with the other crime
    11
    State v. Cofield, 
    127 N.J. 328
     (1992).
    69                           A-5783-13T1
    charged, provides a background to the events,
    or "completes the story" is such intrinsic
    evidence.
    In another pretrial motion, defendant renewed his request for
    severance, which the court denied for the reasons previously
    stated.   During trial, defendant again moved for severance of the
    child pornography charges, and the court denied the motion for the
    reasons previously stated, also noting C.L.'s trial testimony that
    she observed defendant masturbating while watching something on
    the laptop computer.
    Rule 3:7-6 allows for two or more offenses to be charged
    together in the same indictment "if the offenses charged are of
    the same or similar character or are based on the same act or
    transaction or on 2 or more acts or transactions connected together
    or constituting parts of a common scheme or plan."      Under Rule
    3:15-1 (emphasis added):
    (a) Permissible Joinder. The court may order
    2 or more indictments . . . tried together if
    the offenses . . . could have been joined in
    a single indictment or accusation. . . .
    (b) Mandatory Joinder.     Except as provided
    by [Rule] 3:15-2(b), a defendant shall not be
    subject to separate trials for multiple
    criminal offenses based on the same conduct
    or arising from the same episode, if such
    offenses   are  known   to   the   appropriate
    prosecuting officer at the time of the
    commencement of the first trial and are within
    the jurisdiction and venue of a single court.
    70                          A-5783-13T1
    Finally, under Rule 3:15-2(b), if for any "reason it appears that
    a   defendant   or    the    State      is    prejudiced   by   a   permissible    or
    mandatory joinder of offenses . . . in an indictment . . . the
    court may order an election or separate trials of counts[.]"
    We review a court's ruling on a severance motion for abuse
    of discretion.       Chenique-Puey, 
    145 N.J. at 341
    .                In ruling on a
    motion to sever, the court should consider the potential harm to
    defendant, as well as the need for judicial economy and expediency.
    Coruzzi, 189 N.J. Super. at 297-98. The key to determining whether
    joinder is prejudicial to a defendant is whether, if the crimes
    were tried separately, evidence of the severed offenses would be
    admissible under N.J.R.E. 404(b) in trial of the remaining charges.
    Chenique-Puey,       
    145 N.J. at 341
    .      "If   the    evidence   would   be
    admissible at both trials, then the trial court may consolidate
    the charges because 'a defendant will not suffer any more prejudice
    in a joint trial than he would in separate trials.'"                          
    Ibid.
    (quoting Coruzzi, 189 N.J. Super. at 299).
    N.J.R.E. 404(b) provides, in pertinent part, that
    evidence of other crimes, wrongs, or acts is
    not admissible to prove the disposition of a
    person in order to show that such person acted
    in conformity therewith.    Such evidence may
    be admitted for other purposes, such as proof
    of motive, opportunity, intent, preparation,
    plan, knowledge, identity or absence of
    mistake or accident when such matters are
    relevant to a material issue in dispute.
    71                             A-5783-13T1
    A four-pronged test is used to determine the admissibility of
    evidence under the rule:
    1.   The evidence of the other crime must be
    admissible as relevant to a material issue;
    2.   It must be similar in kind and reasonably
    close in time to the offense charged;
    3.   The evidence of the other crime must be
    clear and convincing; and
    4.   The probative value of the evidence must
    not be outweighed by its apparent prejudice.
    [Cofield, 
    127 N.J. at 338
     (quoting Abraham P.
    Ordover, Balancing the Presumption of Guilt
    and Innocence: Rules 404(b), 608(b), and
    609(a), 
    38 Emory L.J. 135
    , 160 (1989)).]
    The second prong of the test is not found in N.J.R.E. 404(b).
    Therefore, it "need not receive universal application in Rule
    404(b) disputes."       State v. Williams, 
    190 N.J. 114
    , 131 (2007).
    "The fourth prong, whether the probative value of the evidence is
    outweighed   by   its   apparent   prejudice,   is   generally   the   most
    difficult part of the test."       State v. Barden, 
    195 N.J. 375
    , 389
    (2008).
    Under the facts presented, the court did not abuse its
    discretion in denying defendant's motions to sever the child
    pornography and tampering/attempted destruction of evidence counts
    from the sexual assault counts.       As the court noted, these crimes
    were inextricably intertwined and intrinsic to one another, in
    72                             A-5783-13T1
    that C.L. stated defendant was texting and watching television
    while he sexually abused her, suggesting he was using the laptop
    computer at the time.      C.L. also testified to observing defendant
    masturbate while he was watching a movie on the laptop, and
    defendant attempted to destroy the child pornography on the laptop
    just minutes after M.L. called him from the AHCH, and minutes
    before the police arrived at his home to arrest him on the sexual
    assault charges.     Thus, the court properly denied the severance
    motion because there was no way to tell the story of his arrest
    for sexual assault without also addressing the child pornography
    found in his possession at the time of his arrest, as well as his
    attempted destruction of the child pornography. See State v.
    Gorthy, 
    226 N.J. 516
    , 539 (2016).
    Furthermore, performing an analysis under N.J.R.E. 404(b),
    the court reasonably concluded that all four prongs of the Cofield
    test were established: (1) the child pornography crimes were
    relevant   to   material   issues   regarding    the   sexual   assaults,
    including defendant's intent and state of mind; (2) the child
    pornography crimes were similar in kind and reasonably close in
    time to the sexual assault offenses in that defendant possessed
    the pornography and attempted to destroy it near the time of his
    arrest   for    sexual   assault;   (3)   the   evidence   of   the     child
    pornography crimes was clear and convincing and supported by expert
    73                                A-5783-13T1
    forensic analysis of defendant's computers; and (4) the probative
    value of the evidence did not outweigh its apparent prejudice.
    We acknowledge the child pornography evidence was prejudicial
    to defendant.    R. 3:15-2(b).          However, the evidence was not
    prejudicial in the sense that N.J.R.E. 404(b) proscribes, i.e.,
    that it would focus the jurors' attention on defendant's criminal
    character and divert their attention from their duty to consider
    only the crimes charged.      See, e.g., Williams, 
    190 N.J. at 132
    .
    To   the   contrary,   as    the   court      found,   the    evidence     of
    tampering/attempted    destruction      of   the   child   pornography   was
    relevant to defendant's state of mind, i.e., his consciousness of
    guilt for the sexual assaults.          See 
    id. at 125-34
     (recognizing
    relevance of post-crime conduct to defendant's consciousness of
    guilt, particularly attempts to cover up crime).
    As well, the jury could have considered the child pornography
    evidence with respect to defendant's motive, intent, and state of
    mind with respect to the sexual assault charges, because it
    demonstrated his sexual interest in children, which he denied at
    trial, and because it contradicted his claim that he would not
    have committed the alleged crimes because he would never hurt his
    daughter or any child.      See Covell, 157 N.J. at 561, 566-71.
    Finally, it is significant that in summation, defense counsel
    stated the State wanted the jurors "to believe that because there's
    74                               A-5783-13T1
    . . . child porn on there that he must be a child abuser."       The
    court sustained the State's objection and instructed the jury that
    the State did not want the jurors to make any such presumption,
    and the law required them to consider each charge separately.      In
    the main charge, the court also instructed the jurors in greater
    detail on their obligation to separately consider each alleged
    crime. We conclude there was no abuse of discretion in the court's
    denial of defendant's motions to sever.
    VII.
    Defendant contends in Point VI that the court erred in denying
    his motion to dismiss the indictment based upon the State's failure
    to present the grand jury with exculpatory evidence, namely,
    "C.L.'s repeated statements to investigators and professionals
    denying that [defendant] had engaged in any improper conduct."
    Defendant made a pretrial motion to dismiss the indictment, but
    it does not appear he raised this argument.    At most, he argued
    "that C.L. gave 'many inconsistent statements' in her statement
    concerning the alleged sexual assaults."     The court denied the
    motion, finding that:
    inconsistent statements do not rise to the
    level of "clearly exculpatory," to result in
    a dismissal of the indictment.           Those
    statements, if inconsistent, are ripe for
    cross-examination at trial and preserve
    defendant's    Sixth    Amendment  right    of
    confrontation.       Resolutions  of  factual
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    disputes are not the province of the grand
    jury.   [State v. Hogan, 
    144 N.J. 216
    , 235
    (1996).]
    Also as relates to this issue, it is relevant that the grand
    jury presentation occurred on March 23, 2011.       C.L.'s statement
    to Reed was taken a few months earlier, on November 30, 2010.
    However, the record does not indicate when the defense provided
    that statement to the State. Moreover, C.L.'s alleged recantations
    in therapy sessions occurred on July 5 and December 27, 2012,
    after the grand jury presentation.
    We review motions to dismiss an indictment for abuse of
    discretion. 
    Id. at 229
    .   We discern no abuse of discretion here.
    The grand jury is "an accusatory and not an adjudicative
    body."   
    Id. at 235
    .   Its duty is to determine whether the State
    has presented a prima facie case that a crime has been committed,
    and the defendant committed it.      
    Id. at 228
    .
    The prosecutor must present to a grand jury any evidence in
    its possession that directly negates the defendant's guilt and is
    clearly exculpatory.   
    Id. at 236
    .    However, in considering whether
    the prosecutor erred in not presenting such evidence, courts must
    give "due regard to the prosecutor's own evaluation of whether the
    evidence in question is 'clearly exculpatory.'" 
    Id. at 238
    . Thus,
    it is anticipated that "only in the exceptional case will a
    prosecutor's failure to present exculpatory evidence to a grand
    76                            A-5783-13T1
    jury constitute grounds for challenging an indictment."                     
    Id. at 239
    .
    Recantations      by   the    victim    are   not    viewed   as    clearly
    exculpatory.       
    Id. at 239
    .         Rather, they present questions of
    credibility to be resolved by a petit jury.                
    Id. at 239-40
    .     Thus,
    even assuming the State was aware of C.L.'s recantations before
    presenting evidence to the grand jury, which defendant has not
    established, "[t]he recantation did not affect the State's prima
    facie case of guilt against defendant, and thus the prosecutor did
    not commit misconduct in not revealing the recantation to the
    grand jury."    
    Id. at 240
    .         Moreover, the petit jury considered all
    of C.L.'s statements at trial, along with her trial testimony, and
    determined her recantations were not credible.                 United States v.
    Mechanik, 
    475 U.S. 66
    , 70 (1986); State v. Cook, 
    330 N.J. Super. 395
    , 411 (App. Div. 2000).             Accordingly, we affirm the court's
    denial of defendant's motion to dismiss the indictment.
    VIII.
    Defendant contends in Point VII that the court erred by
    denying his motion for judgment of acquittal, or alternatively, a
    new trial.     He argues the evidence was insufficient to sustain a
    guilty   verdict    on    all   charges,       and   alternatively,       that   the
    cumulative trial errors previously discussed deprived him of a
    fair trial.    Considering defendant's post-trial motions, the court
    77                                  A-5783-13T1
    rejected his complaints about various evidentiary rulings, and
    concluded that the evidence at trial supported the jury's verdict.
    A motion for judgment of acquittal under Rule 3:18-1 should
    be   granted   "if   the   evidence    is   insufficient   to   warrant    a
    conviction."
    [T]he question the trial judge must determine
    is whether, viewing the State's evidence in
    its entirety, be that evidence direct or
    circumstantial, and giving the State the
    benefit of all its favorable testimony as well
    as all of the favorable inferences which
    reasonably could be drawn therefrom, a
    reasonable jury could find guilt of the charge
    beyond a reasonable doubt.
    [State v. Reyes, 
    50 N.J. 454
    , 458-59 (1967).]
    A motion for a new trial may be granted "if required in the
    interest of justice."       R. 3:20-1.      "The trial judge shall not,
    however, set aside the verdict of the jury as against the weight
    of the evidence unless, having given due regard to the opportunity
    of the jury to pass upon the credibility of the witnesses, it
    clearly and convincingly appears that there was a manifest denial
    of justice under the law."     Ibid.; R. 3:20-1; State v. Perez, 
    177 N.J. 540
    , 555 (2003).      There is no manifest denial of justice if
    the jury rationally could have found defendant's guilt beyond a
    reasonable doubt.     State v. Jackson, 
    211 N.J. 394
    , 413-14 (2012).
    We agree with the court that since the evidence supported the
    jury's verdict on each charge of the indictment, defendant was not
    78                           A-5783-13T1
    entitled to a judgment of acquittal or a new trial based upon the
    weight of the evidence.       In addition, we find no merit to his
    claim that he was deprived of a fair trial due to cumulative error,
    State v. Jenewicz, 
    193 N.J. 440
    , 473-74 (2008), and affirm the
    denial of his post-trial motion for judgment of acquittal or,
    alternatively, a new trial.
    IX.
    Defendant challenges his sentence in Point VIII.        He argues
    the sentence is draconian and unjust.
    In issuing its sentence as to counts one, two, three, and
    four, the court found aggravating factors two, N.J.S.A. 2C:44-
    1(a)(2) (the gravity and seriousness of harm inflicted on the
    victim, including that the victim was particularly vulnerable to
    extreme   youth),   three,   N.J.S.A.   2C:44-1(a)(3)   (risk   of   re-
    offense), four, N.J.S.A. 2C:44-1(a)(4) (defendant took advantage
    of a position of trust or confidence to commit the offense), and
    nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter).          With respect
    to counts five, six, seven, and eight, the court found only
    aggravating factors three and nine.
    The court found mitigating factors seven, N.J.S.A. 2C:44-
    1(b)(7) (defendant has no history of prior delinquency or criminal
    activity, noting as well defendant's years of military service),
    and   eleven,   N.J.S.A.   2C:44-1(b)(11)   (defendant's   imprisonment
    79                            A-5783-13T1
    would entail excessive hardship to his dependents, albeit self-
    imposed).      As to all counts, the court found the aggravating
    factors outweighed the mitigating factors.             Nevertheless, the
    court issued only mid- or low-range sentences.
    Specifically, as to count one (first-degree aggravated sexual
    assault   of   a   victim   less   than   thirteen   years    old),   with    a
    sentencing range of ten-to-twenty years, N.J.S.A. 2C:43-6(a)(1),
    the court sentenced defendant to fifteen years.              As to count two
    (second-degree sexual assault of a victim less than thirteen years
    old), with a sentencing range of five-to-ten years, N.J.S.A. 2C:43-
    6(a)(2), the court sentenced defendant to seven years, consecutive
    to count one, since it was different in nature.
    As to counts three (second-degree sexual assault of a victim
    less than thirteen years old), four (second-degree sexual assault
    of a victim less than thirteen years old), and five (second-degree
    endangering the welfare of a child), the court sentenced defendant
    to terms of seven years, concurrent to count two, since the crimes
    were similar in nature.
    As to count six (third-degree hindering prosecution), with a
    sentencing range of three-to-five years, N.J.S.A. 2C:43-6(a)(3),
    the court sentenced defendant to a term of three years, consecutive
    to count counts one and two, because it was independent of the
    sexual assault offenses.
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    As to count seven (fourth-degree endangering the welfare of
    a child by possessing child pornography), with a sentencing range
    of   up   to    eighteen   months,   N.J.S.A.   2C:43-6(a)(4),   the     court
    sentenced defendant to a term of one year, consecutive to the
    other terms, because it was a completely different offense from
    the sexual assault and hindering offenses.
    Finally, as to count eight (fourth-degree tampering with
    evidence by attempting to delete the child pornography), the court
    sentenced defendant to a term of one year, concurrent to count
    seven, since the two offenses occurred similar in time and had
    similar objectives.
    Regarding each of the consecutive terms, the court made
    findings consistent with State v. Yarbough, 
    100 N.J. 627
    , 633-34
    (1985).    Finally, the court made findings that Megan's Law, parole
    supervision for life, and NERA applied to certain counts.                Thus,
    the aggregate sentence imposed was twenty-six years, with twenty-
    two years subject to NERA.
    We review a court's sentencing decision under an abuse of
    discretion standard.        State v. Fuentes, 
    217 N.J. 57
    , 70 (2014).
    As directed by the Court, we must determine whether:
    (1) the sentencing guidelines were violated;
    (2) the aggravating and mitigating factors
    found by the sentencing court were not based
    upon competent and credible evidence in the
    record; or (3) "the application of the
    81                               A-5783-13T1
    guidelines to the facts of [the] case makes
    the sentence clearly unreasonable so as to
    shock the judicial conscience."
    [Ibid. (alteration in original) (quoting State
    v. Roth, 
    95 N.J. 334
    , 364-65 (1984)).]
    We have considered defendant's contention in light of the
    record and applicable legal principles and conclude it is without
    sufficient merit to warrant discussion in a written opinion.      R.
    2:11-3(e)(2).    We affirm substantially for the reasons the court
    expressed at sentencing.   We are satisfied that the court did not
    violate the sentencing guidelines and the record amply supports
    its findings on aggravating and mitigating factors.   The sentence
    is clearly reasonable and does not shock our judicial conscience.
    Affirmed.
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