State of New Jersey v. M.A.U. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2064-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.A.U.,
Defendant-Appellant.
__________________________
Argued February 13, 2024 – Decided April 22, 2024
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 19-03-0307.
Nancy E. Lucianna argued the cause for appellant (Law
Offices of Nancy E. Lucianna, PC, attorneys; Nancy E.
Lucianna, of counsel and on the briefs; Paul Francis
Darakjian, on the briefs).
Edward F. Ray, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Edward F. Ray, of counsel and on
the brief).
PER CURIAM
Defendant M.A.U.1 appeals from his convictions of two counts of sexual
assault, N.J.S.A. 2C:14-2(c)(3); and one count of endangering the welfare of a
child, N.J.S.A. 2C:24-4(a)(1) following a jury trial. We affirm.
A.
We glean the relevant procedural history and facts from the record. In
March 2019, a Bergen County grand jury returned a five-count superseding
indictment charging defendant with: (1) first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(2)(1), for acts committed between January and May 2016;
(2) second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3), for acts committed
between May 2016 and October 2017; (3) second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(3), for acts occurring in November 2017; (4) third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a), for acts occurring
between January 2016 and November 2017;2 and (5) third-degree endangering
1
We use initials to protect the privacy of defendant's victim, A.U. R. 1:38-
3(c)(9).
2
Without objection, the State amended the fourth count of the indictment from
endangering the welfare of a child (abuse and neglect), N.J.S.A. 2C:24-4(a)(c),
to endangering the welfare of a child (engages in sexual conduct which would
impair or debauch the morals of a child), N.J.S.A. 2C:24-4(a)(1).
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the welfare of a child, N.J.S.A. 2C:24-4(a), for acts occurring between January
2016 and November 2017.3
In April 2020, the motion judge heard oral argument on the State's motion
to admit the victim's, A.U.'s, testimony regarding defendant's "prior bad act."
On June 1, 2020, the motion judge issued a written opinion and executed an
order admitting the "prior bad act" evidence.
Three days later, the trial judge held a pretrial conference with counsel
and defendant. The conference included discussion of courtroom logistics and
the seating of witnesses and others. When the issue of defendant's family
members and the witness list arose, the judge stated they would be sequestered.
On July 1, 2021, during the second day of jury selection, attended by all counsel
and defendant, the judge stated:
there will be some room here in my courtroom for the
victim, the victim advocate, and . . . since [defendant's]
relatives are testifying, they[ wi]ll be sequestered[.]
...
But anybody who is not testifying who is a relative who
wants to sit on the courtroom, we . . . should be able to
accommodate them . . . .
3
The parties agreed to sever the fifth count because it involved a different
alleged victim.
A-2064-21
3
On July 19, 2021, the judge heard oral argument on the State's motion in
limine to admit A.U.'s testimony as to her "prior disclosure of the sexual assault
to her family, specifically her father[;] . . . the verbal and physical abuse by the
family; and coercion [of her] to lie by her father" in another family court matter.
The judge determined "A.U's testimony regarding her reporting of the assault to
her father [wa]s admissible," however "the testimony as it relate[d] to verbal and
physical abuse, as well as coercion to lie" would not be permitted.
The trial began on July 20, 2021. In the State's opening statement, it
asserted A.U. was "going to tell you that [sexual assault] happened again and
again until, finally she could[ no]t take it anymore. She felt trapped. She felt
trapped in this house of horrors caused by the sexual gratification of th[e]
defendant." He added "the evidence will show it happened month after month
after month, year after year."
In defense counsel's opening statement, he stated A.U.:
will testify what a horrible place this was where she was
living. How did she end up there? How did she end up
in this house of horrors? She was brought here by
[defendant's parents] to improve her life. They brought
her to the United States. Her father, her biological
father brought her to the United States to get a better
education than she was getting in [her native country].
Does this sound like someone that brought his daughter
here to abuse her?
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Following opening statements, the trial judge held a side bar conference,
during which the State requested the judge reconsider her July 19, 2021 order
barring A.U.'s testimony regarding verbal and physical abuse. The State sought
reconsideration because defendant referenced the household conditions in his
opening statement. The judge found defendant "opened the door somewhat by
discussing the home's conditions and telling the jury that the household was not
in fact a house of horrors." The judge stated she would "allow some amount of
discussion as to the household conditions into the trial." Both attorneys
"indicated that they were fine with and accepted the ruling."
A.U. testified during the trial, acknowledging she was born in South
America in 2000 and came to the United States when she was eight years old to
live in her father's and his wife's home. Also residing in the home were her
father's and stepmother's two sons, including defendant. She described her home
life as miserable, and that she was often mistreated by defendant and her
stepmother.
A.U. testified that during one late afternoon when she was fifteen years
old, she arrived home and was going to her room to sleep, unaware defendant
was hiding her closet. She described that defendant came out of the closet,
pushed her against the bed, got on top of her, pulled his pants down and put a
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5
pillow on top of her face. She testified defendant also pulled down her shorts
and put his penis into her vagina. After he left her room, A.U. went to the
bathroom and saw blood coming from her vagina. She did not recall further
details about the assault.
A.U. testified defendant sexually assaulted her ten more times. She did
not remember the details of each attack, but noted the offenses occurred more
often when she was sixteen years old. She recalled an event in the living room
when defendant "ejaculated on [her] butt . . . [and] cleaned it with his own hand."
Additionally, A.U. remembered the last assault occurred in November
2017, when she was babysitting her baby nephew. She explained defendant took
the baby from her and brought the baby upstairs before dragging her upstairs,
by her hair, into a room and penetrating her vagina with his penis.
A.U. also testified she went to her friend's house and told the friend about
defendant's assaults. A.U. then spoke to the police and threatened to commit
suicide but purportedly received no help from the police. Ultimately, A.U.
spoke with authorities at school and reported she was planning to commit suicide
and would not return to her father's home. Thereafter, A.U. was removed from
her father's home.
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After consulting with counsel, the judge prepared a limiting jury
instruction regarding A.U.'s testimony about defendant's prior assaults. The
judge read the instruction into the record and defense counsel stated the
instruction was "all right" with him. Therefore, the judge instructed the jury:
[T]he State has introduced evidence that in 2015, the
defendant placed a pillow over A.U.'s face and inserted
his penis inside her vagina. Normally, such evidence is
not permitted under our Rules of Evidence. Our rules
specifically exclude evidence that a defendant has
committed other crimes, wrongs or acts when it is
offered only to show that he has a disposition or
tendency to do wrong and, therefore, must be guilty of
the charged offenses.
Before you can give any weight to this evidence, you
must be satisfied that the defendant committed the 2015
acts alleged by A.U. If you are not so satisfied, you
may not consider it for any purpose.
However, our rules do permit evidence of other crimes,
wrongs or acts when the evidence is used for certain
specific narrow purposes.
In this case, the testimony is admissible for the purpose
of providing you with a more complete view of A.U.'s
allegations of abuse against defendant and their
relationship prior to the charged conduct. You may also
consider the evidence as a potential reason why A.U.
did not immediately report the abuse.
Whether the evidence does in fact demonstrate any of
these permissible purposes is for you to decide. You
may decide that the evidence does not demonstrate
some or all of these purposes and is not helpful to you
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at all. In that case you must disregard the evidence. On
the other hand, you may decide that the evidence does
demonstrate some or all of the purposes and use it
accordingly.
However, you may not use this evidence to decide if the
defendant has a tendency to commit crimes or that he is
a bad person. That is, you may not decide that just
because the defendant has committed other crimes,
wrongs or acts, he must be guilty of the present crimes.
I have admitted the evidence only for the purpose of
providing you with a more complete view of A.U.'s
allegations of abuse against defendant and their
relationship prior to the charged conduct.
You may also consider the evidence as a potential
reason why A.U. did not immediately report the abuse.
You may not consider it for any other purpose and may
not find the defendant guilty now simply because the
State has offered evidence that he committed other
crimes, wrongs or acts.
After the State rested its case,4 but before the defendant presented his
defense, the State learned defendant had a phone conversation with his father
from jail. The State asserted defendant violated the sequestration order.
4
The judge dismissed the first count of the indictment under Rule 3:18-1 and
State v. Reyes, 50 N.J. 454 (1967). The judge determined there was no evidence
of assault between January 7, 2016 and May 10, 2016 as alleged in the first
count. The judge recited A.U.'s testimony that A.U. "did not remember whether
it happened between the specific dates contained within the first count of the
indictment."
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On the next day of trial, the trial judge conducted a N.J.R.E. 104 hearing
regarding sequestration. At the hearing, defendant's father testified he discussed
A.U.'s testimony with defendant over the phone during the trial. He explained
he was never "told" or "instructed" to "testify in a certain manner" at trial.
According to the father, he was told only before the N.J.R.E. 104 hearing that
defendant was not permitted to discuss trial testimony with anyone. The trial
resumed, and defendant's father was summoned to testify on behalf of defendant.
During the father's trial testimony, he explained he had a phone
conversation with defendant during the trial. Defendant's father admitted
defendant told him what happened in court and about A.U.'s testimony.
Defendant's father testified his trial testimony was truthful and had not
"changed" because of his conversation with defendant. The State also cross-
examined defendant's father regarding his phone conversation with defendant
about A.U.'s testimony.
During the subsequent charging conference, defense counsel agreed
defendant violated the sequestration order by speaking to his father about A.U.'s
trial testimony. The State sought a jury instruction regarding the violation and
the ability to comment on the violation in its closing argument. After her review
of the transcript of defendant's conversation with his father, the judge found the
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conversation provided "a blow-by-blow description of" A.U.'s testimony. While
defense counsel stated he could not disagree with the court, he argued an
instruction was unnecessary. He noted the State could comment on the father's
credibility in its closing argument. The judge concluded a jury instruction was
necessary because the father "knew exactly" what A.U. testified about. After
further discussion, defense counsel offered no objection to the judge's proposed
sequestration instruction. 5
Accordingly, when the trial ended, the judge not only repeated the "prior
bad act" limiting instruction, but she also instructed the jury regarding
sequestration as follows:
Prior to the commencement of testimony from any
witness, . . . the court issued a witness sequestration
order for all the witnesses in this case. The witness
sequestration order required, among other things, that
witnesses must not learn about what occurred at the trial
before their own testimony.
The purpose of a witness sequestration order is to
prevent prospective witnesses from hearing what other
witnesses testify to at trial. The order seeks to prevent
exposure to prior testimony because the less a potential
witness hears of another witness's testimony, the more
likely the potential witness will testify based solely on
his or her own personal knowledge untainted by the
testimony of others.
5
Both counsel discussed the violation of the sequestration order in their closing
statements.
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Here, [defendant's father] a witness for the defense,
testified on July 22[], 2021, and he acknowledged that
he discussed with defendant some of the prior
testimony at trial. As judges of the facts, you are to
determine the credibility of the witnesses. And in
determining whether a witness is worthy of belief and
therefore credible, you may take into consideration the
fact that [defendant's father] spoke to defendant about
some of the prior trial testimony. You must determine
whether you believe any, some or all of [defendant's
father]'s testimony in light of the factors that I listed for
assessing credibility, in addition to [defendant's
father]'s acknowledgment that he spoke to defendant
about the testimony that already occurred.
If you believe that any witness or party willfully or
knowingly testified falsely to any material facts in the
case with intent to deceive you, you may give such
weight to his or her testimony as you may deem it
entitled. You may believe some of it, or you may, in
your discretion, disregard all of it.
The jury subsequently found defendant guilty of two counts of sexual
assault of A.U. and one count of endangering the welfare of A.U.
B.
On appeal, defendant raises the following arguments:
POINT I.
THE TRIAL COURT ERRED IN ADMITTING
IRRELEVANT AND HIGHLY PREJUDICIAL
TESTIMONY REGARDING UNCHARGED ACTS.
A. The motion judge erred in admitting evidence.
A-2064-21
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B. The jury instruction was improperly provided,
internally inconsistent, and not properly tailored.
C. These Errors Warrant Reversal.
POINT II.
NO VIOLATION OF A SEQUESTRATION ORDER
OCCURRED RENDERING THE JURY
INSTRUCTION IMPROPER.
POINT III.
PROSECUTORIAL MISCONDUCT DENIED
[DEFENDANT] A FAIR TRIAL.
POINT IV.
CUMULATIVE ERRORS WARRANT REVERSAL.
More specifically, under Point I, defendant argues the trial court
committed multiple errors by admitting A.U.'s testimony regarding defendant's
"prior bad act." He contends the errors occurred because: (1) the Cofield6
prongs were improperly analyzed; (2) no N.J.R.E. 104 hearing was held to test
whether A.U.'s testimony established the "prior bad act" by "clear and
convincing evidence"; (3) the jury instruction was incomplete, "confusing and
contradictory," and disguised to allow the jury to consider impermissible res
6
State v. Cofield, 127 N.J. 328, 336 (1992).
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gestae evidence; (4) the jury was not re-instructed on the "prior bad act"
evidence when it requested to re-hear A.U.'s testimony; and (5) the "prior bad
act" evidence was not sanitized.
In Point II, defendant argues there never was a sequestration order or
alternatively, his ignorance of the order belies the notion he knowingly violated
it. Moreover, he contends the State never attempted to prove: an order was
imposed; he knew of the order's obligations; and he knowingly violated the
order. Defendant also argues the jury charge, allowing the jury to "take into
consideration" his conversation with his father "about some of the prior trial
testimony," and weigh it in their consideration of his father's testimony, violated
his right to a fair trial.
In Point III, defendant alleges the assistant prosecutor committed
misconduct: (1) in his opening statement by stating the evidence would show
defendant's "prior bad act" "happened month after month after month, year after
year"; and (2) by questioning A.U. about acts of "physical abuse or verbal
abuse," in the home, despite the trial judge's ruling that she would not permit
such testimony.
C.
We begin our discussion with a review of the principles governing our
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analysis. "Trial court decisions concerning the admission of other-crimes
evidence [is] afforded 'great deference,' and will be reversed only in light of a
'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (citation
omitted). "The admissibility of such evidence is left to the sound discretion of
the trial court, as that court is in the best position to conduct the balancing
required under Cofield due to its 'intimate knowledge of the case.'" Ibid.(citation omitted). "Therefore, a trial court's decision concerning the admission
of other-crimes evidence will not be disturbed absent a finding of abuse of
discretion." Ibid. (citation omitted). An abuse of discretion occurs when a
court's decision "was not premised upon consideration of all relevant factors,
was based upon consideration of irrelevant or inappropriate factors, or amounts
to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App.
Div. 2005) (citation omitted).
N.J.R.E. 404(b) provides:
(1) Prohibited Uses. . . . evidence of other crimes,
wrongs, or acts is not admissible to prove a person's
disposition in order to show that on a particular
occasion the person acted in conformity with such
disposition.
(2) Permitted Uses. This evidence may be admitted for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity or
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absence of mistake or accident when such matters are
relevant to a material issue in dispute.
"The underlying danger of admitting other-crime evidence is that the jury
may convict the defendant because he [or she] is 'a "bad" person in general.'"
Cofield, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)).
"Whenever the admissibility of uncharged bad act evidence is implicated, a
[N.J.R.E.] 404(b) analysis must be undertaken." State v. Rose, 206 N.J. 141,
179 (2011).
"The threshold determination under [N.J.R.E.] 404(b) is whether the
evidence relates to 'other crimes,' and thus is subject to continued analysis under
[N.J.R.E.] 404(b), or whether it is evidence intrinsic to the charged crime, and
thus need only satisfy the evidence rules relating to relevancy, most importantly"
N.J.R.E. 403. Rose, 206 N.J. at 180.
"In an effort to reduce the inherent prejudice in the admission of other-
crimes evidence, our courts require the trial court to sanitize the evidence when
appropriate." State v. Barden, 195 N.J 375, 390 (2011) (citations omitted).
"[S]anitizing accommodates the right of the proponent to present relevant
evidence and the right of the objecting party to avoid undue prejudice." State v.
Collier, 316 N.J. Super. 181, 195 (App. Div. 1998).
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"[I]n addition to sanitizing the evidence when appropriate, the court must
carefully instruct the jury as to its limited use." Barden, 195 N.J. at 390. "[T]he
court's instruction 'should be formulated carefully to explain precisely the
permitted and prohibited purposes of the evidence, with sufficient reference to
the factual context of the case to enable the jury to comprehend and appreciate
the fine distinction to which it is required to adhere.'" Ibid. (alteration in the
original) (citation omitted). "The instruction should be given when the evidence
is presented and in the final charge to the jury." Ibid.
Sequestration of witnesses is permitted under N.J.R.E 615 which provides
"[a]t the request of a party or on the court's own motion, the court may, in
accordance with law, enter an order sequestering witnesses." State v. Popovich,
405 N.J. Super. 324, 326-27 (App. Div. 2009) (alteration in the original).
"Whether to order sequestration generally rests within the sound discretion of
the trial court." Id. at 327 (citing State v. Miller, 299 N.J. Super. 387, 399 (App.
Div. 1997)). "It is appropriate to make clear precisely what is being ordered
when a sequestration order is entered." State v. Cooper, 307 N.J. Super. 196,
199 n.1 (App. Div. 1997).
"Th[e judge's] discretion, however, must be exercised in light of the
underlying policy of sequestering witnesses during a proceeding." Popovich,
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405 N.J. Super. at 327. The primary purpose of a sequestration order is to ensure
that each prospective witness's testimony is based only upon the witness's own
knowledge. Miller, 299 N.J. Super. at 399.
"In any case when a violation of a sequestration order has" occurred, a
trial judge "should promptly conduct a [v]oir dire out of the presence of the jury
in order to ascertain the nature and extent of such violation." State v. Tillman,
122 N.J. Super. 137, 143 (App. Div. 1973). The judge "should thereupon
determine what remedial action is required, if any, in the light of all the
circumstances." Ibid. "The court may, in its discretion, . . . call the disobedience
of the order to the attention of the jury as bearing on the credibility of the
witnesses involved." Id. at 144.
The New Jersey Supreme Court has reminded "trial courts . . . insofar as
consistent with and modified to meet the facts adduced at trial, model jury
charges should be followed and read in their entirety to the jury." State v. R.B.,
183 N.J. 308, 325 (2005). "The process by which model jury charges are
adopted in this State is comprehensive and thorough; our model jury charges are
reviewed and refined by experienced jurists and lawyers." Ibid.; see also Estate
of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015) (there is
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a "presumption of propriety that attaches to a trial court's reliance on the model
jury charge.").
"The proper standards of review of jury instructions are well-settled: if
the party contesting the instruction fails to object to it at trial, the standard on
appeal is one of plain error; if the party objects, the review is for harmless error. "
Willner v. Vertical Realty, Inc., 235 N.J. 65, 80 (2018).
"Without an objection at the time a jury instruction is given, 'there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case.'" Id. at 79 (citations omitted). "Therefore, 'the failure to object
to a jury instruction requires review under the plain error standard.'" Ibid.(citation omitted). "Under that standard, '[a]ny error or omission shall be
disregarded by the appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result.'" Ibid. (alteration in original)
(quoting R. 2:10-2).
When considering a contention of prosecutorial misconduct, we first
determine whether misconduct occurred and, if so, whether it deprived the
defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 438 (2007); State v.
Frost, 158 N.J. 76, 83 (1999). "[A] prosecutor must refrain from improper
methods that result in wrongful conviction[s], and is obligated to use legitimate
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means to bring about a just conviction." State v. Ingram, 196 N.J. 23, 43 (2008)
(quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)). Nevertheless,
"[p]rosecutors are afforded considerable leeway in their . . . arguments as long
as their comments are reasonably related to the scope of the evidence presented."
State v. Neal, 361 N.J. Super. 522, 534-35 (App. Div. 2003).
"In determining whether a prosecutor's misconduct was sufficiently
egregious [to warrant a new trial], an appellate court 'must take into account the
tenor of the trial and the degree of responsiveness of both counsel and the court
to improprieties when they occurred.'" Frost, 158 N.J. at 83 (citation omitted).
In the absence of objections by defense counsel, a reviewing court will not
reverse unless the prosecutor's misconduct "so grievously affect[ed] the
substantial rights of the defendant as to convince [the court] that [the
misconduct] possessed a clear capacity to bring about an unjust result." State v.
Sherman, 230 N.J. Super. 10, 18-19 (App. Div. 1988) (second alteration in the
original) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)).
D.
Here, in addressing the "prior bad act" evidence, the motion judge
conducted an analysis under the N.J.R.E. 404(b)/Cofield framework and under
the Rose/Green framework. Under each framework, the judge concluded the
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"prior bad act" evidence was admissible. Because we conclude the judge
correctly admitted the "prior bad act" evidence under the Rose/Green
framework, and, therefore the challenged evidence was admissible, we need not
address defendant's remaining argument regarding the judge's N.J.R.E.
404(b)/Cofield analysis.
Under the Rose/Green framework, the judge concluded A.U.'s testimony
concerning defendant's "prior bad act" was intrinsic to, not "other" than, the
crime charged. Further, the judge found the "prior bad act" was sufficiently
contemporaneous to satisfy the second category of evidence under Rose.
After deeming the evidence intrinsic to the crime charged, the judge
considered its admissibility under the N.J.R.E. 403 balancing test. In conducting
the balancing test, the judge determined the "probative value of the evidence
compared with the prejudice to the defendant . . . weigh[ed] in the State's favor."
Notwithstanding the judge's findings, defendant argues A.U.'s testimony
about her bleeding following the 2015 sexual assault should have been sanitized.
We disagree. First, the judge conducted the N.J.R.E. 403 balancing test for
prejudice when she allowed the testimony. Second, defendant fails to
demonstrate the reference to the bleeding unduly prejudiced him. Lastly, there
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was no objection made to this limited testimony during the trial and defendant
has failed to establish this testimony led to an unjust result.
Further, we are persuaded the judge admitted the "prior bad act" evidence
for permissible purposes. The judge determined "[t]o deny the testimony of the
initial assault[] . . . would woefully deprive the jury of the full story of the
assaults and how they unfolded." The judge found "there [was] an
unquestionable need" for the evidence to "provide necessary background
information."
The judge's findings as to the use of the evidence comport with Rose,
"other crimes evidence may be admissible if offered for any non-propensity
purpose [including] the need to 'provide necessary background information'
about the relationships among the players as a proper purpose." Rose, 206 N.J.
at 180-81 (citations omitted) (alteration in original) (emphasis added). In Rose,
the Supreme Court noted "there is no need to regard [N.J.R.E.] 404(b) as
containing an exhaustive list of the non-propensity purposes permitted of other
crime evidence." Id. at 181.
Here, while admitting the evidence for permissible purposes, the judge
made clear the evidence could not be used to establish defendant's propensity to
commit the charged crime, and after consultation with counsel, she prepared "a
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carefully crafted jury instruction" to reflect the limited purpose for which the
evidence could be considered by the jury. The jury instruction mirrored the
Model Jury Charge (Criminal) "Proof of Other Crimes, Wrongs, or Acts
(N.J.R.E. 404(b))" (rev. Sept. 12, 2016) and is presumptively correct. Mindful
that defendant did not object to this instruction, we discern no plain error.
We also observe that the judge instructed the jury twice on the "prior bad
act" evidence. Her practice comported with the requirements of Barden, 195
N.J. at 390 ("The instruction should be given when the evidence is presented
and in the final charge to the jury."). Therefore, we reject defendant's argument
the judge was required to re-charge the jury before it re-heard A.U.'s testimony
noting defendant never requested this additional charge. In sum, after reviewing
the record, we are satisfied there was no abuse of discretion in admitting the
"prior bad act" evidence under Rose/Green.
Similarly, we reject defendant's argument that no sequestration order
existed, or that because he was unaware of it, he could not have violated the
order. Such arguments are belied by the record, considering defense counsel
acknowledged that the order was violated.
Further, defendant's contention the jury instruction regarding
sequestration resulted in an unfair trial is misguided. Again, there was an
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acknowledged violation of the sequestration order. Further, the judge's
remedy—the jury instruction—was reasoned and avoided the more drastic
remedies of barring defendant's witness's testimony or declaring a mistrial.
Moreover, defendant did not object to the jury instruction on sequestration either
before or after it was given. Under these circumstances, we discern no plain.
Lastly, we find no merit in defendant's argument of prosecutorial
misconduct. First, the prosecutor's mention, in his opening statement, that
defendant's bad acts happened "month after month after month, and year after
year" "was reasonably related to the scope of the evidence presented." Neal,
361 N.J. Super. at 534-35. Second, the prosecutor's questions of A.U. about acts
of "physical abuse or verbal abuse" were permitted by the judge only after
defense counsel "opened the door" to such questioning in his opening statement.
To the extent that we have not addressed defendant's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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