STATE OF NEW JERSEY VS. J.S.C. (15-03-0792, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3534-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.S.C.,
Defendant-Appellant.
_____________________________
Submitted September 13, 2018 – Decided February 27, 2019
Before Judges Koblitz and Ostrer.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 15-03-0792.
Jill R. Cohen, attorney for appellant.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A Camden County indictment charged defendant J.S.C. (Jorge) 1 with
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), of his estranged girlfriend
M.D. (Maria) on two separate days. He allegedly assaulted her by vaginal
penetration and anal penetration on May 6, 2014; and, four days later, by vaginal
penetration. He also allegedly committed a terroristic threat, N.J.S.A. 2C:12-3.
The jury found Jorge guilty of the anal penetration, and acquitted him of the two
other sexual assault counts; and found him guilty of petty-disorderly-persons
harassment, N.J.S.A. 2C:33-4(a), as a lesser-included offense of terroristic
threats. On the sexual assault conviction, the court sentenced Jorge to a seven-
year term of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2, concurrent to thirty days on the harassment conviction. Appealing his
conviction, Jorge contends his attorney was ineffective, and the court erred in
admitting hearsay statements, and in failing to issue appropriate instructions to
the jury. Having considered these arguments in light of the record and
applicable legal principles, we affirm.
1
We utilize initials and pseudonyms to protect the victim's privacy. See R.
1:38-3(c)(12).
A-3534-16T1
2
I.
The State presented its case principally through the testimony of Maria;
two co-workers who provided fresh-complaint testimony; and a sexual assault
nurse examiner (SANE nurse). Jorge testified in his own defense. His mother
and step-father testified in his defense as well. We glean the following facts
from this record.
Maria and Jorge had an on-and-off relationship spanning five or six years.
The two met in 2008 and had a daughter together in October 2011. In March
2012, after an eviction, they and their infant daughter moved into the home of
Jorge's mother and step-father, P.R. (Patty) and A.R. (Arnaud). In February
2014, Jorge moved out, rekindling a relationship with a former girlfriend, but
Maria and the child remained. A couple of months later he returned, but slept
in a separate room. She told him that they were not together. Nevertheless, they
started sleeping in the same room after a few days.
Maria testified that on May 6, 2014, after she exited the shower in the
morning, wrapped only in a towel, Jorge repeatedly said he wanted to have sex,
and Maria repeatedly refused. Significantly larger than she, Jorge pushed her
on the bed, pinned her down, and digitally penetrated her anus. She cried
quietly, begged him to stop, and tried to resist by moving and scratching him on
A-3534-16T1
3
the neck. He removed his fingers, but then inserted his penis into her vagina
and had "rough sex." Maria said she did not report the incident to Jorge's
parents, or the police, because she was embarrassed, and scared about how Jorge
would respond.
In pain, she dressed and went to work. A co-worker, J.L. (Jillian) noticed
her discomfort and inquired if Jorge had hit her. Jillian testified that Maria
nodded affirmatively in response. Later that night, Maria had dinner with a
friend and co-worker, M.M. (Marcy) and confided in her that Jorge had assaulted
her. When she returned home, Jorge gave Maria what she called an insincere
apology.
Maria testified that three days later, she and Jorge argued about their
relationship into the early morning hours of Saturday, May 10. After going to
sleep in her clothes to discourage intimacy, she awoke in the middle of the night
to find Jorge attempting to take off her pants. She objected, and he relented.
But a couple hours later, he woke her again, and said he wanted to have sex.
She objected, but he told her not to "make this any more difficult than it has to
be," and she "didn't learn [her] lesson." He forcibly removed her pants, while
she resisted, tearing at his shirt and crying. He told her that if she became loud,
he would put a bullet in her head. Just five days earlier, he showed her a small
A-3534-16T1
4
gun – she did not know it was a pellet gun – which he kept wrapped in a shirt
on the nightstand. He then put his penis in her vagina without her consent. After
he refused her entreaties to stop, she ceased resisting.
Maria testified that she and Jorge remained in the house until Jorge went
shopping in the late afternoon. At that point, Maria told Arnaud that she could
not remain in the household, and Jorge had raped her. Maria said that Arnaud
told her it was her best opportunity to pack up, flee and get a restraining order.
She then decided "to go to the hospital to get a rape kit done." At the hospital,
she met the SANE nurse, told her the nature of the assaults, and submitted to the
nurse's examination and sample gathering. Hospital staff alerted the police, who
responded and eventually transported Maria to the stationhouse for an interview.
Jillian testified that Maria had called her Saturday afternoon and asked for
help. Maria told her that "it happened again." Jillian asked Maria to elaborate.
Maria filled in the details of the May 6 assault but Jillian did not repeat them for
the jury. Jillian said she was horrified and did not ask Maria for details of the
most recent assault. She told Maria to go to the hospital or call the police.
Marcy also testified and said Maria texted her on May 10, and asked her
to meet at the hospital. She also testified about the report on May 6. Maria
asked another friend to help retrieve the baby from Arnaud. The State elicited
A-3534-16T1
5
evidence from Marcy and Jillian about Maria's demeanor in the hours after the
two incidents, to support the allegation that she was victimized. The State also
called the SANE nurse, and a forensic witness who confirmed that Jorge's DNA
was found in vaginal and genital samples taken from Maria.
The defense's theory was that Maria had a history of false accusations;
and she fabricated the story of sexual assault in order to exact revenge against
Jorge for his infidelity, and to limit his access to their daughter. In cross-
examining Maria, counsel elicited that Maria had obtained a temporary
restraining order (TRO) against Jorge in 2011. Among other allegations, the
domestic-violence complaint asserted that Jorge had pushed Maria down while
she was pregnant. Maria explained that she was unaware that the allegation was
included in the complaint and asked that it be corrected a couple days later
because it was false. However, defense counsel also elicited from Maria's co-
worker, Jillian, that Maria told her that Jorge had attacked her when she was
pregnant.2 In summation, counsel argued that this was evidence that Maria
perpetuated the lie, and could not be trusted to tell the truth now.
2
On direct, Marcy mentioned that Jorge had been violent with Maria while she
was pregnant.
A-3534-16T1
6
Counsel also attempted to raise doubts about Maria's delay in reporting
the May 6 incident, noting that Maria had friends and family in law enforcement,
and was familiar with the process of seeking a restraining order, as she had done
so in the past.
In his own defense, Jorge contended that the intercourse with Maria on
May 6 and 10 was consensual. He contended that he told Maria he wanted to
try something new, by digitally penetrating her anus, but stopped when Maria
objected. He denied arguing with her on May 9. He agreed that their
relationship was marked by repeated break-ups. He also described the events
leading to the 2011 TRO, denying he shoved Maria.
Jorge's mother, Patty, testified that after Maria found out that Jorge had
resumed a relationship with a former girlfriend, Maria said she was going to kill
him. Jorge's step-father, Arnaud, testified that he recalled the same threat.
However, both parents were confronted with the fact that they did not disclose
the threat when police first questioned them. Arnaud also confirmed that Maria
told him that Jorge had raped her on May 10, but he said he told her to go to the
hospital only after she said her stomach hurt.
In its final instructions to the jury, the judge adhered to the model charge
on fresh-complaint testimony, advising the jury that Jillian's and Marcy's
A-3534-16T1
7
recounting of Maria's complaints was not substantive evidence the assaults
occurred. See Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5,
2007). The judge also addressed the issue of Maria's 2011 allegation that Jorge
shoved her. Although she introduced that section of her jury charge by stating,
"[p]roof of other crimes, wrongs or acts," the judge explained that the defense
"introduced evidence that in 2011 there was an alleged incident involving
[Maria] and [Jorge]." The court explained the defense did so "to challenge the
credibility of [Maria]," and the jury should consider that evidence, along with
other evidence, to determine whether the State has met its burden to prove the
offenses charged.
II.
Jorge presents the following points for our consideration:
I. [JORGE'S] PREVIOUS ATTORNEY WAS SO
CONSTITUTIONALLY DEFICIENT AS TO
DEPRIVE HIM OF DUE PROCESS (NOT
RAISED BELOW).
I(A) TRIAL COUNSEL SHOULD HAVE
OBJECTED TO EVIDENCE OF ALLEGED
PRIOR BAD ACTS ADMITTED THROUGH
[MARCY] AND [JILLIAN'S] TESTIMONY AS
THEY WERE CLEARLY VERY
PREJUDICIAL TO HIS CLIENT.
II. [THE SANE NURSE'S] TESTIMONY WAS
INADMISSIBLE HEARSAY BECAUSE THE
A-3534-16T1
8
ONLY PURPOSE FOR [MARIA'S] VISIT TO
THE HOSPITAL WAS TO PREPARE
CRIMINAL ALLEGATIONS AGAINST
[JORGE], NOT FOR THE PURPOSE OF
DIAGNOSIS AND TREATMENT.
III. THE TRIAL COURT SHOULD HAVE
LIMITED THE TESTIMONY OF PROMPT
COMPLAINT WITNESSES [MARCY] AND
[JILLIAN] SOLELY TO THE CONTENTS OF
THE COMPLAINT, AN ERROR OF SUCH
MAGNITUDE TO HAVE CAUSED AN
INJUSTICE IN THE CASE.
IV. THE TRIAL COURT ERRED IN NOT ISSUING
A PROMPT COMPLAINT INSTRUCTION,
AND TRIAL COUNSEL ERRED IN NOT
OBJECTING TO THE TESTIMONY OF
[MARCY] AND [JILLIAN] WHICH FAR
EXCEEDED THE SCOPE OF THE PROMPT
COMPLAINT RULE (not raised below).
V. THE TRIAL COURT'S FAILURE TO GIVE
CAUTIONARY INSTRUCTIONS AS TO THE
USE OF PROMPT COMPLAINT EVIDENCE,
AND ITS FAILURE TO USE THE
APPROPRIATE 404(B) JURY
INSTRUCTIONS WAS PLAIN ERROR (not
raised below).
III.
A.
Defendant argues that his trial counsel was ineffective by eliciting
testimony about the 2011 TRO; and not objecting to the admission of Maria's
A-3534-16T1
9
hearsay statements to the SANE nurse, or to the testimony from Jillian and
Marcy. We decline to decide the point. "Our courts have expressed a general
policy against entertaining ineffective-assistance-of-counsel claims on direct
appeal because such claims involve allegations and evidence that lie outside the
trial record." State v. Preciose, 129 N.J. 451, 460 (1992). At a PCR hearing,
"counsel can explain the reasons for his conduct . . . and . . . the trial judge can
rule upon the claims including the issue of prejudice." State v. Sparano, 249
N.J. Super. 411, 419 (App. Div. 1991). Even where a defense attorney conceded
in his opening that his client was guilty of one or two counts of the indictment,
the Supreme Court declined to reach the ineffective-assistance-of-counsel claim
on direct appeal, because the concession may have been part of a strategy "to
gain credibility with the jury in an attempt to earn a not guilty finding" on more
serious charges. State v. Castagna, 187 N.J. 293, 316 (2006).
On this record, we are not prepared to conclude that defense counsel was
ineffective. Eliciting testimony about the 2011 TRO was evidently part of a
concerted strategy to undermine Maria's credibility. Counsel established the
falsity of Maria's allegation in her 2011 domestic violence complaint that Jorge
pushed her to the ground when pregnant. Although Maria contended the false
A-3534-16T1
10
statement was unintentional and she corrected it, Maria apparently repeated the
allegation to Marcy and Jillian.
Consistent with that strategy, defense counsel likely did not want to object
to Marcy's and Jillian's testimony that Jorge had been violent with Maria in the
past. As they did not testify they ever witnessed such violence, their statements
could be viewed simply as evidence that Maria repeated falsehoods once again.
The challenge to Maria's credibility, based on the 2011 false accusation, figured
prominently in defense counsel's closing. Arguably, the strategy partly
succeeded; in a case involving a credibility contest between Maria and Jorge,
the jury rejected Maria's allegation regarding two out of the three assaults
charged.
In sum, the ineffective-assistance-of-counsel claim is premature.
B.
We turn next to the SANE nurse's testimony. The court permitted the
nurse to recount Maria's assault complaints – but not statements casting blame
on Jorge – and the nurse complied.3 The State sought admission of the
3
Usually, blame-casting statements are not relevant to diagnosis or treatment.
See State v. McBride, 213 N.J. Super. 255, 273 (App. Div. 1986) (noting that
statement casting blame on victim's husband was not covered by the exception).
But see United States v. Renville, 779 F.2d 430, 437-38 (explaining that the
A-3534-16T1
11
statements on two grounds: the statements were made for purposes of medical
diagnosis or treatment under N.J.R.E. 803(c)(4); and they were relevant to
establish the reason why the nurse gathered forensic samples where and how she
did. As to the latter ground, the statements were ostensibly not admitted for the
truth of the matter asserted. However, the court allowed the testimony without
delivering a limiting instruction to the jury, either when the nurse testified or in
the final jury charge. So, we may presume the jury considered the statements
for the truth of the matters asserted. Consequently, the applicability of N.J.R.E.
803(c)(4) was essential to the statements' admissibility.
Defendant contends the court erred. His argument is a claim of plain error
because his trial counsel conceded the statements were admissible to explain
why the nurse gathered forensic samples, but did not request a limiting
instruction. See State v. Frisby, 174 N.J. 583, 591 (2002) (considering the
admission of unobjected-to hearsay under the plain-error standard). We
consider whether the error was "of such a nature as to have been clearly capable
of producing an unjust result." Ibid. (quoting R. 2:10-2). We review the trial
identity of a child abuser may be admissible under the analogous F.R.E. 803(4)
if given for diagnostic or treatment purposes, such as in mental-health care or in
determining whether the child's environment is safe from future abuse).
A-3534-16T1
12
court's evidentiary ruling for an abuse of discretion, or a clear error of judgment.
State v. Brown, 170 N.J. 138, 147 (2001).
The relevant hearsay exception allows a jury to consider the truth of out-
of-court statements "made in good faith for purposes of medical diagnosis or
treatment which describe medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source
thereof to the extent that the statements are reasonably pertinent to diagnosis or
treatment." N.J.R.E. 803(c)(4).
The critical issue here is Maria's motivation in seeking the examination,
and providing the statements to the nurse; in other words, whether she did so
"for purposes of medical diagnosis or treatment." The question pertains to the
fundamental justification for the hearsay exception. It is assumed that persons
will speak the truth to a physician or other medical provider because their
successful treatment depends on it. "[S]uch statements spring from natural
reflexes and are made at a time when the desire for relief furnishes an impelling
incentive for truth telling." Cestaro v. Ferrara, 57 N.J. 497, 501 (1971); see also
R.S. v. Knighton, 125 N.J. 79, 87 (1991) (explaining that statements made for
purposes of treatment and diagnosis "possess inherent reliability" because
effective treatment depends on the patient's accuracy in providing information).
A-3534-16T1
13
However, the exception does not apply where the medical professional
"was not 'consulted for purposes of treatment' but for gathering of evidence."
State ex rel. C.A., 201 N.J. Super. 28, 33 (App. Div. 1985); see also State v.
Pillar, 359 N.J. Super. 249, 289 (App. Div. 2003) (stating if a doctor's
examination "was conducted for evidence gathering purposes," the hearsay
statements in the medical history would be inadmissible under the exception).
That is why the court must look to the subjective intent of the patient. "[T]o be
admissible the patient must have believed that the statement would enable the
doctor to treat." Id. at 33-34; see also Pillar, 359 N.J. Super. at 289 (considering
the reason why the patient was referred to the physician). Thus, it is not
dispositive that the SANE nurse testified that her exam was designed not only
to gather evidence, but to ascertain whether physical or mental health treatment
was warranted.
The State failed to meet its burden to establish the statements were made
for purposes of diagnosis or treatment. See Pillar, 359 N.J. Super. at 289
(finding hearsay inadmissible under the exception because the State did not meet
its burden); see also State v. James, 346 N.J. Super. 441, 457 (App. Div. 2002)
(assigning to the hearsay's proponent the burden to establish the prerequisites of
admissibility). Jillian testified that she told Maria "if she didn't feel comfortable
A-3534-16T1
14
calling the police to get herself to the hospital . . . ." Maria testified that she
went to the hospital "for a rape kit" – which is the collection of items and tools
used to collect and preserve evidence of a sexual assault. She did not say she
went for diagnosis or treatment, and she did not say she received any. 4
Although the court erred, there was no plain error. In conveying Maria's
hearsay statements, the nurse repeated, in dispassionate terms, basic facts related
to the three acts of assault that Maria had already alleged in direct testimony.
The nurse recounted that Maria told her about two incidents, days apart; she
drew the nurse's attention to the rectal area regarding the initial incident; Maria
said she had been restrained; and her attacker ejaculated. The nurse said the
exam took less time than usual. Maria was cooperative, straightforward and
direct; and she sometimes cried. Defense counsel waived cross-examination,
indicating that counsel did not view the testimony as critical in bolstering
Maria's credibility. See State v. Macon, 57 N.J. 325, 333 (1971) (stating that a
4
We do not intend to suggest that statements to a SANE nurse are invariably
inadmissible under N.J.R.E. 803(c)(4). Admissibility would seem to depend on
the facts and circumstances of each case, to determine the declarant's good faith
purpose in making the statements, and their reasonable pertinence to treatment
and diagnosis. See Tracy A. Bateman, Admissibility of statements made for
purposes of medical diagnosis or treatment as hearsay exception under Rule
803(4) of the Uniform Rules of Evidence, 38 A.L.R. 5th 433, §§ 6[a] and 6[b]
(2019) (reviewing cases of statements made to nurses that were found admissible
and inadmissible).
A-3534-16T1
15
court may infer that an "error was actually of no moment" in light of counsel's
failure to object). Rather, defense counsel highlighted in closing the nurse's
testimony that Maria was "exceedingly cooperative," which counsel asserted
showed that Maria's goal was to "frame" Jorge and "manufacture evidence." In
sum, the admission of the SANE nurse's testimony was not clearly capable of
producing an unjust result.
C.
Jorge contends that Maria's statements to Jillian should not have been
admitted as fresh-complaint statements, because they responded to Jillian's
questioning. He also contends that Maria's statements to Marcy exceeded the
allowable scope of fresh-complaint testimony, except for a single unsolicited
text from Maria to Marcy on May 10, asking Marcy to come to the hospital
because "it happened again." Jorge also contends the court did not promptly
instruct the jury. We are unpersuaded.
The fresh-complaint doctrine is a common law exception to the hearsay
rule, designed to enable "the State to negate the inference that the victim was
not sexually assaulted because of [the victim's] silence." State v. Hill, 121 N.J.
150, 163 (1990). It is admitted "to prove only that the alleged victim
complained, not to corroborate the victim's allegations concerning the crime."
A-3534-16T1
16
State v. Bethune, 121 N.J. 137, 146 (1990). "Trial courts should instruct the
jury of the limited role that fresh-compliant evidence should play in its
consideration of the case." Id. at 148; see also State v. R.K., 220 N.J. 444, 456
(2015) (stating the charge is "required").
To offer a victim's statement under the rule, the State must establish three
things: the statement was made "to someone [the victim] would ordinarily turn
to for support"; it was "made within a reasonable time after the alleged assault";
and it was "spontaneous and voluntary." Hill, 121 N.J. at 163. 5 Also, to satisfy
the rule, the victim must testify at trial. Ibid. Under the rule, only the general
nature of the complaint may be conveyed. Ibid.; see also R.K., 220 N.J. at 456-
57, 459-60 (concluding that a fresh-complaint witness provided excessive
details, including by describing the defendant's ejaculate and conveying threats
that the victim did not describe).
5
In 1997, a Supreme Court committee recommended abolition of the fresh-
complaint doctrine. State v. L.P., 352 N.J. Super. 369, 380 n.2 (App. Div. 2002).
The Court did not adopt the recommendation. Ibid. In contrast, California has
abolished the rule. Ibid. (citing People v. Brown, 883 P.2d 949 (Cal. 1994)).
The California court observed that some of the underlying rationales of the
doctrine had been eroded in modern society. Brown, 883 P.2d at 956-57.
California "revis[ed] the contours of the doctrine to reflect more accurately the
basis on which the admissibility of such evidence should be evaluated." Id. at
959. Admissibility would turn on "generally applicable evidentiary principles"
instead of formal requirements such as voluntary spontaneity or freshness. Ibid.
A-3534-16T1
17
On May 6, Maria conveyed to Jillian that Jorge had hit her only after
Jillian noticed that Maria was in apparent pain, approached her, and asked her
directly if he hit her. On May 10, Maria again responded to a question from
Jillian, but this time, a more general one. On that day, Jillian testified that Maria
called her, hysterical, and said she needed help. Jillian asked Maria to elaborate,
and Maria told her that she had been sexually assaulted.
A fresh-complaint statement need not be entirely unprompted. "Courts
have allowed fresh complaints made in response to general non-coercive
questioning." Hill, 121 N.J. at 167. For example, a response to a question of
what happened to a person in obvious distress, may be admissible. Ibid. "On
the other hand, statements that are procured by pointed, inquisitive, coercive
interrogation lack the degree of voluntariness necessary to qualify under the
fresh-complaint rule." Ibid. The trial court must determine whether the
questioning crossed the line, after considering facts such as the victim's age and
relationship to the questioner; and the circumstances of the questioning, such as
who asked what to whom and how. Ibid.
We recognize the court did not undertake this analysis. However, we are
satisfied that despite Jillian's leading question on May 6, Maria's responses on
both days were admissible. Jillian's questioning was not coercive, and
A-3534-16T1
18
responded to Maria's apparent discomfort on May 6, and her hysteria and plea
for help on May 10.
Marcy's statement of a fresh complaint about the May 6 incident did not
raise similar issues. She stated she accompanied Maria on a walk after dinner.
While they talked about Maria's desire to leave Jorge's parents' house, "she told
me that what had happened with [Jorge] that morning, that he had forced himself
on her." She added that "[Jorge] sexually forced himself onto [Maria]. It was
unwanted. . . . He raped her." 6 We perceive no error, as Maria's statements to
Marcy met the three prerequisites of the rule. Jorge does not challenge the
admissibility of the text message that Maria sent to Marcy on May 10, statin g
that "it happened again." Marcy testified generally that "she meant that [Jorge]
had sexually assaulted her again."
Jorge also argues that the court should have instructed the jury about the
limited use of fresh-complaint testimony immediately after it was admitted. He
does not allege the instruction, delivered in the final jury charge, was flawed.
We agree that the effectiveness of a limiting instruction is enhanced when
it is delivered promptly. See State v. Herbert, ___ N.J. Super. ___, ___ (App.
6
Marcy also said, "They were not in a sexual relationship at that time," which
would not qualify under the fresh-complaint rule and obviously was based on
Maria's hearsay statements.
A-3534-16T1
19
Div. 2019) (slip op. at 19) (stating that "a swift and firm instruction is better
than a delayed one"). However, as there was no request for an immediate
instruction, we consider this issue under the plain-error rule, see R.K., 220 N.J.
at 456.
"Plain error is more likely to be found if there is any indication that jurors
considered the fresh-complaint testimony for an improper purpose." Ibid. We
discern no indication they did. The State did not invite the jury to misuse the
fresh-complaint testimony.
On the other hand, defense counsel challenged Maria's decision not to seek
police intervention after May 6, raising the very issue that made fresh-complaint
testimony relevant. In sum, we are unconvinced that the delay in delivering the
instruction was "sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached." Macon, 57 N.J. at 336.
D.
Finally, we reject Jorge's contention that the trial court committed plain
error by (1) permitting Jillian and Marcy to testify about other crimes and
wrongs by Jorge, and (2) not delivering an appropriate jury instruction on the
use of other crimes and wrongs evidence. The defense strategy was to attack
Maria's credibility by demonstrating that she falsely accused him of an assault
A-3534-16T1
20
in 2011. Thus, the evidence was not elicited to establish that other crimes or
wrongs even occurred. The model jury instruction for 404(b) evidence would
have undermined the defense strategy, by focusing on the proper use of such
other crimes evidence assuming it was true. See Model Jury Charges (Criminal),
"Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12,
2016). Specifically, the model charge states, "Before you can give any weight
to this evidence, you must be satisfied that the defendant committed the other
[crime, wrong or act]. If you are not so satisfied, you may not consider it for
any purpose." However, the defense's argument was that defendant did not
commit the other crime, wrong or act, and the jury should consider that fact in
assessing Maria's credibility, because of her false accusation.
Jorge's remaining arguments, to the extent not addressed, lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3534-16T1
21