STATE OF NEW JERSEY IN THE INTEREST OF N.P. (FJ-20-0906-18, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                   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                             NOT FOR PUBLICATION WITHOUT THE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-3285-18

STATE OF NEW JERSEY IN THE
INTEREST OF N.P., a minor.
______________________________

                Argued March 3, 2021 – Decided June 23, 2021

                Before Judges Alvarez, Sumners and Geiger.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Union County, Docket
                No. FJ-20-0906-18.

                Cody T. Mason, Assistant Deputy Public Defender,
                argued the cause for appellant (Joseph E. Krakora,
                Public Defender, attorney; Cody T. Mason, of counsel
                and on the brief).

                Michele C. Buckley, Special Deputy Attorney
                General/Acting Assistant Prosecutor, argued the cause
                for respondent (Lyndsay V. Ruotolo, Acting Union
                County Prosecutor, attorney; Michele C. Buckley, of
                counsel and on the brief).

PER CURIAM
      Two juvenile complaints charged N.P. (Neal)1 with acts which, if

committed by an adult, would constitute the crime of third-degree criminal

sexual contact with a person who was at least thirteen but less than sixteen,

N.J.S.A. 2C:14-3(a); first-degree aggravated sexual assault with a person who

was under thirteen, 2C:14-2(a)(1); and two counts of third-degree child

endangerment, N.J.S.A. 2C:24-4(a)(1). The Family court found him guilty of

all charges.

      On appeal, defendant raises the following contentions:

               POINT I

               THE TRIAL COURT COMMITTED REVERSIBLE
               ERROR IN ADMITTING CORROBORATIVE
               HEARSAY STATEMENTS THAT FAILED TO
               SATISFY THE TENDER YEARS AND FRESH
               COMPLAINT RULES.

               A.   THE     STATEMENTS        WERE    NOT
                    ADMISSIBLE AS SUBSTANTIVE PROOF
                    UNDER N.J.R.E. 803(C)(27), THE TENDER
                    YEARS EXCEPTION, BECAUSE THE STATE
                    FAILED TO SHOW THAT [N.P.] NADINE
                    AND [N.P.] NORA WERE UNDER THE AGE
                    OF [TWELVE] AND THAT NORA'S
                    STATEMENT TO B.P. [(BETTY)] RELATED
                    TO SEXUAL MISCONDUCT.



1
  We use initials and pseudonyms to protect the identity of the juvenile and
minors involved in these proceedings. R. 1:38-3(d).
                                                                       A-3285-18
                                      2
     1.   The court erred in admitting Nadine's
     statement to Q.R. [(Quinn)] because the court
     applied the wrong legal standard and because the
     State failed to prove that Nadine was under
     [twelve] when she made the statement.

     2. The court erred in admitting Nora's statement
     to [Quinn] because the court applied the wrong
     legal standard and because the State failed to
     prove that Nora was under [twelve] when she
     made the statement.

     3. The court erred in admitting Nora's statement
     to [Betty] because the court applied the wrong
     legal standard and because the State failed to
     prove that Nora was under [twelve] when she
     made the statement.

     4. The court further erred in admitting Nora's
     statement to [Betty] because the State failed to
     establish that the statement related to sexual
     misconduct.

B.   NADINE'S STATEMENT TO [QUINN] AND
     NORA'S STATEMENT TO [BETTY] WERE
     WRONGLY     ADMITTED   AS   FRESH
     COMPLAINT EVIDENCE.

     1. The State failed to show that Nadine's
     statement to [Quinn] was made in a reasonable
     amount of time.

     2. The State failed to show that Nora's statement
     to [Betty] was made in a reasonable amount of
     time and that it related to sexual assault.

C.  REVERSAL IS REQUIRED BECAUSE THE
STATEMENTS WERE USED AS SUBSTANTIVE,

                                                         A-3285-18
                         3
CORROBORATIVE EVIDENCE TO BOLSTER THE
STATE'S CASE.

     1. Reversal is required because of the weaknesses
     in the State's case and the statements' importance.

     2. Reversal is required even if the statements
     were admissible as fresh complaint evidence.

POINT II

THE STATE IMPROPERLY BOLSTERED ITS CASE
WITH [QUINN'S] TESTIMONY THAT SHE HAD NO
REASON       TO    DOUBT HER  CHILDREN'S
ALLEGATIONS, AND THAT THEY HAD NEVER
ACCUSED ANYONE ELSE OF SEXUAL ABUSE.
(Not raised below)

A.   [QUINN'S] TESTIMONY THAT SHE HAD NO
     REASON TO DOUBT HER DAUGHTERS’
     CLAIMS     WAS   IMPROPER   OPINION
     TESTIMONY ON THE CREDIBILITY OF THE
     STATE’S WITNESSES.

B.   [QUINN'S]  TESTIMONY   THAT   HER
     DAUGHTERS HAD NEVER ACCUSED
     ANYONE ELSE OF SEXUAL ABUSE
     IMPROPERLY     BOLSTERED    THEIR
     CREDIBILITY AND AMOUNTED TO PLAIN
     ERROR.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT SEQUESTERED JUVENILE'S
LEGAL GUARDIAN FROM THE COURTROOM.

POINT IV

                                                           A-3285-18
                          4
            THE CUMULATIVE EFFECT OF THE ERRORS
            DEPRIVED JUVENILE OF DUE PROCESS AND A
            FAIR TRIAL AND WARRANTS REVERSAL. (Not
            raised below)

      For the reasons that follow, we affirm.

                                       I.

      Neal was born in November 1998. He has the same father as his half-

sisters, Nora, born in 2002, and Nadine, born in 2004. Since he was five months

old, Neal was raised by his paternal grandmother D.P. (Danielle), who

eventually obtained legal custody of him. The girls were raised by their mother,

Quinn.

      In June 2018, the above-noted juvenile complaints were issued against

Neal when he was nineteen years old. The complaints identified Danielle as

Neal's grandmother and guardian and indicated that he was living with her when

charged.

      Rule 104 Hearing

      At a Rule 104 hearing on December 10, 2018, the trial court considered

whether statements by Nora to her friend Betty and her mother Quinn and by

Nadine to Quinn were admissible under the tender years exception and as fresh

complaints. The hearing revealed the following testimony.


                                                                          A-3285-18
                                       5
      Betty testified that in early 2014, when they were in the fifth or sixth

grade, Nora stated that Neal "touched her." According to Betty, Nora said she

was afraid to tell her mother. Neal was about fifteen years old at the time of the

alleged incident.

      Quinn testified that sometime in February 2014, Nora stated that Neal,

around two weeks earlier, tried to put his hand down her pants when she was at

her grandmother's house to use a computer printer for a school project. Quinn

then separately asked her daughters if anyone had ever touched them in an

inappropriate way. Quinn stated Nadine replied "no"; she did not tell Nadine

what Nora told her about Neal's touching.

      Quinn did not tell Danielle about Nora's allegation until "a month or two

later" because Danielle had been in the hospital. Danielle replied that she would

talk to Neal. Quinn was unaware if Danielle did so. Quinn testified that she

was only aware of the one abuse incident and did not contact the police because

she did not want Neal to be arrested. Nevertheless, she stated that she limited

her daughters' visits to Danielle's home to when she was with them: once, at a

barbeque in 2016 or 2017, and following Neal's high school graduation in 2017.

      In February 2018, Quinn stated that Nadine, who was thirteen years old at

the time, called her at work and told her that Neal had "[done] the same thing


                                                                            A-3285-18
                                        6
[to her] that he tried to do to [Nora]. . . ." Quinn assumed this meant Neal had

his hands down Nadine's pants. Approximately two weeks later, Quinn reported

to the police that Neal, who was then nineteen, sexually abused her daughters.

      At one point, the following questioning occurred:

            [PROSECUTOR:] As far as you are aware has
            [Nadine] or [Nora] ever accused anyone else of sexual
            abuse to them [sic]?

            [Quinn:] No.

                  ....

            [PROSECUTOR:] Do you have any reasons to doubt
            what your daughters told you?

            [Quinn:] Absolutely not.

The court overruled defense counsel's objection to the State's second question

calling for Quinn's opinion, finding her testimony was permissible lay opinion.

There was no objection to the first question concerning whether Nadine or Nora

had accused anyone else of sexual abuse.

      Prior to Quinn's cross-examination, the State moved to sequester Danielle,

because even though she was Neal's legal guardian, she "might" be called as a

witness and therefore could "tailor her testimony" if permitted to hear other

witnesses testify. The State argued that because Neal was then twenty years old,

he was no longer a juvenile entitled to have his legal guardian present with him

                                                                          A-3285-18
                                       7
during the delinquency hearing. Defense counsel objected, arguing Neal was

"being tried as a juvenile, not as an adult, and therefore his grandmother who is

his legal guardian has been with him throughout."        He also indicated that

Danielle might not testify. The court, acknowledging Neal's age and Danielle's

possible testimony, granted the State's request, ruling that "sequestration is

appropriate." Danielle was directed to leave the courtroom.

      The next day, the court determined that Nora's statement to Betty and

Quinn and Nadine's statement to Quinn were admissible under the tender years

exception and as fresh complaint testimony. Finding Betty and Quinn were

credible, the court determined that the tender years exception applied because

both Nora and Nadine were twelve years old or younger when they made their

statements. As for the applicability of the fresh complaint rule, the court found

that Nora's statements were made shortly after the abuse occurred, and given

Nadine's youth, it was "not . . . unreasonable" for her to have taken

"approximately three years or so" to tell her mother about Neal's abuse. The

Rule 104 hearing testimony was incorporated into the trial evidence.

      Trial

      Nora and Nadine testified to multiple instances of Neal's sexual abuse,

which all occurred at their grandmother's house. Neal chose not to testify.


                                                                           A-3285-18
                                       8
      Nora testified that one of the first times Neal touched her inappropriately,

he came up from behind her and "grabb[ed] . . . [her] lower waist" while she was

looking for something in the pantry. On another occasion, she stated that as she

was swimming to the side of the pool, Neal came up behind her and touched her

vagina and buttocks over her bathing suit, which she understood to be "in a

sexual way." Another incident occurred when she was sleeping, and Neal got

into the bed behind her, put his hand on her stomach, and, when she told him to

"get off" of her, he said "no" and moved his hand toward her vagina, over her

clothes.

      Nadine testified that after school, Neal put her hands in his pants and

inserted his fingers in her vagina. She indicated this happened "[a]bout three

times[,]" when she was five or six years old. He also exposed himself to her

when she was seven. The last time he touched her, she was eight years old.

      Nora also testified to several other separate incidents of abuse:

           • On Halloween, when she was in the seventh grade and sleeping,

             Neal entered the room, grabbed her hand, forced it inside his pants,

             and made her touch his penis, at which point he "moan[ed]."




                                                                            A-3285-18
                                        9
         • While she was in the bathroom undressed, Neal entered the

             bathroom, offered to help her change, refused to leave when asked,

             stared at her, and then left.

         • Neal had to use the bathroom when she was in the shower, but when

             she got out of the shower, thinking he was gone, he was still there,

             and touched her shoulders and tried to take her towel off.

         • During this second shower incident, she felt Neal’s penis touch the

             lower center of her back.

         •   Sometime after her father died in December 2013, he took her

             phone, and when she chased him to get it back, he asked to touch

             her, to which she said no; then, he held her phone above his head

             and had her jump to get it. Nora testified that she believed Neal was

             trying to get her to jump because she had "started developing

             breasts."

      Nora testified in detail about Neal's abuse that she related to Betty and her

mother. She stated she was using her grandmother's printer for a school project

when Neal started "feeling on [her]," touching her upper thigh while she was

sitting in the living room. After he refused to stop and she tried to leave, he

pulled her arm and pinned her to the ground. He then tried to take her pants off


                                                                             A-3285-18
                                         10
by pulling on the waistline. While the two were struggling, Neal's dog tried to

pull him off her. Nora managed to get up and leave.

      In adjudicating Neal delinquent on all four charges, the court found

credible the testimony of Nora, Nadine, and Betty—ages sixteen, fourteen, and

sixteen, respectively, at the time of trial. The court also found Quinn credible

but "with some caveats [as] to her credibility."      The court found Danielle

"somewhat less" credible.

      At sentencing, the court imposed a suspended sentence of one year with a

three-year term of sex-offender-specific probation. Neal was required to receive

sex-offender treatment and not have unsupervised contact with children under

the age of thirteen. All necessary fines and the conditions required under

Megan’s Law were also imposed.

                                       II.

      In Point I, Neal contends that, over his objection, the trial court erred in

finding the statements accusing him of abuse by Nora to Betty and Nadine to

Quinn admissible under the tender years exception 2 and as fresh complaints. He



2
  The State agrees that the trial court erroneously admitted the statements under
the tender years exception because there was no finding that either of the victims
was under twelve when they made their respective statements. Thus, we do not
address Neal's tender years argument.
                                                                            A-3285-18
                                       11
contends the rulings violated his "constitutional rights to due process and a fair

trial [under] U.S. Const. amends. VI, XIV [and] N.J. Const. art. I, ¶¶ 1, 10"

because the court erroneously "relied upon those statements to corroborate the

allegations and to bolster [the sisters'] credibility." He contends the State did

not show that the delay––"a minimum of five or six years passed after the last

incident and at least eight or nine years passed after the first incident "––in

Nadine's allegation of abuse to her mother was reasonable. He cites to situations

where our Supreme Court and this court have previously disapproved of shorter

delays: State v. W.B., 

205 N.J. 588

, 618-19 (2011) (two years); State v. R.E.B.,

385 N.J. Super. 72

, 80 (App. Div. 2006) ("about two years"); State v. Pillar, 

359

N.J. Super. 249

, 285 (App. Div. 2003) (six years); State v. L.P., 

352 N.J. Super.

369

, 374 (App. Div. 2002) (less than one year); State v. Hummel, 

132 N.J. Super.

412

, 423 (App. Div. 1975) (four to six weeks). He adds there was no evidence

that he threatened Nadine not to disclose his conduct, which he claims is

necessary to explain a long delay in reporting the alleged abuse.

      As for Nora's statement to Betty about Neal's "touching," Neal contends

the record fails to support "the court’s finding that Nora disclosed 'the incident'

to [Betty] 'shortly after the occurrence.'"    He also maintains there was no

testimony that the "touching" referred to sexual abuse.


                                                                             A-3285-18
                                       12
      Moreover, Neal argues that even if Nadine's and Nora's statements were

admissible as fresh complaint evidence, the court improperly used them to

substantively support the abuse allegations. State v. R.K., 

220 N.J. 444

, 456

(2015). See also State v. Bethune, 

121 N.J. 137

, 146, 148 (1990), which states

fresh complaint evidence could not be used "to prove . . . sexual assault charges"

or to "corroborate the victim’s allegations . . . ." Neal asserts reversal is

appropriate because only the tender years exception, which does not apply,

permits the use of the statements for substantive proof of the abuse.

      The trial court did not abuse its discretion by allowing as a fresh complaint

Nora's statements to Betty and Quinn and Nadine's statement to Quinn,

disclosing Neal's abuse; thus, his right to a fair trial was not denied. See State

v. Cope, 

224 N.J. 530

, 554-55 (2016) (recognizing the trial court retains broad

discretion in determining the admissibility of evidence); Griffin v. City of E.

Orange, 

225 N.J. 400

, 413 (2016) ("[W]e will reverse an evidentiary ruling only

if it 'was so wide [of] the mark that a manifest denial of justice resulted.'")

(quoting Green v. N.J. Mfrs. Ins. Co., 

160 N.J. 480

, 492 (1999)). Under the

fresh complaint rule, the State can present "evidence of a victim's complaint of

sexual abuse, [which is] otherwise inadmissible as hearsay, to negate the

inference that the victim's initial silence or delay indicates that the charge is


                                                                             A-3285-18
                                       13
fabricated." R.K., 220 N.J. at 455. See also State v. Hill, 

121 N.J. 150

, 163

(1990); State v. Balles, 

47 N.J. 331

, 338 (1966). A statement which is the result

of a "pointed, inquisitive, coercive interrogation" should not be admitted

because it undermines the "voluntariness" of the disclosure. Hill, 121 N.J. at

167. In making its voluntariness determination, the trial court should consider

the following factors:

            the age of the victim; the circumstances under which
            the interrogation takes place; the victim's relationship
            with the interrogator, i.e., relative, friend, professional
            counselor, or authoritarian figure; who initiated the
            discussion; the type of questions asked—whether they
            are leading and their specificity regarding the alleged
            abuser and the acts alleged.

            [Id. at 168 (citation omitted).]

      The statements by Nora and Nadine accusing Neal of abuse were properly

admitted as fresh complaints to negate the inference that the delay in making the

complaints shows that the abuse did not occur. The testimony established that

the statements were voluntarily made to a friend and parent, respectively,

without any initiation or interrogation. Considering the victims' youth, it was

understandable that their reporting was delayed––Nora waited just a few days

to tell Betty and a week or two to tell Quinn about the incident when Neal took

her phone and pinned her to the ground but an unknown amount of time if she


                                                                           A-3285-18
                                       14
meant to include in that revelation of "touching" to Betty other incidents that

happened to her when she was "a little girl"; Nadine waited three years to tell

someone about Neal's conduct. See W.B., 

205 N.J. at 618

 (quoting State v. P.H,

178 N.J. 378

, 393 (2004) ("[T]he reasonable time component of the fresh

complaint rule must be applied flexibly 'in light of the reluctance of children to

report a sexual assault and their limited understanding of what was done to

them.'")). Contrary to Neal's argument, Nora's statement to Betty that Neal

"touched her" can reasonably be interpreted as a fifth or sixth grade girl's

allegation of sexual abuse.

      The court did not rely on the statements to Betty and Quinn to corroborate

the victims' testimony in adjudicating Neal's delinquency. As discussed below,

the court relied instead on the significant credible testimony by Nora and Nadine

detailing Neal's abuse.

      The State concedes the court erred in admitting the statements under the

tender years exception because nothing in the record established that Nora and

Nadine were under the age of twelve years old when the statements were made.

Nonetheless, the mistaken application of the tender years exception did not taint

the court's admission of the statements as fresh complaint. For the reasons

stated, there were sound reasons for applying the fresh complaint rule.


                                                                            A-3285-18
                                       15
                                       III.

      In Point II, Neal argues that the prosecutor engaged in improper bolstering

when he asked Quinn if: (1) she had any reason to doubt her daughters'

accusations; and (2) if her daughters had ever complained that anyone else had

sexually assaulted them. Neal claims the court disregarded his objections to

admit Quinn's first statement as improper opinion testimony. Thus, he must

show there was some real possibility that the purported error led the court as the

factfinder to a verdict it might not have reached. See State v. Baum, 

224 N.J.

147

, 159 (2016). Because he did not object to Quinn's second statement, Neal

argues plain error, R. 2:10-2, occurred; the testimony was irrelevant under

N.J.R.E. 401; and it improperly suggested that Nora's and Nadine's allegations

were truthful, creating unfair prejudice, N.J.R.E. 403. In addition, he submits

the testimony should have been barred under N.J.R.E. 608 and 405 because it

was impermissible character evidence in suggesting that the girls' "lack of prior

complaints was used to suggest that they had truthful characters." Consequently,

Neal maintains his delinquency adjudications should be reversed as a result of

Quinn's bolstering of Nora's and Nadine's allegations.

      We agree with Neal that Quinn should not have testified regarding the

truthfulness of her daughters' allegations, nor whether they had made abuse


                                                                            A-3285-18
                                       16
allegations against anyone other than Neal.          Quinn's testimony improperly

bolstered the victims' testimony. However, there was neither plain nor harmful

error through its admission.

      As our Supreme Court noted in R.K., the general rule is that "other

witnesses are prohibited from giving their opinions about [another witness's]

credibility." 220 N.J. at 460. For example, the Court has found a step-sister's

bolstering of the victim's credibility, in a case that "presented a 'pitched

credibility battle[,] . . . .'" to be reversible plain error. Id. at 461 (quoting State

v. Frisby, 

174 N.J. 583

, 596 (2002)).

      One witness's improper bolstering of another will survive plain error

review when there is overwhelming evidence to support the trial court decision.

In State v. Bunch, the Court ruled that the defendant's testimony assessing the

credibility of another witness was error but considering "the substantial amount

of evidence of defendant's guilt and the trial court's instruction to the jury that

it must determine the witnesses' credibility . . . [it] conclude[d] that the improper

statement was not so egregious that it deprived defendant of a fair trial ." 

180

N.J. 534

, 549 (2004) (internal quotation marks and citations omitted). Likewise,

we held in State v. Green, 

318 N.J. Super. 361

, 378 (App. Div. 1999), that even

though it was improper to ask a witness to "characterize the testimony of another


                                                                                A-3285-18
                                         17
witness[,]" it did not independently support reversal, as "the evidence of guilt

was overwhelming." A similar situation occurred here where the court found

that the extensive testimony of Nora and Nadine detailing Neal's abuse was

credible––without regard to their mother's bolstering testimony.

      "When reviewing the result of a bench trial, we do not make factual

findings." State ex. rel. D.M., 

451 N.J. Super. 415

, 424 (App. Div. 2017). We

"must accept a trial court's factual finding if it is supported by sufficient credible

evidence in the record." State v. Arthur, 

184 N.J. 307

, 320 (2005) (citing State

v. Locurto, 

157 N.J. 463

, 472 (1999)). See State v. Yough, 

208 N.J. 385

, 403

(2011) (quoting Locurto, 

157 N.J. at 471

) ("Unlike an appellate court, a trial

judge has the 'opportunity to hear and see the witnesses,' which includes

observing gestures and facial expressions.").        Based on the court's factual

findings, we cannot conclude there was plain or harmful error in the admission

of Quinn's testimony given the court's reliance upon the credible and significant

testimony of Nora and Nadine.

                                         IV.

      Neal contends in Point III that the sequestration of Danielle constitutes

reversible error because under Rule 5:20-4 and its interpretation in State ex rel.

V.M., 

363 N.J. Super. 529

 (App. Div. 2003), she was a necessary party entitled


                                                                               A-3285-18
                                         18
to be present throughout the delinquency hearing as his legal guardian regardless

of his age. We disagree.

      Rule 5:20-4 provides: "The parents, guardians or other person having

custody, control and supervision over the juvenile shall be necessary parties to

every proceeding in all juvenile delinquency actions." (Emphasis added). In

V.M., we held that the rule "implicitly, if not explicitly, affords the accused

juvenile’s parents the same right as the juvenile to remain in the courtroom

during the juvenile’s trial" and that the right is akin to an adult defendant’s "right

to be present during his or her trial." 363 N.J. Super at 534-35. We further held

that the sequestration of the juvenile's mother required reversal because

"regardless of whether a juvenile’s parent will be called as a witness, . . . [an]

order removing the parent from the courtroom is harmful error." V.M., 

363 N.J.

Super. at 536

.

      Neal maintains that even though he was no longer a juvenile at the time

of the hearing, Danielle "was a party to the action, was required to be present,

and could not be removed simply because she might testify." He cites the plain

language of the Rule 5:20-4, which provides a guardian’s right to be present

applies in all juvenile court matters, with no mention of the juvenile's age or

other variables. Neal argues that his grandmother's absence was "substantial,


                                                                               A-3285-18
                                         19
and clearly harmful, particularly given that she likely had a better memory of

what occurred at the relevant time periods, when [Neal] was a child." She was

unable to be present for Quinn's cross examination during the Rule 104 hearing,

Nora's and Nadine's trial testimony, Neal's election not to testify, and the parties'

summations.3

      There is no dispute that the Family court had jurisdiction over Neal's

delinquency proceeding even though he was twenty years old at the time of trial

and the charges had been filed when he was no longer a juvenile. See, e.g., State

ex rel. J.S., 

202 N.J. 465

, 467-68 (2010) (noting J.S. was twenty-one years old

when tried and adjudicated delinquent for sexual assault committed as a minor).

The State contends that because Neal was an adult when he stood trial, Danielle

was no longer his guardian, in the sense of "having custody, control and

supervision over" Neal. Thus, her presence was not mandated by the statute.

      Our reading of the law establishes that parents or guardians have a right

to be present at a juvenile delinquency hearing as well as rights and interests in

a delinquency action that are independent of, and not necessarily coextensive


3
   These arguments were not specifically raised at the hearing; thus, we would
normally decline to consider them. State v. Marroccelli, 

448 N.J. Super. 349

,
373 (App. Div. 2017) (citation omitted). However, because they "concern
matters of great public interest," a parent or legal guardian's right to participate
in a juvenile delinquency proceeding, we will consider them. 

Ibid.

                                                                               A-3285-18
                                        20
with, the juvenile's rights and interests. None of these rights are nullified

because the juvenile turns eighteen years old prior to trial or is over eighteen

years when the charges are initiated.

        Both N.J.S.A. 2A:4A-33 and Rule 5:21-1 provide that a juvenile's parents

or guardian must be "immediately" notified when the juvenile is taken into

custody. When a delinquency action is undertaken, "a summons shall issue to

the juvenile and the juvenile's parents, guardians or custodian." R. 5:20-2. The

State is obligated to provide discovery to "the defense" in juvenile delinquency

matters, "which may include the juvenile, the juvenile's attorney, and the

juvenile's parent or guardian." R. 5:20-5(a). Jurisdiction in a delinquency action

"shall extend . . . over a juvenile and his parent, guardian or any family member

found by the court to be contributing to a juvenile-family crisis." N.J.S.A.

2A:4A-24(a).      If the court determines "an act of delinquency [has been

committed] . . . , the court may impose such disposition or dispositions over

those persons subject to its jurisdiction consistent with the purposes of this act."

Ibid.

        Whether to sequester a witness is generally discretionary with the trial

court. State v. DiModica, 

40 N.J. 404

, 413 (1963); Morton Bldgs., Inc. v.

Rezultz, Inc., 

127 N.J. 227

, 233 (1992). "The purpose of sequestration is to


                                                                              A-3285-18
                                        21
discourage collusion and expose contrived testimony." Morton Bldgs. Inc., 

127

N.J. at 233

 (citing 1 Stephen A. Saltzberg & Michael M. Martin, The Federal

Rules of Evidence Manual 736 (5th ed. 1990)).

      While the court's sequestration order impacts the guardian, it seemingly

would not apply in a situation where the juvenile is twenty years old and, thus,

is not subject to a parent's or guardian's "constitutional right to enjoy a

relationship with their child[]." S.M. v. K.M., 

433 N.J. Super. 552

, 558 (App.

Div. 2013) (citing In Re Guardianship of K.H.O., 

161 N.J. 337

, 346 (1999)). "A

parent's right to enjoy a relationship with his or her child is constitutionally

protected," K.H.O., 

161 N.J. at 346,

 but does not apply when the juvenile

becomes an adult.     See N.J.S.A. 2A:4A-22(a) (defining "juvenile" as "an

individual who is under the age of 18 years"). On the other hand, it is plausible

that the court's right under N.J.S.A. 2A:4A-43(b)(15) to "[o]rder the parent or

guardian of the juvenile to participate in appropriate programs or services when

the court has found either that such person's omission or conduct was a

significant contributing factor towards the commission of the delinquent act,"

can remain in force where a person over the age of eighteen faces delinquency

charges. The same can said for N.J.S.A. 2A:4A-43(b)(19), which allows the

court to "[o]rder a parent or guardian who has failed or neglected to exercise


                                                                           A-3285-18
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reasonable supervision or control of a juvenile who has been adjudicated

delinquent to make restitution to any person or entity who has suffered a loss as

a result of that offense."

      Consequently, Rule 5:20-4's dictate that "parents, guardians or other

person having custody, control and supervision over the juvenile shall be

necessary parties to every proceeding in all juvenile delinquency actions" must

be examined based on the Family court record. Neal argues Danielle should not

have been sequestered because she was his guardian. However, there was no

evidence presented that she had "custody, control and supervision over" him.

The mere fact that at the time the charges were filed, Danielle was listed as his

guardian and was entitled to receive notification of the juvenile proceedings and

discovery, was not indicative of the role she had in Neal's life as a twenty-year-

old man facing juvenile charges. Under the aforementioned juvenile proceeding

guidelines, Danielle, who had custody of Neal at the time of the incident when

he was a juvenile, could have potentially been subject to an order imposing loss

of custody, unwanted services, or mandating restitution. Yet, given Neal's age

at the time of trial, there was little likelihood such conditions would be imposed.

In fact, they were not after Neal was adjudicated delinquent.




                                                                             A-3285-18
                                       23
        We place no significance in the principle espoused in V.M. that the

testifying parent was wrongly sequestered because V.M. was not an adult. In

V.M., we were primarily focused on the juvenile's interests of comfort, support,

and "an added layer of protection," which was best served by having his mother

present at trial. 

363 N.J. Super. at 534

. The record is devoid of any such interest

here.

        We reject Neal's unqualified assertion that his age at the time of the

delinquency trial has no bearing on whether his legal guardian has a right to be

present even though she might testify. What if he were twenty-five, should

Danielle be entitled to be at his side during the trial? We think not, and the same

applies to being twenty-one, unless there was a showing that, as guardian, she

had "custody, control and supervision over" him requiring her comfort, support,

and protection during the trial. It may be true that Danielle's presence would

help because she might have a better memory of what occurred when Neal was

a teenager. However, Danielle was allowed to testify to rebut any of the claims

or situations alleged by the State's witnesses.

        The better course is for the court to weigh the interests of the trial subject

in having a parent or legal guardian present against the interests in favor of

sequestration.    The court should conduct a fact-specific analysis, including


                                                                                A-3285-18
                                         24
whether the now-adult subject (1) was living with the parent or guardian at the

time of trial; (2) was financially dependent on the parent or guardian; (3)

generally looked to the parent or guardian for support and advice in life

decisions; (4) involved the parent or guardian in preparing the defense; (5) the

age of the subject; and (6) any other relevant factors. By considering these

factors, the court would be in a position to assess the strength of the subject's

interest in having the parent or guardian present at trial, regardless of whether

the parent or guardian will testify.

                                        V.

      Finally, we address Neal's argument in Point IV that cumulative error

deprived him of a fair trial. When multiple errors are alleged, "the predicate for

relief for cumulative error must be that the probable effect of the cumulative

error was to render the underlying trial unfair." State v. Wakefield, 

190 N.J.

397

, 538 (2007). However, even where a defendant alleges multiple errors, "the

theory of cumulative error will still not apply where no error was prejudicial and

the trial was fair." State v. Weaver, 

219 N.J. 131

, 155 (2014).

      Given our conclusions that there were no trial errors regarding the

admission of evidence and the sequestration of Danielle, there can be no

cumulative errors that denied defendant a fair trial.


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                                       25
Affirmed.




                 A-3285-18
            26

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