State v. P.S., ? N.J. ?, 2010 N.J. LEXIS ? (June 7, 2010) – Convictions reversed. “The first [issue presented in this appeal] is what standard to apply where a child sex abuse victim’s taped statement is lost. In particular, defendant asks us to establish a per se rule of exclusion in such circumstances, a request that we decline.
Instead we reaffirm the totality of circumstances standard as the appropriate benchmark for the admissibility of a tender years statement under N.J.R.E. 803(c)(27). In addition, we reiterate our holdings in State v. Cook, 179 N.J. 533 (2004), and State v. Branch, 182 N.J. 338 (2005), to the effect that simultaneous notes taken of a child sex abuse victim’s interview should not be destroyed but should be maintained through trial.
The second issue centers on the proper use of other-crimes evidence under N.J.R.E. 404(b). Like the Appellate Division, we conclude that a defendant’s invocation of the so-called vendetta defense does not permit the prosecutor to bolster the credibility of a sex abuse victim by adducing evidence of another molestation. To be sure, such evidence could be offered to negate accident; to establish motive, pattern, or design; or for a myriad of other legitimate reasons under the rule.
What is interdicted is its admission to show that because the defendant committed a bad act before, he is likely to have committed one again, thus making the victim’s story more believable…. [W]e part company from that court insofar as it held that the trial judge’s error was harmless…. Although the improper other-crimes evidence was never actually admitted here, defendant paid a price to keep it out. Indeed, the threat of its admission forced defendant to alter his trial strategy completely and effectively precluded him from presenting the vendetta theory, which was his central, if not sole, defense.”