State v. Dimas Humberto Flores-Alfaro, unpublished opinion, App. Div. Docket No. A-3969-08T4 (September 1, 2010) – Convictions reversed.
“[D]efendant’s argument … is that Nurse Falcon’s testimony far exceeded the boundaries established by the court and constituted improper lay opinion. In particular, defendant points to that portion of her testimony in which she opined that the lack of injury suffered by N.B. was consistent with the assault she described and her explanation about the vagina of pre-pubescent and post-pubescent females. This testimony, defendant urges, was not the proper subject of lay opinion…. First, the trial court explicitly declined to allow Falcon to testify as an expert witness…. Nurse Falcon’s testimony describing how the vagina becomes ‘stretchy’ and more pliable as a female turns from pre-pubescent to post-pubescent is not a matter of common knowledge. Rather, it involves specialized scientific knowledge of the physiological changes in the vagina that occur in pre-pubescent and post-pubescent females. While her opinion may have been based upon her training and years of experience, it was nonetheless esoteric and well beyond the understanding of a layperson…. Likewise, although the court permitted Nurse Falcon to opine that N.B.’s lack of apparent physical injury was consistent with what N.B. reported, in our view, this testimony went well beyond permissible lay testimony. It was an opinion expressed without any factual basis. It was not based upon Nurse Falcon’s personal observations of N.B. Nor was this opinion of the kind that would ordinarily be understood by a layperson. In short, the court erred in admitting the portions of Falcon’s testimony to which defendant objected and also erred in permitting Falcon’s testimony to exceed the boundaries of lay opinion testimony…. [E]ven assuming, based upon her training and experience, Nurse Falcon could have been qualified to render an expert opinion, the fact that she was not named as an expert witness on behalf of the State in advance of trial and authored no report that the State would have been required to timely provide to the defense as part of discovery, deprived the defense of the opportunity to mount a defense against the opinions she expressed at trial.”