Case of Franklin "Jack" Burr II

Case of Franklin "Jack" Burr II

(AKA: Jack Burr, Franklin J. Burr, Franklin Burr)

Piano Teacher

Edison, NJ

East Brunswick
Highland Park, NJ

 

Jack Burr is a convicted sex offender, who was accused of sexually assaulting a 9-year-old girl who has Asperger's disorder, a mild form of autism.  Burr was an Edison piano teacher.

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Table of Contents:  

 

2004

1. Witnesses claim girl in sexual assault case disrupted classes (10/22/2004)
2. Edison piano teacher guilty  (10/29/2004)
3. Piano teacher guilty in sex assault of student  (11/02/2004)

2007

1. East Brunswick piano teacher's sex conviction reversed  (05/09/2007)

2008

1. State of New Jersey v. Franklin Jack Burr II  (05/08/2008)
2. State v Franklin Burr - Arugued March 10, 2008 - Decided June 11, 2008  (06/11/2008)
3. Convicted N.J. Sex Offender to Get New Trial  (06/11/2008)
4. High court upholds ruling: New trial for accused Edison piano teacher  (06/11/2008)
5. N.J. Supreme Court says Asperger's evidence enough to grant new trial to child molester  (06/11/2008)
6. NJ top court allows suspect to showevidence of Asperger's (06/11/2008)
7. Court orders new trial for accused East Brunswick piano teacher (06/11/2008)
8. New trial ordered on molestation charge (06/12/2008)

2010

1. Piano teacher convicted of child endangerment (06/01/2010)
2. Highland Park Piano Teacher Convicted Of Child Endangerment (06/02/2010)
3. Piano Teacher Sentenced For Child Endangerment (06/02/2010)
   

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Witnesses claim girl in sexual assault case disrupted classes

By Lonnie Mack

Home News Tribune - October 22, 2004 

MIDDLESEX COUNTY: Two defense witnesses told a Superior Court jury in New Brunswick that the 9-year-old girl who has accused her private piano teacher of fondling her disrupted the classes and repeatedly attempted to climb on his lap.

 

Franklin "Jack" Burr is on trial charged with sexual assault and endangering the welfare of a child. He is facing up to 20 years in prison.

 

The incidents allegedly occurred between Nov. 2002 and Jan. 7 when the girl was taking lessons at East Coast Piano in Edison and later at the Jewish Community Center in Edison where Burr rented space to conduct his classes.

 

During testimony Wednesday the girl said Burr would slap and squeeze her buttocks and that after class he would pull her up on his lap and touch her vagina over her panties.

 

Paul Mulroney and his wife Marlene testified that the girl disrupted their eight-year-old son's piano lesson, demanded attention from Burr and frequently attempted to get on his lap to show him something.

 

Paul Mulroney said Burr would gently push her away and explain to her that she would have to wait until it was time for her lesson.

 

"It was like she hung onto him trying to get his attention," he said.

 

Defense attorneys Hillary Brower and Joseph Benedict contend the incidents never happened and that the girl made up the story because she was scared of her mother because her mother found out that she had sat on his lap, something her mother had instructed her not to do.

 

The Mulroneys, Yahgtse Eume, a 22-year-old guitar student and Mary Mercato, who operated a day care center in the Jewish Community Center, said students and parents moved freely in and out of the unlocked rooms where the lessons were being conducted and that there were windows on the doors.

 

Mercato, whose six-year old daughter took some keyboard lessons taught by Burr, said she observed some of the lessons when they were taught in the activities room of her day care center.

 

The six-year-old daughter testified she sat on Burr's lap on one occasion because she could not reach the keyboard.

 

She said she would be there when the alleged victim would come in for her lessons and said the girl was "always happy to see Jack."

 

The alleged victim testified she never reported the incidents because she was afraid of Burr.

 

Burr was arrested on Jan. 14, a week after the victim's mother saw them close together in what she called a "compromising position" when she walked in to pick up her daughter.

 

She questioned her daughter after they got into the car, she said, and the girl told her about how Burr was molesting her every time she went to the weekly lessons.

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Edison piano teacher guilty

By Lonnie Mack

Home News Tribune - October 29, 2004

MIDDLESEX COUNTY: Franklin "Jack" Burr, a private piano teacher in Edison, is facing 15 years in prison after being convicted in Superior Court yesterday of molesting a 9-year-old girl.

 

The 58-year-old Burr, who offered private lessons at East Coast Piano in Edison and later at rented space in the Jewish Community Center in Edison, was convicted of second-degree sexual assault, which carries a maximum penalty of 10 years in prison, and third-degree endangering the welfare of a child, which carries a maximum of five years.

 

He was acquitted of the more serious charge of second-degree endangering, which carries a maximum of 10 years in prison, when the jury decided he was not responsible for care and supervision of the child.

 

The jury of six men and six women deliberated for about four hours over two days and had the victim's video-taped statement replayed and her courtroom testimony read back before announcing its verdict.

 

Burr did not react when the verdicts were announced but appeared confused when sheriff's officers handcuffed him and escorted him out of the courtroom after Judge Phillip Paley revoked bail at the request of Assistant Prosecutor Christie Bevacqua.

 

Burr was on probation on a 1999 endangering conviction when he was arrested at the Jewish Community Center on Jan. 14. He had pleaded guilty to the endangering charge when the state agreed to dismiss a sexual-assault charge. Burr has been accused of fondling a 12-year-old guitar student's breast during the 1999 incident,

 

A condition of probation was that he not have unsupervised teaching sessions with girls under the age of 16.

 

The jury was not allowed to hear any statements about Burr's criminal history.

 

Joseph Benedict who along with Hillary Brower served as Burr's defense attorney said the verdict "was a great injustice for Jack Burr."

 

"I am shocked and flabbergasted," Brower said.

 

The attorneys argued the incidents never happened and that the victim made up the story because she was afraid of her mother, who had instructed her to never sit on anybody's lap.

 

The girl testified that Burr frequently slapped and squeezed her buttocks after she started taking classes at East Coast Piano in Nov. 2002. She said after the classes moved to the community center in 2003, when her classes were finished Burr pulled her up on his lap and fondled her vagina over her panties. She said he would also fondle her when they sat at a desk together.

 

Brower and Benedict presented at least five witnesses who observed the victim attempting to get on Burr's lap while he was giving piano lessons to other students.

 

They also pointed to several inconsistent statements made by both the victim and her mother.

 

The mother told police that when she walked in the room to pick her daughter up on Jan. 7, that her daughter was on his lap. She testified in court that her daughter was not on his lap but close to him in a "compromising position."

 

She said Burr was half sitting and half standing with his arms reaching out in the direction of her daughter. Her daughter told police she was on his lap when her mother came in.

 

She said that her daughter told her about the incidents after she questioned her in the car during their ride home.

 

The defense also presented several witnesses that testified the doors to the class rooms were almost always open and that parents and pupils roamed freely in and out of the rooms.

 

Benedict said the defense case was hampered because he and Brower were not permitted to make the jury aware that Burr suffers from Asperger Syndrome, a mild form of autism, which he said affects Burr's appearance, body language, motion and his behavior and interaction with people.

 

Had testimony about the condition been permitted, he said, it could have provided some insight about some "oddities" of his behavior and "would help explain some of the things that occurred."

 

Benedict told Paley he would be filing a motion for a new trial.

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Piano teacher guilty in sex assault of student

BY BRYAN SABELLA

Edison/Metuchen Sentinel - November 2, 2004

After deliberating only four hours, a state Superior Court jury in New Brunswick returned guilty verdicts last week against an East Brunswick man accused of sexually assaulting a 9-year-old girl.

 

Franklin "Jack" Burr, 58, faces a possible 15 years in jail after he was convicted of second-degree sexual assault and third-degree endangering the welfare of a child on Oct. 28, said Middlesex County Assistant Prosecutor Christie Bevacqua.

 

Burr was charged Jan. 14 with fondling the girl several times over the course of giving her piano lessons at two locations in Edison last year., she said.

 

The assault charge carries a maximum 10 years in prison, the endangering charge a maximum of five, Bevacqua said.

 

Burr was acquitted of a more serious second-degree endangering charge, which carries a possible 10 years, she said.

 

Court records at the time showed that Burr was on probation stemming from his April 2002 guilty plea to a charge of child endangerment in New Brunswick.

 

Jurors in this case were not allowed to hear of Burr's criminal history, Bevacqua said.

 

The jury of six men and six women deliberated only four hours over a two-day stretch, during which they asked to have the victim's testimony read back, she said.

 

After the verdict was delivered, Bevacqua asked the judge to revoke Burr's bail of $100,000. The request was granted, she said.

 

Bevacqua said that although a date will likely be set this week, Burr probably won't be sentenced for a few months, and that he will undergo a sex-offender evaluation beforehand.

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East Brunswick piano teacher's sex conviction reversed
By Sue Epstein
Star Ledger - May 9, 2007

EAST BRUNSWICK — The conviction of an East Brunswick piano teacher in 2004 on charges he molested a 9-year-old girl while she was his student was thrown out yesterday by a state appeals court, and a new trial was ordered.

The three-judge panel unanimously found that the trial court judge erred in refusing to let Franklin "Jack" Burr II's attorneys introduce evidence that Burr suffered from a severe case of Asperger syndrome, a form of autism. Sufferers are usually highly intelligent but lack an appreciation of social clues.

The appeals court ruling also vacates Burr's six-year prison sentence, which carried a mandatory five-year term before he is eligible for parole. "We conclude that the trial court misapplied its discretion in determining that Asperger's disorder was not relevant to any of the issues in the case," the appeals court judges wrote in a 58-page decision.

The diagnosis and report by the psychiatrist Richard Kleinmann, who was hired by the defense to examine Burr, "was highly relevant" to explain why Burr placed two children on his lap during piano lessons, the appeals court ruled. The defense argued unsuccessfully to Superior Court Judge Phillip Paley in New Brunswick prior to the October 2004 trial that Burr's disorder kept him from understanding that it is inappropriate for a man to have young children on his lap.

"The trial would have been a more fair and complete adversarial process if, in evaluating the evidence and the inferences urged by the state, jurors were aware that (Burr's) mental disability prevents him from viewing the world as others do in terms of acceptable social interactions," the judges concluded.

Vincent Sanzone Jr. of Elizabeth, the attorney who represented Burr on appeal, said he was "delighted with the decision."

"This case is very important and has statewide significance," Sanzone said, adding that this is the first decision in the state addressing the issues raised when a criminal defendant suffers from the Asperger's form of autism. "Too often, criminal defendants who suffer from such a malady, like Mr. Burr, are being unjustly convicted of sexual offenses and their actions perceived as criminal or inappropriate, when in fact, they just don't have the social barometer to know what is appropriate and not appropriate behavior."

Sanzone said Burr has grown long, white hair and a long beard while incarcerated. He said Burr is in East Jersey State Prison in Avenel, where he was transferred after he was harassed in two earlier prisons.

He said would request to have Burr released on bail pending his retrial.

Burr was convicted Oct. 28, 2004, of sexual assault and child endangerment.

He was arrested and charged after the 9-year-old girl's mother arrived to pick up the youngster following a lesson and found the student and teacher close together in a position the mother called "compromising."

The child testified during the trial that Burr began slapping and squeezing her buttocks when she was 8 years old. After classes were moved from a piano store to a community center in Edison where Burr rented space, Burr would pull the girl into his lap and fondle her, the child said.

Burr was on probation for child endangerment at the time of his arrest for purchasing inappropriate clothing — a blouse, bra and panties — for one of his students to wear at a recital, according to court records.

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State of New Jersey v. Franklin Jack Burr II

STATE of New Jersey, Plaintiff-Appellant, v. Franklin Jack BURR, II, Defendant-Respondent.
Argued March 10, 2008. -- June 11, 2008


Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).Vincent James Sanzone, Jr., Elizabeth, argued the cause for respondent.
 A jury convicted defendant, Franklin Jack Burr II, of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),¹ based on  allegations that he had touched inappropriately a young female student while teaching her piano.   On appeal, defendant argued that his ability to defend against the charges was impaired because he was not permitted to introduce testimony from a medical expert who diagnosed him with Asperger's Disorder.²  Defendant had wanted the expert to educate the jury about the disorder's traits and to provide it with a better understanding of defendant's unusual and, at times, odd demeanor and mannerisms, as well as his difficulty with interpersonal dealings.   The Appellate Division agreed that the preclusion of that evidence constituted reversible error and vacated defendant's convictions.  State v. Burr, 392 N.J.Super. 538, 560, 921 A.2d 1135 (2007).   The Appellate Division also found error in the trial court's handling of the jury's request to have replayed for it, during deliberations, a videotaped pretrial interview of the child victim.  Id. at 575-76, 921 A.2d 1135.   In light of its reversal on other grounds, the panel did not address whether that separate error would have required reversal.  Id. at 576, 921 A.2d 1135.   We granted the State's petition for certification on both issues.   192 N.J. 478, 932 A.2d 28 (2007).
In our view, the evidentiary ruling on the Asperger's Disorder testimony denied defendant access to evidence that was relevant and material to his explanation of himself and his conduct.   The resultant harm to defendant was palpable, even from the vantage point of appellate review of a cold record.   We agree with the Appellate Division's assessment that the preclusion of this evidence was capable of impacting the jury verdict and that it was a  factor in defendant's decision not to testify at trial.   For substantially all these reasons that were set forth in Judge Weissbard's thorough and thoughtful opinion, we hold that the preclusion of the expert testimony constituted reversible error necessitating a new trial.   We address separately the videotape replay issue and modify the instructions of the Appellate Division in the event that the issue recurs during retrial.
I.
There is an unusual procedural history to the expert testimony evidentiary ruling at issue in this appeal.³  Before the trial in this matter commenced, the trial court referred defendant to the Ann Klein Forensic Center for a competency evaluation when concerns arose over defendant's odd appearance and demeanor during a pretrial proceeding.   While that referral took place, defense counsel had defendant evaluated by Dr. Richard Kleinmann, a psychiatrist.   Dr. Kleinmann's evaluation led to a preliminary diagnosis of Asperger's Disorder, which was set forth in a report that was used in connection with a bail hearing.   However, the diagnosis and report triggered a desire on defendant's part to introduce Dr. Kleinmann's testimony at trial.   Dr. Kleinmann's testimony would include a discussion on the Asperger's diagnosis and characteristics of the disorder, as described in his report.   Dr. Kleinmann also would testify about the serious difficulties in social interaction, as well as the odd, even bizarre, actions and mannerisms that can be common to persons who have the disorder.
The State moved in limine to preclude that expert testimony.   Defense counsel urged the court to allow the testimony so defendant could “show the jury a full picture of what it is that [he] is suffering from and why he may make inappropriate social judgments, not criminal judgments, but inappropriate social judgments.”   Although defendant never argued that the Asperger's Disorder evidence was intended to advance a diminished capacity defense, the trial court granted the State's motion to bar the testimony because it found that the testimony did not tend to prove that defendant had a mental defect that prevented him from understanding his actions.   See N.J.S.A. 2C:4-2 (allowing admission of evidence of “mental disease or defect ․ whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense”).
The trial then proceeded, during which the alleged victim, A.A.,⁴ who took piano lessons from defendant, testified that, on numerous occasions, defendant touched her “private parts” over her clothes.   She also testified that defendant often pulled her onto his lap, although he did not touch her inappropriately at those times.   Three other witnesses confirmed that defendant allowed children to sit on his lap.   During summation, the prosecutor argued that defendant's purpose for allowing A.A. to sit on his lap was to “groom” her for sexual assault by making her feel comfortable when being held by him in a compromising position.
After the jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), defendant appealed.   The appellate panel initially issued an unpublished opinion that concluded that the record was inadequate to address the expert's report and Asperger's Disorder issue.   Because Dr. Kleinmann's report had been used only in connection with the bail hearing, the report's author had not been subjected to cross-examination.   Accordingly, the panel ordered a remand for a Rule 104 hearing to develop the record on the admissibility of the testimony.   The  appellate panel retained jurisdiction and, after the Rule 104 hearing concluded, issued its decision vacating defendant's convictions and remanding for a new trial.   Burr, supra, 392 N.J.Super. at 560-63, 921 A.2d 1135.   The panel determined that the trial court erred in basing its admissibility determination entirely on the fact that defendant had not raised a diminished capacity defense, instead of examining the evidence's admissibility under broader relevance concepts.  Id. at 556-57, 921 A.2d 1135.   Applying Evidence Rule 402, the panel held that the evidence was admissible because it was relevant to explain defendant's conduct and “to negate the inference that defendant allowed young children to sit on his lap with the purpose of grooming them for sexual abuse.”  Id. at 561, 921 A.2d 1135.   The panel explained,
The trial would have been a more fair and complete adversarial process if, in evaluating the evidence and the inferences urged by the State, jurors were aware that defendant's mental disability prevents him from viewing the world as others do in terms of acceptable social interactions.
[Ibid.]
Because there was evidence that the jury was “clearly troubled” by the testimony that defendant allowed children to sit on his lap,⁵ the panel concluded that the trial court's exclusion of evidence that would have “shed light on defendant's seemingly inappropriate behavior” constituted reversible error.  Id. at 562, 921 A.2d 1135.
II.
In addressing the issue presented in this appeal, we adopt an approach similar to that of the Appellate Division.   The essential inquiry into the admissibility of the expert medical testimony about Asperger's Disorder should focus on whether it constituted relevant evidence.
A.
  The New Jersey Evidence Rules broadly admit “all” relevant evidence, unless the evidence is otherwise excluded.   See  N.J.R.E. 402.   Rule 401 defines “relevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”   See State v. Jenewicz, 193 N.J. 440, 457-58, 940 A.2d 269 (2008) (“Analyzing relevance requires examining the logical connection between the proffered evidence and a fact in issue.” (internal quotation marks and citations omitted)).   Courts consider evidence to be probative when it has a tendency “to establish the proposition that it is offered to prove.”  State v. Allison, 208 N.J.Super. 9, 17, 504 A.2d 1184 (App.Div.) (quoting McCormick on Evidence § 185 (3d ed.1984)), certif. denied, 102 N.J. 370, 508 A.2d 235 (1985);  see also State v. Williams, 190 N.J. 114, 123, 919 A.2d 90 (2007) (holding that evidence is admissible if desired inference is rendered more probable or logical).
 Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule.   See, e.g., State v. Nelson, 173 N.J. 417, 470, 803 A.2d 1 (2002);  State v. McDougald, 120 N.J. 523, 577-78, 577 A.2d 419 (1990);  State v. Catlow, 206 N.J.Super. 186, 193, 502 A.2d 48 (App.Div.1985), certif. denied, 103 N.J. 465-66, 511 A.2d 648 (1986).   A reviewing court generally will defer to the trial court's admissibility rulings.   See Jenewicz, supra, 193 N.J. at 456, 940 A.2d 269 (applying abuse of discretion standard of review).
B.
 In this matter, the trial court's analysis of the relevance of Dr. Kleinmann's expert testimony was off target from its inception.   In perceiving Kleinmann's testimony to be permissible only to establish a mental defect defense, which defendant was not asserting, the trial court employed an approach to analyzing the permissible uses of the testimony that was too narrow.
  N.J.S.A. 2C:4-2 allows admission of evidence of a “mental disease or defect ․ whenever it is relevant to prove that the  defendant did not have a state of mind which is an element of the offense.”   See State v. Breakiron, 108 N.J. 591, 607-09, 532 A.2d 199 (1987) (explaining that evidence of mental disease or condition is relevant when used to negate mental state required for offense).   To be sure, mental defect evidence is relevant when asserted to prove or disprove an element of a crime or to advance a defense.   See, e.g., State v. Reyes, 140 N.J. 344, 354-58, 658 A.2d 1218 (1995);  Breakiron, supra, 108 N.J. at 607-09, 532 A.2d 199;  see also State v. Sexton, 311 N.J.Super. 70, 88, 709 A.2d 288 (App.Div.1998) (holding that defendant's special education placement was relevant to whether defendant had reckless state of mind), aff'd, 160 N.J. 93, 733 A.2d 1125 (1999).   That said, evidence of mental defect, illness, or condition has been admitted also for other purposes, such as to assess credibility or otherwise evaluate the subjective perceptions of an actor.   See, e.g., State v. B.H., 183 N.J. 171, 201, 870 A.2d 273 (2005) (explaining that battered woman syndrome evidence is relevant to defendant's subjective assessment of perceived threat from abuser);  State v. King, 387 N.J.Super. 522, 550, 904 A.2d 808 (App.Div.2006) (permitting psychiatric testimony about defendant's personality disorder as relevant to defendant's false confession claim);  State v. Johnson, 216 N.J.Super. 588, 603, 524 A.2d 826 (App.Div.) (stating that evidence of witness's mental defects has “unquestionable relevance” in assessing credibility), certif. denied, 107 N.J. 647, 527 A.2d 467 (1987).   Here, the Appellate Division correctly recognized that the trial court's focus on whether the disputed evidence was relevant to a diminished capacity defense distracted the court from examining the evidence under general relevance concepts.   See Burr, supra, 392 N.J.Super. at 557, 921 A.2d 1135.
In this matter, defense counsel knew before the trial commenced that the State would call several witnesses to testify that defendant had permitted A.A. and another child to sit on his lap.   In anticipation that that testimony could arouse the jury's suspicion, the defense proffered Kleinmann's testimony, which would have helped to explain how defendant's actions in allowing children to sit on his lap might have been innocent of a nefarious  purpose or motivation.   The conduct, although minimal, was, however, potentially suspicious.   The Asperger's Disorder testimony was intended to show that defendant might not have understood that his conduct could have been perceived as socially unacceptable.   In seeking to educate the jury about Asperger's Disorder, defendant sought to provide the jurors with context about him and his limitations in respect of basic social interactions.⁶  However, defendant was denied the opportunity to introduce the evidence, and the witnesses testified as expected about other incidents of lap-sitting.   During summation, the State highlighted that testimony and contended that defendant sat A.A. on his lap in order to “groom” her for sexual assault.
Although the “grooming” comment arose well after the evidentiary issue had been resolved by the trial court, on appeal defendant contended, persuasively, that the Asperger's Disorder expert testimony would have assisted the defense by rebutting the State's assertion that defendant manipulated his youthful charge.   The expert would have testified to the effect that persons with Asperger's Disorder generally do not have the ability to manipulate people easily because of their weakness in detecting social cues that other persons readily recognize.   Thus, in two ways the Asperger's Disorder evidence was relevant to provide an explanation for defendant's noncriminal behavior (of allowing children to sit in his lap) that the jury might otherwise consider consistent with common assumptions about sexual abuse.   Cf. State v. P.H., 178 N.J. 378, 395, 840 A.2d 808 (2004) (allowing expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) to explain behavior that might be counter-intuitive to jury).
 Beyond offering an alternative explanation for defendant's conduct, the barred testimony would have enhanced the presentation of defendant's defense to the charges against him in ways that defy specific enumeration.   The evidence would have educated the jury about oddities in behavior that defendant might exhibit in court or were described in the testimony of witnesses.   The testimony also might have enabled the jury to view the facts with greater consideration given to defendant's version of his interactions with the children.   In the same vein, the testimony might have persuaded defendant to take the stand and testify before the jury, knowing that any odd behaviors or demeanor that he might exhibit would not surprise or inexplicably alienate the jury.   This was defendant's only opportunity to present his defense to the jury, and he deserved a more generous grant of the trial court's discretionary evidentiary rulings on any relevant evidence that had a logical tendency to advance defendant's cause in the matter.   To the extent that defendant wanted to present the whole person that he was to the jury, in whose hands his fate was placed, he should have been permitted to do so.
 We hold therefore that the trial court abused its discretion by failing to consider larger relevancy concepts when evaluating this testimony.   Had it done so, it should have concluded that the evidence was relevant to defendant's defense.   The only remaining question is whether the Appellate Division correctly concluded that defendant was prejudiced by that error.   The harmful error standard applies here because defendant raised the issue before the trial court.   R. 2:10-2.   In our view, it is plain that the error caused prejudice to defendant and was of the kind that was “capable of producing an unjust result.”  Ibid.
As noted, the jury heard testimony from four witnesses about how defendant allowed children to sit on his lap.   During deliberations, the jury demonstrated that it was troubled by that testimony when it requested a readback of portions from two witnesses' testimony that had referred to defendant having allowed another child to sit on his lap.   Further, the State emphasized this point to  the jury, claiming that defendant's actions in having A.A. sit in his lap were intended to “groom” his targeted victim for sexual abuse.   The exclusion of the Asperger's Disorder evidence, which would have offered an explanation for defendant's seemingly socially inappropriate behavior, was capable, therefore, of influencing the jury's verdict.
 In conclusion, we hold that the Appellate Division correctly vacated defendant's convictions and remanded for a new trial because defendant was prejudiced by the trial court's error.   On remand, we further hold that defendant must be permitted to introduce expert testimony on Asperger's Disorder to defend against any allegation of “grooming” his victim that the State may advance, as well as to explain himself and his actions to the jury regardless of whether the State pursues its “grooming” theory.   The testimony is equally relevant to defendant's efforts to have the jury understand any unusual demeanor or mannerisms he may have as a result of the Asperger's Disorder and to explain his asserted shortcomings in perceiving and reacting to basic interpersonal cues when engaging in social interactions.   He must be permitted the opportunity to present at trial evidence that tends to prove that he has a medical basis for such behaviors in order to explain himself and his condition and, thereby, to lessen the chance of being misunderstood by the jury.
III.
After A.A. testified, the State proffered a videotape of her pretrial interview with the Middlesex County Prosecutor's Office's Sex Crimes and Child Abuse Unit. Over defendant's vigorous objections, the trial court admitted the evidence pursuant to the “tender years” exception to the hearsay rule.⁷  N.J.R.E. 803(c)(27).   Later, when the jury was deliberating, it requested  permission to review the videotape.   The trial court granted the request, over defendant's objection, and replayed the videotape for the jury in the courtroom.

On appeal, the Appellate Division held that the trial court abused its discretion in permitting a replay of the videotape without “inquir[ing] into the jury's need for a video replay and balanc[ing] that need against any resulting prejudice.”  Burr, supra, 392 N.J.Super. at 576, 921 A.2d 1135 (citing State v. Michaels, 264 N.J.Super. 579, 644-45, 625 A.2d 489 (App.Div.1993), aff'd on other grounds, 136 N.J. 299, 642 A.2d 1372 (1994)).
A.
The issue of whether a taped pretrial statement, which has been introduced into evidence, may be reviewed by the jury during deliberations has never before been decided by our courts.   In resolving this novel issue, the Appellate Division panel relied on the closest analogy that it could find, namely State v. Michaels, 264 N.J.Super. 579, 625 A.2d 489 (App.Div.1993), aff'd on other grounds, 136 N.J. 299, 642 A.2d 1372 (1994), which examined the related issue of the replay of a witness's videotaped trial testimony.   Burr, supra, 392 N.J.Super. at 574, 921 A.2d 1135.

In Michaels, supra, the defendant was tried for multiple counts of sexual assault against numerous children.  264 N.J.Super. at 585, 625 A.2d 489.   Because of the children's young ages, they testified via closed circuit television.  Id. at 642-43, 625 A.2d 489. 

Although a transcript of the testimony was entered into evidence, the video was not.  Ibid. (citing N.J.S.A. 2A:84A-32.4).   During deliberations, the trial court granted the jury's request to review the tapes of the children's testimony.   The defendant appealed, arguing that it was unfair to allow the jury to review videotaped testimony of the alleged victims when the jury could only receive a  readback of the defendant's transcribed testimony.  Id. at 642, 625 A.2d 489.

On review, the Appellate Division distinguished the playback of videotaped testimony from the readback of transcribed testimony.  Id. at 643, 625 A.2d 489.   It noted that “videotape evidence is unique” because it allows jurors to observe the witness's demeanor while hearing the testimony again.  Ibid. (quoting United States v. Binder, 769 F.2d 595, 600-01 (9th Cir.1985)).   The panel further recognized that
a video replay ․ presents much more information than does a transcript reading.   In essence, the witness is brought before the jury a second time, after completion of the defense['s] case, to repeat exactly what was testified to in the State's case.   The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury.   It is difficult to deny that there is an advantage that may be gained in such circumstances.
[Id. at 644, 625 A.2d 489.]
The Michaels panel concluded that juries should not have unrestricted access to the videotape in the jury room.  Ibid.  However, the replay, at the jury's request, of videotaped testimony, in its entirety and in open court, is not per se prejudicial and must be subject to judicial discretion.  Id. at 644, 625 A.2d 489.   The panel directed the trial court to take precautions before replaying the testimony to the jury to reduce the risk that the jury would unduly emphasize the videotaped testimony.   Specifically, the trial court was cautioned first to inquire whether the jurors are seeking something from the video that they cannot get from an impartial readback of the transcribed testimony.  Id. at 644-45, 625 A.2d 489.   If the request for a replay appears reasonably necessary to the jury's deliberations, the trial court should then exercise its discretion to balance that need against any possible prejudice to the defendant.  Ibid.
B.
 This case, however, is distinguishable from Michaels because the videotape at issue was admitted into evidence as an exhibit.   Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the  court's instructions on its proper use.   R. 1:8-8;  Fiorino v. Sears Roebuck & Co., 309 N.J.Super. 556, 567-69, 707 A.2d 1053 (App.Div.1998) (holding that judge could, with proper instructions, permit shredder-bagger, screen, and screwdriver into jury room);  State v. Pemberthy, 224 N.J.Super. 280, 302-03, 540 A.2d 227 (App.Div.) (holding that decision whether to allow bag of cocaine into jury room is matter for court's discretion), certif. denied, 111 N.J. 633, 546 A.2d 547 (1988).
 The videotaped pretrial statement at issue in this appeal is, however, significantly different from a demonstrative exhibit.   Although it is evidence, it is also testimony.   It is, in effect, a hybrid of the two.   Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted.   Moreover, the videotape is powerful evidence for the jury to see again, if it is not placed into context.   We therefore share the Appellate Division panel's concern that allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations.   The danger posed is that the jury may unfairly emphasize A.A.'s videotaped statements over other testimony presented at trial, including her own cross-examination.   That said, we note that the trial court had before it in this matter a broad request from the deliberating jury.   The jury asked to hear all of the victim's testimony and her videotape.   Because we are reversing based on the expert-testimony issue, there is no need for us to overanalyze what the trial court did here in the face of the broad request made of it.   We simply hold that, in the future, if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements.⁸  The rule we adopt today reflects the unique nature of this videotape evidence.
   To summarize, if on remand the trial court is faced with a request by the jury to have a replay of the videotaped pretrial interview of A.A., the court first should inquire of the jury whether it would be satisfied with a readback of A.A.'s testimony.   If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant.   The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback.⁹  Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means.   And, finally, any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require.
IV.
We affirm the judgment of the Appellate Division, as modified by this opinion.   Defendant's convictions are vacated and this matter is remanded for retrial.
FOOTNOTES
1.    Defendant's indictment charged him with endangering the welfare of a child in the second degree, in violation of N.J.S.A. 2C:24-4(a).
2.    Asperger's Disorder is an autism spectrum disorder characterized by a “severe and sustained impairment in social interaction ․ and the development of restricted, repetitive patterns of behavior, interests, and activities.”   American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 75 (4th ed.   1994) (DSM-IV);  see also National Institute of Neurological Disorders and Stroke, Asperger Syndrome Fact Sheet, http://​www.​ninds.​nih.​gov/​disorders/ asperger/detail_ asperger.htm [hereinafter NINDS, Fact Sheet ].   Persons with Asperger's Disorder often exhibit “socially and emotionally inappropriate behavior” and an “inability to interact successfully with peers.”   NINDS, Fact Sheet, supra.   They have difficulty communicating with others and may not understand normal body language and gestures.  Ibid.
3.    Our factual and procedural statement only summarizes the portions of the record that are pertinent to the resolution of this appeal.   For a complete statement of the lower courts' proceedings, reference may be had to the Appellate Division's thorough recitation of the development of the record on the disputed expert testimony, as well as its comprehensive statement of the substance of the proffered testimony.   See Burr, supra, 392 N.J.Super. at 549-55, 921 A.2d 1135.
4.   The victim is identified by the same altered initials as were used by the Appellate Division.
5.    During deliberations, the jury posed to the trial court questions about that testimony.   See Burr, supra, 392 N.J.Super. at 561-62, 921 A.2d 1135.
6.    This Court previously has recognized that persons suffering from Asperger's Disorder have an incapacity for socialization that can be both “ ‘serious and debilitating.’ ”  T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 486, 916 A.2d 1025 (2007) (quoting Ami Klin & Fred R. Volkmar, Asperger's Syndrome:  Guidelines for Assessment and Diagnosis (Learning Disabilities Association of America 1995), http://​www. ​med.​yale.​edu/​chldstdy/​autism/​asdiagnosis.​pdf (source no longer available online)).
7.    Defendant argued that the videotape was inadmissible because it did not meet the threshold requirement of trustworthiness required for admission under Rule 803(c)(27), because it was prejudicial pursuant to Rule 403, and because it implicated his Confrontation Clause rights.   The trial court rejected all of those arguments, and the Appellate Division affirmed.  Burr, supra, 392 N.J.Super. at 565-73, 921 A.2d 1135.   Because defendant has not raised those issues in the instant appeal, we do not address them.

8.    We note that, when faced with a similar issue, the highest courts of Florida and Wyoming have reached similar conclusions.   See Young v. State, 645 So.2d 965, 967-68 (Fla.1994);  Chambers v. State, 726 P.2d 1269, 1276 (Wyo.1986).

9.    Indeed, because this particular videotape contained hearsay testimony admitted pursuant to the tender-years hearsay exception, we think it imperative that the victim's related cross-examination at trial also be read back to the jury.

Justice LaVECCHIA delivered the opinion of the Court.
For affirmance as modification/vacation and remandment-Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS-6.Not Participating-Chief Justice RABNER.

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Convicted N.J. Sex Offender to Get New Trial

Associated Press - June 11, 2008

NEWARK, N.J. (AP) -- A piano teacher convicted of molesting a young student can get a new trial so he can introduce evidence that he suffers from a form of autism called Asperger's Syndrome, the state Supreme Court ruled Wednesday.
 

The state's highest court said Franklin Jack Burr II can present expert testimony on the diagnosis in an effort to explain his conduct because it was ``relevant and material.''
 

The expert sought to ``testify about the serious difficulties in social interaction, as well as the odd, even bizarre, actions and mannerisms that can be common to persons who have the disorder,'' the court said.
 

The Middlesex County Prosecutor's Office opposed the request, while Burr's defense said the testimony could ``show the jury a full picture of what it is that (he) is suffering from and why he may make inappropriate social judgments, not criminal judgments, but inappropriate social judgments.''
 

At trial in New Brunswick, state Superior Court Judge Phillip Lewis Paley barred the testimony after determining it would not prove that Burr had a mental defect that prevented him from understanding his actions. Burr was not pursuing a ``diminished capacity'' defense.
 

The female student testified at trial that in 2004 Burr touched her over her clothes and often pulled her onto his lap. Burr was convicted of sexual assault and child endangerment and sentenced in 2005 to six years in state prison.
 

Burr appealed, and the 6-0 Supreme Court decision upheld an appellate ruling that vacated Burr's conviction. Chief Justice Stuart Rabner did not participate.
 

Burr, 62, of East Brunswick, had been held at East Jersey State Prison but was released in August on bail.
 

Burr lawyer Vincent James Sanzone Jr. said, ``I am very grateful for this progressive, unanimous decision, which affirmed and recognized the need for special consideration for people suffering from a mental handicap.''
 

Burr never improperly touched the girl, Sanzone said, adding, ``He could not have done what the state says he's done based on his mental handicap.''
 

Assistant Middlesex County Prosecutor Simon Louis Rosenbach said he could accept the Asperger's ruling: ``That's probably not wrong,'' he said.
 

The Supreme Court noted that the expert testimony could have assisted the defense by rebutting an assertion from the prosecution that the defendant was grooming her for future sexual assault by familiarizing her with such contact.
 

``The expert would have testified to the effect that persons with Asperger's Disorder generally do not have the ability to manipulate people easily because of their weakness in detecting social cues that other persons readily recognize,'' Justice Jaynee LaVecchia wrote for the court.

Burr never improperly touched the girl, Sanzone said, adding, "He could not have done
what the state says he's done based on his mental handicap."

Assistant Middlesex County Prosecutor Simon Louis Rosenbach said he could accept the
Asperger's ruling: "That's probably not wrong," he said.

The Supreme Court noted that the expert testimony could have assisted the defense by
rebutting an assertion from the prosecution that the defendant was grooming her for
future sexual assault by familiarizing her with such contact.

"The expert would have testified to the effect that persons with Asperger's Disorder
generally do not have the ability to manipulate people easily because of their weakness in
detecting social cues that other persons readily recognize," Justice Jaynee LaVecchia
wrote for the court.

 

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High court upholds ruling: New trial for accused Edison piano teacher

By KEN SERRANO

Central Jersey - June 11, 2008

MIDDLESEX COUNTY —The state Supreme Court on Wednesday upheld a lower court ruling that gives a new trial to an Edison piano teacher accused of molesting a 9-year-old girl, saying a jury should have heard testimony that the defendant suffers from Asperger's disorder, a mild form of autism.
 

Franklin "Jack'' Burr II, 62, was convicted in October 2004 of sexual assault and endangering the welfare of a child. Assaults were alleged to have taken place in Edison when the girl took lessons with Burr at East Coast Piano and later at the Jewish Community Center, where Burr rented space to conduct his classes. Burr was accused of inappropriately touching the girl.
 

In May 2007, a state appeals court decided that trial court Judge Phillip Paley, sitting in New Brunswick, erred when rejecting a defense request to allow medical testimony on Burr's diagnosis of Asperger's disorder.
 

Defense attorneys contended the disorder affects Burr's appearance, body language and motions, as well as his behavior and interaction with people.
 

During Burr's trial, witnesses testified that Burr had the 9-year-old and another student sit on his lap. Prosecutors said Burr was "grooming" the children for sexual abuse.
 

The appellate court in last year's ruling said that testimony on Asperger's disorder could have negated that inference in the minds of jurors and affected the verdict.
 

The Supreme Court ruling Wednesday went 6-0. Chief Justice Stuart Rabner did not participate.
 

Justice Jaynee LaVecchia wrote in a 20-page decision, "In our view, the evidentiary ruling on the Asperger's disorder testimony denied defendant access to evidence that was relevant and material to his explanation of himself and his conduct.''
 

Burr's attorney, Vincent Sanzone Jr. of Elizabeth, said: "I'm very grateful that our Supreme Court has taken a progressive view with regard to defendants suffering from mental disabilities, which in this case is Asperger's disorder.''
 

The state's highest court also ruled that a jury is allowed to see a replay of a videotaped pretrial interview with the 9-year-old girl, but the trial judge should first inquire whether jury members would be satisfied with testimony alone being read back to them. If they insist on seeing the videotape, the judge should weigh that request against the fairness to Burr. A readback of cross-examination testimony of the girl might also be necessary to balance what the jury hears and provide "proper context,'' the high court ruled.

 

Burr was sentenced to six years and served time at East Jersey State Prison before being released by the court on bail in August 2007.
 

At the time of Burr's arrest in 2004, he was on probation on a 2002 endangering conviction stemming from an incident years earlier in which a 12-year-old Metuchen guitar student accused him of molesting her.
 

Burr pleaded guilty to that endangering charge when the state agreed to dismiss a sexual-assault charge. A condition of probation at the time was that he not have unsupervised teaching sessions with girls younger than 16.

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N.J. Supreme Court says Asperger's evidence enough to grant new trial to child molester

Associated Press - June 11, 2008

 

The New Jersey Supreme Court has ruled that a piano teacher convicted of molesting a young student can get a new trial so he can introduce evidence that he suffers from a form of autism called Asperger's Syndrome.

 

The state's highest court says Franklin Jack Burr II can use the diagnosis in an effort to explain his conduct. The 6-0 decision released today upholds an appellate ruling that vacated Burr's conviction in Middlesex County.

 

The Supreme Court said expert testimony on Asperger's Syndrome "was relevant and material."

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NJ top court allows suspect to showevidence of Asperger's 
By Jeffrey Gold
Associated Press - June 11, 2008  

NEWARK, N.J. - A piano teacher convicted of molesting a young student can get a new
trial so he can introduce evidence that he suffers from a form of autism called Asperger's
Syndrome, the state Supreme Court ruled Wednesday.

The state's highest court said Franklin Jack Burr II can present expert testimony on the
diagnosis in an effort to explain his conduct because it was "relevant and material."

The expert sought to "testify about the serious difficulties in social interaction, as well as
the odd, even bizarre, actions and mannerisms that can be common to persons who have
the disorder," the court said.

The Middlesex County Prosecutor's Office opposed the request, while Burr's defense said
the testimony could "show the jury a full picture of what it is that (he) is suffering from
and why he may make inappropriate social judgments, not criminal judgments, but
inappropriate social judgments."

At trial in New Brunswick, state Superior Court Judge Phillip Lewis Paley barred the
testimony after determining it would not prove that Burr had a mental defect that
prevented him from understanding his actions. Burr was not pursuing a "diminished
capacity" defense.

The female student testified at trial that in 2004 Burr touched her over her clothes and
often pulled her onto his lap. Burr was convicted of sexual assault and child
endangerment and sentenced in 2005 to six years in state prison.

Burr appealed, and the 6-0 Supreme Court decision upheld an appellate ruling that
vacated Burr's conviction. Chief Justice Stuart Rabner did not participate.

Burr, 62, of East Brunswick, had been held at East Jersey State Prison but was released in
August on bail.

Burr lawyer Vincent James Sanzone Jr. said, "I am very grateful for this progressive,
unanimous decision, which affirmed and recognized the need for special consideration
for people suffering from a mental handicap."

 

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Court orders new trial for accused East Brunswick piano teacher

by Tom Hester

The Star-Ledger - Wednesday June 11, 2008

The state Supreme Court today ordered a new trial for an East Brunswick piano teacher who was convicted of molesting an 9-year-old girl, saying he should have been allowed to have a medical expert present testimony about that he has Asperger's Disorder and did not have the ability to realize his actions were inappropriate.

The high court upheld an appeals court decision handed down last year in the case of Franklin "Jack'' Burr. The ruling vacates Burr's six-year prison sentence for sexual assault and child endangerment.

In a 6-0 decision, the Supreme Court said: "The proffered expert testimony on (Burr's) diagnosis of Asperger's Disorder was relevant and material to his explanation of himself and his conduct. Preclusion of that evidence constituted reversible error necessitating a new trial.''

Dealing with another issue, the justices said if the jury wants to see a videotape of the 9-year-old girl's pretrial testimony, the judge must determine if the panel should hear any related testimony that is necessary to provide the proper context for the video.

Burr was arrested after the girl's mother arrived to pick up the youngster following a piano lesson and found him and her child close together in a position the woman described as compromising. The girl testified that Burr began touching her inappropriately when she was 8-year-old.

Burr was on probation for child endangerment at the time of his arrest.

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New trial ordered on molestation charge - Defense asserts defendant didn't know actions were inappropriate

By BY TOM HESTER

Star-Ledger Staff - Thursday, June 12, 2008

 

In a unanimous decision yesterday, the state Supreme Court ordered a new trial for a 60-year-old East Brunswick piano teacher convicted of molesting a 9-year-old girl, saying he should have been allowed to have a psychiatrist testify that he has Asperger syndrome and did not have the ability to realize that his actions were inappropriate.

The high court upheld an appeals court decision handed down last year in the case of Franklin "Jack" Burr. The appeals court ruling vacated Burr's six-year prison sentence for sexual assault and child endangerment after he had served six months in a state prison.

"The proffered expert testimony on (Burr's) diagnosis of Asperger's Disorder was relevant and material to his explanation of himself and his conduct," Justice Jaynee LaVecchia wrote for the court. "Preclusion of that evidence constituted reversible error necessitating a new trial." Chief Justice Stuart Rabner did not participate in the decision.

Dealing with another issue, the justices said that if the jury wants to see a videotape of the 9-year-old girl's pretrial testimony, the judge must determine whether the panel should hear any related testimony that is necessary to provide the proper context for the video.
 

Burr's lawyer, Vincent Sanzone, said the ruling is only the second of its type in the nation in which Asperger syndrome is being allowed to be used as a defense. He said the first ruling was made by the Missouri Supreme Court.
 

Burr was arrested after the girl's mother arrived to pick up the youngster after a piano lesson at an Edison community center where he rented space and found him and the child close together in a position the woman described as compromising. The girl testified that Burr began touching her inappropriately when she was 8 years old. Burr was on probation for child endangerment at the time of his arrest.
 

At Burr's trial in state Superior Court in New Brunswick in 2004, his attorneys wanted to call Richard Kleinmann, a psychiatrist at the Ann Klein Forensic Center, a state institution in Trenton, to testify. Burr was sent there for a mental evaluation before his trial because Judge Phillip Paley was concerned about his odd appearance and demeanor.
 

Kleinmann, according to the decision, found that Burr suffers from Asperger syndrome, a form of autism. Sufferers are usually intelligent but lack an appreciation of social skills. But when Burr's attorneys wanted to call Kleinmann as a defense witness to testify that the disorder may have kept Burr from understanding that it is inappropriate for a man to have young children on his lap, Paley denied the request.
 

"The expert would have testified to the effect that persons with Asperger's Disorder generally do not have the ability to manipulate people easily because of their weakness in detecting social cues that other persons readily recognize," LaVecchia said.
 

Sanzone said Burr speaks five languages, is a biblical scholar and a math expert, but that because of his disorder, "interacts terribly with other people."
 

"I think this is a very progressive decision," Sanzone said. 

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News Release 
Piano teacher convicted of child endangerment
Middlesex County Prosecutor's Office - June 1, 2010 

Middlesex County Prosecutor Bruce J. Kaplan announced that a Highland Park man was convicted today of endangering the welfare of a 9-year-old girl.

Franklin Jack Burr II, (DOB 9/16/45) of 114 Johnson Street, Highland Park, was found guilty by a jury in Middlesex County following a trial that began on May 4, 2010.

The jury was unable to decide a count charging Burr with sexual assault. Superior Court Judge Dennis Nieves declared a mistrial on that charge. A decision has yet to be made on whether the state will seek to try the defendant again on the sexual assault count.

When he is sentenced for child endangerment, Burr faces up to five years in a New Jersey state prison with a 2 ½ - year period of parole ineligibility. His sentencing date has not been set.

After the verdict was returned, Judge Nieves declined to revoke or raise the defendant’s bail. Burr remains free on $150,000 pending sentencing.

During the trial, Middlesex County Assistant Prosecutor Christie L. Bevacqua presented evidence and testimony contending that Burr, a private piano instructor, improperly touched the 9-year-old girl on a number of occasions while giving her piano lessons in Edison between November 2002, and January 2004.

Burr was arrested and charged following an investigation by then-Sgt. Joseph Shannon of the Edison Police Department and Investigator Lisa Collins of the Middlesex County Prosecutor’s Office.

Burr initially was convicted in October 2004 of sexual assault and endangering the welfare of the child, and was sentenced to a six-year prison term.

He subsequently appealed the conviction and was granted a new trial in June 2008 by an appellate court, which ruled that the judge in the first trial improperly precluded evidence that Burr contends he has a medical condition known as Asperger’s syndrome.

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Highland Park Piano Teacher Convicted Of Child Endangerment
New Jersey Today - June 2, 2010

NEW BRUNSWICK –  A Highland Park man was convicted Tuesday of endangering the welfare of a 9-year-old girl, Middlesex County Prosecutor Bruce J. Kaplan announced .
Franklin Jack Burr II, 64 , was found guilty by a jury in Middlesex County following a trial that began on May 4.

The jury was unable to decide a count charging Burr with sexual assault. Superior Court Judge Dennis Nieves declared a mistrial on that charge. A decision has yet to be made on whether the state will seek to try the defendant again on the sexual assault count, officials said.

When he is sentenced for child endangerment, Burr faces up to five years in a New Jersey state prison with a 2 ½ – year period of parole ineligibility. His sentencing date has not been set.

After the verdict was returned, Nieves declined to revoke or raise the defendant’s bail. Burr remains free on $150,000 pending sentencing.

During the trial, Middlesex County Assistant Prosecutor Christie L. Bevacqua presented evidence and testimony contending that Burr, a private piano instructor, improperly touched the 9-year-old girl on a number of occasions while giving her piano lessons in Edison between November 2002, and January 2004.

Burr was arrested and charged following an investigation by then-Sgt. Joseph Shannon of the Edison Police Department and Investigator Lisa Collins of the Middlesex County Prosecutor’s Office.

Burr initially was convicted in October 2004 of sexual assault and endangering the welfare of the child, and was sentenced to a six-year prison term.

He subsequently appealed the conviction and was granted a new trial in June 2008 by an appellate court, which ruled that the judge in the first trial improperly precluded evidence that Burr contends he has a medical condition known as Asperger’s syndrome.

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Piano Teacher Sentenced For Child Endangerment
New Jersey Today - August 24, 2010

NEW BRUNSWICK – A Highland Park man was sentenced to serve three years in a New Jersey state prison for endangering the welfare of a 9-year-old girl, Middlesex County Prosecutor Bruce J. Kaplan announced on Friday.

Franklin Jack Burr II, 64, also was ordered to register as a sex offender under Megan’s Law and was placed on community supervision for life. He was credited with 1,093 days he already has served in prison after he initially was found guilty, but later won a retrial.

Burr was sentenced on Aug. 20 by Superior Court Judge Dennis Nieves at the Middlesex County Courthouse in New Brunswick after being retried and convicted on June 1 of endangering the welfare of the child.

During the second trial that began on May 4, Middlesex County Assistant Prosecutor Christie L. Bevacqua presented evidence and testimony contending that Burr, a private piano instructor, improperly touched the 9-year-old girl on a number of occasions while giving her piano lessons in Edison between November 2002, and January 2004.

Burr was arrested and charged following an investigation by then-Sgt. Joseph Shannon of the Edison Police Department and Investigator Lisa Collins of the Middlesex County Prosecutor’s Office.

Burr initially was convicted in October 2004 of sexual assault and endangering the welfare of the child, and was sentenced to a six-year prison term.

He subsequently appealed the conviction and was granted the new trial in June 2008 by an appellate court, which ruled that the judge in the first trial improperly precluded evidence that Burr contends he has a medical condition known as Asperger’s syndrome.

The jury in the retrial was unable to decide a count charging Burr with sexual assault. A mistrial was declared on that charge, which will be retried at a later time according to officials from the prosecutor’s office. No trial date has been set.

 

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