STATE OF NEW JERSEY v. A.B.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4728-07T44728-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.B.,

Defendant-Appellant.

_______________________________________

 

Submitted April 28, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-02-0388.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the trial court on March 28, 2008, denying his petition for post-conviction relief (PCR). We affirm in part, reverse in part, and remand for further proceedings.

I.

Defendant was charged under a Bergen County indictment with third-degree child abuse or neglect, N.J.S.A. 2C:24-4a (counts one, two, seventeen, twenty-two, thirty, thirty-three and thirty-four); second-degree sexual contact, N.J.S.A. 2C:14-2b (counts three, four, five, eighteen, nineteen and twenty-one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count six); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count seven); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (count eight); fourth-degree sexual contact, N.J.S.A. 2C:14-3b (counts nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, twenty-three, twenty-four, twenty-five, twenty-six, twenty-eight, twenty-nine, thirty-one and thirty-two); second-degree sexual assault, N.J.S.A. 2C:14-2b (count eighteen); second-degree attempted sexual assault, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-2b (count twenty); and fourth-degree attempted sexual contact N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-3b (count twenty-seven).

Defendant was tried before a jury. At the trial, the State presented evidence that defendant sexually abused his daughter by touching her vagina and fondling her breast. Defendant's daughter testified that, over the years, defendant engaged in such conduct about fifteen times.

The State also presented evidence that defendant would sexually abuse his daughter's friends. One girl testified that, on one occasion, defendant touched her breasts and thighs while she sat on his lap. She said that, on other occasions, defendant touched her breasts and vagina, both under and over her clothing, and placed his finger in her vagina. Another girl testified that defendant touched her breasts and vagina over her clothes. Other girls gave similar testimony.

Initially, the girls did not report defendant's conduct. The girls said that they did not think that anyone would believe them because defendant was a police officer. Ultimately, the information came to the attention of the county prosecutor's office, which commenced an investigation. Defendant was arrested and questioned concerning the allegations.

Defendant told the investigating officer that it was all a misunderstanding. Defendant said that he only touched the girls in a "fatherly" way. He admitted, however, that he touched one girl's breasts, buttocks and inner thigh between five and ten times. He also acknowledged that he touched another girl's breasts and buttocks three or four times. Defendant denied that he sexually abused his daughter but said that, when he hugged her, his hand might have touched her vagina. Defendant stated that he did not believe his daughter would lie and, if she said something happened, it did.

Defendant did not testify on his own behalf. He presented testimony from his sons, who said that defendant was the disciplinarian in the home. They stated that defendant frequently had to discipline their sister. Other defense witnesses testified as to defendant's good character.

Defendant was found guilty on five counts of third-degree child abuse or neglect (counts seventeen, twenty-two, thirty, thirty-three and thirty-four); six counts of second-degree sexual contact (counts three, four, five, nineteen and twenty-one); one count of second-degree endangering the welfare of a child (count six); fourteen counts of fourth-degree sexual contact (counts nine, ten, eleven, twelve, thirteen, fourteen, twenty-three, twenty-four, twenty-five, twenty-six, twenty-eight, twenty-nine, thirty-one and thirty-two); one count of second-degree sexual assault (count eighteen); one count of second-degree attempted sexual assault (count twenty); and one count of fourth-degree attempted sexual contact (count twenty-seven). The trial court sentenced defendant to an aggregate term of thirty years of incarceration with twelve years of parole ineligibility.

Defendant appealed and raised the following issues:

POINT I

THE COURT VIOLATED DEFENDANT'S CONFRONTATION CLAUSE RIGHTS BY PREVENTING HIM FROM CROSS-EXAMINING THE COMPLAINANTS REGARDING MOTIVE AND VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART 1, 1, 10.

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST. AMEND. XIV; N.J. CONST., (1947) ART 1, 10.

A. The Prosecutor "Testified" In Summation[.]

B. The Prosecutor Vouched For The Credibility Of Her Witnesses And Denigrated The Defense.

POINT III

THE IMPOSITION OF CONSECUTIVE TERMS WITH NONMANDATORY PERIODS OF PAROLE INELIGIBILITY FOR RELATED OFFENSES WAS MANIFESTLY EXCESSIVE AND IN VIOLATION OF BLAKELY V. WASHINGTON[.]

A. The Aggregate Sentence, By Virtue Of Its Consecutive Nature Is Excessive And Further, The Court Gave No Reasons For The Consecutive Nature Of The Sentence And Therefore, The Sentences Must Be Remanded.

B. The Consecutive Sentences are Unconstitutional Under BLAKELY V. WASHINGTON.

C. The Imposition Of Discretionary Periods of Parole Ineligibility Violates Blakely.

We found no basis to reverse defendant's conviction but vacated the sentences imposed and remanded the matter to the trial court for re-sentencing. State v. A.B., No. A-6267-02 (App. Div. Apr. 29, 2005).

On remand, the trial court imposed the same sentences. Defendant appealed from the judgment of conviction and his appeal was heard on our excessive sentence calendar. We affirmed the sentences imposed. State v. A.B., No. A-2182-05 (App. Div. Nov. 16, 2006).

II.

On November 28, 2006, defendant filed a pro se petition for PCR. Defendant alleged that he had been denied the effective assistance of trial counsel. Defendant claimed that counsel erred because he never filed a motion to suppress; did not obtain certain background information on the victims; turned over certain "confidential" information to the prosecutor; did not interview his sons who could have provided helpful information for his defense; went on vacation the week before the trial; showed up late for the start of the trial; failed to prepare for jury selection; and provided no advice to defendant regarding jury selection.

Defendant further alleged that, during the trial, defense counsel was unprepared and often relied upon the prosecutor's notes. He claimed that certain witnesses had pertinent information that was never brought before the court. In addition, defendant alleged that his rights to confrontation were violated because defendant never made an N.J.R.E. 104 motion or sought an N.J.R.E. 404(b) hearing to determine if the victims could be questioned concerning certain "other crimes" or "bad acts" they allegedly committed.

The court appointed PCR counsel for defendant and counsel filed a brief in support of defendant's petition in which he argued:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT II

TRIAL COUNSEL VIOLATED DEFENDANT'S CONFRONTATION CLAUSE RIGHTS BY PREVENTING HIM FROM CROSS-EXAMINING THE COMPLAINANTS AND VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, 1, 10.

POINT III

DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE WAS SEVERELY PREJUDICED BY COMMENTS MADE IN THE PROSECUTOR'S SUMMATION. U.S. CONST. AMEND. XIV; N.J. CONST., (1947), ART. I, 10.

POINT IV

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

POINT V

AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF HIS PETITION FOR POST[-]CONVICTION RELIEF.

POINT VI

THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION[S].

The PCR court considered the petition on March 28, 2008. After hearing the arguments of counsel, the court placed its decision on the record. The court stated that issues raised regarding counsel's failure to cross-examine the complainants and counsel's failure to object to the prosecutor's remarks in summation had been essentially resolved in defendant's direct appeal and could not be re-litigated in a PCR petition.

The PCR court additionally rejected defendant's claim that he was denied the effective assistance of trial counsel because his attorney failed to advise him regarding jury selection. The court stated that jury selection "is not an exact science" and selection of a jury often involves tactical decisions.

The PCR court also found no merit in defendant's contention that trial counsel had precluded him from testifying at trial. The court noted that, during the trial, the court asked defendant whether he wanted to testify and he informed the court that he waived his right to testify, after conferring with his attorney.

The PCR court concluded that defendant had not presented a prima facie case of ineffective assistance of counsel. The court stated that, in order to prevail on such a claim, defendant had to "do more than make allegations." The court found that defendant had not sustained his burden in that regard and had not even established a basis for an evidentiary hearing.

The court entered an order dated March 28, 2008, denying defendant's petition. This appeal followed. In this appeal, defendant raises the following issues for our consideration:

POINT ONE

[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

[DEFENDANT] IS ENTITLED TO A REMAND BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS ALL OF HIS CLAIMS ON THE MERITS.

POINT THREE

[DEFENDANT] IS ENTITLED TO A HEARING BASED ON CUMULATIVE ERRORS RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT FOUR

THE CLAIMS IN [DEFENDANT'S] PETITIONS ARE INCORPORATED IN THIS APPEAL [PURSUANT TO] STATE V. WEBSTER, 187 N.J. 254 (2006).

III.

Defendant argues that he presented a prima facie case of ineffective assistance of counsel and the PCR court erred by failing to conduct an evidentiary hearing on that claim.

"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). When a claim of ineffective assistance of counsel is raised in a PCR petition, an evidentiary hearing may be required because the facts relevant to such a claim "often lie outside the trial record and because the attorney's testimony may be required." Ibid.

Trial courts therefore should "ordinarily . . . grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a [prima facie] claim in support of post-conviction relief." Ibid. In determining whether a defendant has established a prima facie claim of ineffective assistance of counsel, the court should view the facts as alleged "in the light most favorable to a defendant[.]" Id. at 462-63.

A claim by a defendant that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid. (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

We are convinced from our review of the record that the PCR court did not err by rejecting all claims asserted by defendant without an evidentiary hearing with the exception of defendant's claims that he was denied the effective assistance of counsel because counsel: 1) failed to file a motion to suppress his statement to the police; 2) was not prepared for trial and did not provide legal advice regarding jury selection; 3) failed to use and provided the prosecutor with certain "confidential" information; and 4) was not prepared for and erred in his handling of the defense witnesses and the cross-examination of the State's witnesses. We remand for further proceedings on these four claims.

A. Defendant's decision not to testify

In his petition, defendant alleged that he was denied the effective assistance of counsel because his trial attorney had "refused" to let him testify in his own behalf.

At the trial, the court asked defendant whether he intended to testify in his own behalf. The following exchange took place:

THE COURT: . . . [G]ood morning, sir. You understand you have a right to testify or a right to remain silent?

DEFENDANT: [Defense counsel] explained it all, Judge.

THE COURT: Now I have to be sure we have it on the record. If you [choose] not to testify then there's a form that you fill out and I could charge the jury on that decision whether or not you're going to testify.

If you did choose to testify then you would be subject to cross-examination, direct examination by your attorney, cross[-]examination by the [p]rosecutor and certainly you have a constitutional right to testify or not to testify.

[Defense counsel] indicates you have exercised your constitutional right not to testify, is that right, sir?

DEFENDANT: Based on our conversation and [defense counsel's] recommendation, yes.

The record thus plainly establishes that defendant and his trial attorney had discussed whether he would testify or not testify at trial. Moreover, the record shows that defendant's counsel did not preclude him from testifying. According to defendant, counsel had recommended that he not take the stand. The record shows that defendant knowingly, voluntarily and intelligently elected to follow that recommendation.

We therefore conclude that the PCR court correctly found that defense counsel did not preclude defendant from testifying at trial.

B. Failure to object to prosecutor's remarks

Defendant also alleged that he was denied the effective assistance of counsel because his attorney failed to object to certain remarks made by the prosecutor in her summation.

The record shows that, in her summation, the prosecutor asserted that none of the complainants had any motivation to lie. State v. A.B., supra, slip op. at 18. The prosecutor additionally said that defense counsel was "'throw[ing] mud'" in "'a desperate attempt to dirty up the victims.'" Id. at 19.

In the defendant's direct appeal, we concluded that the prosecutor's first comment was entirely proper. Id. at 18-19. We found, however, that the prosecutor's second remark was improper because it was an attack upon defense counsel and his trial strategy. We noted, however, that counsel had not objected to the prosecutor's improper comment and held that it was harmless error. Id. at 19.

We therefore conclude that the PCR court correctly found that trial counsel's failure to object to the prosecutor's remarks does not constitute the ineffective assistance of counsel.

C. Failure to file suppression motion

Defendant additionally alleged that he was denied the effective assistance of counsel because trial counsel failed to file a pre-trial motion to suppress the statement he gave to the police.

At the trial, Sergeant Raymond Petro (Petro) of the county prosecutor's office testified that, after defendant was taken into custody, he advised defendant of his Miranda rights. Petro stated that he showed defendant a pre-printed Miranda warning form and informed defendant verbally of his rights. According to Petro, defendant indicated that he fully understood his rights, wrote his initials next to each of the enumerated rights on the form and signed the document. Petro further testified that defendant agreed to answer his questions without the presence of an attorney.

In its decision in this case, the PCR court did not specifically address this claim. We note that the trial record suggests that defendant knowingly, intelligently and voluntarily waived his Miranda rights and no claim to the contrary was raised in the direct appeal. Nevertheless, we are convinced that, because defendant's statement to the police was a critical element of the evidence against him at trial, further consideration of this claim by the PCR court is warranted.

On remand, defendant should be afforded the opportunity to amend his petition and present specific facts upon which any such suppression motion would have been based. Defendant also must explain the legal basis upon which that motion would have been made. If defendant fails to provide a sufficient factual and legal basis for this claim, the court may reject it.

If defendant provides a sufficient factual and legal basis for this claim, the court should conduct an evidentiary hearing, at which counsel may testify and explain his reasons, if any, for not filing a suppression motion. The court must then determine whether trial counsel's failure to file the motion constitutes ineffective assistance of counsel under Strickland.

D. Preparation for trial and advice concerning jury selection

In his petition, defendant additionally alleged that he was denied the effective assistance of counsel because his trial attorney failed to provide him with advice regarding jury selection. Defendant claims that counsel was not prepared for jury selection. Defendant also claims that he was required to select jurors "on the spot" without any guidance by his attorney.

In its decision on the record, the PCR court observed that jury selection is something of an art and often requires tactical decisions. Defendant nevertheless claims that he could not assist in the selection of a jury since his attorney did not provide him with any guidance. We are convinced that further consideration of this claim by the PCR court is required.

On remand, defendant should be afforded the opportunity to amend his petition and present specific facts to show that he was prejudiced by the alleged lack of legal advice during jury selection. If defendant fails to provide a sufficient factual basis for the claim, the court may reject it.

If, however, defendant provides a sufficient factual basis for the claim, the PCR court should conduct an evidentiary hearing, at which trial counsel may testify and respond to defendant's allegations. The PCR court then must determine whether counsel failed to provide defendant with advice regarding jury selection and, if so, whether counsel's failure to provide such advice constitutes ineffective assistance of counsel under Strickland.

E. Confidential information

Defendant additionally alleged in his petition that he provided trial counsel with certain "confidential" information about the State's witnesses and other matters involved in the case. Defendant states that trial counsel did not use this information for the defense and instead provided it to the prosecutor. Defendant says that, by doing so, counsel "seriously damaged" his defense. The PCR court did not address this issue in its decision. We are convinced that defendant's allegations require further consideration by the PCR court.

On remand, defendant should be afforded an opportunity to amend his petition and detail precisely the "confidential" information that he allegedly provided to his attorney. He must explain how his defense was compromised when trial counsel failed to use the information and provided it to the prosecution. If defendant does not provide a sufficient factual basis for this claim, the PCR court may reject it.

If, however, defendant provides sufficient facts to support the claim, the PCR court should conduct an evidentiary hearing at which counsel may testify and respond to defendant's allegations. The court then must determine whether the information was "confidential;" trial counsel failed to use the information for the defense; counsel provided the information to the prosecution; and counsel's handling of the "confidential" information constitutes ineffective assistance of counsel under Strickland.

F. Failure to prepare/inadequate cross-examination

Defendant further alleged that his trial counsel failed to adequately prepare for trial. Defendant asserted that counsel failed to interview potential witnesses for the prosecution and for the defense. Defendant claimed that, because he was not prepared for trial, trial counsel did not adequately cross-examine the witnesses who testified against him. He also alleged that counsel failed to interview his sons or other defense witnesses and could have elicited more favorable testimony from these witnesses.

In its decision on defendant's petition, the PCR court did not address the allegation regarding the defense witnesses. The court also found that the claim regarding the cross-examination of the State's witnesses had previously been adjudicated in defendant's direct appeal.

We note that our decision in defendant's direct appeal only addressed the issue of whether the trial court erred by curtailing defendant's cross-examination of two of defendant's nine victims, who we identified as "Kate" and "Lucy." State v. A.B., supra, slip op. at 13-17. We concluded that the trial court had erroneously precluded defense counsel from asking certain questions of these witnesses but determined that the limitations placed by the trial court on cross-examination were harmless error. Id. at 16-17. Thus, our opinion on defendant's direct appeal did not specifically address counsel's alleged lack of preparation or whether the cross-examination was so deficient as to rise to the level of ineffective assistance of counsel under Strickland.

We did, however, note in our opinion that defense counsel had not provided the trial court or the prosecutor with prior notice with regard to his intended use in cross-examination of any evidence concerning a witnesses "other crimes [or] wrongs," as required by N.J.R.E. 404(b). Id. at 11, 16. We also noted that defense counsel apparently was unaware of certain basic facts when he was cross-examining "Kate" and seemed to be on a "fishing expedition" when he endeavored to question her regarding a prior false allegation of sexual abuse against her father. Id. at 16.

We are convinced that defendant's claim requires further consideration by the PCR court. On remand, defendant should be afforded an opportunity to amend his petition to present additional facts to support his claim that counsel was unprepared for trial. Defendant must detail with specificity the favorable testimony that the defense witnesses would have provided had they been interviewed by defense counsel. He also must detail the specific questions that defense counsel should have posed to the State's witnesses and the factual bases for any such questions. He must explain how the additional evidence would have affected the outcome of the case, if at all. If defendant fails to provide a sufficient factual basis for his claim, the PCR court may reject it.

If, however, defendant provides the court with a sufficient factual basis for the claim, the court should conduct an evidentiary hearing, at which defense counsel may testify and respond to the allegations. The court must determine whether counsel was deficient in presenting the testimony of the defense witnesses and/or his cross-examination of the State's witnesses, and if so, whether counsel's handling of the witnesses constitutes ineffective assistance of counsel under Strickland.

We have considered the other claims raised in defendant's petition. We are convinced that those claims were properly rejected by the PCR court. Any contention to the contrary is without sufficient merit to warrant comment in this opinion. R. 2:11-3(e)(2).

Accordingly, we affirm the denial of all of the claims set forth in defendant's PCR petition, with the exception of his claim that he was denied the effective assistance of counsel because his trial attorney: 1) failed to file a suppression motion; 2) was not prepared for and did not provide defendant with legal advice concerning jury selection; 3) failed to use and provided the prosecutor with certain "confidential" information; 4) and was not prepared for and was deficient in his questioning of the defense witnesses and the cross-examination of the State's witnesses. We remand for further proceedings on these four claims.

Affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

In order to protect the privacy of the defendant's daughter, we have given defendant fictitious initials.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Defendant's trial attorney, Larry J. McClure, was at one time the Bergen County Prosecutor. McClure was disbarred by order of the Supreme Court entered on October 3, 2005. In re McClure, 185 N.J. 167 (2005). It appears that the charges that led to McClure's disbarment do not relate to his handling of this case.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-4728-07T4

RECORD IMPOUNDED

June 9, 2009