STATE OF NEW JERSEY v. JON E. HANBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4673-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JON E. HANBY,

Defendant-Appellant.

______________________________

 

Submitted September 27, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 96-06-0649.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent

(Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jon E. Hanby, appeals from a trial court order denying his petition for post-conviction relief (PCR). Because this PCR represents the third time defendant has sought to raise the same issues, we address his contentions more succinctly than we otherwise might.

Defendant, a home health aide, was convicted of sexually assaulting a seventeen-year-old victim who had cerebral palsy. At trial the victim was permitted to testify, in part, with the assistance of a voice generating computer called a Dyna-Vox Voice Augmenting Machine.

On direct appeal, defendant raised the issue of the use of the computer, claiming that the victim's use of the computer prevented defense counsel from effectively cross-examining him. After viewing the videotape of the trial testimony, we rejected his contentions. We observed that the victim, who was physically disabled but very intelligent, was able to clearly communicate through gestures, words and minimal use of the computer, and that his minimal use of the computer did not prevent defense counsel from effectively cross-examining him. State v. Hanby, A-1277-98T1 (App. Div. May 5, 2000)(slip op. at 7 to 10).

Defendant then filed a federal habeas corpus petition raising the same challenge. Hanby v. Faunce, Civil Action No. 01-CV-1328(JAP)(D.N.J. August 20, 2002). The federal court held an evidentiary hearing, which included testimony concerning the operation of the Dyna-Vox machine. The Federal judge also viewed the videotape of the trial. The court rejected defendant's claim, concluding that the victim's "testimony resulted from his choosing among various words and phrases to express his thoughts" and therefore "it was his own testimony" and "not hearsay." (slip op. at 17). The court also concluded that use of the machine did not prevent defense counsel from effectively cross-examining the victim. (slip op. at 17 to 19).

In this PCR, defendant once again sought to raise the same issues, this time using the vehicle of a claim that his attorney was ineffective for not objecting to the use of the voice generating computer. After viewing the video of the trial and hearing oral argument, the PCR judge rejected defendant's contentions in a cogent oral opinion on December 23, 2003.

On this appeal defendant raises the following issues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT'S PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF COUNSEL.

A. The trial court erred in imposing a standard of proof that required defendant-appellant to prove that, but for counsel's ineffectiveness, "the outcome would have been different."

B. Defendant-appellant established a prima facie case of ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668 (1984), requiring the court to conduct a hearing on the issue as to whether the use of the Dyna-Vox computer was necessary for J.C. to communicate to the jury.

We conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm, substantially for the reasons stated in Judge Waters' opinion. We add the following comments.

 
Defendant contends that his trial attorney should have asked for a hearing under N.J.R.E. 104 to determine whether the victim needed to use the computer in order to testify, and that Judge Waters should have held an evidentiary hearing for the same purpose. We find no merit in this contention. Like his predecessors, Judge Waters viewed the video of the victim's testimony and concluded that the use of the computer did not materially affect the outcome. We reach the same conclusion. If the use of the computer did not materially affect the outcome of the trial, it is irrelevant whether the victim needed to use the computer in order to testify. Defendant did not make a prima facie showing of ineffective assistance of counsel so as to require an evidentiary hearing. Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987).

Affirmed.

(continued)

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4

A-4673-03T4

RECORD IMPOUNDED

October 7, 2005