STATE OF NEW JERSEY v. LOUIS IACOVONE, IV

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3402-05T13402-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS IACOVONE, IV,

Defendant-Appellant.

____________________________

 

Submitted October 16, 2006 - Decided November 2, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Gloucester

County, 03-10812.

Jeffrey F. Dragon & Associates,

attorneys for appellant (Mr. Dragon,

on the brief).

Sean F. Dalton, Gloucester County

Prosecutor, attorney for respondent

(Joseph H. Enos, Jr., Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction on one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7); two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1) and N.J.S.A. 2C:14-2(c)(4); and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He does not appeal from the sentence imposed. Defendant asserts that the verdict was against the weight of the evidence, and that he received ineffective assistance of counsel. We reject the weight of the evidence argument, and defer the ineffective assistance of counsel claim to a post-conviction relief proceeding. Accordingly, we affirm the conviction.

The trial resulting in the conviction occurred over two days. The State produced the testimony of the victim, who was fifteen years old at the time of the incident. She testified that she and a friend were at defendant's home at his invitation, and that defendant provided her with both vodka and pills. She claimed to have "blacked out" several times, and that she awoke twice after which she was forced "to have oral sex." The victim also testified that defendant penetrated her on two separate occasions.

Much of her testimony was corroborated, but the jury would have been well within its province to convict defendant on the testimony of the victim alone. See In re Seaman, 133 N.J. 67, 82-83 (1993) (citations omitted). Any inconsistencies in the testimony may have affected the victim's credibility; they did not mandate that the testimony be disregarded. The jury was charged with the responsibility of weighing the testimony and determining whether to accept it beyond a reasonable doubt. See State v. Reddish, 181 N.J. 553, 614 (2004) (quoting State v. Frisby, 174 N.J. 583, 594 (2002)); State v. Castaing, 321 N.J. Super. 292, 295 (App. Div. 1999) (citing State v. Butler, 32 N.J. 166, 196 (1960), cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960)). The jury chose to accept the victim's testimony, and we have no warrant to disturb that choice.

Defendant also asserts that his counsel was ineffective in several respects. Specifically, he argues:

A. Mr. Iacovone's counsel failed to articulate to the jury the discrepancies in the complaining witness's testimony, thereby insufficiently attacking the State's case and unfairly prejudicing Mr. Iacovone.

B. Defense counsel failed to properly cross-examine forensic nurse Eileen Caraker so as to indicate to the jury the possibility that results of S.L.M.'s sexual assault kit could have been caused by consensual sex.

C. Defense counsel failed to call Mr. Iacovone to the stand, depriving the jury of the opportunity to hear his testimony and failing to balance the testimony of complaining witness.

D. Defense counsel failed to explore the effect of hydrocodone on alcohol intake, failing to argue to the jury that Mr. Iacovone did not intend to drug S.L.M. for the purpose of a sexual assault.

E. Defense counsel failed to call Raymond Myers as a witness at trial, thereby failing to provide the jury with exculpatory testimony on Mr. Iacovone's behalf.

Because the resolution of these allegations necessarily requires an evaluation of the reasons for counsel's decisions, we defer consideration of the issue of the effectiveness of counsel to a post-conviction relief proceeding. See State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

(continued)

(continued)

4

A-3402-05T1

RECORD IMPOUNDED

November 2, 2006