STATE OF NEW JERSEY v. ETZER JEAN-LOUIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3656-07T43656-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ETZER JEAN-LOUIS,

Defendant-Appellant.

 
_______________________________________

Submitted October 15, 2009 - Decided

Before Judges Lyons and J. N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-08-1455.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Etzer Jean-Louis, appeals a January 19, 2007, order denying his motion for post-conviction relief (PCR). The relevant facts and procedural history are as follows.

The victim of the charges against defendant was J.D., a sixteen-year-old learning disabled child who, at the time of the asserted event, was visiting her cousin's home. A small group of young people eventually congregated there, including defendant, a friend of the cousin. According to the victim's testimony, defendant brutally sodomized her when they were alone in the kitchen, defendant having gone in there for food and the cousin having asked the victim to check on what defendant was doing. Defendant, the victim asserted, repeatedly told her not to say anything about the attack. Although she did not tell anyone that day because of her acute embarrassment, the next day, she confided in two friends at school. Seeing how upset she was, the friends reported what she had told them to school authorities. The school authorities then confirmed that information with the victim. A physical examination of the victim shortly thereafter revealed corroborating injuries, and the indictment ensued.

Following a trial by jury, defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3b. He was sentenced to an eight-year term on the second-degree crime, subject to an eighty-five percent parole ineligibility term pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). He was also sentenced to a concurrent one-year term on the fourth-degree offense. Defendant appealed his convictions, and we affirmed. State v. Jean-Louis, No. A-2430-02T4 (App. Div. May 21, 2004).

On May 23, 2005, defendant filed a PCR petition. On January 19, 2007, the trial court entertained oral argument on defendant's application. Defendant's counsel argued that defendant's trial counsel was constitutionally ineffective. He alleged defendant's trial counsel failed to investigate and interview potential witnesses for the defense; failed to adequately investigate the medical evidence that was submitted in the State's case; did not advance a cogent trial strategy; and failed to adequately consult with defendant. Defendant's counsel, following his argument, requested an evidentiary hearing. The trial court found that defendant's application was without merit, and it, therefore, denied the request for an evidentiary hearing and defendant's application. This appeal ensued.

On appeal, defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to investigate essential witnesses.

B. Trial counsel failed to undertake an adequate pre-trial investigation.

C. Trial counsel failed to develop a cogent trial strategy.

D. Trial counsel failed to consult adequately with the defendant.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE LOWER COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We have considered these issues in the light of the applicable law, the record, and the arguments of counsel, and we are satisfied that none are of sufficient merit to warrant disposition by written opinion. R. 2:11-3(e)(2). We add, however, the following brief comments.

In State v. Loftin, 191 N.J. 172 (2007), our Supreme Court stated that:

[i]n determining whether any deficiencies in trial or appellate counsel's representation have undermined a defendant's constitutional right to counsel, we have generally relied on the standards annunciated in Strickland v. Washington . . . . In Strickland, the United States Supreme Court established a two-prong test for assessing such claims. A defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of a proceeding would have been different.

[Id. at 197-98 (citations, internal quotation marks, and editing marks omitted).]

In State v. Fritz, 105 N.J. 42 (1987), our Supreme Court incorporated the Strickland standards into New Jersey's jurisprudential framework.

"The first prong of the test is satisfied by showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)) (internal quotation marks omitted).

The trial court, after hearing counsel's arguments and reviewing the moving papers and the record, determined that defendant's trial counsel's representation was "great." While defendant argues that his trial counsel's strategy, which was to put the State to its burden of proof, was not a cogent one, the trial court found the strategy to be a legitimate one. The record demonstrates that trial counsel followed through with that strategy by pointing out through cross-examination and argument, the issues which the jury needed to consider in assessing whether the State met its burden of proof. Trial counsel's strategy was sound, sensible, and lucid.

The second prong in the Strickland analysis is "satisfied by a defendant showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 367 (citation and internal quotation marks omitted). In this case, defendant failed to advance anything other than unsupported speculation as to what witnesses may have said; what an independent medical analysis of the medical evidence would have shown; and what would have come from additional consultation by trial counsel with defendant. Defendant provided nothing to prove what additional witnesses may have said, what an independent medical examination would have produced, or what defendant would have contributed to trial counsel's efforts. As we said in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999),

[n]evertheless, in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. See R. 1:6-6.

Nothing of that sort was provided in this case.

 
Accordingly, we affirm.

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A-3656-07T4

RECORD IMPOUNDED

October 30, 2009