STATE OF NEW JERSEY v. KENNETH LEWIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0608-08T40608-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH LEWIS,

Defendant-Appellant.

___________________________________

 

Submitted April 20, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

01-09-2723.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Patrick D. Isbill,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant Kenneth Lewis appeals from the order of the Law Division Criminal Part denying his post conviction relief (PCR) petition. We affirm. The following facts derived from the record inform our decision.

On January 28, 2003, defendant was tried before a jury and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. On May 12, 2003, the court sentenced defendant to an aggregate term of fifteen years with seven and one-half years of parole ineligibility.

We affirmed the conviction on direct appeal, but remanded for re-sentencing consistent with State v. Natale, 184 N.J. 458 (2005). State v. Lewis, No. A-6173-02 (App. Div. Sept. 29, 2005). On the State's petition for certification, the Supreme Court reversed our remand order and reinstated the sentence imposed by the trial court. State v. K.L., 186 N.J. 253 (2006). The Court separately denied defendant's cross-petition for certification. State v. K.L., 186 N.J. 258 (2006).

Before the commencement of the trial, the prosecutor advised defense counsel that in addition to calling the child victim as a witness, the State intended to introduce into evidence, under N.J.R.E. 803(c)(27), the videotaped recording and transcript of an interview of the child conducted by a prosecutor's investigator. The court conducted a Michaels hearing to determine whether this evidence met the Rule's standard of trustworthiness and reliability. After conducting the required N.J.R.E. 104 hearing, the court reserved its decision and advised the parties that it would announce its ruling on the following Monday, January 27, 2003. On that day, the trial court ruled in favor of the State.

On August 24, 2006, defendant filed a pro se PCR petition arguing ineffective assistance of trial counsel. Specifically, defendant asserted that his trial counsel failed to properly cross-examine the prosecutor's investigator who interviewed the child victim. At the PCR hearing on June 9, 2008, the parties brought to the court's attention that the transcript of the January 27, 2003 ruling was missing. The court adjourned the PCR hearing until July 17, 2008, to allow counsel an opportunity to produce the transcript. Ultimately, the parties were unable to produce the missing transcript. Judge McNeill denied defendant's petition, finding that the arguments raised by defendant could have been brought on direct appeal and were thus barred under Rule 3:22-4.

Defendant now appeals raising the following arguments:

POINT I

THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF AND THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF AND THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL (Not Raised Below).

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT REASSSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

We reject these arguments and affirm substantially for the reasons expressed by Judge McNeill in his oral decision delivered from the bench on July 17, 2008. The arguments raised by defendant in this PCR petition are barred under Rule 3:22-4 because they could have been raised on direct appeal.

 
Affirmed.

State v. Michaels, 136 N.J. 299 (1994).

(continued)

(continued)

4

A-0608-08T4

RECORD IMPOUNDED

July 26, 2010