STATE OF NEW JERSEY v. G.L.G

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0846-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.L.G.,

Defendant-Appellant.

_________________________________

November 4, 2010

 

Submitted October 25, 2010 - Decided

 

Before Judges Reisner and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-08-1574.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, 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 G.L.G.1 appeals from a July 27, 2009 trial court order denying his petition for post-conviction relief (PCR). We affirm.

I

Based on evidence that defendant molested his girlfriend's five-year-old daughter, a jury convicted him of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court imposed an aggregate sentence of sixteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a. We affirmed his conviction on direct appeal.2 State v. G.L.G., No. A-3622-04 (App. Div. July 6, 2007), certif. denied, 193 N.J. 221 (2007).

The facts were discussed at length in our opinion on the direct appeal and need not be repeated here in the same detail. In summary, the victim's mother, who lived in New Jersey, met defendant, an Alabama resident, through an internet chat room, and eventually invited him to visit her in New Jersey. On March 23, 2003, while defendant was staying with the mother and her child at the mother's New Jersey apartment, the mother went out to a party and left the child alone with defendant. A little over a month later, the child revealed to a family friend named Ruth, and then to the mother, that defendant had sexually assaulted her.

After the mother reported the alleged assault to the police, an investigator from the prosecutor's office conducted a videotaped interview with the child. At defendant's trial, the State presented testimony from the mother and Ruth, as well as testimony from the child victim and the videotape of the child's interview. In his trial testimony, defendant denied molesting the child. He also presented medical testimony that there was no physical evidence of a sexual assault. On his direct appeal, defendant raised the following issues:

POINT I

 

[THE CHILD'S] STATEMENTS TO [RUTH], [HER MOTHER] AND DETECTIVE PAGLINO CONSTITUTED INADMISSIBLE HEARSAY TESTIMONY. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10.

A. Sixth Amendment Violation

B. Violations of Hearsay Rule and State

Constitution

 

 

 

POINT II

 

DETECTIVE PAGLINO'S VIDEOTAPED INTERVIEW OF [THE CHILD] WAS INSUFFICIENTLY INTELLIGIBLE TO BE ADMITTED.

POINT III

 

INADMISSIBLE HEARSAY CONTAINING PREJUDICIAL INCLUDED HEARSAY WAS ADMITTED, IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM.

 

POINT IV

 

DEFENDANT'S PRIOR CONVICTION WAS ERRONEOUSLY ADMITTED BECAUSE IT WAS NOT SUFFICIENTLY PROVEN.

POINT V

 

THE COURT ABUSED ITS DISCRETION IN CURTAILING THE CROSS-EXAMINATION OF RONALD TALLEY AND REFUSING TO RE-OPEN A RULE 104 HEARING AS TO THE ADMISSIBILITY OF TALLEY'S TESTIMONY.

POINT VI

 

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

POINT VII

 

DEFENDANT'S 16 YEAR SENTENCE, WHICH EXCEEDED THE THEN-EFFECTIVE PRESUMPTIVE TERM FOR DEFENDANT'S FIRST DEGREE CONVICTION BY ONE

YEAR, WAS UNCONSTITUTIONAL.

 

We rejected all of defendant's challenges to his conviction, although we remanded on sentencing issues not pertinent here.

In his PCR petition, defendant claimed that his trial attorney rendered ineffective assistance. In support of his PCR arguments, defendant filed a rambling thirty-three page certification purporting to set forth all of the information he gave to his attorney prior to the trial. In summary, his certification set forth a detailed description of his life before he met the child's mother, as well as his recollections of their relationship. In the certification, he portrayed the child's mother as an irresponsible parent and a poor housekeeper, and included a vast array of other prejudicial and irrelevant accusations about her. He also characterized Ruth as "a troublemaker" and claimed that the child's maternal grandmother was a racist. In the certification, defendant further contended that his attorney spent insufficient time preparing for the trial.

Defendant also filed a certification from his mother, attesting that even after the child accused defendant of molesting her, the child's mother remained in frequent contact with defendant and the child's mother told her that the child loved defendant. Her certification also contained various irrelevant negative comments about the child's mother. According to defendant's mother, she told defendant's trial attorney that she was willing to be a witness but he told her "that he did not need me."

In the PCR application, defendant contended that in cross-examining the child's mother, defendant's trial attorney should have used more of the detailed information defendant had provided. Defendant contended that because he had such a good memory for detail, he would have appeared to the jury to be a more credible witness if his trial counsel had allowed him to give more detailed testimony.3 Defendant also argued that his trial counsel should have cross-examined the child's mother with information about what a poor parent she was, and should have questioned the mother about contradictions between the mother's claim that the child was afraid of defendant and the alleged statement to defendant's mother that the child still loved him.

In a comprehensive oral opinion placed on the record on July 24, 2009, Judge Neafsey rejected defendant's PCR contentions. In addressing defendant's claim that his trial counsel was unprepared, Judge Neafsey recalled the attorney's repeated pre-trial requests to extend the plea cut-off date because the attorney was interviewing witnesses. The judge also found that defendant's own evidence showed that his counsel communicated with him. Reviewing the trial evidence, the judge found that defense counsel had done a thorough and reasonable job of presenting evidence to impeach the testimony of the child and her mother. Defense counsel had also elicited testimony that Ruth "did not like the [d]efendant."

In particular, Counsel attempted to highlight the weaknesses in the State's case, by focusing on the lack of physical, objective evidence of sexual abuse. Counsel pointed out discrepancies in order to raise doubt as to the truthfulness of both [the child's] and [the mother's] testimony. Moreover, Counsel elicited testimony which demonstrate the bias of Ruth, [the mother] and [the child].

Judge Neafsey concluded that defense counsel was not unreasonable in pursuing a strategy aimed at undermining the child's credibility, because she was the State's chief witness. He also concluded that the information defendant claimed his counsel should have elicited from the mother on cross-examination would have been "inadmissible bad character evidence" or otherwise inadmissible under the Rules of Evidence. See N.J.R.E. 405(a); N.J.R.E. 608(a).

The judge also reasoned that defense counsel, who had listed defendant's mother as a possible trial witness, had made a strategic decision not to call her as a witness. Defendant's mother had no personal knowledge about the alleged sexual assault, and much of her proposed testimony would have been either inadmissible hearsay or cumulative of other testimony already placed before the jury. Other portions of her proposed testimony would have contradicted defendant's testimony. The judge also found that much of the detailed information in defendant's PCR certification was irrelevant to the trial, and that asking additional questions of certain witnesses would have made no difference to the outcome of the trial. He therefore concluded that defendant had failed to present a prima facie case of ineffective assistance of counsel.

II

We analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Preciose, 129 N.J. 451, 463 (1992); State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694). See also Fritz, supra, 105 N.J. at 60 61.

In determining whether counsel was ineffective, we will not second-guess the trial attorney's reasonable trial strategy.

[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt.

 

[State v. Castagna, 187 N.J. 293, 314 (2006) (citations omitted).]

 

We must review counsel's performance with extreme deference and "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Fisher, 156 N.J. 494, 500 (1998) (quoting Fritz, supra, 105 N.J. at 52). Moreover, even if counsel was ineffective, under the second Strickland prong prejudice is not presumed and must be proven by the defendant. Ibid.

In appealing the dismissal of his PCR petition, defendant raises the following point for our consideration:

THE DEFENDANT WAS ENTITLED [TO] A NEW TRIAL BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL, OR AT LEAST WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AS THE DEFENDANT PRODUCED A PRIMA FACIE CASE OF INEFFECTIVENESS [OF] DEFENSE COUNSEL.

As he did before Judge Neafsey, defendant argues here that his counsel should have allowed him to present more detailed trial testimony so that he would appear more credible. Defendant further contends that the case hinged on the credibility of the child's mother and Ruth, who were both biased witnesses. He argues that "[t]he jury never received the full story behind the relationship between [the child's mother] and the defendant, and many of the reasons why [the mother] and Ruth would create the illusion that [the child] had been sexually assaulted by the defendant." Finally, defendant contends that he was entitled to an evidentiary hearing to demonstrate that he could have been a credible trial witness if permitted to give more detailed testimony.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree with Judge Neafsey's analysis of the issues and we affirm substantially for the reasons set forth in his cogent oral opinion. Because defendant did not present a prima facie case of ineffective assistance of trial counsel, he was not entitled to an evidentiary hearing, and his PCR petition was properly dismissed. See State v. Preciose, supra, 129 N.J. at 462.

A

ffirmed.

1 We use defendant's initials to protect the privacy of his child victim. To be consistent with our opinion on direct appeal we use the initials "G.L.G."

2 We remanded for re-sentencing on a merger issue raised by the State's cross-appeal, and on an issue raised by defendant under State v. Natale, 184 N.J. 458 (2005). However, those issues are not pertinent to the present appeal. On remand, the court reduced defendant's sentence to fifteen years subject to NERA.

3 During oral argument on the PCR petition, Judge Neafsey, who had also been the trial judge, noted that based on his own observation during the trial, defendant "was not a credible witness."