STATE OF NEW JERSEY v. C.W.

Annotate this Case

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3375-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

C.W.,

Defendant-Appellant.
_____________________________________________________________

Argued October 28, 2009 - Decided August 26, 2010

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
02-01-0055.

Linda Mehling argued the cause for appellant.

Joseph V. Rocchietti, Assistant Prosecutor, argued
the cause for respondent (Wayne J. Forrest,
Somerset County Prosecutor, attorney; Michael
McLaughlin, Assistant Prosecutor, and Nicole McGrath,
Assistant Prosecutor, on the brief).

PER CURIAM

Defendant C.W. appeals from an order dated February 6,

2009, denying his petition for post-conviction relief (PCR). We

affirm.

In a five-count indictment, defendant was charged with

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1)

(counts one and three); third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a) (counts two and four); and third-

degree unlawful possession of a handgun without a permit,

N.J.S.A. 2C:39-5(b) (count five). A jury acquitted defendant on

counts one and two, which charged him with aggravated sexual

assault and endangering the welfare of a child between June 18

and June 28, 2001, but found him guilty of aggravated sexual

assault and endangering the welfare of a child on July 22, 2001.

After the verdict, the trial court granted the State's motion to

dismiss count five.

When defendant was sentenced on October 31, 2003, he was

sixty-four years of age. The court merged count four with count

three and sentenced defendant to a thirteen-year prison term,

subject to an eighty-five percent period of parole ineligibility

under the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate

penalties, assessments, and Megan's Law conditions were also

imposed.

In an unpublished decision, this court affirmed defendant's

convictions and his sentence. State v. C.W., No. A-2165-03

(App. Div. May 19, 2005), certif. denied,
185 N.J. 295 (2005).

The facts underlying defendant's convictions were summarized in

A-3375-08T4
2

our prior opinion and need not be repeated here. As we noted,

the evidence of defendant's guilt was "exceedingly strong":

The victim, D.C., was fourteen years old
when he explained to the jury how defendant
had "sucked and pumped" his penis in the
basement of defendant's house until he
ejaculated into the defendant's mouth.
Defendant testified that this never
happened, but the victim's testimony was
corroborated, to some extent, by D.C.'s
mother and his father, as well as an aunt
and first cousin of defendant's wife. Proof
of defendant's guilt was exceedingly strong,
if not overwhelming.

Following the criminal trial, the victim's family filed a

civil action against defendant and his wife. In April 2005,

defendant's wife filed a motion in the civil case to compel the

release of clothing (the victim's underwear, denim shorts, and a

tee shirt) for forensic analysis. In support of her motion,

defendant's wife argued that no "testing was done with respect

to the clothing in the criminal case," and "if the act occurred

as alleged, seminal fluid and/or saliva should have been present

upon [the victim's] clothing." The motion was granted on May

25, 2007. In addition, the victim was deposed in the civil case

on June 26, 2007.

The victim's clothing was tested for semen on July 23,

2007. According to the laboratory report dated July 25, 2007:

"No stains consistent with semen were visually or chemically

detected."

A-3375-08T4
3

Based on the forensic testing of the clothes, and the

deposition testimony of the victim, defendant filed a PCR

petition in June 2008. In a supporting certification, defendant

claimed he was entitled to a new trial "on the grounds that

evidence discovered since the trial and not discoverable by

reasonable diligence before the trial probably would have

changed the outcome of the trial if it had been heard by the

jury."

Following oral argument on January 22, 2009, Judge Edward

M. Coleman, who had presided over defendant's criminal trial,

denied the PCR application. Judge Coleman's findings and

conclusions included the following:

But as to the background and
circumstances in the case, the events
occurred in July of 2001, I believe. The
[defendant's] family was entertaining family
members at their residence and one of the
people present was the 12 year old boy . . .
[a] family relative of the defendant's wife.

The testimony revealed that at some
point that afternoon the defendant, [C.W.],
and this 12 year old boy went to the
basement allegedly to obtain a BB gun for
some shooting in the backyard. However,
while in the basement, he was instructed
. . . to take his pants down, sit on the
table. He did. And "he did" was explained
by the prior events and comments by [the
victim] about his cultivation by [C.W.] to
participate in these sexual activities. But
he did. He pulled down his pants in the
basement, and the defendant then performed
oral sex on this 12 year old boy.

A-3375-08T4
4

There's testimony about ejaculation by
the 12 year old. At one point the testimony
is that he ejaculated into the defendant's
mouth which would account for semen not
being located, and that there was some
indication that he wiped his mouth with a
paper towel or handkerchief that he
retrieved from his pocket.

....

In preparation of the civil side of the
case, the victim was deposed with regard to
the incident. This is now years later.
He's no longer 12. I think he's 18 at this
point. And his testimony is different in
some respects as pointed out by the defense.

For the first time he's indicating that
he cleaned the ejaculate off himself by
wiping himself with a paper towel. Said
that the defendant handed him a paper towel;
that after he used it to clean himself, he
handed it back to the defendant. In
deposition he testified that his shorts were
around his ankles when he was discovered by
his mother, whereas at trial he and his
mother indicated that he was in the process
of zipping up his shorts when she walked
into the room.

....

No one can argue seriously that the
jury didn't take a close critical look at
the testimony in this case because the
issues were hotly contested. . . . The fact
that they took a serious hard look at the
State's case . . . is highlighted by the
fact they found the defendant not guilty on
the earlier sexual assault, endangering
welfare charges, because those charges were
based only on the testimony of this 12 year
old child. There were no other witnesses to
those events. They certainly questioned, as

A-3375-08T4
5

they should, the evidence in the case. They
evaluated the testimony that was presented.
They took into consideration this child's
testimony versus the defense side of the
case. There was . . . a thorough review by
counsel of every aspect of this case. There
can be no question about it.

But really this was never a forensic
testing case. As indicated by both
attorneys, this is not the test. The
forensic examination would not overcome the
defendant's own admissions to his family
that he did this. Would not have a probable
effect of raising reasonable doubt as to his
guilt, frankly. The crime doesn't require
any ejaculation. And certainly the doctor
has given his opinion, but obviously the
jury is going to take into consideration
this is a 12 year old boy, and what amount
of ejaculation exists, how does the doctor
know how much he is going to produce. That
also would be evaluated and weighed against
the admissions witnessed by several people
that the defendant admitted that he had
committed aggravated sexual assault on a 12
year old child.

As I indicated, the crime doesn't
require any ejaculation or any semen, and it
would not have undermined the State's key
witnesses in this event. It would merely be
impeaching which does not satisfy the Ways
test.

On appeal, defendant presents the following arguments:

POINT I

THE ABSENCE OF ANY SEMEN ON [D.C.'s]
UNDERPANTS IS NEWLY-DISCOVERED EVIDENCE THAT
SO UNDERMINES [D.C.'s] CLAIM THAT HE WAS
SEXUALLY ASSAULTED THAT A NEW TRIAL MUST BE
ORDERED. HENCE, THE DENIAL OF THE PETITION
FOR POST[-]CONVICTION RELIEF MUST BE
REVERSED.

A-3375-08T4
6

A. MATERIALITY

B. DUE DILIGENCE

C. CONCLUSION

POINT II

[D.C.'S] POST-TRIAL SWORN TESTIMONY ABOUT
THE ALLEGED CRIME SO CONFLICTS WITH THE
VERSION HE GAVE AT THE TRIAL AND WITH HIS
MOTHER'S TRIAL TESTIMONY THAT A NEW TRIAL
MUST BE ORDERED.

Based on our review of the record and the controlling legal

principles, we conclude that these arguments are without

sufficient merit to warrant extended discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons stated by Judge Coleman in his comprehensive oral

decision on January 22, 2009. We add only the following

comments.

As Judge Coleman noted, to be entitled to a new trial based

on newly discovered evidence, a defendant must establish "that

the evidence is (1) material, and not 'merely' cumulative,

impeaching, or contradictory; (2) that the evidence was

discovered after completion of the trial and was 'not

discoverable by reasonable diligence beforehand'; and (3) that

the evidence 'would probably change the jury's verdict if a new

trial were granted.'" State v. Ways,
180 N.J. 171, 187 (2004)

(quoting State v. Carter,
85 N.J. 300, 341 (1981). Judge

A-3375-08T4
7

Coleman concluded defendant failed to satisfy this test, and his

findings and conclusions are fully supported by the record.

Affirmed.

A-3375-08T4
8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.