STATE OF NEW JERSEY v. C.D

 
(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NOT FOR PUBLICATION WITHOUT THE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-4301-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.D.,

Defendant-Appellant.

________________________________

October 5, 2010

 

Submitted: September 15, 2010 - Decided:

 

Before Judges Axelrad and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-06-1663.

 

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

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, C.D., appeals from the December 10, 2007 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleged, in part, ineffective assistance of trial counsel in failing to secure expert testimony to support his defense to the sexual assault charges pertaining to one victim and failing to challenge the findings of the Avenel Diagnostic and Treatment Center (ADTC) report. We affirm.

The record reflects that a jury convicted defendant in May 1993 of a litany of aggravated sexual assault, criminal sexual contact, and related offenses, against his minor daughter and minor stepdaughter, R.D. and M.D., respectively. During trial, defendant sought to admit into evidence a physician's examination of R.D. that took place in September 1989, which indicated she was infected with the sexually-transmitted disease (STD) of gonorrhea. Defense counsel intended to use this evidence to prove that, because defendant himself was not infected with the STD as represented by him, he could not have had sex with R.D. during the time alleged by the victim. The trial court determined that the admission of the STD evidence would violate the Rape Shield Law, N.J.S.A. 2C:14-7, as the jury would not be able to make proper inferences connecting the positive test and evidence of defendant's lack of infection without proper expert testimony. Defense counsel did not have defendant tested for the STD, nor did counsel attempt to provide an expert witness to lay a foundation for the introduction of this evidence.

In October 1993, the trial court sentenced defendant to an aggregate sentence of forty-eight years, consisting primarily of three consecutive sixteen-year terms for three counts of first-degree aggravated sexual assault. At the sentencing hearing, the court relied on an evaluation prepared by the ADTC, which led the court to conclude defendant was a repetitive and compulsive sex offender. Consequently, defendant was required to serve his sentence at the ADTC.

Defendant appealed his conviction and sentence, challenging comments by the prosecutor, the jury instruction, the consecutive nature of his sentence, and also asserting ineffective assistance of trial counsel. We affirmed defendant's conviction but vacated his sentence and remanded for resentencing in light of the Yarbough1 sentencing guidelines. State v. C.D., No. A-4486-93T4 (App. Div. April 4, 1996) (slip op. at 14-15). We noted that defendant's ineffective assistance of counsel claim should abide a PCR petition. Id. at 12. The Supreme Court denied certification. 146 N.J. 69 (1996).

In August 1996, defendant was resentenced to an aggregate forty-year term to be served at the ADTC, consisting primarily of two consecutive twenty-year terms. Defendant again successfully challenged his sentence, and pursuant to an order from an abbreviated sentencing calendar, we reduced the aggregate custodial term to thirty years, consisting primarily of two fifteen-year terms. No. A-5862-96T4 (App. Div. Nov. 18, 1997).

This PCR petition ensued and was denied by Judge Irvin Snyder by order of December 10, 2007. In a 2003 pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial counsel and a variety of trial errors that he alleged denied him a fair hearing. In a lengthy written opinion of November 26, 2007, the court addressed and rejected defendant's argument. Judge Snyder explained that defendant's position was time-barred under Rule 3:22-12 as filed, without excusable neglect, more than five years after the rendition of the judgment or sentence that he sought to attack. The judge further found that defendant was not entitled to a PCR evidentiary hearing because he failed to set forth a prima facie case of ineffective assistance of counsel.

Nevertheless, the judge addressed and rejected each of the allegations of trial error and ineffective assistance of trial counsel as without substantive merit and provided a detailed explanation as to why none of the issues raised were sufficient to warrant relief under the applicable law and two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.

Defendant essentially raises the same arguments on appeal, asserting:

 

POINT I

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

(A)

TRIAL COUNSEL'S FAILURE TO OBTAIN EXPERT TESTIMONY TO ESTABLISH REASONABLE DOUBT AS TO WHETHER THE DEFENDANT HAD SEXUAL INTERCOURSE WITH R.D., HIS FAILURE TO HAVE THE DEFENDANT EXAMINED FOR THE PRESENCE OF GONORRHEA, AND HIS FAILURE TO CHALLENGE THE FINDINGS OF THE AVENEL REPORT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

 

(1)

THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

 

(2)

THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

 

(B)

THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT TIME BARRED BECAUSE THE APPELLATE DIVISION PRESERVED THE DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE A PETITION FOR CERTIFICATION TO CORRECT AN ILLEGAL SENTENCE MAY BE FILED AT ANY TIME.

 

POINT II

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 1, PARAGRAPH 10, 0F THE NEW JERSEY CONSTITUTION.

 

 

 

POINT III

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND REPLY LETTER BRIEF AND IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

 

We affirm substantially for the reasons articulated by the PCR judge in his comprehensive written opinion and discern no basis for substantial additional discussion of defendant's renewed claims. R. 2:11-3(e)(2). We note the following brief comments on defendant's substantive claims.

Defendant submits that he could have established reasonable doubt as to his guilt had an expert been retained and had he been examined for an STD because the veracity of R.D.'s incriminations, the credibility of her testimony, and the strength of the State's case could have been undermined. The facts do not support this claim. The expert report defendant submitted in connection with his PCR petition suggested that an STD transmission from an infected woman to her male partner is approximately 20% per episode with the risk rising to over 60% after four or more exposures. The report concluded that it was not possible to determine whether defendant should have contracted gonorrhea as a result of any sexual intercourse with R.D. because there was no report following a medical examination of defendant near the time of the alleged exposure and because R.D.'s medical record did not indicate why she was examined and how long she had been ill. The bare information that R.D. tested positive for gonorrhea on September 19, 1989, the report stated, was insufficient to draw any conclusions with respect to sexual activity between defendant and R.D. Defendant's trial counsel cautiously did not have defendant tested, as a positive test would have negatively affected defendant's ability to deny the occurrence of the sexual contact with the victim. Accordingly, the PCR judge properly concluded the expert report was not conclusive on the issue of whether defendant had sex with the victim and, moreover, the determination not to have defendant tested was trial strategy that could not be faulted.

The sentence defendant received was within the authorized range for each of the crimes for which he was convicted and thus his sentence was not "illegal." See R. 3:22-2(c) (stating that a sentence is illegal only if it is "in excess of or otherwise not in accordance with the sentence authorized by law."); State v. Murray, 162 N.J. 240, 246-47 (2000) (same). Thus, to the extent defendant is challenging his sentence as excessive, such relief is ordinarily only remediable by direct appeal, to which defendant did not avail himself. See State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971).

Nevertheless, at the time of defendant's original sentencing, his trial counsel objected to the reliance of the ADTC's report on the victims' statements, acting as a vigorous advocate for his client. Defendant has failed to demonstrate his trial counsel could have obtained an evaluation that would have carried more credibility and weight than the ADTC report, which was properly based upon consideration of all relevant facts, including the victims' statements. It is unlikely the court would have given much weight to the expert report defendant relied upon in his PCR application as the expert relied solely on the results of the test administered to defendant and upon defendant's own statements denying any sexual activity with the victims, and declined to consider any victims' statements regarding the offenses. Accordingly, defendant has failed to demonstrate that he did not receive the effective assistance of counsel at trial and sentencing.

Affirmed.

1 State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).