STATE OF NEW JERSEY v. L.A.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.A.G.,

Defendant-Appellant.

_____________________________

November 27, 2013

Submitted September 11, 2013 - Decided

Before Judges Sapp-Peterson and Maven.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-10-01356.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant L.A.G., who was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), appeals from the trial court order dismissing his petition for post-conviction relief ("PCR"). We affirm.

The record shows that over a period of several years, defendant sexually molested the daughter of his paramour, with whom he lived along with the victim. When the victim was twelve years old, she reported to her mother that defendant had been sexually molesting her for a number of years. The mother confronted defendant, who denied the allegations. When it became evident to the victim that her mother did not believe her allegations, she apologized to her mother and defendant, stating that she had lied. Three years later, then a high school student, the victim reported the sexual abuse to her gym teacher and to others. Defendant eventually gave a sworn statement admitting that he touched the victim under her panties on one occasion when the victim was nine or ten years old. He was arrested and charged with the sexual offenses.

Several months before trial, the victim recanted her allegations. At trial, the victim continued to recant her accusations, explaining that she wanted to punish her mother and defendant and was seeking attention. A number of witnesses to whom the victim also admitted that she had made up the allegations against defendant, also testified. In his testimony, defendant acknowledged the touching incident revealed in his sworn statement, but told the jury that he had done so with the palm of his hand and that it was a brief encounter "like a [flash of] lightning."

In addition to producing the victim's teacher as a witness, the State also called a clinical psychologist, James P. Cassidy, Ph.D., who was qualified, without objection, as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Cassidy explained that CSAAS is not a diagnostic aid but, rather, an educational tool that educates people about how children may react to sexual abuse.

Following his conviction, the court imposed an aggregate fifteen-year custodial term. On appeal, we affirmed defendant's conviction and sentence. State v. L.A.G., No. A-1063-07 (App. Div. May 8, 2009). The Supreme Court denied defendant's petition for certification. State v. L.A.G., 200 N.J. 369 (2009).

Defendant filed the instant petition for PCR in April 2010. In the petition, defendant alleged that his trial counsel had been ineffective in numerous ways. Defendant claimed that his counsel failed to conduct an adequate investigation, he was the victim of prosecutorial misconduct, and that his appellate counsel was ineffective for failing to argue that trial counsel was ineffective and that he had been the victim of prosecutorial misconduct.

In particular, defendant claimed that had trial counsel questioned the victim prior to trial, he would have discovered that she had Attention Deficit Disorder ("ADD") and was a virgin. Defendant also claimed the State was aware the victim was a virgin and hid this information from defendant. Additionally, defendant claimed the prosecutor engaged in prosecutorial misconduct by withholding information about the victim's virginity.

The court conducted oral argument and after considering the arguments of counsel, the court denied the petition. Judge Nestor F. Guzman rejected defendant's PCR petition without an evidentiary hearing. He issued a written opinion and a corresponding order on December 17, 2010, from which defendant now appeals.

In his brief, defendant presents the following arguments:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

POINT THREE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.

We reject these contentions, substantially for the detailed reasons cogently set forth in Judge Guzman's written opinion. Only a few additional comments are worth noting.

The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

We concur with Judge Guzman that defendant has failed to demonstrate these requirements. The victim's virginity was not a defense to the allegations. Proof of sexual penetration is satisfied without the necessity of establishing penetration beyond the hymen. See State v. J.A., 337 N.J. Super. 114, 121 (App. Div. 2001) (holding "that penile penetration of the space between the labia majora or outer lips comes within the concept of vaginal intercourse"); see also State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986) (recognizing that sexual penetration occurs by licking the labia even if the actor's tongue has not penetrated the vaginal canal). As such, there was no requirement that the State establish actual physical injury to the victim in order to satisfy the requisite elements of aggravated sexual assault, sexual assault or the endangering offense. Nor does defendant present any evidence beyond his bald assertion that the victim suffers from ADD and the relevance, if any, of that condition to the victim's testimony. Finally, because defendant failed to present a prima facie case of ineffective assistance of counsel, there was no need for the PCR judge to conduct an evidentiary hearing on his petition. State v. Preciose, 129 N.J. 451, 462-64 (1992).

The remaining arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.