STATE OF NEW JERSEY v. LARRY THOMPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-48540-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY THOMPSON,

Defendant-Appellant.

____________________________________

December 17, 2013

Submitted October 29, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-02-0320.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan R. Bohrod, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Larry Thompson appeals the January 9, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b), eight counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) and 2(c)(3), four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), two counts of third-degree child endangering, N.J.S.A. 2C:24-4(a) and eight counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). On March 3, 2006, the trial court sentenced defendant to an aggregate term of fifty years imprisonment with twenty-five years of parole ineligibility. On appeal, we affirmed the judgment of conviction. State v. Thompson, A-3962-05 (App. Div. August 27, 2010). The Supreme Court denied certification. State v. Thompson, 205 N.J. 80 (2011).

On February 22, 2011, defendant filed a timely pro se PCR petition. Counsel subsequently filed a brief and presented oral argument on his behalf.

Defendant's convictions resulted from his ongoing sexual conduct toward C.F. and M.F., sisters who participated in dance lessons and dance competition team activities at his schools of instruction over a number of years. At trial, the victims testified that defendant's sexual abuse began when they were approximately eleven or twelve years old. M.F. stopped dancing when she was approximately eighteen or nineteen years old, and C.F. stopped about a year later at about the same age.

C.F. first approached the authorities regarding the offenses in 2002, and reported that her older sister may have been molested as well. At the time of trial, M.F. was twenty-four years old, and C.F., twenty-three.

M.F. and C.F. also testified, among other things, that they and their parents had agreed to turn over to defendant any money they earned for performing at private parties and events to pay towards the expenses of the dance studio. Both women, on direct and cross-examination, acknowledged they resented the arrangement. In addition to this issue, the victims were cross-examined regarding the strict lifestyle rules defendant imposed upon his students about subjects such as diet, exercise, and recreational drug usage.

During the trial, defendant testified he terminated M.F. from the team and the school because of complaints, when she was approximately a junior or senior in high school, that she was publicly engaging in improper conduct. He claimed that C.F. left the following year because he refused to allow M.F. back into the program. Defendant confirmed that students were not paid, as all the money they earned was given to him to defray the cost of maintaining studio space and continuing the school.

Defendant contended in his petition, as he does on appeal, that his attorney's failure to more extensively develop through his own testimony the reasons for the victims' animus was ineffective assistance of counsel. The PCR judge concluded that the extent of counsel's questioning of defendant with regard to circumstances such as the financial arrangements defendant made with his students, the termination of M.F. and C.F. from the dance program, and the like, were matters of trial strategy which did not fall within the Strickland1 standard. Since he concluded that counsel's decision as to how extensively to question defendant with regard to the financial arrangements he had with students was a matter of trial strategy, it did not fall within the Strickland purview. In his view, the omission, if omission it was, did not prejudice the outcome. As he framed it, the absence of additional testimony on these subjects did not undermine confidence in the jury's verdict. Since defendant failed to make a prima facie showing of ineffective assistance, he was denied PCR relief.

On this appeal, defendant raises the following issues for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING THAT HE BE GRANTED AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF.

We find no merit to these arguments. R. 2:11-3(e)(2).

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

The alleged shortcomings raised in this appeal are, as the PCR judge found, matters of strategy. Trial counsel, while cross-examining M.F. and C.F., clearly established a number of motives the victims may have had to lie, including financial ones. Had counsel asked defendant more than the nominal questions posed to him on direct with regard to his financial arrangements with his dance students, he ran the risk of exposing defendant to more detailed inquiry on the subject. And the arrangement did not present defendant in a favorable light. After all, he was effectively keeping the wages paid to children and young adolescents in order to support his business endeavors.

And defendant did testify as to his version of M.F. and C.F.'s termination from the dance program. Although he was not asked about whether he "admonished" M.F. for her conduct, or disciplined her for it by asking her to do more exercises in class, neither point seems consequential. The facts supporting the defense theory, that the victims were lying because of their unjustified resentment of how defendant treated them, were otherwise developed, just not developed through defendant's testimony. That the jury found the victims credible we do not consider to be a product of these omissions.

Therefore, we agree with the trial judge that the matters of strategy defendant raises did not meet either prong of the Strickland test. Generally, such decisions do not fall below constitutional standards of professionalism except in the rarest of instances. State v. Allegro, 193 N.J. 352, 367 (2008). This case is not one of those rare instances. The absence of additional testimony from defendant regarding subjects already covered in some detail from the victims themselves, did not prejudice the outcome of the trial. Since defendant did not establish a prima facie case, he was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).