STATE OF NEW JERSEY v. P.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.C.,

Defendant-Appellant.

__________________________

November 4, 2016

Submitted October 11, 2016 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-05-0896.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

GurbirS. Grewal,Acting BergenCounty Prosecutor,attorney forrespondent (Catherine A.Foddai, SeniorAssistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant P.C.1 appeals from an August 6, 2014 order, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with sexually molesting his two step-daughters, E.V., age twelve, and L.V., age fifteen, on various dates in August 2007. In 2010, a jury convicted him of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2), and multiple related offenses, and the trial judge sentenced defendant to twenty-two years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

In his direct appeal, defendant raised the following issues

POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO TRY THE CHARGES INVOLVING L.V. AND E.V. SEPARATELY.

POINT II: TESTIMONY THAT L.V. SPOKE TO A SCHOOL GUIDANCE COUNSELOR AND THAT L.V. AND E.V. SPOKE TO THEIR FATHER AND STEPMOTHER ABOUT THEIR ALLEGATIONS AGAINST DEFENDANT WAS IMPROPERLY ADMITTED AS FRESH COMPLAINT. (Not Raised Below)

POINT III: THE CONVICTIONS FOR FIRST-DEGREE SEXUAL ASSAULT AND SECOND-DEGREE ENDANGERING THE WELFARE OF A CHILD MUST BE REVERSED BECAUSE THE INSTRUCTIONS DISPARAGED THE SIGNIFICANCE OF THE LESSER OFFENSES. (Not Raised Below)

POINT IV: BECAUSE DEFENDANT, A FOREIGN NATIONAL, WAS DENIED HIS RIGHT UNDER THE VIENNA CONVENTION TO CONTACT HIS CONSULATE FOR ADVICE AND ASSISTANCE, HIS DECISION TO REJECT THE STATE'S PLEA OFFER WAS RENDERED IN VIOLATION OF HIS RIGHTS UNDER THE CONVENTION AND HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL [AND] DUE PROCESS OF LAW. (Not Raised Below)

POINT V: THE SENTENCE OF 22 YEARS, 18 YEARS AND NINE MONTHS WITHOUT PAROLE, IS EXCESSIVE FOR THIS DEFENDANT AND THESE OFFENSES.

We rejected those arguments and affirmed the conviction and the sentence. State v. P.C., A-1793-10 (App. Div. May 17, 2012), certif. denied, 212 N.J. 288 (2012).

Defendant filed a timely PCR petition in November 2012. In an oral opinion, Judge Edward A. Jerejian thoroughly addressed and rejected each of defendant's PCR contentions. Defendant repeats several of those arguments on this appeal, in the following points of argument

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL S FAILURE TO IMPEACH THE CREDIBILITY OF ONE OF THE ALLEGED VICTIMS (L.V.) UTILIZING A RELEVANT AND CONTRADICTORY DYFS REPORT AS WELL AS THROUGH THE TESTIMONY OF A GUIDANCE COUNSELOR WHO HAD SPOKEN WITH THE SAME ALLEGED VICTIM.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL S FAILURE TO INTERVIEW AND PRESENT AN IMPORTANT WITNESS WHO WOULD HAVE BUTTRESSED THE DEFENDANT S DEFENSE WHILE AT THE SAME TIME SERVING TO ADVERSELY IMPACT THE CREDIBILITY OF ONE OF THE ALLEGED VICTIMS (E.V.).

D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO THOROUGHLY DISCUSS WITH HIS CLIENT ALL RELEVANT ASPECTS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY IN HIS OWN DEFENSE.

In a supplemental pro se brief, defendant likewise argues that the trial court erred in denying his PCR petition without an evidentiary hearing.

After reading the entire trial transcript as well as the briefs and exhibits presented on this appeal, we find no merit in any of defendant's appellate arguments. We conclude that Judge Jerejian correctly addressed all of the issues defendant presented to him. We also conclude that, except as addressed below, defendant's appellate contentions - both pro se and presented through counsel - are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues that his trial counsel rendered ineffective assistance by failing to make use of two pieces of fresh complaint evidence which defendant contends would have contradicted a portion of L.V.'s testimony. First, defendant argues that, in cross-examining L.V., defense counsel should have used a report prepared by an employee of the Division of Youth and Family Services (DYFS).2 The report recited statements made to the DYFS worker by L.V.'s father, who told the DYFS worker that L.V. told him that defendant molested her but did not penetrate her. That contradicted L.V.'s trial testimony that defendant digitally penetrated her vagina.

Second, defendant contends that his attorney should have called as a witness L.V.'s guidance counselor, who was the first adult to whom L.V. reported the molestation. The guidance counselor had provided a statement describing L.V.'s conversation with her; the statement did not include an allegation of penetration.

We find defendant's arguments unconvincing for several reasons. First, it is clear from the trial record that the defense strategy was to convince the jury that defendant did not molest either of his step-daughters in any way. It would have been inconsistent with that strategy to focus on the allegation of penetration, in the hope that defendant could avoid a conviction on the most serious count of the indictment.

Second, from the beginning of the trial, defense counsel had strenuously, and successfully, attempted to limit the amount of fresh complaint evidence that would come before the jury. If the defense either called the guidance counselor as a witness or used the DYFS report to cross-examine L.V., it would have opened the door to the State introducing additional, incriminating details concerning L.V.'s fresh complaints. Finally, the DYFS document could not have been disclosed to the jury during L.V.'s cross-examination, because the report of her alleged statements constituted inadmissible, second-hand hearsay. See N.J.R.E. 801; N.J.R.E. 802; N.J.R.E. 805. Consequently, we reject defendant's claim of ineffective assistance of counsel as to the DYFS report and the guidance counselor.

We likewise find no merit in defendant's claim that his trial counsel should have presented testimony from a family friend. The issue arose in this context. According to E.V., defendant first inappropriately touched her in her mother's house, after the family returned from attending New York City's annual Dominican Day parade. E.V. testified that before she went to bed that night, she went into the bedroom that defendant shared with her mother, in order to say goodnight. She testified that defendant was alone in the bedroom, and he kissed her on the mouth.

The defense presented testimony from E.V.'s mother and defendant's mother, both of whom were at E.V.'s mother's house after the parade. The testimony was aimed at demonstrating that defendant could not have inappropriately kissed E.V. that evening, because the two of them were never together in the same room without other family members present.3

In his PCR submission, defendant included an unsworn statement from the family friend, whom he now claims his counsel should have called to testify at the trial. However, in addition to being unsworn and hence not legally competent as evidence on a PCR petition, the friend's statement did not identify the day or date on which she was present in the house. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that a PCR petition must be supported by legally competent evidence). Moreover, the statement contradicted the testimony of defendant's mother and the girls' mother in significant respects.

In fact, the friend appeared to be describing an entirely different evening than that described by either of the other two witnesses. According to the latter, after returning from the parade late at night, everyone in the house went to bed. However, the friend described an evening on which defendant and the girls' mother got dressed and went out for the evening, leaving the children in the apartment with the friend and defendant's mother. We therefore cannot agree with defendant's argument that his counsel was ineffective in failing to call the friend as a witness. Moreover, on this record, the friend's testimony would not have "changed the outcome of the trial" if she had been called as a witness. See State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005).

We agree with Judge Jerejian that the trial transcript does not support defendant's unsworn allegation that his trial counsel failed to "thoroughly discuss" with him the decision whether to testify at trial. The issue was covered on the record at the trial, by defense counsel and the trial judge, and in defendant's own statements. That was sufficient. See id at 555-56. Defendant's current argument rests on "bald assertions" which do not warrant an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170.

Because defendant did not present a prima facie case of ineffective assistance of counsel, the PCR judge properly denied his petition without an evidentiary hearing. State v. Preciose, 129 N.J. 451, 463 (1992).

Affirmed.

1 We use defendant's initials to protect the privacy of the victims in this sexual assault case.

2 The agency is now known as the Division of Child Protection and Permanency.

3 From our review of the transcript, neither woman's testimony was particularly compelling. In fact, E.V.'s mother testified that she took a shower before going to bed, leaving defendant in the bedroom. That would have given him an opportunity to kiss E.V., unobserved, when she came in to wish him goodnight.