STATE OF NEW JERSEY v. GEORGE C. RILEY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6396-06T46396-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

_____________________________

 

Submitted May 12, 2008 - Decided

Before Judges Parrillo and S.L. Reisner.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 86-03-0365.

George C. Riley, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Courtney L. Darsch, Legal Assistant, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant George C. Riley appeals from an order of the Law Division denying his fifth petition for post-conviction relief (PCR). We affirm.

On appeal, defendant pro se asserts the following issues in his main brief:

I. THE 20-YEAR SENTENCE IMPOSED UPON DEFENDANT IS ILLEGAL DUE TO FAILURE OF COUNT 3 TO ALLEGE SPECIFIC SEXUAL PURPOSE ELEMENT IN CHARGING VIOLATION OF N.J.S.A. 2C:14-1d, WAS FATALLY DEFECTIVE, WITHOUT WHICH THE CHARGE IS HARASSMENT UNDER N.J.S.A. 2C:33-4a.

II. DEFENDANT WAS DENIED HIS RIGHT OF INDICTMENT BY GRAND JURY AS [COUNT] 3 FAILED TO CHARGE THE (5) ESSENTIAL ELEMENTS OF OFFENSE FOR WHICH DEFENDANT STANDS CONVICTED, AND DENIED A FAIR TRIAL WHEN THE JUDGE INCLUDED THE MISSING ELEMENTS IN HIS JURY INSTRUCTIONS, AT THE PROSECUTOR'S REQUEST, AT THE CLOSE OF THE STATE'S CASE.

III. DEFENDANT'S CLAIMS FOR RELIEF ASSERTED WERE NOT PREVIOUSLY ADJUDICATED ON THE MERITS, THE LACK OF ALLEGATIONS IN COUNT 3 REVEALS A [JURISDICTIONAL] DEFECT ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS R. 3:22-4(b) AND (c); ALTERNATIVELY, THE TIME BAR IS ENTITLED TO RELAXATION PURSUANT TO R. 3:22-12 AND R. 1:1-2.

IV. THE CHARGE OF ATTEMPTED SEXUAL ASSAULT WAS SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER DEFENDANT'S CONVICTION UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT [Partially Raise[d] Below] [Thompson v. Louisville, 80 S. Ct. 624 (1969)].

V. THE COURT SHOULD ACCEPT JURISDICTION OF THE ISSUES RAISED AS IF THIS WAS A DIRECT APPEAL.

In a pro se reply brief, defendant asserts the following issues:

I. THE STATE'S ARGUMENT THAT DEFENDANT IS BARRED FROM POST-CONVICTION RELIEF, IS INCORRECT AS COUNT 3 FAILS TO STATE AN OFFENSE AND IT IS VOID, THUS BARS THE JUDGMENT FROM HAVING ANY RES JUDICATA EFFECT.

A. THE STATE'S ARGUMENT THAT DEFENDANT'S SENTENCE IS NOT ILLEGAL, IS INCORRECT IN VIEW OF THE FAILURE OF INDICTMENT TO CHARGE THE KEY ELEMENTS OF SCIENTER FAILED TO STATE A SECOND-DEGREE OFFENSE.

B. THE STATE'S ARGUMENT THAT DEFENDANT'S LACK OF INDICTMENT CLAIM IS PROCEDURALLY BARRED IS BASED UPON A FAULTY PREMISE, SINCE JURISDICTIONAL DEFECTS IN INDICTMENTS MAY NOT BE DEFAULTED.

C. THE STATE'S ARGUMENT THAT NO EXCEPTIONS APPLY TO THE PROCEDURAL BARS, IS PATENTLY INCORRECT SINCE INDICTMENT DEFECTS INVOLVE CLAIMS OF FUNDAMENTAL INJUSTICE WITHIN THE EXCEPTIONS OF R. 3:22-4(b)(c) AND R. 1:1-2.

II. THE STATE'S LACK OF OPPOSITION TO DEFENDANT'S TO DEFENDANT'S [SIC] UNCONSTITIONAL CONVICTION UNDER THOMPSON V. LOUISVILLE, OF SECOND-DEGREE ATTEMPTED SEXUAL CONTACT BASED UPON EVIDENCE OF A DISORDERLY PERSONS OFFENSE.

In a pro se supplemental brief, defendant asserts the following issues:

I. DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE ON THE ISSUES SPECIFIED HEREIN SUCH THAT THE DEFICIENT PERFORMANCE CERTAINLY PREJUDICED THE OUTCOME OF DEFENDANT'S PCR PROCESS.

A. DURING THE PCR PROCEEDINGS[,] COUNSEL FAILED TO COMMUNICATE WITH DEFENDANT, AND FAILED TO ARGUE THAT FIVE (5) MISSING INDISPENSABLE ESSENTIAL ELEMENTS FROM INDICTMENT; AND MISAPPLIED SECTION (C) OF R. 3:10-2 RATHER THAN SECTION (E) TO SUBSTANTIVE JURISDICTIONAL DEFECT IN COUNT 3.

B. PCR COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL ASSISTANCE BECAUSE DEFENDANT'S ILLEGAL SENTENCE IS NOT BASED UPON EXCESSIVE SENTENCE, BUT UPON THE CHARGING DEFECT IN COUNT 3, I.E., FAILURE TO ALLEGE INDISPENSABLE CULPABLE MENTAL STATE AS ELEMENT OF OFFENSE RENDERS COUNT 3 FUNDAMENTALLY DEFECTIVE AND THE SENTENCE ILLEGAL.

C. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO SUPPLEMENT PCR MOTION WITH THE CLAIM THAT DEFENDANT WAS DENIED DUE PROCESS WHEN THE PUBLIC DEFENDER WITHDREW [FROM] HIS FIRST APPEAL, AND NO RECORD EXISTS OF ANY COURT INVESTIGATING WHETHER DEFENDANT HAS MADE A KNOWING AND VOLUNTARY WAIVER OF COUNSEL, BECAUSE, NOT SUBJECT TO PROCEDURAL DEFAULT.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se and we are satisfied that none of them is of any merit. R. 2:11-3(e)(2). We explain our reasons why.

By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.

On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the original sentence could, on reconsideration, nevertheless, be imposed. Ibid. Defendant's petition for certification to the Supreme Court was denied. State v. Riley, 110 N.J. 308 (1988).

The facts underlying defendant's second-degree attempted sexual assault conviction were detailed in our opinion on direct appeal:

The gravamen of the State's case was defendant's attempted seduction of an 11-year-old girl, B.M. Defendant, a 52-year-old municipal sanitation worker, serviced the street on which B.M. lived and was apparently attracted to her by his frequent observation of her in and around her home. On January 22, 1986, defendant made his first of a number of telephone calls to B.M.'s home. The call was made in the afternoon after school hours. B.M. and a friend of hers were alone in the house. That call was followed by several others that day and the next and were all of erotic content. During these calls defendant also told B.M. that if she wanted to contact him, she should leave a note under the lid of the garbage can. Sometime thereafter B.M.'s friend, in B.M.'s presence, called defendant to ask him to stop annoying them and to tell him that they were only 12 years old. Several days later B.M.'s friend told her own parents about these calls. The local police were informed and became involved, obtaining the cooperation of both B.M. and her parents. Their first step was to have B.M. write a note to defendant as he had requested. The note, taped to the lid of the garbage can, simply asked him to call her between 3:30 and 5:00 p.m. The next day defendant called, explained to B.M. that he had been on vacation since his last call, and repeated his sexually explicit monologue. That telephone call was taped by the police with the county prosecutor's consent. Two days later B.M., again on police instruction, placed another note on the garbage can lid, this one stating that she could not write a love letter as he had requested her to do because she did not know how but that, "I want to learn if you want to teach me." Defendant picked up the note on the following day, February 7, 1986, on which the climactic events took place.

Shortly after defendant picked up B.M.'s second note, he telephoned her. This was about 10:00 a.m. In that call, which was also taped, defendant repeated his sexual desires at great length. B.M., coached by the police, invited him to come to her home as she was then alone. He questioned her carefully to be sure she had not told anyone about their communications and to be sure that everyone else was out of the house. He then told her that he would be there in several minutes, would park his truck so that it could not be seen, and would enter the house through the back door which she should unlock for him. He also told her that he would be carrying a box in order to appear to be making a delivery in the event he were seen. He ended the conversation with more of his erotic talk, telling B.M. to wait for him in the living room. He arrived fifteen minutes later, carrying an empty shoe box. He entered the house by way of the unlocked door and was arrested in the hallway between the kitchen and living room by the waiting police. He had B.M.'s two notes on his person. He was charged by the grand jury with the crimes of which he was convicted.

[State v. Riley, supra, No. A-1009-86T4 (slip op. at 2-3).]

Following our remand, defendant was resentenced on the attempted sexual assault to the term originally imposed on the attempted aggravated sexual assault. On appeal, we concluded that the Law Division had mistakenly exercised its sentencing discretion by considering inapplicable aggravating factors, and therefore again remanded for resentencing. State v. Riley, No. A-0171-88T4 (App. Div. Jan. 16, 1991). Again the Law Division imposed the same sentence, this time reciting aggravating factors consistent with our opinion and considering the mitigating factors urged by defendant. Again defendant appealed. We considered this third appeal on our Excessive Sentence Oral Argument calendar pursuant to R. 2:9-11. We affirmed. State v. Riley, No. A-0455-91T4 (App. Div. Mar. 23, 1992).

Apart from these direct appeals, defendant has pursued numerous collateral attacks on his 1986 conviction in both federal and state courts. As to the former, defendant filed a habeas corpus petition in 1988 that was denied, as were all subsequent appeals and applications for reconsideration thereof. In 1994, a second petition for a writ of habeas corpus was dismissed by the federal district court, citing "abuse of writ" and lack of jurisdiction. Thereafter, motions for reconsideration and appeals were consistently denied, including the denial of three petitions for writ of certiorari by the United States Supreme Court in 1994, 2001 and 2006. Riley v. New Jersey, 127 S. Ct. 514, 166 L. Ed. 2d 383 (2006); Riley v. New Jersey, 534 U.S. 925, 122 S. Ct. 281, 151 L. Ed. 2d 206 (2001); Riley v. New Jersey, 513 U.S. 906, 115 S. Ct. 271, 130 L. Ed. 2d 189 (1994).

In February 1989, the United States District Court for the District of New Jersey, after reviewing the constitutionality of defendant's indictment upon defendant's challenge that it "lacked the 'critical facts' and 'essential elements' necessary for him to adequately prepare his defense[,]" concluded that the indictment was constitutional and stated:

The indictment recites the place where the crimes were committed and the timing thereof. The victim has been identified, including her age. [Defendant's] conduct is described in clear terms - "sexual penetration," "sexual conduct which would impair or debauch the morals of a child", "sexual contact". The indictment contains the elements of the various offenses and it is clear that it reasonably apprised [defendant] of the nature of the charges against him.

[Riley v. Schiedemental, No. 88-3956 (D. N.J. Feb. 16, 1989).]

In State court, prior to the instant application, defendant filed four unsuccessful PCR petitions since he was first convicted in 1986. In his first application dated February 27, 1991, defendant asserted that his conviction under count three of the indictment was invalid under State v. Schenk, 186 N.J. Super. 236 (Law Div. 1982), certif. denied, 101 N.J. 298 (1985). This petition was denied by the Law Division on November 21, 1991; affirmed by this court, State v. Riley, No. A-2429-91T4 (App. Div. Oct. 21, 1993) (slip op. at 1).); and denied certification by the Supreme Court on January 25, 1994.

Defendant's second PCR petition, dated January 5, 1996, argued that defendant's conduct did not constitute a "substantial step" towards sexual contact with B.M., thereby failing to state an offense which amounted to a nonwaivable jurisdictional defect. Defendant's second PCR was denied by the Law Division on August 16, 1996; affirmed by this court on April 22, 1997; and denied certification by the Supreme Court on September 23, 1997.

Defendant's third PCR petition, dated January 27, 1998, contended that his conviction under count three was illegal pursuant to State v. Cuni, 303 N.J. Super. 584 (App. Div. 1997), aff'd, 159 N.J. 584 (1999). The petition was denied by the Law Division on April 13, 1998; affirmed by this court on October 11, 2000; and denied certification by the Supreme Court on January 23, 2001.

Defendant's fourth PCR petition, filed April 15, 2002, proffered that his conviction under count three was constitutionally defective for failure to state a claim under N.J.S.A. 2C:5-1 and 2C:14-2(b). In addition, defendant alleged that the substantive elements of the offense were not sufficiently alleged in the indictment. Defendant's fourth PCR was denied by the Law Division on April 2, 2004.

In an order dated August 5, 2005, we referred defendant's appeal of the order denying his fourth PCR petition to the Public Defender's Office since the Public Defender represented him on that application and there was another pending appeal on the same indictment. However, in an order dated October 13, 2004, we relieved the attorney of record and permitted defendant to prosecute the appeal pro se. On the same date, defendant filed a motion for waiver of counsel hearing, but it was later withdrawn. In an order dated November 22, 2004, on remand from the Appellate Division, the Law Division submitted that defendant's motion to prosecute his appeal pro se be withdrawn and the matter be returned to the Appellate Division. We affirmed in State v. Riley, Nos. A-5971-03T4, A-5912-03T4 (App. Div. Jan. 30, 2006) (slip op. at 4), and the Court denied certification on April 4, 2006 in State v. Riley, 186 N.J. 604 (2006).

Defendant's fifth and current PCR petition, filed February 9, 2007, argued that his sentence is illegal and the indictment should be dismissed, pursuant to N.J. Const. art. I, 1, 8, and 10, and United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007). In essence, defendant contended that count three of the indictment should be dismissed as fatally defective because the State failed to charge the four essential culpable mental state elements of the crime.

On July 13, 2007, the Law Division denied defendant's fifth PCR petition, citing a variety of procedural grounds. Specifically, the PCR judge reasoned:

The defendant asserts that his petition is not time-barred because his sentence is illegal. This court disagrees.

. . . .

Here, the defendant's sentence is legal. The defendant was convicted of second-degree attempted sexual assault. A crime of the second-degree carries term of incarceration between ten and twenty years. On September 19, 1986, the late Judge Arnone granted the State's motion for an extended term and sentenced the defendant to twenty years imprisonment with a ten year period of parole ineligibility. Although the defendant's sentence is at the high end of the range, such a sentence is authorized by the Code and does not exceed any statutory maximums. Consequently, the defendant's sentence is legal as defined in this State's jurisprudence.

. . . .

[T]he defendant [next] claims that because the State failed to allege the culpable mental state as an element of the offense under Count Three of the Indictment, his constitutional right to indictment by Grand Jury renders his conviction and sentence void.

The defendant's argument is time-barred. . . . [u]nder R. 3:22-4 . . . .

The defendant has filed numerous petitions for post-conviction relief since he was first convicted in 1986. . . .

. . . .

[D]efendant's lengthy procedural history demonstrates that his claims are time-barred. The defendant has been attacking the validity of his conviction under Count Three of the Indictment since he was first convicted in 1986. The defendant had numerous occasions in his four previous post-conviction relief petitions to raise the specific issues now before the court, and his failure to do so bar[s] their consideration now, twenty years after his judgment of conviction was filed.

. . . .

The defendant's [next] argument asserts that the "[f]ailure to charge the key element of substantial step and the acts constituting the substantial step, which is the sole bases(sic) for the defendant's conviction and sentence," renders his conviction and sentence void. The defendant['s] claim is time-barred under R. 3:22-5.

. . . .

This court adopts the reasoning of the Appellate Division[:] . . . .

The defendant has been attacking the validity of Count [Three], to no avail, since he was first convicted. Although differen[t] phraseology is now employed, the substance of the attack has been previously considered and rejected. The arguments are now barred. R. 3:22-5. We point out that a significant portion of defendant's attack on Count [Three] . . . premises on the erroneous belief that defendant was convicted of attempted sexual assault by virtue of his legal entry into the victim's home and therefore was prosecuted improperly for what was essentially a non-criminal act. This proposition has been previously rejected when it was raised in the first and second petitions for post-conviction relief. It was arguably also addressed and rejected in the first direct appeal.

Defendant's entry into the

victim's home was not significant by virtue of whether it was permitted or prohibited. Defendant's entry into the victim's home was significant as a substantial step towards completion of the crime being attempted.

[State v. Riley, [Nos.] A-5912-97T4, A-6317-97T4 (App. Div. Oct. 11, 2000) (slip op. at 9-10).]

The issue of the sufficiency of the Indictment has also been previously adjudicated as constitutionally firm. See Riley v. Schiedemental, C.A. No. 88-3965 (D.N.J. 1990).

. . . .

The defendant's reliance on United States v. Resendiz-Ponce, [ 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591] (2007) is misplaced. The case reaffirms the proposition that a valid indictment must contain the elements of the offense charged, fairly inform the defendant of the charge against him, and enable him to plead acquittal or conviction in bar of future prosecutions of the same offense. The defendant's indictment was already deemed constitutionally adequate under these guidelines.

In any event, the defendant's claim

. . . is also barred by R. 3:22-4. As previously noted, the defendant ha[d] several chances in his numerous motions for post-conviction relief throughout the years to assert the claims he now brings. The defendant's failure to do so bars their consideration today.

. . . .

[D]efendant has failed to establish that any Rule 3:22-4 exceptions] apply in this instance. . . .

He has . . . failed to allege any [articulable] facts to show a [constitutional] violation . . . . In fact, his Indictment has been deemed constitutionally firm. . . . [N]o fundamental injustice or constitutional violation occurred to allow relaxation of the procedural time bar.

On appeal, defendant raises numerous issues which we have already delineated, but can essentially be restated and reduced to two principal arguments:

I. WHETHER THE LAW DIVISION ERRED IN HOLDING THAT COUNT THREE OF DEFENDANT'S INDICTMENT WAS LEGAL AND TIME-BARRED FROM PCR PETITION. (Defendant's issues I-V. and reply brief issues I-II., restated).

II. WHETHER THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL. (Defendant's supplemental issue I., restated).

As noted, the issues raised by defendant are all without merit, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the PCR judge in his comprehensive written decision of July 13, 2007. We add only the following comments.

(I)

Defendant argues that this conviction for attempted sexual assault is illegal because the indictment failed to allege scienter or specific sexual purpose, N.J.S.A. 2C:14-1(d), and therefore equates to a jurisdictional defect under Rule 3:22-4(b), (c) and Rule 1:1-2. We disagree.

Defendant was convicted in 1986 for attempted sexual assault, has filed four previous unsuccessful, related PCR petitions, and now twenty years after his judgment of conviction, files a fifth PCR petition on February 9, 2007. Consequently, defendant's petition was filed beyond the five-year limitation in Rule 3:22-12, and, thus, is barred.

The reasons for the five-year time bar are quite clear:

First, the passing of time after a conviction increases the difficulties associated with a fair and accurate reassessment of the events. Second, respect for the finality of judgments and the undesirable uncertainty fostered by unlimited relitigation support the enforcement of a time bar on petitions. Finally, the time bar encourages petitioners to file their claims early, and "discourages them from sitting on their rights until it is too late for a court to render justice."

[State v. Murray, 162 N.J. 240, 249-51 (2000) (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992).]

The rule's temporal restriction may be relaxed only under exceptional circumstances, such as excusable neglect, R. 3:22-12(a), or to prevent a "fundamental injustice." State v. Martini, 187 N.J. 469, 481-82 (2000), cert. denied, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007); Mitchell, supra, 126 N.J. at 587. Under the circumstances, we perceive no excusable neglect or injustice sufficient to relax the time limitations of Rule 3:22-12. See State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant's PCR petition is also barred under Rule 3:22-5 since the issues raised now, although slightly rephrased, have all been previously adjudicated. Indeed, the issue of the sufficiency of defendant's indictment has been repeatedly raised and adjudicated, with every forum having considered the issue finding the indictment constitutionally sound, most notably in Riley v. Schiedemental, supra, No. 88-3956 (D. N.J. Feb. 16, 1989). Clearly, an issue considered on direct appeal cannot be reconsidered in a post-conviction application. R. 3:22-3; State v. Merola, 365 N.J. Super. 203, 216 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Furthermore, Rule 3:22-5 provides a bar to issues raised that were previously adjudicated. See also State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Although the rule may be relaxed if constitutional issues raised are substantial, see State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972), we discern no such issue of substantial constitutional import raised by defendant herein.

To the extent any issue raised by defendant in the instant PCR application had not been previously raised by him, it is nevertheless precluded from review now because it could have been raised earlier. R. 3:22-4; State v. McQuaid, 147 N.J. 464, 483 (1987). Although there are exceptions to this particular procedural bar, we find none applicable here. Suffice it to say, the judicial system has provided defendant with abundant "fair proceedings" to advance his claim. Mitchell, supra, 126 N.J. at 587. It is now barred. R. 3:22-4.

Even if we did consider defendant's claims on the merits, they would still fail. Defendant's main contention is that count three of the indictment did not properly state the scienter element, and, therefore, his conviction and sentence should be reversed because of the jurisdictional defect. We disagree.

In claims of insufficiency of the indictment:

The fundamental inquiry is whether the indictment substantially misleads or misinforms the accused as to the crime charged. The key is intelligibility. The indictment must charge the defendant with the commission of a crime in reasonably understandable language setting forth all of the critical facts and each of the essential elements which constitute the offense alleged. Courts properly insist upon this level of communication in a criminal indictment. Clarity of expression in a formal charge of crime is an indispensable safeguard for the criminally accused. The objectives to be served by an indictment mandate the content. An indictment must adequately identify and explain the criminal offense to enable the accused to prepare a defense. In addition, the language of the charge must be sufficiently detailed to avoid the risk of double jeopardy, successive prosecutions for the same transgression. And, it must be definite and precise enough to preclude the possibility of a substitution by the petit jury in the criminal trial of an offense different from the crime which the grand jury in fact considered and charged.

[State v. Wein, 80 N.J. 491, 497 (1979) (internal citations omitted).]

The present matter involves attempted sexual contact. N.J.S.A. 2C:14-2(b); N.J.S.A. 2C:14-1(d); N.J.S.A. 2C:5-1(a)(3). N.J.S.A. 2C:14-2(b) provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." N.J.S.A. 2C:14-1(d) defines "sexual contact" as "an intentional touching by . . . the actor . . . of the victim's . . . intimate parts." N.J.S.A. 2C:5-1(a)(3) provides that "[a] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he . . . [p]urposefully does . . . an act . . . constituting a substantial step . . . of conduct planned to culminate in . . . the crime."

We are satisfied as to the sufficiency of the indictment at issue. As the District Court held in rejecting defendant's identical claim in Riley v. Schiedemental, supra:

The indictment recites the place where the crimes were committed and the timing thereof. The victim has been identified, including her age. [Defendant's] conduct is described in clear terms - "sexual penetration," "sexual conduct which would impair or debauch the morals of a child", "sexual contact". The indictment contains the elements of the various offenses and it is clear that it reasonably apprised [defendant] of the nature of the charges against him.

[No. 88-3956 (D. N.J. Feb. 16, 1989).]

See also Wein, supra, 80 N.J. at 497; N.J.S.A. 2C:14-2(b) (sexual assault); N.J.S.A. 2C:5-1(a)(3) (attempt).

(II)

Equally meritless are defendant's claims of ineffective assistance of counsel based on counsel's alleged failure to (1) communicate with defendant; (2) argue the missing scienter elements for the count three offense in the indictment and conviction; (3) assert the lack of an adequate indictment as a jurisdictional defect under R. 3:10-2(e), rather than R. 3:10-2(c); and (4) allege a possible due process claim when the Public Defender withdrew in the first appeal and defendant did not waive counsel.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). Moreover, on PCR "[c]ounsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." R. 3:22-6(d); State v. Rue, 175 N.J. 1, 18-19 (2002); see also State v. Webster, 187 N.J. 254, 257-58 (2006). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test. Nor do we discern any violation of Rule 3:22-6(d).

 
As already noted, we are satisfied that the indictment was constitutionally adequate because it contained the elements of the various offenses charged and reasonably apprised defendant of the nature of the charges against him. Furthermore, the issue of the sufficiency of defendant's indictment has been previously adjudicated and found to be constitutionally firm. See Riley v. Schiedemental, supra, No. 88-3956. In addition, defendant requested to proceed pro se and moved for removal of the Public Defender's Office. Accordingly, in an order dated October 13, 2004, we relieved the attorney of record and permitted defendant to prosecute his fourth PCR appeal pro se. Thus, we find no due process deprivation. Significantly, defendant was convicted based on the overwhelming weight of evidence adduced in a fair trial. Considering this is defendant's fifth PCR petition, we are just as satisfied that defendant has failed to make a prima facie showing that assigned counsel failed to comply with his obligations under Rule 3:22-6(d).

Affirmed.

(continued)

(continued)

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A-6396-06T4

RECORD IMPOUNDED

June 12, 2008