STATE OF NEW JERSEY v. RICHARD WOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3258-05T53258-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD WOOD,

Defendant-Appellant.

_______________________________________________________________

 

Argued May 22, 2007 - Decided August 13, 2007

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-01-00089.

Paul Brickfield argued the cause for appellant (Brickfield & Donahue, attorneys; Mr. Brickfield, of counsel and on the brief; Kelly Koscuiszka, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

On January 19, 2005, a Middlesex County Grand Jury returned Indictment No. 05-01-00089 charging defendant, Richard Wood, with two counts of second degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c (counts one and four); two counts of fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b (counts two and five); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). At trial, count four was dismissed on motion at the conclusion of the State's case due to insufficient evidence of force or coercion.

On October 28, 2005, the jury returned its verdict convicting defendant on counts two and three and acquitting him on the remaining charges. At the sentencing hearing, on February 10, 2006, the court merged count three with count two and sentenced defendant to a period of five years probation on condition that he serve 180 days incarceration at the Middlesex County Adult Correctional Center. The court also ordered that defendant comply with Megan's Law and have no contact with any children under the age of sixteen, excluding his own children.

Defendant now appeals from the February 10, 2006, judgment of conviction. He raises the following arguments:

POINT I: THE FAILURE OF TRIAL COUNSEL TO REQUEST A MIRANDA HEARING TO CHALLENGE THE ADMISSIBILITY OF APPELLANT'S INCRIMINATING STATEMENT VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

A. IT WAS OBJECTIVELY UNREASONABLE FOR APPELLANT'S TRIAL COUNSEL TO NOT REQUEST A MIRANDA HEARING.

1. A REASONABLE ATTORNEY WOULD NOT HAVE DEPRIVED APPELLANT OF HIS RIGHT TO HAVE AN INDEPENDENT FACT FINDER DETERMINE THE ADMISSIBILITY OF HIS INCULPATORY STATEMENT.

2. FAILURE TO REQUEST A MIRANDA HEARING WAS NOT LITIGATION STRATEGY BUT AN UNREASONABLE OMISSION BY DEFENSE TRIAL COUNSEL.

B. APPELLANT WOULD LIKELY NOT HAVE BEEN CONVICTED BUT FOR DEFENSE TRIAL COUNSEL'S FAILURE TO REQUEST A MIRANDA HEARING.

1. APPELLANT HAD A STRONG BASIS FOR SUCCESSFULLY CHALLENGING THE ADMISSIBILITY OF THE INCRIMINATING STATEMENTS.

2. APPELLANT WOULD LIKELY NOT HAVE BEEN CONVICTED WITH HIS INCRIMINATING STATEMENT.

POINT II: THE COURT SHOULD REVIEW THE DYFS RECORDS IN CAMERA TO ENSURE THAT THE TRIAL COURT DID NOT ERR IN DECLINING TO RELEASE THEM TO DEFENDANT.

POINT III: APPELLANT'S SENTENCE VIOLATES HIS SIXTH AMENDMENT RIGHT TO TRIAL BY JURY.

POINT IV: THE PORTION OF THE SENTENCE INCARCERATING APPELLANT FOR 180 DAYS AS A CONDITION OF PROBATION SHOULD BE VACATED.

We have carefully considered defendant's arguments in light of the facts and applicable law, and we affirm defendant's convictions and sentence.

J.T., a minor female, occasionally babysat defendant's three children when she was between the ages of thirteen and seventeen. Generally, she would baby-sit the children from 4:30 p.m. until 9:00 p.m., when the defendant would return from work. Defendant would sometimes ask J.T. to stay while he showered or completed other tasks. J.T. testified that on one particular night, defendant cornered her in the kitchen, touched her breasts and tried to place his hand under her pants. J.T. did know how to respond to this and she did not tell anyone about the incident. She continued to baby-sit and, over time, defendant would periodically expose his genitals and request oral sex. Despite J.T.'s rejections, defendant would sometimes take her hand and place it on his genitals. J.T. does not allege that there was ever any sexual intercourse or oral sex.

Later, J.T. stopped babysitting and obtained a job at a nearby daycare center. The daycare center, unlike defendant's house, was too far for J.T. to walk. Because J.T.'s parents were unable to drive her, it was arranged that defendant or his wife would drive her to her new job. During some of those car rides, defendant would expose himself and attempt to place J.T.'s hand on his genitals. J.T. did not tell anyone about these incidents until October 2004, when, after a fight with her boyfriend, she told her father.

J.T.'s father notified the Sayreville Police a few days later. Defendant was arrested on October 14, 2004, and taken to the Sayreville Police Department for questioning. He waived his Miranda rights and signed a form acknowledging that fact. During the interrogation, defendant stated that J.T. had been the aggressor at least one time in the house and in the vehicle on two other occasions. He agreed to give a taped statement.

Prior to trial, at a May 19, 2005, status conference, defense trial counsel indicated that he intended to move to suppress defendant's statement to police on the grounds of coercion. However, in a letter dated June 7, 2005, counsel gave notice that "[a]fter careful consultation with co-counsel . . . and my client, we have decided not to request a Miranda Hearing in the above matter." At trial, J.T. was unable to give specific dates for any of defendant's actions, and there were no witnesses to the events other than J.T. and defendant.

On appeal, defendant is alleging ineffective assistance of counsel based on trial defense counsel's waiver of the Miranda hearing. However, New Jersey courts have "expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). As a result, "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Ibid. See R. 3:22-4(a). For these reasons, we decline counsel's invitation to speculate on the motive behind trial counsel's decision to waive a Miranda hearing or whether he did actually consult with his client before making that decision. Such questions are better addressed in the arena of a PCR petition with the attendant opportunity for evidentiary hearings and specific inquiries, as opposed to reliance upon perceived general trends in the grant or denial of motions to suppress.

Defendant next argues that this court should review the Division of Youth and Family Services (DYFS) records pertaining to J.T. to ensure that the trial court did not err in finding that certain documents were not discoverable. The decision whether or not to release the DYFS documents is discretionary and one as to which the trial court has wide latitude. A trial court's evidentiary ruling "will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Absent any indication that the court abused that discretion, we decline to review those same records.

Defendant also contends that the court erred because aggravating factor four, that defendant took advantage of a position of trust, N.J.S.A. 2C:44-1a(4), should not have been used to impose the 180-day term, inasmuch as it was not based on any findings by the jury. Defendant contends it, therefore, violated his Sixth Amendment right. We disagree.

Defendant correctly notes that our Supreme Court has abolished presumptive sentences. State v. Natale, 184 N.J. 458 (2005). This was based on the determination in Blakely v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 2536-37, 159 L. Ed. 2d 403, 412-13 (2004), that any factor that would serve to enhance a defendant's sentence must be either admitted by the defendant or found by a jury. However, probationary sentences do not implicate the concerns raised in those cases or their progeny. A judge who imposes a period of probation has the right to impose, as a condition of that probation, a sentence "not exceeding 364 days[.]" N.J.S.A. 2C:45-1e. There was never a presumptive sentence for probation; the entire range of 1-364 days was available to judges, the precise remedy prescribed by Natale, supra, 184 N.J. at 487. As there is no presumptive term for probation, defendant's sentence was not erroneously enhanced and there was no error.

Finally, defendant argues that the 180-day sentence should not have been imposed. In this regard, defendant, sentenced on the fourth degree crime, relies upon the applicable presumption of non-incarceration. However, the presumption against imprisonment in no way precludes the 180-day term. N.J.S.A. 2C:45-1e expressly authorizes a term of imprisonment as an additional condition for an order for probation. It provides "[w]hen the court sentences a person who has been convicted of a crime to be placed on probation, it may require him to serve a term of imprisonment not exceeding 364 days as an additional condition of its order." The court's decision to impose the 180-day term is at the median of the permissible range and fully supported by substantial, credible evidence in the record. Thus, we will not disturb it. State v. Kromphold, 162 N.J. 345, 355 (2000); State v. Soto, 340 N.J. Super. 47, 71 (App. Div.), certif. denied, 170 N.J. 209 (2001).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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8

A-3258-05T5

RECORD IMPOUNDED

August 13, 2007