STATE OF NEW JERSEY v. ASHOKKUMA SHAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2541-07T42541-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ASHOKKUMA SHAH,

Defendant-Appellant.

_____________________________

 

Submitted December 10, 2008 - Decided

Before Judges C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-06-00654.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three), after a jury trial. He received an aggregate twenty-four-year prison term. We affirmed his conviction in an unpublished 2002 opinion and the Supreme Court denied certification. See State v. Shah, Docket No. A-4255-99 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003).

On August 17, 2007 Judge Falcone denied defendant's petition for post-conviction relief pursuant to Rule 3:22. Defendant then filed this appeal. He raises these two points on the appeal:

POINT I - DEFENDANT'S CONVICTION MUST BE REVERSED DUE TO THE TRIAL COURT'S ERRONEOUS FRESH COMPLAINT JURY INSTRUCTION.

POINT II - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE PCR COURT DID NOT ADDRESS DEFENDANT'S CLAIMS THAT TRIAL COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND/OR FAILED TO HAVE THE ALLEGED VICTIM'S MOTHER TESTIFY. (Not Raised Below).

We find no merit to the appeal and affirm for these reasons.

The criminal charges emanated from a six-year period of sexual abuse of a child by her uncle, from age seven to age thirteen. On the first point, defendant is barred by the prior adjudication rule, Rule 3:22-5, which provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." However, Rule 3:22-5 may be relaxed where constitutional matters of substantial import are raised. State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467 (1972). We are also cognizant of the strong interest in achieving finality in these matters. State v. Mitchell, 126 N.J. 565, 584 (1992).

Defendant clearly raised the issue of the fresh complaint jury instruction during his direct appeal. He specifically argued that "the trial court erred in allowing fresh complaint evidence by the victim and charging the jury on victim silence when the State failed to present any fresh complaint witnesses and the victim's trial testimony did not establish that she remained 'silent.'" Judges Pressler, Parrillo, and Fuentes disagreed and denied relief.

The propriety of the jury instruction claim was clearly fully litigated and defendant is now barred from raising it. See Pressler, Current N.J. Court Rules, comment on R. 3:22-5 (2009) ("Prior adjudication of an issue, particularly on direct appeal, will ordinarily bar post-conviction relief."). In addition, defendant has not raised a constitutional problem of substantial import. Even if defendant's claim was not so barred, the Supreme Court's decision in State v. P.H., 178 N.J. 378, 400-01 (2004), does not compel a different result. We decided several months ago that the Supreme Court's decision in P.H. is not entitled to full retroactive application. State v. J.A., 398 N.J. Super. 511, 514 (App. Div.) certif. denied, 196 N.J. 462 (2008). At most, P.H. is entitled to pipeline retroactivity. Id. at 525.

Defendant next asserts that he made out a prima facie case of ineffective assistance of counsel and that the judge erred in failing to conduct an evidentiary hearing. We disagree. Defendant clearly did not make out a prima facie case. Although he submitted a conclusory certification of his own, he submitted no other evidence to support his claim that counsel failed to adequately investigate the matter and call witnesses on his behalf. Defendant contends that there is some unidentified witness who would have testified that the juvenile victim was lying. Case law requires more than this to make out a case for a plenary hearing. Defendant "must do more than make bald assertions" of counsel's incompetence. State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005). He should have at least submitted a certification of the putative witness in order to trigger any substantive review of the claim that the absence of the witness's testimony rendered the verdict in the case unreliable. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (In order to make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.").

Defendant also contends that his defense counsel failed to call the victim's mother as a witness. He has no certification or affidavit from the mother as to the testimony she would have given. Clearly, from the transcript of the trial, the defense attorney concluded as a matter of trial tactics to argue to the jury that it should doubt the prosecution's case because of the failure to call the victim's mother as a witness. Counsel chose this negative inference tactic. We see no basis to second guess and require an evidentiary hearing here.

Affirm.

 

(continued)

(continued)

5

A-2541-07T4

RECORD IMPOUNDED

December 31, 2008