STATE OF NEW JERSEY v. MELVIN BATISTA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3856-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN BATISTA,

Defendant-Appellant.

__________________________________

Telephonically Argued: November 15, 2010 - Decided: December 7, 2010

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 96-10-1181.

A. Harold Kokes argued the cause for appellant.

Matthew M. Bingham, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Bingham, of counsel and on the brief).

PER CURIAM

Defendant Melvin Batista appeals from the Law Division's March 22, 2010 order denying his post-conviction relief (PCR) petition following an evidentiary hearing. Defendant had contended his conviction should be vacated because the victim T.V. recanted her earlier statements to the police. We affirm.

In l996, defendant was indicted on charges of second-degree sexual assault and endangering the welfare of a minor for events occurring in l996 involving then-five-year-old T.V. According to an August 4, 1996 police report, officers spoke with T.V. at the emergency room that day where she had been brought by her biological father R.V. regarding a sexual assault. R.V. stated that, following a bath, T.V. had asked him whether boys were supposed to "touch her down there," and when he responded in the negative, she "started to shake and cry" and reported defendant kissed her on the lips and on her "privates." T.V. told a nurse and a Millville police officer that defendant had touched her on her "kitty."

T.V. made a similar statement to members of the Cumberland County Prosecutor's office on October l5, 1996, providing further detail about the incident and elaborating that defendant, her mother's live-in boyfriend,1 had touched her vagina over the top of her clothing "on purpose," it was a "bad touch," and she did not tell her sisters or mother about it. T.V.'s mother, who was present during the interview, stated that, about three weeks prior, T.V. said R.V. had "told her to tell this story." T.V.'s mother expressed the belief that "possibly [R.V.] was attempting to cause trouble for [defendant]," but could offer no substantiation. The investigator reported she questioned T.V. "regarding this area specifically" and the following colloquy ensued:

I asked [T.V.] if she made this story up, to which she replied "no." I asked if her father made up this story and she stated "no." I asked what her father said to her and she said that he told her she "had to tell the police" what happened.

Pursuant to a negotiated plea agreement, on July ll, 1997, defendant pled guilty to the amended charge of third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a. On August 22, 1997, he was sentenced in accordance with the agreement to a three-year term of probation subject to Megan's Law, N.J.S.A. 2C:43-6.4, and no contact with T.V. As noted in the PCR court's written opinion, the plea hearing revealed the plea was entered a week before the scheduled trial, counsel was ready to go to trial, and defendant knowingly and voluntarily chose to plead guilty.2 Defendant had also stated he was pleading guilty and admitted he had "touched the victim's private area, below the belt, her vaginal area." Moreover, at the sentencing hearing, defendant stated, "I feel bad and I am sorry."

Defendant did not appeal his conviction or sentence. On August 31, 2009, defendant filed this PCR petition. Defendant claimed his conviction should be vacated because the victim, then-eighteen years old, had recanted. He relied, in large part, on 2008 transcribed statements of T.V., her mother and a friend, and an April l, 2008 video-recorded statement of T.V., all obtained by the defense investigator and favorable to defendant. Defendant also relied on the February 20, 2009 report of psychologist Phillip W. Esplin, Ed.D., who reviewed a series of documents but did not conduct a face-to-face evaluation of T.V. The expert opined that "[g]iven the totality of the information reviewed, there [wa]s a high probability that [defendant] may be innocent of sexual acts involving [T.V.]." Defendant also certified he pled guilty because he was "frightened" by his trial attorney's advice that he would likely face a state prison sentence if he rejected the State's offer. He further stated that "[s]ince [he] was sentenced, [he has] been haunted by accepting the plea and [he] was placed on life supervision under Megan's Law." Defendant requested an evidentiary hearing, at a minimum, "[b]ecause the alleged victim and the alleged victim's mother have confirmed that they wholly support [him] as is outlined in the exhibits[.]"

An evidentiary hearing was conducted on March l9, 2010, in which T.V., then-nineteen years old, was the only witness who testified. She stated on direct examination that R.V., not defendant, sexually assaulted her in l996. T.V. claimed that defendant, who was like a father to her, never assaulted her. She further stated that, after the assault, she confided in a school counselor following an assembly and the counselor took her to the police station where a statement was taken.

On cross-examination, however, when confronted with a recent statement she made to the defense investigator that her father had raped her when she was ten years old, T.V. acknowledged her father did not assault her when she was aged four or five but, rather, did so when she was aged ten or eleven (which would be around 2001-2002 rather than l996). T.V. also stated she was "scared to death" to make the allegation about her father to her school counselor and police until he moved to Michigan when she was in middle school. T.V. claimed she told those individuals, as well as her mother, that her allegation against defendant was not true; however, T.V. did not officially come forward until 2008.

T.V. acknowledged defendant had lived with her family when she was younger and he was like a father to her. T.V. also said she did not remember: (1) anything that happened when she was four or five; (2) going to the hospital then; or (3) saying defendant touched her. Nor did T.V. recall her father forcing her to make the allegation against defendant, although she "th[ought]" that was what happened because her father did not like defendant because of his relationship with her mother. T.V. concluded with a denial that defendant had ever touched her inappropriately, explaining she "would remember if [defendant] did anything to [her]."

In a comprehensive written opinion dated March 22, 2010, Judge Geiger assessed T.V.'s credibility based on his observations at the evidentiary hearing and his review of T.V.'s videotaped interview, concluding "her testimony was not convincing or persuasive." The judge noted T.V.'s "inability to recall even the most basic facts regarding the alleged incident or the subsequent investigation" during the hearing and found T.V.'s recent claim of coercion by her father did "not rest on [her] own independent recollection, but rather on information provided by her mother." The judge further noted that during the defense interview, T.V. made no reference to the purported coercion by her father and provided no explanation for the significant delay in coming forward with her recantation. The judge also found suspect the fact that T.V. waited more than a decade after defendant was sentenced to inform him she was recanting her testimony given their close relationship.

The judge thus found T.V. did not satisfactorily explain the extraordinary delay in coming forward. He was further convinced T.V.'s vague testimony at the hearing did "not affirmatively contradict" what she told the police in l996 or "cast serious doubt upon the truth of her statements to the police or [] defendant's admissions during his plea hearing." Accordingly, the PCR judge concluded defendant had not met his burden of demonstrating that T.V.'s current testimony was probably true and her prior allegations to law enforcement were probably false so as to constitute newly discovered evidence warranting PCR relief. See State v. Ways, 180 N.J. l7l, 191-92 (2004); State v. Carter, 69 N.J. 420, 427 (1976). The denial of defendant's PCR petition was memorialized in an order of the same date, after which defendant appealed.

On appeal, defendant argues he has presented sufficient "exceptional circumstances" to overcome the five-year bar for PCR relief pursuant to Rule 3:22-12. He urges that the material evidence was not available to him until a decade after his plea and sentence, after which he diligently contacted an expert and proceeded with his PCR petition. Defendant further contends the totality of the evidence, particularly in view of the expert report and T.V.'s young age at the time of the alleged incident, does not support the PCR judge's credibility assessment and factual findings.

Based on our review of the record and applicable law, we find defendant's arguments unpersuasive. We affirm substantially for the reasons articulated by the PCR judge, with the addition of the following brief comments.

Defendant has failed to establish excusable neglect for his significant delay in filing the PCR petition. See State v. Afanador, 151 N.J. 41, 52 (l997); State v. Mitchell, 126 N.J. 565, 580 (l992). We first note defendant never asserted his innocence in the certifications presented to Judge Geiger. Nonetheless, if we assume for the sake of argument defendant pled guilty to a crime he did not commit, then he was aware of this fact immediately upon entering his guilty plea. No credible explanation is provided for his twelve-year delay in moving for PCR relief. Nine months before defendant entered his guilty plea, T.V.'s mother made a statement to a prosecutor's investigator, provided to the defense in discovery, in which she challenged her daughter's accusation against defendant as the product of coercion by R.V. because of the animosity between the two men. Additionally, according to T.V.'s testimony at the evidentiary hearing, when she was in middle school, after R.V. had moved to Michigan, she informed her mother of R.V.'s purported rape and her false allegation against defendant. Considering T.V.'s and her mother's close relationship with defendant, it strains credulity to believe either or them would have waited another six years to inform defendant of T.V.'s recantation potentially exculpatory evidence.

Judge Geiger had the ability to observe T.V.'s demeanor at the evidentiary hearing, after which he made detailed credibility assessments. We are also satisfied the judge's credibility and factual findings are entitled to deference and clearly supported by the record. State v. Johnson, 42 N.J. 146, 161 (l964). Accordingly, we discern no basis to disturb the

denial of defendant's PCR petition.

1 Defendant and T.V.'s mother were the parents of a daughter.

2 The PCR judge's articulation of the record comports with the video-recorded plea and sentencing hearings.