STATE OF NEW JERSEY v. E.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4851-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.M.,

Defendant-Appellant.

December 20, 2010

Submitted November 1, 2010 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-15-0491.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant E.M. appeals from the December 15, 2008 denial of his post-conviction relief (PCR) petition. For the reasons that follow, we affirm.

After a trial by jury, defendant was sentenced to an aggregate eight years in prison on January 6, 2006. The trial judge imposed a five-year custodial term on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and two concurrent but consecutive three-year terms of imprisonment on two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) and N.J.S.A. 2C:2-6. Defendant's direct appeal was denied in an unpublished opinion dated May 29, 2007. State v. E.M., No. A-3665-05 (App. Div. May 29, 2007). The Supreme Court denied certification. State v. E.M., 195 N.J. 519 (2008).

On July 24, 2008, defendant filed a pro se petition for PCR. Counsel was thereafter assigned and filed a brief on defendant's behalf. On December 15, 2008, the PCR judge rendered an oral decision denying defendant's motion.

The facts will not be recounted at length as they are fully described in the direct appeal opinion. It is necessary to explain, however, that defendant's charges arose from an evening he and his co-defendant, M.G., both of whom were adults, spent in the company of a fifteen-year-old and her fourteen-year-old step-sister. Defendant and co-defendant consumed alcohol during the encounter, and supplied the teenagers with alcohol. Defendant and his co-defendant encouraged the girls to engage in sexual acts with each other, and then they engaged in sexual conduct with them.

The co-defendant entered into a favorable plea bargain and testified for the State at defendant's trial; the victims also testified. At defendant's request, the trial court gave the Model Jury Charge regarding voluntary intoxication despite the fact that the only proofs on the subject came from the State's witnesses. Defendant did not submit an expert's report.

Defendant raises the following points:

POINT I

COUNSEL'S FAILURE TO ADEQUATELY PREPARE A DEFENSE OF DIMINISHED CAPACITY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF

POINT II

DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO IMPROPER CHARGES THAT LED TO CONFUSION ON THE PART OF THE JURY AND VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL

POINT III

A CONFLICT OF INTEREST AROSE ON [THE] PART OF CODEFENDANT'S COUNSEL WHEN COUNSEL SPOKE DIRECTLY TO DEFENDANT REGARDING THE FACTS OF THE CASE AND THEN DISCLOSED HE WAS REPRESENTING CODEFENDANT[,] PREJUDICING DEFENDANT'S ABILITY TO PRESENT A VIABLE DEFENSE OR FAIRLY NEGOTIATE A PLEA OFFER

POINT IV

DEFENDANT AND CODEFENDANT'S SENTENCES WERE SO DISPARATE BY WAY OF SELECTIVE PROSECUTION AS TO RENDER THEM ILLEGAL

POINT V

REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL

Under the familiar test against which claims of ineffective assistance of counsel are measured, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Unless a prima facie case of ineffective assistance is established, a defendant is not entitled to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

a.

Defendant asserts that his counsel was ineffective because he failed to raise the defense of diminished capacity. In order to establish that counsel's performance was deficient, however, more than "bald assertions" must be proffered. Cummings, supra, 321 N.J. Super. at 170.

We note that in this case, even without the benefit of an expert or proofs of consequence, defendant's attorney convinced the trial court to charge the intoxication defense. The only basis was the co-defendant's and the victims' testimony that everyone had been drinking that evening. See N.J.S.A. 2C:2-8 (requiring a defendant to meet the "prostration of faculties" test).

During the course of the evening defendant and his co-defendant drove the teenage victims to a liquor store and then to a motel. They subsequently took them home. Defendant's statement to police describing the relevant events was as detailed, and was entirely consistent with, the statements separately given by the co-defendant and the victims. One of the victims testified at trial that after engaging in sexual conduct with her, defendant said he was a "bad man" and that "it was all a mistake basically." Nothing about defendant's conduct or his recollection of the evening indicates circumstances which would support a diminished capacity defense. Therefore the assertion that defense counsel was ineffective because he did not present a defense of diminished capacity is a mere bald assertion. See Cummings, supra, 321 N.J. Super. at 170. Defendant has not identified any facts which would even tend to prove that he was unable to act "purposely and knowingly," the mental state required by the relevant statutes. It is not reasonably probable that but for counsel's omission, the outcome of the proceeding would have been different. The only factor which supports defendant's claim is his undisputed consumption of alcohol, but that alone is insufficient.

Defendant also contends that the PCR court denied him enough time in which to investigate the diminished capacity defense. The matter was assigned to counsel in August 2008. The PCR hearing was not actually conducted until December 15, 2008. No expert was retained despite the passage of four months. Two months elapsed between the August assignment and the first case management conference scheduled on October 31, 2008. The matter was then set down to be heard on December 15. Counsel was afforded ample time in which to prepare.

b.

On direct appeal we addressed defendant's claim that the court improperly instructed the jury as to the meaning of "endangering the welfare of a child." Defendant argued that although the judge defined sexual conduct, he erroneously omitted defining "abused or neglected" as used in the statute. N.J.S.A. 2C:24-4(a). Defendant reasserted this claim in his PCR application. As the PCR court stated, "that was an area that was firmly and completely dealt with by the Appellate Division in this particular case." Further consideration of the issue is therefore barred by Rule 3:22-5, which provides that a prior adjudication upon the merits is dispositive.

c.

Defendant also contends that a conflict of interest prejudiced the outcome of his case because he had an approximately thirty-minute initial consultation with his co-defendant's attorney about these charges. We do not agree.

No specific prejudice is asserted, other than defendant's speculation that the co-defendant received a favorable plea bargain because of the information defendant imparted during that brief interview. Nothing in the record supports this claim either. The argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

d.

Defendant also asserts that he and his co-defendant received such disparate sentences "by way of selective prosecution as to render them illegal." He attributes the difference in sentences to the co-defendant's step-father's employment as an assistant prosecutor in the county where the incident occurred. Actually, because of this conflict, the entire matter was investigated and prosecuted by the Attorney General's office and was transferred to another county. This issue was also raised on direct appeal. In response we said, "[d]efendant, a trusted family friend of the children and their father, took a fourteen-year-old and a fifteen-year-old out driving, plied them with liquor, encouraged them to commit sexual acts with each other, and then digitally penetrated one of the girls." The issue was previously raised and need not be addressed again. See R. 3:22-5.

e.

Defendant's final point is that an evidentiary hearing should have been conducted because he established a prima facie case of ineffective assistance of counsel. The motion judge rejected two of defendant's PCR claims because they were already considered on direct appeal. He rejected the remainder of defendant's contentions because they lacked factual or legal support. Having failed to establish a prima facie case, defendant was not entitled to an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63; see also Cummings, supra, 321 N.J. Super. at 169-70. Hence the motion judge's refusal to grant the request for an evidentiary hearing was correct.