STATE OF NEW JERSEY v. EUGENE LUCENTE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0596-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE LUCENTE,

Defendant-Appellant.

_____________________________

December 14, 2011

 

Submitted November 15, 2011 - Decided

 

Before Judges Reisner and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 96-09-0836.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Eugene Lucente1 appeals from a March 22, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

I

In 1997, a jury convicted defendant of committing repeated sexual assaults on a child who was twelve and thirteen years old when the assaults occurred. The trial evidence need not be described in detail here. To summarize, defendant exploited his position as a trusted adult to get the minor alone on numerous occasions, including taking the child to a motel, and forced the child to engage in various sexual acts. Defendant was sentenced to an aggregate term of thirty years in prison.

On his direct appeal, he argued that the trial judge should only have submitted one count of endangering the welfare of a child to the jury; that a detective should not have been permitted to testify as an expert in handwriting analysis pertaining to defendant's signature on a motel register; and that the court should not have imposed consecutive fifteen-year sentences.

In affirming the conviction, we found the first two arguments to be without sufficient merit to require discussion. State v. E.C.L., No. A-2376-97 (App. Div. Jan. 28, 1999) (slip op. at 18). After a lengthy discussion of the evidence, we upheld the sentence, reasoning that "defendant callously and cruelly orchestrated his sexual depravities on this young victim over many months" and this "persistent conduct over a two-year period was without excuse or mitigation." (slip op. at 17). The Supreme Court denied certification. State v. E.C.L., 160 N.J. 475 (1999).

Defendant filed his first PCR petition in 2002. His PCR counsel raised the following issues on defendant's behalf:

POINT I: DEFENDANT IS ENTITLED TO A NEW TRIAL UNDER RULE 3:22-1 BECAUSE HIS CONVICTION WAS OBTAINED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

 

POINT II: TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO DISMISS THE INDICTMENT BASED UPON GROSSLY FALSE AND MISLEADING TESTIMONY THAT WAS PRESENTED TO THE GRAND JURY DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT III: TRIAL COUNSEL'S FAILURE TO CONDUCT PROPER INVESTIGATION AND TO QUESTION VARIOUS HOTEL EMPLOYEES ABOUT WHETHER THEY COULD IDENTIFY DEFENDANT VIOLATED DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT IV: TRIAL COUNSEL'S FAILURE TO INVESTIGATE THE SIGNATURE ON THE REGISTRATION CARD FOR THE PINE BROOK HOTEL AND FAILURE TO CALL A HANDWRITING EXPERT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO A FAIR TRIAL, AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT V: IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT'S APPELLATE COUNSEL FAILED TO RAISE ON APPEAL NUMEROUS SUBSTANTIAL ISSUES THAT SERIOUSLY CALL INTO QUESTION THE VALIDITY OF DEFENDANT'S CONVICTION.

 

A. Defendant's Appellate Counsel['s] Failure To Raise On Appeal The Improper Admission Of Fresh Complaint Testimony And The Improper Instruction To The Jury Regarding Fresh Complaint Testimony Violated Defendant's Federal and State Constitutional Right To The Effective Assistance of Counsel.

 

B. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Denying Defendant's Request For A Mistrial After Detective Richard Warnett Testified Concerning A Positive Finding Of An Ultraviolet Light Test Violated Defendant's Federal And State Constitutional Right To The Effective Assistance of Counsel.

 

C. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Permitting The State To Reopen Its Case To Allow Another Witness To Offer Foundation Testimony Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

 

D. Appellate Counsel's Failure To Raise On Appeal That The Jury's Guilty Verdict Was Against The Weight Of The Evidence Produced By The State At Trial Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

After an evidentiary hearing, Judge Langlois, who had also presided over defendant's trial, denied the petition. She explained her reasons in an eleven-page written opinion issued on May 15, 2003. In particular, she found that defendant's former trial attorney had credibly explained his investigative and trial strategy, which she concluded was sound, and she found no merit in defendant's claims that his appellate counsel was ineffective. Defendant appealed from the denial of his first PCR petition, raising the following appellate issues:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECUSAL WHERE COMMENTS MADE BY THE TRIAL COURT JUDGE MAKE CLEAR THAT SHE HAD FORMED AN OPINION AS TO DEFENDANT'S GUILT AND COULD NOT, THEREFORE, OBJECTIVELY EVALUATE THE TESTIMONY ADDUCED AT THE EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, DEFENDANT DEMONSTRATED THAT HIS TRIAL AND APPELLATE COUNSELS WERE INEFFECTIVE.

 

POINT III

THE TRIAL COURT ERRED IN FINDING THAT TRIAL COUNSEL'S FAILURE TO CONDUCT A PROPER INVESTIGATION AND TO QUESTION VARIOUS HOTEL EMPLOYEES ABOUT WHETHER THEY COULD IDENTIFY DEFENDANT DID NOT VIOLATE DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT IV

 

TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO DISMISS THE INDICTMENT BASED UPON GROSSLY FALSE AND MISLEADING TESTIMONY THAT WAS PRESENTED TO THE GRAND JURY DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT V

 

THE TRIAL COURT ERRED IN FAILING TO FIND THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHERE, AS HERE, DEFENDANT'S APPELLATE COUNSEL FAILED TO RAISE ON APPEAL NUMEROUS SUBSTANTIAL ISSUES THAT SERIOUSLY CALL INTO QUESTION THE VALIDITY OF DEFENDANT'S CONVICTION.

A. Defendant's Appellate Counsel's Failure To Raise On Appeal The Improper Admission Of Fresh Complaint Testimony And The Improper Instruction To The Jury Regarding Fresh Complaint Testimony Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

 

B. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Denying Defendant's Request For A Mistrial After Detective Richard Warnett Testified Concerning A Positive Finding Of An Ultraviolet Light Test Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

 

C. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Permitting The State To Reopen Its Case To Allow Another Witness To Offer Foundation Testimony Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

 

D. Appellate Counsel's Failure To Raise On Appeal That The Jury's Guilty Verdict Was Against The Weight Of The Evidence Produced By The State At Trial Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.

 

We rejected all of defendant's contentions and affirmed the denial of his first PCR petition. State v. Lucente, No. A-5685-02 (App. Div. June 15, 2004). Once again, the Supreme Court denied certification. State v. Lucente, 182 N.J. 144 (2004).2

In 2008, defendant, acting pro se, filed a second PCR petition, raising issues that he contended his first PCR counsel failed to raise.3 See State v. Rue, 175 N.J. 1 (2002). Judge Ahto directed that counsel be assigned to represent defendant on this petition, noting that "without assignment of counsel to explain what has already occurred and the significance, the same issues may continuously be relitigated." Defense counsel and the State filed briefs on the second petition, and Judge Maenza heard oral argument on March 15, 2010.

After hearing defense counsel's presentation, Judge Maenza also permitted defendant to present arguments on the record. Among other things, defendant argued that his trial counsel misadvised him about the wisdom of accepting a pre-trial plea offer. However, on questioning by Judge Maenza, defendant admitted that he would have refused that plea offer regardless of what advice his attorney gave him, because he insisted that he was innocent.

At the hearing, defendant also sought to re-argue the issue of his trial attorney's failure to ask the motel employees if they could identify defendant. However, as Judge Maenza noted, that issue was fully explored at the evidentiary hearing before Judge Langlois, who decided that counsel was pursuing a sound trial strategy. Defendant further contended that his counsel failed to thoroughly investigate his alibi.

In a lengthy oral opinion placed on the record on March 15, 2010, Judge Maenza confirmed that in addition to the brief filed by defendant's attorney, he would consider defendant's pro se PCR petition, even though it was not "an affidavit or submitted in certification form." The judge then considered and rejected defendant's argument that his trial counsel's opening statement was ineffective in appearing to condemn defendant's conduct. The judge found that counsel's argument was an effective and clever way of emphasizing to the jury that "although the Prosecutor gave a great opening statement, the State's case hinged entirely on the credibility of the testimony of the victim."

He found that defendant had failed to produce any evidence as to what character witnesses would have said if they had been called to testify. Therefore, defendant had not produced proof of ineffective assistance on that point. He also found no merit in defendant's argument that his counsel should have had him take a polygraph, because, absent a stipulation by the State, that evidence would have been inadmissible at trial. See State v. Domicz, 188 N.J. 285, 313-14 (2006). Defendant also did not produce any polygraph test results to show that he could have passed a polygraph examination. Judge Maenza rejected the argument that defense counsel should have obtained a report from a handwriting expert, noting that this issue had been tried and decided adversely to defendant in the first PCR proceeding. The defense handwriting expert was unable to issue a report favorable to defendant and therefore defense counsel wisely refrained from asking her to issue a report, which he then would have had to turn over to the State.

The judge also rejected defendant's argument about his counsel's failure to obtain a forensic expert concerning the absence of semen in defendant's vehicle, one of the locations where the victim testified an assault occurred. An expert could have done no more than agree with the State's concession that no semen was found. The judge noted that defendant's trial counsel sensibly pursued a strategy of arguing the weaknesses in the State's case, without exposing to the jury possible weaknesses in the defense. The judge also found that defendant produced no evidence in support of his PCR argument that evidence (i.e., a briefcase filled with sexual aids) might have been planted in his car. The judge found that this argument was purely speculative. He further found no evidence that the victim testified that defendant made phone calls outside the car and, therefore, evidence that defendant's car phone was not removable was irrelevant.

Next, the judge rejected defendant's arguments about the plea offer, because defendant could not be permitted to perjure himself by pleading guilty while maintaining his innocence. He also found no evidence in any of the transcripts that the State actually extended the plea offer defendant claims it made. Based on the thorough voir dire of defendant at his trial, on the issue of whether he wanted to testify, Judge Maenza also considered and rejected defendant's claim that his counsel told him he could not testify at his trial. Judge Maenza further concluded that defense counsel effectively cross-examined the child victim at trial. He found no proof that defense counsel failed to accompany defendant to the pre-sentence investigation meeting, but also found no proof that any alleged failure caused prejudice to defendant. Contrary to defendant's argument, Judge Maenza found that trial counsel did plead with the sentencing judge to impose concurrent rather than consecutive sentences.

He further rejected defendant's arguments about misconduct in the Grand Jury, noting that Judge Langlois already considered and rejected those contentions. He also found that there simply was no meritorious basis to file a motion to dismiss the indictment. And even if the indictment had been dismissed, the State could have re-indicted defendant.

He also found defendant offered only "bare assertion[s]" concerning his counsel's failure to excuse two jurors. Judge Maenza rejected defendant's argument that his attorney should have asked several motel employee witnesses whether they recognized defendant. The judge found that, instead of asking the witnesses that question, at the risk of receiving an unhelpful answer, defense counsel wisely used his summation to simply assert that none of the witnesses had identified defendant.

Judge Maenza found that defendant had already unsuccessfully raised on his first PCR petition the issue of his appellate attorney's alleged ineffective assistance. He agreed with Judge Langlois that the trial judge had discretion to allow the State to reopen its case to present additional testimony from Officer Sklareski, and even if appellate counsel had challenged that decision on appeal, defendant would have lost.

Judge Maenza held that defendant's next argument, that his first PCR counsel was ineffective in failing to raise all of defendant's arguments, was moot, because Judge Ahto had allowed defendant to assert those arguments in a second PCR petition that otherwise would have been time-barred. He then considered and rejected on the merits defendant's arguments about the "failure to establish a timeline; failure to get a date stamp, failure to investigate the card itself with the time stamp; failure to obtain various documents relating to Officer Sklareski, which would tend to impeach his credibility." The judge concluded those did not represent errors by counsel, but rather were matters of trial strategy.

He found no evidence that Judge Langlois was biased against defendant, noting that she held an evidentiary hearing on his PCR petition, and she gave the jury a fair definition of "sexual contact" in response to the jury's question. He noted that it was standard practice for the trial judge to also hear a defendant's PCR petition. Judge Maenza also found no cumulative error. Finally, he noted that an evidentiary hearing was not required, because defendant had not established a prima facie case of ineffective assistance.

Although the judge had just addressed and adjudicated the merits of all of defendant's PCR arguments, the prosecutor asked him to also rule that any of defendant's arguments that had already been litigated on his prior appeals were also procedurally barred. However, the prosecutor did not specify the issues to which he was referring. As a general matter, Judge Maenza indicated his agreement that arguments that had been raised and decided on appeal could not then be re-litigated in a future PCR petition.

II

On this appeal, defendant raises the following points for our consideration:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S RIGHT TO THE STATE V. RUE HEARING THAT WAS ORDERED TO BE HELD ON HIS UNRAISED PRO SE ISSUES WAS VIOLATED BY THE PCR COURT'S FAILURE TO CONDUCT A FULL EVIDENTIARY HEARING.

 

POINT II: SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

 

POINT III: THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

POINT IV: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF IN SUPPORT OF POST-CONVICTION RELIEF.

A. Trial Counsel Was Ineffective For Failing To Request A Voir Dire Of Two Jurors.

 

B. Trial Counsel Was Ineffective For Failing To Request A Polygraph.

 

C. Trial Counsel Was Ineffective For Failing To Challenge The Alleged Signature Of Defendant.

 

D. Trial Counsel Was Ineffective For Failing To Refute Testimony Concerning The Car Phone.

 

E. Trial Counsel Was Ineffective For Failing To Object To The Trial Court's Response To Questions From The Jury.

 

F. Trial Counsel Was Ineffective for Failing To Appear At The Defendant's Presentence Interview.

 

G. Trial Counsel's Testimony In Post-Conviction Relief Biased And Untruthful.

 

H. Trial Counsel Was Ineffective For Failing To Present An Alibi Defense At Trial.

 

I. The Defendant's Right To A Fair Trial Was Prejudiced By Prosecutorial Misconduct And Untruthful Testimony.

 

J. Trial Counsel's Cross-Examination Was Deficient.

 

K. Post-Conviction Relief Counsel Was Ineffective.

 

L. Appellate Counsel Was Ineffective.

 

M. The Appellate Division Erred.

POINT V: THE PCR COURT MISAPPLIED THE PROCEDURAL BAR OF RULE 3:22-5 IN DENYING POST-CONVICTION RELIEF.

 

These arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Maenza's comprehensive opinion. We add the following comments.

We find no merit in defendant's argument in Point I that, because the Judge Langlois gave him an evidentiary hearing on his first PCR petition, Judge Maenza was obliged to do the same for the second PCR petition. Whether an evidentiary hearing is warranted depends on what issues a defendant raises and what evidence he produces in support of his arguments. A defendant is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992). To present a prima facie case, defendant must present legally competent evidence and not "bald assertions." State v. Cummings, 321 N.J Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). In this case, we agree with Judge Maenza that defendant raised issues that were speculative and unsupported by legally competent evidence. Therefore, no evidentiary hearing was required.

Likewise, in his appellate Points II and III, defendant raises the same kinds of unsupported assertions that he raised before Judge Maenza. His Point IV reasserts arguments that the judge properly rejected for reasons set forth in his opinion.

Finally, we disagree with defendant that Judge Maenza denied post-conviction relief based on "the procedural bar of Rule 3:22-5." To the contrary, Judge Maenza considered the merits of defendant's PCR arguments. To the extent he found that Judge Langlois had already decided certain issues, he specified those issues in his opinion. His general comment, in response to the prosecutor's general request that he apply the bar of Rule 3:22-5 to certain arguments (which the prosecutor failed to enumerate), was dicta which we decline to further address here.

Affirmed.

1 Since it is unnecessary to include any identifying details about his minor victim in this opinion, we use defendant's full name, although we have impounded the record to protect the victim's identity.

2 In 2006, defendant filed a federal petition for a writ of habeas corpus, which was denied. See Lucente v. State, Civil No. 05-5186, Order Denying Reconsideration (D.N.J. January 11, 2006).

3 Defendant captioned his pro se issues as: 1) Trial Opening Statement; 2) Grand Jury Testimony; 3) Jury Selection; 4) Polygraph; 5) Plaintiff's Testimony on Defendant's Alleged Signature; 6) Car Phone; 7) Car Not Kept in Secure Lot; 8) Pine Brook Motel, Sanjay Gupta, N.K.D. (no key deposit); 9) Jury Deliberation (four sub issues); 10) Presentation Report at Sentencing; 11) Sentencing Consecutive; 12) Character Witness; 13) Fee Arbitration; 14) Defendant's Testimony; 15) Plea; 16) Time Line-Time Clock; 17) Recusal 18) Ultra Violet Light; 19) Plaintiff testimony, Prosecutor Misconduct; 20) Plaintiff Lied to Police; 21) Plaintiff's Testimony; 22) Cross of Plaintiff; 23) Fresh Complaint; 24) Officer Edward Sarnisky (sic); 25) Reopen Case; 26) Signature; 27) Evidentiary Hearing; 28) Witnesses; 29) Appellate Court; 30) Illegal Search Warrant; 31) Post Conviction Relief; 32) Registration Card and Witnesses. Defendant's appendix contains an unsigned copy of an order, which counsel represents Judge Ahto later signed, setting forth the following somewhat more limited list of issues to be raised in the second PCR proceeding: issues 1, 3 through 7, 9 through 16, 19 through 22, 24, 27, 29, and 30 through 32.