STATE OF NEW JERSEY v. MIKE MCKANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05253-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIKE MCKANE,

Defendant-Appellant.

_________________________________

December 12, 2013

Submitted October 21, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-07-1115.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Defendant was convicted following a jury trial of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree robbery, N.J.S.A. 2C:15-1; and second-degree burglary, N.J.S.A. 2C:18-2. At sentencing, the trial court granted the State's application to impose an extended term upon defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). On count three, which charged first-degree aggravated sexual assault, the judge sentenced defendant to a fifty-year term of incarceration, subject to an 85% term of parole ineligibility pursuant the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining counts were merged with count three.

We recount the relevant facts of these crimes, as stated in our opinion, State v. McKane, No. A-1300-09 (App. Div. October 15, 2010) (slip op. at 3-6), affirming the convictions,1

In the early hours of December 17, 2005, after returning to her first-floor apartment in Jersey City from an office Christmas party and a very brief date, the victim, G.B., became immersed in online computer activities. Suddenly, an uninvited male emerged from the bedroom. The stranger -- clad in all black and wearing a ski mask or hood drawn close to his face -- approached where G.B. was sitting. The individual made a gesture as if he were carrying a gun, and then demanded "something along the lines of where is the money." As the perpetrator grabbed G.B. by the throat and forced her into the kitchen, she gave defendant three hundred-dollar bills from a coffee cup. A struggle ensued as the man pushed G.B. back into the living room, all the while holding her throat, making it difficult for her to breathe and speak. The attacker then began to sexually assault G.B. She was able to convince him to put on a condom, after which he proceeded to rape G.B. for approximately forty minutes.

Once the assault concluded, the intruder attempted to have a conversation with G.B. to the point of apologizing for breaking into her apartment. He also went into the kitchen to help himself to some food and water. The victim was able to retain the Poland Spring bottle defendant drank out of for evidence, in addition to recovering the condom defendant used during the rape. Shortly thereafter, the assailant left the apartment through G.B.'s bedroom window.

Thirty minutes after the attack, the victim called 9-1-1. After the police arrived, she explained what had happened and was subsequently taken to the hospital where a medical examination was conducted and evidence -- using a rape kit -- was gathered. A nurse observed that there were marks on G.B.'s neck consistent with choking, and that there was redness and swelling of the vaginal area, consistent with traumatic sexual intercourse. G.B. was subsequently released from the hospital suffering from pain in her neck and left shoulder, and with a sore throat.

Several months passed while the assailant remained at large. In 2007, through the Combined DNA Index System (CODIS), the December 17, 2005 rape was linked to defendant, who was then confined in South Woods State Prison on an unrelated crime. The indictment was returned on July 3, 2007, and the trial commenced less than one year later, in June 2008.

At trial, the State presented evidence that the DNA evidence collected from the rape kit, water bottle, and condom matched that of defendant. The defense attempted to impeach the victim's credibility by noting that she did not call the police right away after the sexual intercourse, and that there were several inconsistencies in her story between what she told the police and what she testified to at trial. Additionally, the defense sought to introduce emails that G.B. had distributed in the days immediately after her rape, referring to her then-unknown attacker as a "savage" and a "sub-human coon." The trial court excluded such evidence for its lack of probative value and its capacity to engender confusion and undue prejudice.

The defense also sought to introduce testimony from Hudson County Prosecutor's Office Detective Shonda Rosario, who was unavailable at the time of the trial. Detective Rosario had prepared an unsworn narrative summary compiled at the scene of the crime in which it was reported that defendant and victim remained lying in bed after the rape, chatting with one another. Such evidence, according to the defense, would raise reasonable doubt regarding the consent element of the State's case against defendant for rape. Defendant requested a short adjournment of the trial in order to obtain the testimony of this unsubpoenaed witness, but the trial court denied such request, determining that the testimony was merely tangential to the case.

On appeal, defendant contended, among other things, that the trial judge denied defendant his "right to confront the State's case against him and produce impeaching evidence" by denying his counsel's request for an adjournment to enable her to subpoena Detective Rosario to testify.2 We disagreed and, after noting trial counsel's failure to subpoena Detective Rosario, opined, in pertinent part:

defendant's right to present evidence in his defense was not curtailed in this case. The victim testified at trial that she and the defendant had a conversation after the sexual assault, but flatly denied during extensive cross-examination lying in bed with him afterwards. Additionally Lieutenant Honey Spirito, Detective Rosario's supervisor, testified for the State. During cross-examination, the lieutenant indicated that the report prepared by Detective Rosario made reference to the victim's statement that G.B. and defendant remained in bed talking, but this was not a direct quotation, just a summary of the victim's discussion with the detective. Thus, the jury was well aware of the circumstances that existed immediately following defendant's sexual congress with G.B. Detective Rosario's testimony would have been cumulative. More importantly, defendant has never indicated how the addition of the detective's testimony might have "led the jury to a result it otherwise might not have reached." [State v.] Macon,[] 57 N.J. [325], 336 [(1971)].

[slip op. at 12-13.]

Defendant filed a timely PCR petition in which he alleged ineffective assistance of counsel based, among other things, on trial counsel's failure to have subpoenaed Detective Rosario. Defendant argued that Detective Rosario "would have testified that after having sex, [defendant] and the victim laid in bed and talked[,] impl[ying they] had a consensual relationship."

On January 12, 2012, the trial judge denied defendant's PCR petition without an evidentiary hearing. In his written opinion, the trial judge stated that "[t]his issue was already adjudicated on direct appeal" and, citing State v. McQuaid, 147 N.J. 464 (1997), held that defendant may not "re-litigate a claim already decided on the merits."

This appeal followed.

II.

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL ARISING OUT OF HER FAILURE TO SUBPOENA A POLICE OFFICER WHO WOULD HAVE BEEN EXTREMELY BENEFICIAL TO THE DEFENSE, AS A RESULT OF WHICH THE TRIAL COURT DENIED TRIAL COUNSEL'S MOTION FOR A CONTINUANCE TO ENABLE HER TO CALL THE OFFICER AS A WITNESS.

POINT II: THE TRIAL COURT ERRED IN DENYING THE PRIMARY CONTENTION RAISED BY THE DEFENDANT IN HIS PETITION FOR POST CONVICTION RELIEF ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

The standards that guide our review are well-known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(e)(2) (providing that the court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative").

"To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits."). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).

Guided by these principles, we affirm the denial of defendant's petition for PCR. First, we observe that the trial judge denied defendant's request for an adjournment for several reasons other than the mere failure to have subpoenaed the detective. The judge explained that the testimony of the detective is "so tangential" given that defense counsel at trial had confronted the alleged victim with the statement, to which the victim demurred and stated that defendant "sat up" and she "propped herself up" in the bed.

As we have noted, prejudice is not presumed, and a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Here, it is specious to suggest that the slight inconsistency between the victim's characterization of whether defendant was reclining or "sat up" after he attacked her would have made the slightest difference in the outcome of the trial.

Further, aside from the failure of defendant to establish his right to relief under the second prong of the Strickland standard, the State argues that defendant's reliance on this claim in bringing his PCR petition is procedurally barred. We agree. Rule 3:22-5 bars a petitioner from asserting as a ground for PCR, any claim previously adjudicated on the merits. State v. McQuaid, 147 N.J. 464, 484 (1997) (stating Rule 3:22-5 bars PCR claims that are "identical or substantially equivalent" to claims raised on direct appeal). New Jersey's public policy aims "'to promote finality in judicial proceedings,'" and, therefore, requires enforcement of the various procedural bars to PCR petitions. State v. Hess, 207 N.J. 123, 171 (2011) (Rivera-Soto, J., dissenting) (quoting State v. Echols, 199 N.J. 344, 357 (2009)).

Here, defendant had argued on direct appeal that the trial judge erred in denying the request of defendant's counsel for an adjournment to secure the testimony of Detective Rosario. We thoroughly considered whether that denial prejudiced defendant in any way, and we concluded it had not. Accordingly, to the extent that defendant's present appeal is predicated upon a showing that he was prejudiced by the absence of Detective Rosario's testimony, that claim, having already been decided against defendant in a prior appeal, may not be raised here. Rule 3:22-5.

Affirmed.

1 Defendant's petition for certification was subsequently denied by the Supreme Court. State v. McKane, 205 N.J. 273 (2011).

2 We reference this issue because it is germane to the issue we now address on defendant's appeal from the denial of his PCR petition.