STATE OF NEW JERSEY v. A.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.R.,

Defendant-Appellant.

___________________________________

April 22, 2014

Submitted January 13, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-05-0556.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price-Furfari, of counsel and on the brief).

PER CURIAM

Defendant A.R.1 appeals from the July 2, 2012 order of the Law Division denying his application for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

I.

On May 12, 2004, a Cumberland County grand jury charged A.R. with first-degree aggravated assault, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and fourth-degree lewdness, N.J.S.A. 2C:14-4b(1) (count four). In 2007, following a jury trial, A.R. was found guilty of second-degree endangering the welfare of a child and fourth-degree lewdness, and was acquitted on the remaining charges.

The trial judge imposed an eight year term of imprisonment with four years of parole ineligibility on the second-degree endangering charge, and a concurrent term of eighteen months on the fourth-degree lewdness charge. We affirmed the conviction and sentence on direct appeal. State v. A.R., No. A-6105-07 (App. Div. July 14, 2010). The Supreme Court denied certification. State v. A.R., 205 N.J. 14 (2010).

The following brief statement of facts presented at trial is drawn from our prior opinion:

The charged offenses arose out of multiple instances of sexual contact between defendant and his wife's younger sister, V.C., when V.C. was between the ages of five and nine. The events took place between 1990 and 1993, when V.C. was living in the same Vineland residence with defendant and other family members. Defendant was the only adult in the household who was not employed during this period. As a result, he often served as a babysitter for the four minors in the household, including three of his own children and V.C.

According to the State's proofs, defendant exposed himself to V.C. on several occasions when he was babysitting her and the other children at the family residence. Defendant at times would make V.C. "ride the horse" on his lap, and get her to "model" for him in dresses and bathing suits. The State further alleged that defendant sexually penetrated V.C. and played games with her as a means to commit acts of sexual assault.

V.C. allegedly told her mother, defendant's mother-in-law, about these incidents when she was fourteen, but neither she nor her mother did anything about them at that time. V.C. did not report the incidents to outsiders until several years later when she was in high school. V.C. initially spoke with a student counselor, Angela Stanley, to whom she revealed the abuse after initially denying it. Stanley met V.C. through a mentoring program for students at the local high school. V.C. waited a few more years, until she was eighteen or nineteen, before she finally went to the police and lodged complaints against defendant.

V.C. was the State's primary witness at trial. The State further presented testimony from V.C.'s mother, Stanley, and Steven O'Neill, the Vineland police detective who led the investigation.

Additionally, the State presented testimony from defendant's son Andrew, who had been living in the family residence at the time of the events. In a pretrial statement to the detectives, Andrew told them that defendant had exposed himself to the children during hide-and-seek games. On direct examination in the State's case at trial, however, Andrew denied ever personally seeing defendant expose himself to V.C. The prosecution then used Andrew's prior out-of-court statement for purposes of impeachment. When confronted with the prior statement, Andrew acknowledged that his father did pull his pants down and expose himself to at least one child, although not to the victim in this case, V.C.

In defending against the State's allegations, defendant contended that these incidents of sexual wrongdoing and lewdness did not occur. He did not testify, but he did present the testimony of his eldest daughter, Amy, in his behalf. Amy, like Andrew and V.C., was a minor at the time of these incidents and present while defendant babysat the children. Consistent with Andrew's testimony, Amy denied ever witnessing any sexual contact between defendant and V.C.

Following his conviction, defendant made several unsuccessful motions to the trial court seeking to set aside the verdict. The motions were largely based on a series of post-verdict letters and statements by Andrew, in which he essentially claimed that his trial testimony had been coerced by the prosecutor and his mother, and that his testimony was untruthful. Upon receiving these statements, the trial judge found Andrew's attempted recantations to be insincere and insufficient to warrant a new trial.2

On July 25, 2011, A.R. filed a PCR petition and argued, among other things, that trial counsel was ineffective for failing to file a motion to dismiss the second-degree endangering charge, and for not seeking a judgment of acquittal on the charge at trial. He also argued counsel was ineffective for requesting a jury instruction on the lesser included offense of third-degree endangering the welfare of a child and for failing to object to the jury instructions on the endangering charge. Additionally, A.R. argued that appellate counsel was ineffective for not challenging the indictment and the jury instructions on the endangering charge.

Each of these arguments was based on the assertion that the indictment charging second-degree endangering averred that defendant, "having a legal duty of care for V.C.," engaged in sexual conduct which would impair or debauch the morals of V.C., contrary to N.J.S.A. 2C:24-4a. Defendant argued that his conviction for second-degree endangering "is based on his assumption of responsibility for V.C.," as her babysitter a theory of culpability not contained within the indictment. He conceded that "[w]hile there was evidence that [A.R.] had [a] regular and ongoing supervisory role over V.C. in the form of babysitting, there is no evidence at all to establish he had a 'legal' duty of care over her."

Following oral argument, Judge James R. Swift, Jr., issued a seven-page written opinion denying post-conviction relief. Therein, the judge explained that purpose of an indictment is "primarily to give the defendant notice of the offenses with which he is charged" so that he may prepare a defense. Moreover, Judge Swift stated, in pertinent part:

The defendant was given notice of the crime charged against him, and he was able to prepare an effective defense. The presence of the duty element in the indictment, whether it was "legal duty" or "assumed responsibility", is not an essential element because the existence of either duty elevates the nature of the crime from a 3rd degree offense to a 2nd degree offense. "Legal duty" and "assumed responsibility", though different from one another, are not different enough to substantially prejudice the defendant from being able to prepare a defense to the charge, or "surprise him as the trial unfolded . . . ."

This appeal followed.

II.

On appeal, A.R. raises the following arguments for our consideration:

POINT I: DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF AND WAS ENTITLED TO AN EVIDENTIARY HEARING.

A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

B. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

Having considered these arguments in light of the record and the

applicable law, we affirm essentially for the reasons expressed by Judge Swift in his well-reasoned, written opinion of July 2, 2012. We add only the following.

Post-conviction relief "is a safeguard to ensure that a defendant was not unjustly convicted." State v. Parker, 212 N.J. 269, 278 (2012) (internal quotation and citations omitted). A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. State v. Nash, 212 N.J. 518, 541 (2013). In order to meet this burden, a defendant must articulate specific facts that "would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

To succeed on a PCR petition based on claims of ineffective assistance, a defendant must establish a prima facie case under the "two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant bears the burden of proving "(1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.

Under the first prong, A.R. must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To do so, he must overcome the strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Under the second prong, A.R. must establish that, but for trial counsel's actions or inactions, there is a reasonable probability that the proceeding's outcome would have been different. State v. Hess, 207 N.J. 123, 146 (2011). However, "it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding [because] [v]irtually every act or omission of counsel would meet that test." Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.

"[I]n order to be entitled to an evidentiary hearing, a defendant 'must do more than make bald assertions that he was denied the effective assistance of counsel.'" State v. Petrozelli, 351 N.J. Super. 14, 22-23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). A defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super.at 170.

Here, the indictment charged that A.R., "having a legal duty of care for [the child] . . . knowingly did engage in sexual conduct which would impair or debauch the morals of [the child], contrary to the provisions of N.J.S.A.2C:24-4a . . . ." A.R. argues that because the indictment only charged "legal duty," and because he, as a babysitter, only had, at best, an "assumed responsibility" for the child, the State could not have presented evidence to the grand jury which would have established the element of "assumed responsibility" for a second-degree endangering charge. Accordingly, the indictment was defective, and counsel was ineffective for failing to move to dismiss the charge, according to A.R.

When a claim of ineffective assistance is based on failure to file a motion, in addition to establishing the two prongs of the Strickland/Fritzstandard, defendant must establish that the motion would have been successful. State v. O'Neal, 190 N.J.601, 618-19 (2007) (citing State v. Fisher, 156 N.J.494, 501 (1998)). "It is not ineffective assistance . . . for defense counsel not to file a meritless motion[.]" Ibid.

While it is within a trial court's discretion to dismiss an indictment, the discretion to dismiss on the ground that the evidence before the grand jury was insufficient to sustain the charge is very limited. "Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J.216, 228-29 (1996). An indictment is palpably defective if there is an "absence of any evidence to support the charges[.]" State v. Morrison, 188 N.J.2, 12 (2006). However, "if there is some evidence establishing each element of the crime to make out a prima facie case[,]" then a trial court should uphold the indictment. Id.at 13 (citations omitted).

The endangering statute, N.J.S.A.2C:24-4(a), provides as follows:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1], [N.J.S.A. 9:6-3] and [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

The defendant's control over the victim is not the test for proving second-degree endangerment. Rather, our Supreme Court has interpreted N.J.S.A.2C:24-4 to

apply to those who have assumed a general and ongoing responsibility for the care of the child. That responsibility may be legal and formal or it may arise from informal arrangements. It may be based on a parental relationship, legal custody, or on less-structured relations; or it may arise from cohabitation with the child's parent. The actor, however, must have established a continuing or regular supervisory or caretaker relationship with the child that would justify the harsher penalties of the third-degree crime of child endangerment under N.J.S.A. 2C:24-4. Conversely, a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting, would be chargeable with child endangerment in the fourth degree.

[State v. Galloway, 133 N.J. 631, 661-62 (1993).]

Thus, to prove second-degree endangering beyond a reasonable doubt, the State must prove there was an ongoing supervisory or caretaker relationship between the defendant and victim. Ibid.

The evidence presented at the grand jury proceeding clearly established that A.R. had a "continuing or regular supervisory or caretaker relationship" with V.C., as required by Galloway. The testimony before the grand jury was that,

[t]he victim related that her brother-in-law, [A.R.], on numerous occasions had sexually assaulted her. She went on to state that [A.R.] was given responsibility on numerous occasions to babysit her as well as his other children while the mother and the grandparents weren't around. During that time period, approximately three to five days a week, . . . he would babysit.

The testimony also established that the assaults occurred several times a week over the course of approximately three years while A.R. babysat the victim. The State therefore presented sufficient evidence before the grand jury to support the second-degree offense. Hence, a motion to dismiss the charge would have failed.

Finally, A.R. has not established any prejudice to his defense. One of the purposes of an indictment is to "enable a defendant to know that against which he must defend." State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973), aff d, 64 N.J.566 (1974); State v. LeFurge, 101 N.J.404, 415 (1986) ("an indictment must inform the defendant of the offense charged against him, so that he may prepare his defense"). Here, there is no evidence whatever that A.R. was unable to prepare a defense because of the wording of the indictment.

The remainder of A.R.'s arguments are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).

Affirmed.

1 We utilize initials to protect the privacy of the victim, who is related by marriage to defendant.

2 We utilize initials and pseudonyms to protect the identities of the parties.