STATE OF NEW JERSEY v. J.S.

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NOT FOR PUBLICATION WITHOUT THE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.

J.S.,

Defendant-Appellant.

May 20, 2014

Submitted April 1, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1466.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Acting Assistant Prosecutor/ Special Deputy Attorney General, of counsel; Matthew P. Tallia, of counsel and on the brief).

PER CURIAM

Defendant J.S. appeals from the November 13, 2012 Law Division order denying his conviction for post-conviction relief (PCR). We affirm.

A jury found defendant guilty1 of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) (counts one and two), four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) and N.J.S.A. 2C:14-2(c)(4) (counts five, six, seven, and eight), two counts of second-degree child endangering, N.J.S.A. 2C:24-4(a) (counts nine and ten), one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count eleven), two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts twelve and thirteen), and one count of fourth-degree contempt, N.J.S.A. 2C:29-9 (count fourteen). On the first-degree sexual assault, the trial judge sentenced defendant to two consecutive twelve-year terms subject to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2. She merged the remaining counts, except for the two counts of child endangering and the single contempt count. On the child endangering, the judge imposed consecutive terms of imprisonment of seven years, concurrent to the first-degree aggravated assault sentences, and on the contempt she imposed a three-month sentence also consecutive to the first-degree aggravated sexual assault sentences. Thus the aggregate term was twenty-four years, three months, of which twenty-four years were subject to NERA.

On appeal we affirmed the convictions, but for a minor correction to the actual judgment of conviction itself to conform with the judge's sentence. State v. J.S., No. A-1603 07 (App. Div. Apr. 14, 2010).

The charges resulted from defendant's sexual offenses committed against his two daughters between the Spring of 2004 and July 17 or 18, 2006. Both girls, who were fifteen and thirteen by the time of trial, testified in detail regarding defendant's sexual assaults and conduct over the relevant two-year period. The sexual conduct included penetration.

Defendant had only one prior conviction, a drug possession offense committed in 1991.2 As a result of a Sands3 hearing, that prior conviction was ruled inadmissible. At trial, defendant denied any inappropriate contact with his children.

Nearly two years after the Supreme Court denied certification of his appeal, State v. J.S., 203 N.J. 96 (2010), defendant filed a timely PCR petition. He claimed that he received ineffective assistance of counsel at trial because his attorney filed no motion other than Sands and spent no more than twenty minutes consulting with him prior to trial.

In a decision rendered from the bench, the PCR judge found that the fact that no motions were filed other than Sands was inconsequential. Based on his review of the record, no others would have been warranted, much less meritorious. The judge also noted that, despite defendant's claim that his trial counsel spent no more than twenty minutes with him prior to trial, there were no certifications or affidavits submitted with the petition verifying the assertion.

The PCR judge also observed that, when the trial judge engaged defendant in a colloquy regarding his right to testify, she asked defendant if he had had an opportunity to speak to his attorney on the subject. Although not specifically responsive, the defendant said he was going to testify, making no mention either of a lack of opportunity to speak with counsel or a request to speak with counsel. In sum, the PCR judge concluded that defendant's allegations of ineffective assistance of counsel were nothing more than unsupported, bald assertions that did not approach a prima facie case. Neither prong of the Strickland4 test was met. As he put it, defendant's allegations were "too vague, conclusory or speculative[.]"

On this appeal, defendant argues:

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S EFFECTIVENESS DUE TO INADEQUATE CONSULTATION.

POINT II

THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO ADVANCE THE CLAIM OF TRIAL COUNSEL'S FAILURE TO INVESTIGATE. (Not raised below)

POINT III

THE MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO INVESTIGATE. (Not raised below)

We find no merit to these arguments. R. 2:11-3(e)(2).

It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to demonstrate not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded here that the alleged deficiencies clearly fail to meet either the performance or prejudice prongs of the Strickland test.

Defendant does not identify which motions counsel should have filed in addition to the successful Sands application. Defendant does not corroborate the asserted alleged lack of consultation between him and his attorney, which he alleges resulted in limited pretrial investigation and ineffective pretrial planning. Even if we were to assume that these uncorroborated claims were true, he points to no specific trial errors or lapses in counsel's performance that could be considered ineffective, and, indeed, as noted by the PCR judge, the trial record belies any such claim.

Having considered defendant's points of error on appeal in light of the record, and of the applicable law, we are satisfied that none warrants discussion in a written opinion. R. 2:11-3(e)(2). Defendant's claims constitute no more than the classic bald assertions that are simply insufficient to establish ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

1 Counts three and four were dismissed, though the record does not indicate the reason.

2 According to the judgment of conviction, defendant had been convicted of a prior disorderly persons offense.

3 State v. Sands, 76 N.J. 127 (1978).

4 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).