STATE OF NEW JERSEY v. P.B.

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NOT FOR PUBLICATION WITHOUT THE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.

P.B.,

Defendant-Appellant.

___________________________

October 27, 2014

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1329.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant P.B. appeals from the February 28, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A grand jury indicted defendant on five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); seven counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); seven counts of second-degree endangering the welfare of a child; N.J.S.A. 2C:24-4(a); six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(2); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The charges stemmed from defendant's sexual assault of seven children under the age of thirteen for whom he had a legal duty to care.

The police obtained a search warrant for defendant's apartment based on a victim's statement that defendant committed sexual acts upon her and recorded them on videotape. During the search, the police found eleven videotapes showing defendant sexually assaulting several children. Defendant reviewed the videotapes prior to entering into a plea agreement.

The State made a plea offer of a forty-five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and later reduced it to a thirty-year term of imprisonment subject to NERA. At a status conference on May 5, 2003, Judge Ernest M. Caposela spoke to defendant about the new plea offer. Defendant requested "a week or so" to think about it. The judge then warned defendant that he would not approve a plea offer of less than thirty years. Defendant acknowledged he understood he would receive no less than thirty years. At a status conference on May 12, 2012, defendant rejected the plea offer.

Defendant filed a motion to suppress the videotapes, which Judge Caposela denied. He then pled guilty to five counts of first-degree aggravated sexual assault and one count of second-degree sexual assault in exchange for the State's agreement to recommend two consecutive twenty-year terms of imprisonment subject to NERA on the two first-degree counts, and concurrent terms on the other counts. Judge Caposela sentenced defendant in accordance with the plea agreement.

Defendant appealed his conviction and sentence. He argued that the search warrant was not supported by the requisite probable cause because it was based solely on the account of the child-victim. State v. P.B., No. A-6254-03 (App. Div. Feb. 15, 2006) (slip op. at 6). We concluded the affidavit supporting the search warrant established probable cause to believe that evidence of defendant's crimes would be found in his apartment. Id. at 6. We noted that because the victim's account was considered highly reliable and generally admissible under the "tender years" exception to the hearsay rule, it was a fortiorari reliable to determine the existence of probable cause to issue a search warrant. Id. at 8-9. We affirmed defendant's conviction, but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Id. at 13.

On remand, defendant received the same sentence. He appealed, and we affirmed. State v. [P.B.], No. A-2004-08 (App. Div. May 13, 2010).

Defendant thereafter filed a PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by failing to advise him that the State's plea offer of a thirty-year term of imprisonment subject to NERA "would be the best available one offered to him." In a February 28, 2013 written opinion, Judge Caposela denied the motion without an evidentiary hearing. The judge found he had "made very clear" to defendant that he would not accept a plea offer of less than thirty years and defendant acknowledged he understood the terms of the thirty-year plea offer. This appeal followed.

On appeal defendant argues for the first time that he had no alternative but to accept the forty-year plea offer because trial counsel failed to advise him that he lacked any defenses, and that the motion to suppress lacked merit and was frivolous. Generally, we "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). No exception applies here.

Nonetheless, defendant's argument lacks merit. Defendant obviously believed his motion to suppress had merit and was not frivolous because he challenged it on appeal. Although we found the motion was properly denied, we did not treat it as meritless or frivolous. See P.B., supra, No. A-6254-03 (slip op. at 6-9). Accordingly, defendant cannot establish that trial counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and that there was a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009).