Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 STATE OF NEW JERSEY v. J.B., J

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2056-15T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

J.B., Jr.,

          Defendant-Appellant.
____________________________________________________

           Submitted October 31, 2017 – Decided November 13, 2017

           Before Judges Fisher and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Bergen County, Indictment No.
           07-06-1176.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Andrew J. Shaw, Designated
           Counsel, on the brief).

           Gurbir S. Grewal, Bergen County Prosecutor,
           attorney for respondent (Ian C. Kennedy,
           Assistant Prosecutor, of counsel and on the
           brief).

PER CURIAM

     In 2010, defendant was convicted of aggravated sexual assault

against his stepdaughter between 2002 and 2004, when she was under

the age of thirteen, and between 2004 and 2006, when she was at
least thirteen but not yet sixteen years old.1 An extended fifty-

year prison term was imposed, as well as lesser concurrent prison

terms on other related offenses.2 Defendant appealed, arguing: the

trial court erred in denying his motion to suppress evidence; the

prosecutor introduced improper lay opinion and placed other-crimes

evidence before the jury; the judge failed to issue an appropriate

limiting instruction regarding the other-crimes evidence; the

prosecutor introduced expert testimony that was not disclosed

during discovery; the prosecutor gave an improper summation; the

judge erred in denying defendant's motions for acquittal or a new

trial; and the sentence imposed was excessive. We rejected all

these arguments and affirmed. State v. J.B., Jr., No. A-0612-10

(App.   Div.   Oct.   3,   2013).   And   the   Supreme   Court    denied

certification. State v. J.B., Jr., 
217 N.J. 304 (2014).

     In 2014, defendant filed a pro se PCR petition. He later

moved to recuse the PCR judge because that judge had presided over




1
  The circumstances surrounding defendant's crimes are discussed
at some length in our opinion on defendant's direct appeal and
need not be repeated.
2
  Defendant was also tried in 2011, when he was fifty-four years
old, for the 1972 murder of his younger brother when defendant was
a juvenile. The judge in that matter – who was the post-conviction
relief (PCR) judge here – imposed a twenty-year period of
incarceration. We affirmed that determination in 2013. State in
the Interest of J.B., Jr., No. A-0366-11 (App. Div. July 11, 2013).

                                    2                             A-2056-15T1
the juvenile matter. Both the PCR petition and the recusal motion

were denied, and defendant appeals, arguing:

            I. THE PCR COURT ERRED IN DENYING THE PCR
            PETITION WI[TH]OUT HOLDING AN EVIDENTIARY
            HEARING.

                 A. Trial Counsel's Failure to Timely
                 Object to the Testimony of Dr.
                 Stewart.

                 B. Trial Counsel's Failure to Object
                 to the Admission of Other Crimes
                 Evidence or to Seek a Limiting
                 Instruction.

                 C. Trial Counsel's Failure            to
                 Request a Change of Venue.

                 D.   Trial     Counsel's      Cumulative
                 Errors.

            II. THE PCR COURT ERRED IN DENYING THE MOTION
            FOR RECUSAL.

We find insufficient merit in these arguments to warrant further

discussion in a written opinion, R. 2:11-3(e)(2), and affirm. We

add only the following brief comments.

     In his PCR petition, defendant claimed his trial attorney was

ineffective for the reasons set forth in the subsections to his

Point I above.

     As for defendant's arguments in Point I(A) about Dr. Stewart's

testimony – that counsel failed to adequately respond to Dr.

Stewart's   reliance   on   a   study   that   supported    his   view   that

penetration of the vagina or anus of an adolescent girl would not

                                    3                                A-2056-15T1
necessarily   cause   visible   trauma   –   fails   to   satisfy   the

requirements of the second prong of the Strickland/Fritz3 test

because defendant was not convicted of any count alleging vaginal

or anal penetration of the victim.

     In Point I(B), defendant argues, first, that counsel was

ineffective in failing to object to evidence regarding the victim's

late assertion of vaginal penetration. As noted above, defendant

was not convicted of any such conduct, but he argues now – without

having first made this argument to the PCR judge – that his trial

attorney should have sought to bar any such evidence and was

consequently ineffective. We reject that argument not only because

it was not argued to the PCR judge and not only because arguments

regarding other-crimes evidence were raised in the direct appeal

and rejected by us, but also because defendant has failed to show

how this evidence – or the admission of a letter which was raised

in the PCR court – prejudiced his right to a fair trial.

     Defendant's argument in Point I(C) – that his trial attorney

was ineffective in failing to seek a change of venue – does not

warrant further comment.

     We affirm the denial of defendant's recusal motion – which

was based solely on the fact that the PCR judge was also the trial


3
  Strickland v. Washington, 
466 U.S. 668, 
104 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984); State v. Fritz, 
105 N.J. 42 (1987).

                                  4                            A-2056-15T1
judge, and therefore the factfinder, in the unrelated 2011 juvenile

matter – substantially for the reasons set forth by the PCR judge

in his oral decision.

     Affirmed.




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