STATE OF NEW JERSEY v. R.J.C.

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.C.,

Defendant-Appellant.

______________________________

January 12, 2017

Submitted December 13, 2016 Decided

Before Judges Reisner and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-05-0878.

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

Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant R.J.C.1 appeals from a January 16, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A jury convicted defendant of sexually assaulting his two minor step-daughters. We affirmed the conviction on his direct appeal. State v. R.J.C., No. A-0285-10 (App. Div. Feb. 14, 2013), certif. denied, 215 N.J. 486 (2013). The prior history of the case and the trial evidence were discussed at length in our opinion and need not be repeated here. Defendant filed his PCR petition on November 12, 2013, which was later supplemented by his pro se certification, a brief filed by his attorney, and a supplemental pro se brief. On January 16, 2015, Judge Albert J. Garofolo, who had also been the trial judge, denied the petition, for reasons stated in a written opinion.

On this appeal, defendant presents the following point of argument

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO CALL APPROPRIATE WITNESSES AND ADEQUATELY INVESTIGATE.

After reviewing the record, we agree with Judge Garofolo that defendant's PCR contentions are no more than "'bald assertions'" which do not constitute a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 354-55 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). In particular, defendant did not present affidavits from any of the witnesses, attesting to the facts purportedly within their knowledge. In fact, with the exception of one individual, defendant did not even describe what information the witnesses allegedly knew that would be helpful to the defense. See Porter supra, 216 N.J. at 355. Because defendant did not present a prima facie case of ineffective assistance, his petition was properly dismissed without an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 We use defendant's initials to protect the privacy of his victim.