STATEOF NEW JERSEY v. TERRY CORNELIOUS JONES

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0296-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

TERRY CORNELIOUS JONES,

Defendant-Appellant.
____________________________________

Submitted January 9, 2018 – Decided February 26, 2018

Before Judges Yannotti and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
03-12-1276.

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

Ann M. Luvera, Acting Union County Prosecutor,
attorney for respondent (N. Christine Mansour,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
Defendant appeals from an order entered by the Law Division

on May 31, 2016, which denied his petition for post-conviction

relief (PCR). We affirm.

A Union County grand jury charged defendant with two counts

of second-degree sexual assault, contrary to
N.J.S.A. 2C:14-

2(c)(1) (counts one and three); and two counts of fourth-degree

criminal sexual contact, contrary to
N.J.S.A. 2C:14-3(b) (counts

two and four). Defendant was tried before a jury, which found him

guilty on all counts.

The trial court sentenced defendant on counts one and three

to consecutive, seven-year custodial terms, each subject to an

eighty-five percent period of parole ineligibility pursuant to the

No Early Release Act,
N.J.S.A. 2C:43-7.2. The court also imposed

concurrent eighteen-month prison terms on counts two and four.

Defendant appealed. We affirmed defendant's convictions and

sentences. State v. Jones, No. A-2557-05 (App. Div. May 7, 2008)

(slip op. at 14). Defendant filed a petition for certification

with the Supreme Court. The Court denied defendant's petition.

State v. Jones,
196 N.J. 344 (2008).

In October 2008, defendant filed a PCR petition. He claimed

he had been denied the effective assistance of trial counsel. He

2 A-0296-16T3
claimed his attorney was deficient because he failed to call his

female acquaintance Bernadette Brame (Brame) as a witness; did not

advise him adequately about his right to testify and defend himself

at trial; failed to obtain and present medical evidence and

telephone records to support his defense; and did not adequately

cross-examine the victim. He also alleged he was entitled to forty

days of additional jail credits for the time he was incarcerated

in Florida while awaiting extradition to New Jersey.

The PCR court found that defendant had not presented a prima

facie case of ineffective assistance of counsel, and therefore

defendant was not entitled to an evidentiary hearing. The court

also found that defendant was barred by Rule 3:22-4 from raising

the issue regarding jail credits because that issue should have

been raised on direct appeal. The court entered an order denying

the petition.

Defendant appealed. We affirmed the court's determination

that an evidentiary hearing was not required on the claim of

ineffective assistance of counsel, but reversed the court's

refusal to consider defendant's claim that he was entitled to

additional jail credits. State v. Jones, No. A-2492-09 (App. Div.

May 2, 2012) (slip op. at 10-11).

3 A-0296-16T3
The Supreme Court granted defendant's petition for

certification, limited to the issue of whether defendant was

entitled to an evidentiary hearing on his PCR petition. State v.

Jones,
212 N.J. 458 (2012). Thereafter, the Court reversed our

judgment and remanded the matter to the trial court for an

evidentiary hearing on defendant's three claims of ineffective

assistance of counsel. State v. Jones,
219 N.J. 298, 316-17 (2014).

On remand, the PCR court conducted the evidentiary hearing

in conformance with the Court's instructions. Brame, defendant,

and defendant's trial attorney testified at the hearing.

Thereafter, the court filed an order denying PCR. In an

accompanying statement of reasons, the court found that

defendant's attorney had testified credibly. The court determined

that defendant failed to show that he had been denied the effective

assistance of counsel.

The court found that defendant's trial attorney made a sound

strategic decision not to call Brame as an alibi witness and not

to introduce certain phone records. The court also found that

counsel had adequately advised defendant on whether defendant

should testify. The court stated that counsel had "adequately

warned [defendant] of the problems his prior record may present

to his defense and credibility."

4 A-0296-16T3
This appeal followed. On appeal, defendant argues his

convictions should be reversed because his trial attorney was

ineffective. He contends his trial attorney erred by failing to:

(1) procure the appearance of an alibi witness; (2) obtain and

introduce phone records that would have supported his claim that

the victim had fabricated the sexual assault charges; and (3)

advise defendant properly on whether he should testify.

II.

We note initially that the scope of our review of the findings

of fact of the PCR court, based on its consideration of live

witness testimony, is deferential. State v. Nash,
212 N.J. 518,

540 (2013). The court's findings of fact must be upheld on appeal

if supported by sufficient credible evidence in the record. Ibid.

(citing State v. Elders,
192 N.J. 224, 244 (2007); State v. Harris,

181 N.J. 391, 415 (2004)). We must give deference to factual

findings that are "substantially influenced" by the court's

"opportunity to hear and see the witnesses." Ibid. (quoting State

v. Johnson,
42 N.J. 146, 161 (1964)).

We also note that in a criminal proceeding, the accused is

entitled to the assistance of counsel. U.S. Const. amend. VI; N.J.

Const. art. I. § 10. "[T]he right to counsel is the right to the

effective assistance of counsel." Strickland v. Washington, 466

5 A-0296-16T
3 U.S. 668, 686 (1984) (quoting McMann v. Richardson,
397 U.S. 759,

771, n.14 (1970)). To establish constitutional ineffectiveness, a

defendant must satisfy the two-prong test established in

Strickland and adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987).

Under Strickland, the defendant must first show that

"counsel's performance was deficient." Strickland,
466 U.S. at
687. The defendant must establish that "counsel made errors so

serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Ibid. The

defendant must show that counsel's "representation fell below an

objective standard of reasonableness." Id. at 688. The defendant

is required to overcome the strong presumption that counsel

exercised "reasonable professional judgment" and "sound trial

strategy" in representing defendant. Id. at 689-90.

The defendant also must show that counsel's "deficient

performance prejudiced the defense." Id. at 688. The defendant

must establish that "counsel's errors were so serious as to deprive

[him or her] of a fair trial, a trial whose result is reliable."

Id. at 687. It is not sufficient for a defendant to show that

counsel's errors may have had some "conceivable effect on the

outcome of the proceeding." Id. at 693. The defendant must show a

6 A-0296-16T3
reasonable probability that but for counsel's unprofessional

errors, the result of the proceeding would have been different.

Id. at 694. A reasonable probability is a "probability sufficient

to undermine confidence in the outcome." Ibid.

III.

We briefly summarize the relevant facts, as recounted by the

Supreme Court in its opinion. Jones,
219 N.J. at 303-06. In January

2003, K.A. moved from Florida to defendant's home in New Jersey.

Id. at 303. K.A. was nineteen years old at the time. Ibid. She

came to New Jersey to distance herself from her boyfriend in

Florida, reside in defendant's home, and attend a local college.

Ibid.

Defendant was her mother's former boyfriend. Ibid. K.A. had

known defendant for years and viewed him as a father figure. Ibid.

Defendant's brother Denard Williams and Williams's six-year-old

son also resided with defendant. Ibid. "[C]onflict[s] arose over

K.A.'s desire to use her own car to come and go with friends as

she wished, [which was] contrary to defendant's rules governing

[her] behavior." Ibid.

K.A. testified that on March 18 and 22, 2003, defendant

sexually assaulted her. Ibid. She stated that on both dates, he

entered her room around 4:00 a.m. Ibid. According to K.A.,

7 A-0296-16T3
defendant was drunk, ignored her protests, and held her down as

he penetrated her. Ibid. K.A. said defendant used a condom each

time. Ibid. She testified that after the first sexual assault, she

did not go to the police and only told her boyfriend at the time.

Ibid. K.A. said she was frightened and did not think she would be

believed. Ibid. She did, however, report the second assault to the

police. Ibid. She went to the local police headquarters without

changing her clothes. Ibid.

K.A. brought a used condom to the police station and said she

had removed it from defendant's trash, wrapped it in a napkin, and

transported it in her purse. Id. at 304. She told the detective

who interviewed her about the second assault, but did not mention

the first incident until a few months before the trial, which was

about two years later. Ibid.

K.A. was transported to a hospital, where she was examined.

Ibid. A sexual assault nurse examiner testified that she

"discovered faint bruising and scratches on K.A.'s upper arms but

no vaginal injuries." Ibid. The nurse explained that vaginal

abrasion "is rare in sexual assault cases, except in instances of

gang rape or penetration with an object." Ibid. Tests of K.A.'s

clothes for blood or semen were negative. Ibid. Other tests showed

that defendant's and K.A.'s DNA were found on the condom. Ibid.

8 A-0296-16T3
An "anomalous peak" also was found, which a DNA expert testified

could have been the result of contamination or possibly the DNA

of a third person. Ibid.

Defendant was arrested, and the police seized a bedspread

from K.A.'s room, and a towel that K.A. said defendant was wearing

when he entered the room. Ibid. The bedspread and towel tested

positive for semen, but DNA tests were not performed on these

articles. Ibid. Defendant waived his Miranda rights.1 He said

K.A.'s allegations were impossible, but after he was told about

the condom, he said "this could have happened" because he had been

drinking. Ibid.

Defendant's defense was that K.A. had fabricated the

allegations because defendant was going to send her back to Florida

due to "tensions over the use of her car and her desire for more

freedom to go out with friends." Id. at 304-05. Defendant did not

testify, but his brother testified about the conflicts between

defendant and K.A. Id. at 305.

Williams said he did not hear anything on the night of the

first incident. Ibid. Williams was not at home on the night of the

second incident. Ibid. He also said he did not notice any change

1
Miranda v. Arizona,
384 U.S. 436 (1966).

9 A-0296-16T3
in defendant's and K.A.'s behavior between the first and second

alleged incidents. Ibid.

Brame did not testify, but she had provided a recorded

statement to the prosecutor's office. Ibid. Brame said she was

with defendant on the evening of March 21, 2003, and they went

back to his house at around 2:00 or 3:00 a.m. on March 22, 2003.

Ibid. Brame reported that previously, defendant and K.A. had been

arguing over her behavior, K.A.'s bags were packed, and defendant

had threatened to send her back to Florida. Ibid.

Brame also reported that when she and defendant returned to

the house in the morning hours of March 22, defendant and K.A. got

into an argument. Ibid. According to Brame, defendant called K.A.'s

mother and told her he was going to send K.A. back to Florida the

next day. Ibid. Brame stated that she and defendant had sexual

relations in a bedroom on the third floor during the early morning

hours of March 22. Ibid. She said defendant used a condom and

threw it in the trash afterwards. Ibid.

At the trial, defendant's attorney informed the court that

he was waiting for an unidentified witness. Ibid. A notice of

alibi had previously been filed with respect to Brame's testimony.

Ibid. The unidentified witness did not appear and the court

10 A-0296-16T3
indicated it was unwilling to delay the trial. Id. at 306.

Defendant did not seek a continuance and the defense rested. Ibid.

Prior to trial, defense counsel had attempted to obtain

telephone records showing calls placed to K.A.'s mother from

defendant's cell phone. Ibid. Defendant presented phone records

to the PCR court. Ibid. These phone records showed a sixty-six

minute call which was initiated at 10:26 p.m. on March 21, 2003,

and a second call lasting one minute, which was initiated at 4:38

a.m. on March 22, 2003. Ibid. Defendant's counsel said the phone

records were relevant to rebut anticipated testimony by K.A.'s

mother that defendant had not called her about sending K.A. back

to Florida. Ibid. The State did not, however, call K.A.'s mother

as a witness.

IV.

At the evidentiary hearing on remand, Brame testified that

on March 21, 2003, defendant picked her up between 11:00 and 11:30

p.m., and they went to a social club for drinks. They left the

club around 3:00 a.m., and returned to defendant's home. Brame and

defendant went to defendant's bedroom on the third floor. On the

second floor, Brame saw K.A. and Williams's son.

Brame testified that defendant and K.A. had "a continuing

falling out." She said defendant threatened to send K.A. back to

11 A-0296-16T3
Florida, used his cell phone to call K.A.'s mother, and told K.A.'s

mother he had purchased a train ticket for K.A. Brame said between

5:00 and 6:00 a.m., she and defendant had sex. According to Brame,

defendant used one of the condoms he had beside his bed. She said

she left defendant's home no later than 7:00 a.m. She learned of

K.A.'s allegations when persons from the prosecutor's office

contacted her and asked her to provide a statement and a DNA

sample.

Brame further testified that she spoke with defendant's trial

attorney by phone and said she would be available to testify for

defendant. Counsel was not sure when she would be needed, but was

sure he would need her. She testified that she gave defendant's

attorney her new number, address, "and everything." Counsel did

not call or issue a subpoena to her.

Defendant's attorney testified that he filed a notice of

alibi, which named Brame. He recalled meeting with her, but could

not recall when or where. He decided there "was a lot more

downside" than "upside" in presenting her testimony. He said that

he assumed a substantial amount of her DNA would be found on the

condom, but he recalled tests had excluded her DNA on the condom.

He was also concerned about the impact of "the timing of her coming

forward" and "things like that."

12 A-0296-16T3
Defendant's attorney stated that he probably made the

decision not to call Brame after the State rested. He testified

that he would not have decided not to call Brame as a witness

without advising defendant and giving him an opportunity to

override that decision. He said the unidentified witness mentioned

at the trial could have been Brame. He acknowledged, however, he

never told the court he had any potential witness other than

Williams and Brame.

Defendant's attorney was asked whether Brame would have

testified consistently with the statement she gave to the police.

He replied that she would have. He said she would have testified

that she had sex with defendant, but the "condom would have pretty

much made her extremely unbelievable." He also noted the lateness

of her coming forward as well as "all of the other circumstances

she was aware of."

Defendant's attorney further testified about defendant's

decision not to testify. He recalled that defendant had "one

blemish" and it was a fourth-degree offense, which had something

to do "with spanking of a child." He stated that the prosecutor

had agreed to sanitize the conviction, but gave no further

indication as to whether the State would try to use the conviction

"going forward."

13 A-0296-16T3
He stated that he believed he discussed testifying with

defendant. He said he felt that even if the conviction was

sanitized and "otherwise insulated from admission," the jury would

nevertheless learn that defendant had been convicted of a fourth-

degree offense and sentenced to six months in jail. Counsel stated

this would be "completely inconsistent" with the defense strategy

of trying to portray defendant as an "upstanding guy."

On cross-examination, counsel was asked about the phone

records. He acknowledged the records indicated that calls were

made to Florida on March 21 and 22, 2003. The call on March 21

lasted sixty-six minutes and was made at 10:26 p.m. Two calls were

made on March 22, one at 4:38 a.m., and one at 11:09 a.m. The

calls lasted one minute and three minutes, respectively.

Counsel was asked if the calls would have corroborated the

defense theory that defendant had contacted K.A.'s mother in

Florida. He noted that there were no audio recordings of the calls.

He said a call of one minute means no one answered, and a call of

three minutes could mean the call went to voicemail.

Counsel testified the phone records could have indicated that

some effort had been made to make a phone call, but he did not

believe the records were significant because there was "no

substance" to them. Counsel also stated that he did not believe

14 A-0296-16T3
the State was going to present testimony from K.A.'s mother,

although he wished the State had done so. Counsel stated that

defendant had talked to him about the phone records, but he did

not have a recollection of having seen them. He stated that he

thought at some point the defense made an effort to get the

records.

Defendant testified that he had discussed Brame with his

attorney and she was "definitely going to be a witness." He said

she stayed "all night" with him on March 21, 2003, and he called

K.A.'s mother at around 4:00 or 4:30 a.m. on March 22, 2013.

Defendant said he told his attorney he had sex with Brame that

night. He also discussed the phone records with counsel.

Defendant stated that he told his attorney he made the call

on March 21 to inform K.A.'s mother he planned to send K.A. back

to Florida the next day. He claimed he spoke with K.A.'s mother

on the morning of March 22 to confirm he was going to put K.A. on

the train. The conversation was brief because K.A.'s mother was

on her way to work.

Defendant further testified that he intended to testify, but

was deterred from doing so because he feared the jury would learn

of his fourth-degree conviction, which arose from his disciplining

of his young daughter. He said counsel never explained to him that

15 A-0296-16T3
the conviction would be sanitized. He said he did not know of any

other witnesses to be called other than Brame. He denied he

sexually assaulted K.A. and said it was "just one big lie." He

stated that K.A. did not follow the rules of his house, and started

to run with "the wrong crowd." He claimed that when he came home,

there were drug dealers in the house. According to defendant, K.A.

did not respect him or his brother, who is a school teacher.

The judge filed an order denying defendant's petition, for

the reasons set forth in an accompanying statement. The judge

found that defendant's attorney was a "credible and believable

witness." The judge determined that counsel's testimony was more

credible than defendant's and Brame's testimony.

The judge found that defense counsel made a valid strategic

decision not to call Brame as a witness because there were "more

downsides than upsides" to her testimony. The judge noted that a

major factor in counsel's decision was that Brame had been

eliminated as a possible contributor to the DNA found on the condom

K.A. brought to the police.

The judge further found that defense counsel had advised

defendant he had a right to testify in his own defense, and

discussed the possibility of sanitizing defendant's prior

conviction. Counsel discussed with defendant the potential for

16 A-0296-16T3
opening the door to the facts and circumstances of defendant's

fourth-degree conviction for endangering the welfare of a child.

Defendant's attorney believed admission of this evidence would be

inconsistent with his strategy of presenting defendant as a

reputable and upstanding man because the jury would learn that

defendant had been convicted of a crime and served time in jail.

The judge wrote, "[u]ltimately, after being fully informed by

counsel of the consequences of his choice, [defendant] voluntarily

decided not to testify in his defense."

In addition, the judge found that defendant's attorney did

not err by deciding not to introduce the phone records. The defense

theory was that K.A. fabricated the allegations against defendant

after he called her mother and told her he intended to send her

back to Florida due to her unacceptable behavior. The judge noted

that defendant's attorney decided not to use the records because

there was no guarantee they would corroborate defendant's version

of the events, and counsel was able to introduce the defense theory

through the testimony of defendant's brother.

Moreover, the records "do not speak for themselves." Without

defendant's and Brame's testimony, "the records were largely

irrelevant." Their only purpose was to corroborate the testimony

of those two witnesses, which was otherwise not sufficiently

17 A-0296-16T3
probative to outweigh the possible negative effects of presenting

their testimony.

The judge concluded that trial counsel made strategically

sound decisions in opting not to call Brame and not seeking to

introduce the phone records at trial. The judge also concluded

that defense counsel had adequately advised defendant concerning

his right to testify and warned him of the problems his prior

criminal record would present to his defense and credibility. The

judge determined that counsel's actions did not fall below an

objective standard of reasonableness and did not prejudice

defendant in any way.

On appeal, defendant argues that his convictions should be

reversed because the testimony at the remand hearing established

that he was denied the effective assistance of trial counsel.

A. Counsel's Decision Not To Call Brame As A Witness

Defendant contends the PCR court erred by finding that defense

counsel made a valid strategic decision not to call Brame as a

witness. Defendant contends Brame would have corroborated his

defense. According to defendant, Brame would have provided an

alibi for one of the two alleged sexual assaults, and a motive for

K.A. to make false accusations of sexual misconduct.

18 A-0296-16T3
He further argues that Brame's testimony would have provided

an explanation for the "puzzling" condition of the condom that

K.A. provided to the police. He contends the State's DNA expert

indicated that the DNA on the condom could have been from three

persons, and because there was a combination of DNA on the condom,

the State's expert could only conclude that some of the DNA was

K.A.'s and some defendant's.

Defendant further argues that Brame's testimony that she and

defendant had sexual relations during the morning hours of March

22, 2003, would have supplied an explanation for the possible

presence of DNA on the condom from a third person. He asserts the

presence of K.A.'s DNA on the condom could have been due to an

accident of her handling the item, or K.A.'s deliberate attempt

to place her own DNA on the condom.

Defendant therefore argues that the record does not support

defense counsel's assertion that there was more "downsides than

upsides" to presenting Brame's testimony. Defendant argues that

defense counsel stated he recalled that Brame had been excluded

as a potential source of the DNA. Defendant asserts the judge

erroneously "embraced" that statement because only his and K.A.'s

DNA had been tested.

19 A-0296-16T3
We are not persuaded by these arguments. As noted, defendant

asserts Brame was not eliminated as a potential source of the DNA

on the condom. That may be so, but there also was no evidence that

Brame was, in fact, a source of the DNA. Thus, the State could

have used the DNA evidence to effectively challenge Brame's

assertion that she had sex with defendant in the morning hours of

March 22.

Moreover, as defense counsel explained, Brame was late in

coming forward with her statement. She did not provide the police

with a statement until October 2004, which was approximately one

year after defendant was charged, even though she knew he was

arrested a week after his arrest. The State could have used Brame's

late reporting in challenging Brame's credibility.

In addition, Williams had testified about the conflicts

between defendant and K.A. He also testified that he had seen

K.A.'s packed bags before March 18, and said K.A. did not want to

return to Florida. Furthermore, testimony from Brame on these

issues would have been cumulative. As counsel determined, any

benefits that could be derived from this testimony would not have

outweighed it negative aspects.

We are convinced there is sufficient credible evidence in the

record to support the court's conclusion that defendant's attorney

20 A-0296-16T3
was not deficient in deciding not to have Brame testify at trial.

The record supports the court's determination that counsel's made

a valid strategic decision not to call Brame as a witness, and

defendant was not prejudiced by this decision.

B. Decision Not To Introduce Phone Records

Next, defendant argues the court erred by downplaying the

significance of the phone records. He asserts that they would have

undermined K.A.'s trial testimony. Defendant contends he entered

K.A.'s room between 4:00 and 5:00 a.m. on March 22, and spent

twenty-five to forty-five minutes lecturing her on parent/child

relationships.

According to K.A., defendant then sexually assaulted her.

Defendant said she screamed and he penetrated her for a minute.

He claims the phone records showed that he called K.A.'s mother

at 4:38 a.m. on March 22. He claims this evidence would have

substantially discredited K.A.'s version of the events.

Defendant further argues that the phone records supported the

defense theory that K.A.'s accusations were made in retaliation

for defendant's decision to send her back to Florida. He asserts

this is "especially persuasive" because K.A. only went to the

police shortly after the call was made, even though she claimed

to have first been assaulted several days earlier.

21 A-0296-16T3
In addition, defendant contends the phone records would have

corroborated Brame's version of the events that when she and

defendant returned to defendant's home at around 3:00 a.m.,

defendant and K.A. got into an argument which "culminated" in

defendant calling K.A.'s mother to say he was sending her back to

Florida by train.

We are not persuaded by these arguments. As the judge noted,

Williams had testified about the conflicts between defendant and

K.A. regarding K.A.'s behavior, and how she did not want to return

to Florida. The phone records would only show that calls had been

made, not what was discussed.

Moreover, the phone call of March 21 was approximately sixty-

six minutes, and the call on March 22 was for one minute. Defense

counsel testified that a one-minute call indicated the call may

not have been answered. The phone records would not have

corroborated defendant's claim that he spoke with K.A.'s mother

while she was on her way to work.

The judge also found that the phone records were largely

irrelevant. The judge noted that the only purpose for presenting

this evidence would have been to corroborate the testimony of

defendant, Williams, and Brame. As noted, defendant did not testify

22 A-0296-16T3
and counsel chose not to call Brame. The phone records also did

not add anything of significance to Williams's testimony.

We are therefore convinced that there is sufficient credible

evidence in the record to support the judge's determination that

defense counsel made a sound strategic decision in not presenting

the phone records and defendant suffered no prejudice as a result

of that decision.

C. Advising Defendant On His Right To Testify

Defendant also argues that defense counsel erred by failing

to advise him adequately regarding his right to testify at trial.

He concedes that in deciding whether to testify, a defendant with

a prior criminal conviction must weigh the impact the conviction

will have on the jury against the benefits that his testimony may

contribute to the defense.

He notes that under State v. Brunson,
132 N.J. 377, 391

(1993), a prior criminal conviction must be sanitized to lessen

the risk that the defendant will be prejudiced, particularly if

the prior offense is similar to the one for which the defendant

is being tried. In Brunson, the Court held that when a defendant

has been convicted of an offense that is the same or similar to

the offense for which the defendant is on trial, the State may

impeach the defendant by introducing evidence limited to the degree

23 A-0296-16T3
of the crime for which defendant was convicted and the date of the

offense. Ibid. Defendant further notes that he was previously

convicted for endangering the welfare of a child, and that the

assistant prosecutor stated on the record that the conviction must

be sanitized. He contends counsel did not explain the Brunson rule

to him.

Defendant asserts that if he had testified, there is a

reasonable probability the outcome of the trial would have been

different. He states that the jury heard K.A.'s version of the

incidents and it did not hear his side of the story. He contends

there were no other witnesses who testified on his behalf as to

what actually occurred.

We find no merit in these arguments. As noted previously, the

court found that the testimony of defense counsel was credible and

more believable than any contrary testimony by defendant.

Defendant's counsel testified that he advised defendant his prior

conviction would be sanitized but there remained a risk that the

details of that conviction might be revealed.

More importantly, defense counsel stated it was his defense

strategy to present defendant as an upstanding "kind of guy." He

said it would be "completely inconsistent" with this strategy if

24 A-0296-16T3
defendant testified, and the State elicited the fact that he was

previously convicted of a crime and served six months in jail.

We therefore conclude that the record supports the judge's

finding that defense counsel adequately advised defendant

regarding his right to testify, and defendant voluntarily elected

not to exercise that right.

Affirmed.

25 A-0296-16T3

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