STATE OF NEW JERSEY v. GEORGE A. HOLZMAN

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-0624-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GEORGE A. HOLZMAN, a/k/a RAY RED
HOLZMAN, GEORGE HOLTZMAN, GEORGE
A. HOLTZMAN, GEORGE A. HOLZMAN,
JR., and RED,

     Defendant-Appellant.
_____________________________

              Submitted December 19, 2017 – Decided April 20, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Hunterdon County, Indictment No.
              11-08-0296.

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

              Anthony P. Kearns, III, Hunterdon County
              Prosecutor, attorney for respondent (Jeffrey
              L. Weinstein, Assistant Prosecutor, on the
              brief).


PER CURIAM
     Defendant George A. Holzman appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary

hearing.   We affirm.

     For   acts   against   the   nine-year-old     daughter   of   his   ex-

girlfriend,   defendant     was   indicted    for   second-degree     sexual

assault, fourth-degree criminal sexual contact, and third-degree

endangering the welfare of a child.

     Pre-trial motions resulted in mixed results for defendant.

He was successful in opposing the State's motion to admit fresh

complaint evidence.     The trial court, however, denied his motion

to dismiss the indictment, and in applying N.J.R.E. 404(b) granted

the State's motion to admit a consensual phone intercept with his

ex-girlfriend during which he stated he videotaped her daughter

undressing to take a shower, despite his opposition set forth in

his expert's report that the camera revealed no such recording.

     Defendant subsequently pled guilty to second-degree sexual

assault by admitting to touching the victim's buttocks with the

intent of humiliating or degrading her.        During his plea colloquy,

he testified that he understood the charges, the terms of the plea

offer, had reviewed the State's proofs with trial counsel, and was

satisfied with counsel's services.           Defendant also acknowledged

that he signed, initialed and understood the plea forms, and that

no one forced, coerced, or encouraged him to plead guilty.                  In

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accordance with the plea agreement, he was sentenced to seven-

years imprisonment subject to the No Early Release Act, 
N.J.S.A.

2C:43-7.2, to be served at the Adult Diagnostic and Treatment

Center.   His appeal of sentence was affirmed on the Excessive

Sentence Oral Argument calendar.      State v. Holzman, A-1796-14

(App. Div. March 12, 2015).

     Defendant then filed a pro-se PCR petition, which was later

amended by assigned PCR counsel.     Defendant contended that trial

counsel1 was ineffective by failing to: examine a camera that the

victim's mother claims to have seen nude pictures of the victim;

and to identify two witnesses, his roommate and his then live-in

girlfriend, who would have verified that the victim's mother

fabricated the allegations against him due to the break-up of

their relationship.    He also claimed that counsel failed to file

motions: for speedy trial; to dismiss the indictment; to suppress

evidence; to procure polygraph results from the State; to request

a defense polygraph; and to suppress the consensual intercept

phone recording.      Lastly, he contended that counsel failed to

disclose that she once worked in the same office as the prosecutor

who was prosecuting the charges against him.




1
    Allegations were made against the second of the two trial
counsels who represented defendant.

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     Five   days    after   hearing    oral    argument,          Judge   Angela    F.

Borkowski issued an order and a twenty-six page written decision

dismissing the petition without an evidentiary hearing.                    Applying

the well-known standard in Strickland v. Washington, 
466 U.S. 668,

687, 694 (1984) and State v. Fritz, 
105 N.J. 42, 58 (1987), the

judge found that defendant failed to set forth a prima facie case

of ineffective assistance of counsel.

     In her decision, the judge acknowledged that a counsel's

inadequate investigation can constitute ineffective assistance

where   a   defendant       asserts        facts    through        affidavits       or

certifications      based     upon     personal          knowledge,       what     the

investigation      would    have   revealed        and     that    the    inadequacy

prejudiced his defense.        See State v. Porter, 
216 N.J. 343, 352

(2013); State v. Cummings, 
321 N.J. Super. 154, 170 (1999).                      Thus,

there must be more than "bald assertions" to support a claim of

ineffective assistance.       Cummings, 
321 N.J. Super. at 170.                  Since

defendant argued his guilty plea should be withdrawn because of

counsel's   ineffectiveness,         the    judge        relied    upon   State     v.

DiFrisco, 
137 N.J. 434, 457 (1994), which held a defendant must

show that "(i) counsel's assistance was not within the range of

competence demanded of attorneys in criminal cases; and (ii) that

there is a reasonable probability that, but for counsel's errors,



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[the defendant] would not have pled guilty and would have insisted

on going to trial" (citations omitted).

       Noting defendant's plea colloquy, as well as the lack of

affidavits or certification supporting his innocence, or asserting

that    pleading   guilty   was    his       only    choice,    or    that    had    an

investigation occurred he would have gone to trial rather than

pleading guilty, Judge Borkowski found that a prima facie case of

ineffective assistance based upon failure to investigate was not

made.    Pointedly, the judge found that counsel did investigate the

video    recordings   of    the    victim,          which   defendant       allegedly

confessed to making, by retaining an expert who opined that no

such recording was ever made with the camera, and used the opinion

to oppose – albeit unsuccessfully – the State's motion to admit

the alleged confession.         The judge also found the petition was

deficient because there were no affidavits or certifications from

the    witnesses   supporting     defendant's         claim    they   had    personal

knowledge that the victim's mother fabricated the allegations due

to her break-up with defendant.              Moreover, the judge recognized

that the mother's allegations did not initiate the investigation

into defendant's conduct; rather it was the victim's disclosure

to her school guidance counselor.

       Turning to defendant's assertions that counsel did not file

certain motions, the judge determined there was no ineffectiveness

                                         5                                    A-0624-16T4
of counsel because the motions were in fact filed or they would

not have been successful.       Counsel filed motions to dismiss the

indictment and to suppress defendant's statement during a non-

custodial investigation.      As for the speedy trial claim, the judge

reasoned it was procedurally barred under Rule 3:22-4 because

defendant made a knowing and voluntary guilty plea.                  State v.

Garoniak, 
164 N.J. Super. 344, 349 (App. Div. 1978).                  Besides,

defendant made no showing that the prosecution of the charges were

unduly delayed and caused him any prejudice.            Concerning the lack

of polygraph motions, the judge maintained that               even if the

parties' stipulated, polygraphs are inadmissible at trial without

a hearing to establish its reliability.          State v. Mervilius, 
418 N.J. Super. 138, 139 (App. Div. 2011). Despite this high standard,

the   judge   found   that    the   record     revealed    counsel2     sought

defendant's   polygraph      exam   results,    which    suggested     he   was

"truthful when he stated he did not touch the victim's vagina,"

but there was no assertion how he was prejudiced by the failure

to pursue the State's offer that a defense expert3 could examine

the results, nor how he was prejudiced by the inability to present



2
  Initial counsel, who was substituted for prior to the plea
agreement.
3
    No expert was retained.


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the results at trial.        And with respect to the failure to seek

suppression of his statement during the consensual intercept,

defendant failed to articulate the factual and legal grounds to

demonstrate the motion would have been successful.                 State v.

O'Neal, 
190 N.J. 601, 618-19 (2007).

     Lastly, the judge found that counsel's former employment with

the prosecuting attorney did not violate R.P.C. 1.11, and that

defendant     failed    to   make   any    factual   assertions    how   that

relationship prejudiced his defense and caused him to plead guilty.

     Based upon the findings that defendant failed to present a

prima facie case of ineffective assistance and that there were no

material facts in dispute that             needed to be resolved, Judge

Borkowski denied defendant's request for an evidentiary hearing

in accord with Rule 3:22-1 and State v. Preciose, 
129 N.J. 451,

462 (1992).

     Before us, defendant contends in a single point argument:


            POINT ONE

            [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS CLAIM THAT HIS ATTORNEY
            RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.


     In   his   merits   brief,     defendant   reiterates   the   arguments

raised before and rejected by Judge Borkowski.           Considering these

arguments in light of the record and applicable legal standards,

                                       7                             A-0624-16T4
these arguments lack sufficient merit to warrant discussion in a

written opinion, Rule 2:11-3(e)(2), and we affirm substantially

for   the   reasons   set   forth   by       the   judge   in   her   well-written

decision.

      Affirmed.




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