STATE OF NEW JERSEY v. C.A.M.

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                        NOT FOR PUBLICATION WITHOUT THE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-2938-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

C.A.M.,

        Defendant-Appellant.


              Argued January 10, 2018 – Decided May 15, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              13-04-0344.

              Steven F. Wukovits argued the cause for
              appellant (Triarsi, Betancourt, Wukovits &
              Dugan, LLC, attorneys; Steven F. Wukovits, of
              counsel and on the brief).

              Meredith L. Balo, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Ann M. Luvera,
              Acting Union County Prosecutor, attorney;
              Meredith L. Balo, of counsel and on the
              brief).

PER CURIAM
     Union County Indictment No. 13-04-0344 charged defendant

C.A.M.   with     three     counts    of     first-degree      aggravated    sexual

assault, 
N.J.S.A. 2C:14-2(a)(2) (counts one, two, and three);

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

2(c)(1) (counts four, five, and six); three counts of second-

degree   sexual      assault,    N.J.S.A.       2C:14-2(c)(4)     (counts    seven,

eight, and nine); and second-degree endangering the welfare of a

child, 
N.J.S.A. 2C:24-4(a) (count ten).                Tried by a jury on the

indictment, defendant was convicted of a lesser-included third-

degree aggravated criminal sexual contact, 
N.J.S.A. 2C:14-3(a)

(count     three);    two    counts     of      lesser-included    fourth-degree

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

nine); and second-degree child endangering, 
N.J.S.A. 2C:24-4(a)(1)

(count ten).      He was acquitted of the remaining charges.

     Defendant was sentenced by the trial judge on February 5,

2016, to a six-year term of imprisonment on the second-degree

offense, a concurrent four years on the third-degree crime, and

concurrent      one-year      terms        on   the   fourth-degree       charges.

Defendant appeals; his claims all relate to ineffective assistance

of counsel.       Thus, they should be resolved by way of a post-

conviction relief application, not on direct appeal.                 See R. 3:22.

We affirm.



                                            2                               A-2938-15T2
     Defendant is the father of J.M., who moved from out of state

into her father's home in 2010.           During the trial, she testified

that defendant's demonstrations of affection troubled her since

her arrival, including kissing on the neck and on the chest. After

hearing   that   J.M.   had   sex    with   her   ex-boyfriend,     defendant

physically assaulted her on July 19, 2012.            At that point, J.M.

was fourteen years old.

     J.M.   testified   that   the    following    morning,    on   July    20,

defendant pulled down her pants in order to "check" her for

sexually transmitted diseases, and instructed her to open her

vagina wider because he could not see anything.               Later on that

day, defendant took J.M. to a sex store and bought her a dildo.

When they arrived home, he insisted that she use it.                When J.M.

objected, he promised to leave the room if she would do so.

Defendant eventually took it from her, pushed the covers she was

hiding under to the side, and forcefully rubbed it on her.                 J.M.

testified that he also began to touch her with his fingers,

penetrating her vagina.        During this confrontation, defendant

unzipped his pants, took out his penis, and attempted to have his

daughter touch him.      He also attempted to put his mouth on her

chest, but J.M. pushed him away.




                                      3                               A-2938-15T2
      The following day, J.M. told a twelve-year-old relative about

the incident.     The relative, who also testified, described J.M.

as tearful and "broken down" when describing what had occurred.

       Plainfield    Police   Detective      Carlos      Gonzalez    interviewed

defendant on July 25, 2012.         Gonzalez did not use an interpreter,

but gave defendant a Spanish language Miranda1 waiver form to

follow   while    reviewing   his    rights.       Gonzalez     conducted     the

interview in English; at times, defendant would respond in Spanish

to questions posed in English.

      Defendant    admitted   taking       his   child    to   the   store    and

purchasing the item, but said she did not object.               He added that

when they got home, J.M. took it upstairs while he remained

downstairs, and when she came down and said she did not like it,

he simply threw it away.

      When he testified at trial, defendant's version of events did

not significantly differ from the interview narrative.                  He said

that the idea to purchase his daughter a sex toy so that she would

not be sexually active came from his wife, who had gotten the idea

from a coworker.    Defendant denied engaging in any sexual conduct.

      During the Miranda hearing, counsel informed the judge that

he did not intend to ask any questions of Gonzalez.                   The judge



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

                                       4                                 A-2938-15T2
asked the witness a number of questions, including the reason he

did not conduct the entire interview in Spanish; the detective

acknowledged that, in retrospect, he should have done so.

     At the Miranda hearing, counsel said he wanted the statement

to come in, but had concerns regarding differences in the "dialect"

used by defendant, who was from Honduras, as opposed to the

detective, whose family came from Puerto Rico.        Counsel reiterated

that he wanted to argue to the jury regarding certain questions

because defendant may have been confused about what he was being

asked.    He said "this is more trial strategy than anything."

     Shortly thereafter, trial counsel reiterated that he was not

"arguing the ultimate Miranda element here that we traditionally

argue.   I just want to be able to say it in front of a jury which

I think is legitimate."

     In her ruling regarding Miranda, the trial judge found the

State    had   proven   beyond   a   reasonable   doubt   that   defendant

understood his rights and knowingly waived them, in part because

she found the detective credible.         No argument was made by defense

counsel, other than to reiterate that he intended to argue to the

jury that the problem was the difference between the Spanish spoken

by the detective and defendant.

     On appeal, defendant raises the following points:



                                      5                            A-2938-15T2
           POINT I

           THE DEFENDANT WAS DEPRIVED HIS RIGHT TO
           EFFECTIVE ASSISTANCE OF COUNSEL DUE TO [TRIAL
           COUNSEL'S] CONDUCT.

                I.    Trial Attorney Failed to Properly
                      Prepare for Trial.

                II.   Trial Attorney Failed to File Pre-
                      Trial Motions and Briefs.

                      a.     Miranda Hearing.
                      b.     The 104 Hearing as to Mrs.
                             [P.'s] Testimony.
                      c.     The Fresh Complaint Doctrine.
                      d.     Psychological Records.
                      e.     Immigration Status of Alleged
                             Victim.

                III. Trial Attorney's Overall Conduct.

    "Our    courts    have   expressed   a   general   policy   against

entertaining ineffective assistance of counsel claims on direct

appeal because such claims involve allegations and evidence that

lie outside the trial record."      State v. Castagna, 
187 N.J. 293,

313 (2006) (quoting State v. Preciose, 
129 N.J. 451, 460 (1992)).

Each and every argument counsel is making on this direct appeal

requires exploration of the trial attorney's trial strategy and

decision-making process.      It is alleged, without any record to

support it, that on each of the several important stages——before

the trial and while the trial was ongoing——counsel failed to

prepare a brief, failed to file motions, failed to investigate,

and generally failed to take steps to refute the State's case.

                                   6                            A-2938-15T2
       To establish ineffective assistance of counsel, a defendant

must demonstrate that counsel's representation was so deficient

that the attorney was not functioning as the "'counsel' guaranteed

the defendant by the Sixth Amendment."      Strickland v. Washington,


466 U.S. 668, 687 (1984).      A defendant must also show that the

deficient performance actually prejudiced the outcome——that but

for these "unprofessional errors, the result of the proceeding

would have been different."    Id. at 694. It is simply not possible

to fairly assess the claim on this record.2         Preciose, 
129 N.J.
 451,   460   (1992).   The   Castagna   principle   holds   true    today,

particularly in this case where such serious allegations are made.

Accordingly, we do not address the points on appeal, but leave it

to defendant to file the appropriate application.

       Affirmed.




2
   This attorney argued at sentencing that prior counsel sent him
only "twenty-two pages of handwritten notes" when he asked that
the file be turned over. The appellate brief asserts trial counsel
was previously suspended. The documents purporting to support the
allegation, along with the suspension order, are included in the
appendix, but they were obviously not included in the trial record.
Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 
194 N.J. Super. 282 (App. Div. 2015) (dismissing the appeal because of numerous
procedural deficiencies, including appendix inclusion of material
outside of the record).

                                   7                               A-2938-15T2