STATE OF NEW JERSEY v. J.P.B

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                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4323-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

J.P.B.,

     Defendant-Appellant.
_____________________________

                   Submitted October 31, 2019 – Decided November 25, 2019

                   Before Judges Alvarez and Nugent.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hunterdon County, Indictment Nos. 06-03-
                   0120 and 07-06-0230.

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

                   Michael J. Williams, Acting Hunterdon County
                   Prosecutor, attorney for respondent (Jeffrey L.
                   Weinstein, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant J.P.B. appeals the June 26, 2017 denial of his post-conviction

relief (PCR) petition. For the reasons stated by Judge Angela Borkowski, J.S.C.,

in her cogent and thoughtful written decision, we affirm.

      A jury convicted defendant of first-degree child endangering,  N.J.S.A.

2C:24-4(b)(3), one count of second-degree child endangering,  N.J.S.A.

2C:24-4(a), first-degree aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(1), and

second-degree sexual assault,  N.J.S.A. 2C:14-2(b).        The convictions were

affirmed in an unpublished opinion. 1 State v. J.P.B., No. A-1349-11 (App. Div.

Mar. 4, 2015). In the aggregate, defendant was sentenced to eighteen years in

prison, Megan's Law registration requirements, and parole supervision for life.

The Supreme Court denied his petition for certification. State v. J.P.B.,  223 N.J.
 282 (2015).

      Defendant's victim was his step-daughter.        The offending behavior

commenced when she was nine years old. It came to light when defendant's

nude photographs of the child were discovered by a family member. Defendant

initially admitted taking the pictures, but denied sexual activity with the child



1
  The matter was remanded for resentencing on the first-degree endangering,
amended to the second-degree offense, because the charge predated the current
version of the statute. See State v. J.P.B., No. A-1349-11 (App. Div. Mar. 4,
2015) (slip op. at 27).
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including, among other forms of penetration, sexual intercourse. On the stand,

defendant claimed he took responsibility for the photographs solely to protect

the victim and the person he suspected had taken them. He explained the two

pictures found in his wallet by claiming he absent-mindedly put them there, after

discovering the cache of photos, when he found them on the floor.

      In deciding the matter, Judge Borkowski reviewed the record with regard

to a belated application trial counsel made before trial for a psychiatric

evaluation of defendant. She concluded that it was denied not because of the

untimeliness of the request, but because the trial judge "found it lacked merit."

The trial judge had opined that defendant's depression was irrelevant to any

defense, thus an evaluation could not have affected the outcome.            Judge

Borkowski agreed.

      Defendant     claimed   counsel's       medical   condition   hampered    his

representation during trial. Judge Borkowski said, based on her review of the

record, that counsel conducted a vigorous and well-thought-out defense in an

extremely difficult case.

      Defendant claimed that his attorney made inadequate investigative

efforts—yet the issues he asserted should have been advanced involved strategic

choices not subject to attack by way of PCR relief. The judge also noted that in


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some instances the alleged failure to call witnesses was strategic, and the areas

defendant asserted should have been developed were actually explored during

cross-examination of the State's witnesses. Thus, the various witnesses that

defendant contended should have been called would not have added anything to

the proofs presented during the trial.

      Although defendant complained his attorney did not visit him frequently

in jail, he did not explain how that would have resulted in a better representation

or in any way have altered the verdict. Overall, the judge found defendant's

contentions were mere bald assertions. See State v. Cummings,  321 N.J. Super.
 154, 170 (App. Div. 1999). Judge Borkowski therefore concluded defendant's

claims were so lacking in merit that he had not established a prima facie case,

and no evidentiary hearing under Rule 3:22-10(c) was required.

      Now on appeal, defendant argues the judge erred on these two issues:

            I.     THE PCR COURT ERRED IN NOT
                   GRANTING       DEFENDANT    AN
                   EVIDENTIARY     HEARING  WHERE
                   DEFENDANT RECEIVED INEFFECTIVE
                   ASSISTANCE OF COUNSEL.

                   A.    TRIAL COUNSEL WAS INEFFECTIVE
                         FOR WAITING UNTIL THE EVE OF
                         TRIAL BEFORE EVEN CONSIDERING
                         HAVING DEFENDANT UNDERGO A
                         PSYCHIATRIC EVALUATION.


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                                         4
                  B.    TRIAL COUNSEL'S REPRESENTATION
                        OF DEFENDANT WAS INEFFECTIVE
                        FOR THE CUMULATIVE ERRORS
                        COMMITTED WHILE COUNSEL WAS
                        SUFFERING FROM LYME'S DISEASE.

      After our review of the record, it is clear Judge Borkowski did not err in

finding that a psychiatric examination of defendant would not have advanced

his defense. It is also clear that counsel thoroughly examined the witnesses,

made reasonable strategic decisions, and engaged in as effective representation

as was possible given the State's overwhelming proofs. No evidentiary hearing

was necessary. The petition did not meet the two-part test for ineffective

assistance of counsel pursuant to Strickland v. Washington,  466 U.S. 668, 687-

90 (1984), and its progeny.

      Affirmed.




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