STATE OF NEW JERSEY v. G.F. (10-03-0312, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-1475-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.F.,
Defendant-Appellant.
________________________
Argued February 3, 2022 – Decided February 16, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-03-0312.
Allan Marain argued the cause for appellant.
Michele C. Buckley, Assistant Prosecutor, argued the
cause for respondent (William A. Daniel, Union County
Prosecutor, attorney; Albert Cernadas, Jr., Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant G.F. 1 appeals from the December 22, 2020 Law Division order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
A Union County grand jury charged defendant in an eight-count
indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)
(count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3) (count two);
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); second-
degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count four); third-degree
aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count five); two counts
of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts six and
seven); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a) (count eight). State v. G.F., No. A-2198-12 (App. Div. June 2, 2014) (slip
op. at 1-2). "The charges resulted from allegations that defendant engaged in
repeated instances of sexual conduct with his daughter[, S.F.]." Id. at 2.
S.F. testified that defendant sexually assaulted her numerous times while
she "was between ages thirteen and sixteen." Ibid. S.F. stated "defendant
initially touched her breasts and vaginal area three to four times, and that the
1
We use initials to identify defendant and the victim pursuant to Rule 1:38-
3(c)(9).
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abuse then progressed to sexual intercourse on approximately thirty occasions."
Ibid.
After S.F. disclosed the assaults to her family, she "agreed to participate
in [several] consensual intercept telephone call[s] with defendant, that the police
simultaneously recorded." Id. at 4-6. The State played these calls to the jury at
the trial. Ibid.
The State also presented the testimony of a psychologist, Susan Cohen
Esquilin. Esquilin testified as an expert in the areas of child sexual abuse and
Child Sexual Abuse Accommodation Syndrome (CSAAS), which "describe[s]
traits found in victims of such abuse to aid jurors in evaluating specific
defenses." State v. G.E.P., 243 N.J. 362, 369 (2020) (quoting State v. J. Q., 130
N.J. 554, 556 (1993)).
The jury convicted defendant of all eight counts of the indictment. G.F.,
(slip op. at 1-2). The trial court sentenced defendant to an aggregate twenty-
three-year prison term, subject to an eighty-five percent period of parole
ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 2. On
June 2, 2014, we affirmed defendant's conviction and sentence. Id. at 7.
Defendant filed a PCR petition and raised two contentions. First,
defendant argued his trial attorney provided him with ineffective assistance
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because he did not make a motion to suppress the recorded telephone calls the
State obtained through the consensual intercepts. According to defendant, there
was no evidence in the record that the intercepts were authorized by the Attorney
General, the county prosecutor, or their designees as required by N.J.S.A.
2A:156A-4(c). 2
In response, the State submitted a copy of a November 23, 2009
Consensual Interception Authorization form signed by the Union County First
Assistant Prosecutor, who advised the court at oral argument on defendant's PCR
petition that he was the prosecutor's designee for such matters and had
authorized the intercepts involved in this case. Defendant presented no evidence
or certifications disputing the accuracy of the form and, therefore, the trial court
2
Under the New Jersey Wiretapping and Electronic Surveillance Control Act,
N.J.S.A. 2A:156A-1 to -37, it is not unlawful for
"[a]ny person acting at the direction of an investigative
or law enforcement officer to intercept a[n] . . . oral
communication, where such person is a party to the
communication . . . provided, however, that no such
interception shall be made without the prior approval of
the Attorney General or his designee or a county
prosecutor or his designee[.]"
[N.J.S.A. 2A:156A-4(c).]
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rejected defendant's contention that his trial attorney should have challenged the
admissibility of the recorded calls.
Defendant's second contention concerned the admission of the CSAAS
testimony at trial. On July 31, 2018, our Supreme Court held that CSAAS
evidence "no longer . . . has a sufficiently reliable basis in science to be the
subject of expert testimony[,]" and limited such testimony to "only one aspect
of the theory -- delayed disclosure -- because scientists generally accept that a
significant percentage of children delay reporting sexual abuse." State v. J.L.G.,
234 N.J. 265, 272 (2018). The Court applied this new rule to the defendant in
the J.L.G. case and found that the admission of the CSAAS evidence was
harmless error "in light of overwhelming proof of [the] defendant's guilt." Id.
at 308. However, the Court did not determine whether its decision should apply
retroactively to any other defendants. G.E.P., 243 N.J. at 385-86.
In his January 27, 2020 PCR petition, defendant argued that based upon
the new rule the Supreme Court established in J.L.G., the admission of Esquilin's
CSAAS testimony deprived him of his constitutional right to a fair trial.
However, on August 5, 2020, our Supreme Court rendered its decision in G.E.P.,
which held that its July 31, 2018 ruling in J.L.G. would only have "'pipeline
retroactivity,' rendering it applicable in all future cases, the case in which the
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rule [was] announced, and any cases still on direct appeal" on the date of its
decision. G.E.P., 243 N.J. at 386, 388-89.
In its oral decision, the trial court found that Esquilin's testimony
comported with the rules governing CSAAS testimony at the time of defendant's
trial in 2012. Because defendant exhausted his direct appeal rights in this case
on June 2, 2014, G.F., (slip op. at 1), the court concluded that the new J.L.G.
rule barring this testimony did not retroactively apply to defendant.
Accordingly, the court denied defendant's PCR petition.
On appeal, defendant raises the same contentions he unsuccessfully
presented to the trial court. Defendant argues:
POINT ONE
THE STATE RELIED UPON INADMISSIBLE
CONSENSUAL OVERHEAR EVIDENCE THAT
TRIAL COUNSEL FAILED TO CHALLENGE.
A. CONSENSUAL OVERHEAR EVIDENCE IS
ADMISSIBLE ONLY WHEN PARTICULAR
CONDITIONS ARE MET.
B. THE PROOFS FAIL TO ESTABLISH
SATISFACTION OF THE REQUIRED
CONDITIONS.
6 A-1475-20
POINT TWO
THE STATE'S RELIANCE UPON UNRELIABLE
CSAAS EVIDENCE CONSTITUTED A DENIAL OF
DUE PROCESS.
A. THE CSAAS EVIDENCE SHOULD HAVE
BEEN EXCLUDED UNDER STATE LAW.
B. THE CSAAS EVIDENCE DENIED
[DEFENDANT] DUE PROCESS UNDER THE
UNITED STATES CONSTITUTION.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution of the issues
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necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,
105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690. Further,
because prejudice is not presumed, Fritz, 105 N.J. at 52, the defendant must
demonstrate "how specific errors of counsel undermined the reliability" of the
proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Where, as here, a defendant asserts his attorney was ineffective by failing
to file a motion, he must establish that the motion would have been successful.
"It is not ineffective assistance of counsel for defense counsel not to file a
meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007).
Applying these standards, we affirm the denial of defendant's PCR
petition substantially for the reasons detailed at length in the trial judge's oral
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opinion. We discern no abuse of discretion in the court's consideration of the
issues, or in its decision to deny the petition without an evidentiary hearing.
The court correctly rejected defendant's claim that his trial attorney should
have filed a motion to suppress the recorded telephone conversations because
the State did not obtain the required authorization for the consensual intercepts.
The State submitted the November 23, 2009 Consensual Interception
Authorization form signed by the Union County prosecutor's designee.
Therefore, a motion to suppress the recordings would not have succeeded. Ibid.Defendant speculates it was possible the prosecutor may have "intend[ed]
to designate" his first assistant for this role but "then neglect[ed] to consummate
the designation[,]" or that the designation may have expired sometime before
the date the first assistant authorized the intercepts. However, a defendant must
establish the right to PCR by a preponderance of the evidence, Preciose, 129
N.J. at 459, and must present facts "supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." Cummings, 321 N.J. Super. at 170. Here, defendant presented
no first-hand certifications concerning his allegation that the intercepts were not
properly authorized. Thus, defendant's unsupported contentions were classic
"bald assertions" that did not warrant an evidentiary hearing or PCR relief. Ibid.9 A-1475-20
Finally, defendant exhausted his rights on direct appeal on June 2, 2014,
over four years before the Supreme Court's July 31, 2018 decision in J.L.G.
Therefore, the new rule the Court established in that case, which barred CSAAS
testimony in specified circumstances, plainly did not apply to defendant. Under
these circumstances, the trial court properly determined that the admission of
the CSAAS testimony at defendant's trial in 2012 did not deprive him of his
constitutional right to a fair trial.
Affirmed.
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