STATE OF NEW JERSEY VS. R.B. (13-06-1250, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-5301-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.B.,
Defendant-Appellant.
________________________
Submitted September 23, 2020 – Decided August 24, 2021
Before Judges Fuentes and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 13-06-1250.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Lillian Kayed, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant appeals from the order of the Criminal Part denying his post -
conviction relief (PCR) petition. We affirm.
On June 13, 2013, a Hudson County Grand Jury returned an indictment
charging defendant with first degree aggravated sexual assault, N.J.S.A 2C:14-
2(a) (count one); second degree sexual assault, N.J.S.A 2C:14-2(b) (count two);
second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts
three and eight); fourth degree child abuse, N.J.S.A 2C:9:6-l and N.J.S.A.
2C:9:6-3 (counts four, six and nine); first degree endangering the welfare of a
child, N.J.S.A 2C:24-4(a) (count five); and third degree distribution of opiates
and benzodiazepines, Schedule II narcotic drugs, in a quantity of less than one
ounce, N.J.S.A. 2C:35-5(a)(l) and 2C:35-5(b)(5) (count seven). 1
The victim of these crimes was the minor daughter of defendant's
paramour, identified here as B.A. 2 Defendant was tried before a jury from May
1
Without objection from defense counsel, the State amended the indictment
before the start of trial as follows: Count Two alleges defendant sexually abused
B.A. from May 2010 through May 2012; Count five alleges defendant
committed first degree Endangering the Welfare of a Child, as defined in
N.J.S.A 2C:24-4(b)(3); and Count Seven charges defendant with third degree
distribution of opiates. Before the start of opening statements, the State
dismissed Counts Four, Six and Nine of the indictment which charged defendant
with fourth degree child abuse.
2
We identify the minor victim by her initials to protect her privacy and the
confidentiality of these proceedings. N.J.S.A. 2A:82-46; R. 1:38-3(c)(9).
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19 to May 21, 2015. The jury found defendant guilty of all charges, including
first degree aggravated sexual assault, second degree sexual assault, and first
and second degree endangering the welfare of a child.
On August 27, 2015, the court sentenced defendant to an aggregate term
of forty-five years, thirty years of which were subject to the eighty-five percent
parole ineligibility, and periods of parole supervision of five years for a first
degree crime, and three years for a second degree crime, as mandated by the No
Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and
sentence to this court. On January 10, 2018, this court affirmed in part and
reversed in part defendant's conviction and sentence. Specifically, we vacated
defendant's conviction for first degree endangering the welfare of a child to
reflect a conviction for a second degree offense, and ordered that defendant be
resentenced accordingly. State v. R.B., A-0736-15 (App. Div. Jan. 10, 2018),
certif. denied, 233 N.J. 473 (2018), slip op. at 23-24. We incorporate by
reference the facts described at length by our colleagues in the unpublished
opinion that affirmed defendant's conviction. Id., slip op. at 3-7.
On July 12, 2018, defendant filed this pro se PCR petition alleging
ineffective assistance of counsel. The court assigned counsel to represent
defendant in the prosecution of this petition. In a certification dated February
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19, 2019, prepared by PCR counsel, defendant alleged that he was assigned four
different attorneys to represent him during the time it took to bring the case to
trial. The attorney who actually tried the case was assigned approximately one
and a half months before the start of trial. According to defendant, this "did not
give him enough time to properly work on my case and my defense."
Defendant also claimed he "only received about one half of the available
discovery from my attorney to review during the pretrial process and during my
trial." He argues that his trial attorney did not properly cross-examine witnesses
and failed to object to the introduction of improper evidence. The State argued
that defendant's certification was self-serving, unsupported by competent
evidence, and lacked any corroboration.
The PCR judge found defendant did not make out a prima facie case of
ineffective assistance of counsel under the two-prong test established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
The PCR judge concluded that defendant's argument concerning the failure to
present alleged exculpatory evidence at trial was procedurally barred under Rule
3:22-4 because this issue could have been raised on direct appeal. Furthermore,
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defendant's claim that such evidence exits is a self-serving assertion without any
corroboration.
Against this record, defendant raises the following argument on appeal:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVE
INVESTIGATION BY NOT PURSUING A DNA
EXPERT.
After reviewing the record and considering the standard established by the
Supreme Court in State v. Preciose, 129 N.J. 451, 462-63 (1992) and codified
under Rule 3:22-10, the PCR judge found defendant did not make out a prima
facie case of ineffective assistance of counsel and denied his application for an
evidentiary hearing. We find no legal or factual basis to conclude the PCR judge
abused his discretionary authority in reaching this conclusion. Defendant's
argument does not warrant further discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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