STATE OF NEW JERSEY VS. J.P.B. (06-03-0120 AND 07-06-0230, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-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affirmed in an unpublished opinion. 1 State v. J.P.B., No. A-1349-11 (App.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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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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