STATE OF NEW JERSEY VS. JOSEPH COOKE (98-01-0108, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1364-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH COOKE,
Defendant-Appellant.
_________________________
Argued October 31, 2018 – Decided January 10, 2019
Before Judges Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 98-01-0108.
Adam W. Toraya, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Adam W. Toraya, on the brief).
William P. Miller, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; William P. Miller, of counsel and
on the brief; Catherine A. Foddai, Legal Assistant, on
the brief).
PER CURIAM
Following a jury verdict acquitting defendant Joseph Cooke of all counts
except second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(c)(2), he was
sentenced on January 28, 2000 to a probationary term. 1 He now appeals from a
Law Division order denying his third petition2 for post-conviction relief (PCR),
claiming:
POINT I
THE PCR COURT'S ORDER SHOULD BE
REVERSED AND THE DEFENDANT'S
CONVICTION VACATED BECAUSE TRIAL
COUNSEL FAILED TO CALL ANITA HARRIS AS A
WITNESS AT TRIAL.
A. THE COURT ERRED IN FAILING TO FIND
THAT TRIAL COUNSEL'S PERFORMANCE WAS
DEFICIENT.
B. THE COURT ERRED IN FAILING TO FIND
PREJUDICE WHEN HARRIS NEVER TESTIFIED
ABOUT THE PARTIES['] RELATIONSHIP.
1
Pursuant to our remand on direct appeal, defendant was resentenced to a State
prison term in June 2002; considering that sentence as an appeal pursuant to
Rule 2:9-11, we affirmed subject to technical adjustments to the judgment of
conviction. State v. Cooke (Cooke II), A-6729-01 (App. Div. Feb. 10, 2003).
2
The PCR judge considered this as defendant's fourth PCR, counting the pro se
petition which was amended by this one as defendant's third. The distinction is
of no moment because Rule 3:22-12(a)(2) pertains to a second or subsequent
petition.
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POINT II
THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING R. 3:22-12 AS A PROCEDURAL BAR
AGAINST THE DEFENDANT'S FILING FOR POST-
CONVICTION RELIEF IN THIS CASE.
In support of defendant's argument that trial counsel was ineffective for
failing to call Anita Harris as a trial witness to buttress his consent defense,
defendant's PCR counsel for this third petition certified he found trial counsel's
request for an investigation and a concomitant investigation report in the
regional trial file. The investigation report, defendant contends, "shows that
Harris did tell the investigator that [d]efendant had discussed with her the
ongoing relationship [d]efendant had with" the victim prior to alleged crime.
We affirm because defendant's petition was time-barred under Rule 3:22-
12(a)(2) and otherwise lacks merit.
We set forth the facts underlying defendant's conviction in our decision
on defendant's direct appeal, State v. Cooke (Cooke I), 345 N.J. Super. 480(App. Div. 2001), and will not repeat them here except as necessary. We briefly
review the apposite procedural history.
Defendant's first PCR petition, filed in March 2001, was denied without
an evidentiary hearing, and defendant appealed. We reversed and remanded the
matter for an evidentiary hearing regarding the veracity of defendant's claims of
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juror taint. In considering his claim that his trial counsel was ineffective because
she failed to call "crucial witnesses," we noted our concern, in light of
defendant's consent defense, about "defendant's claim that he was precluded
from calling Anita Harris as a witness to testify to her alleged knowledge as to
defendant's prior relationship with the victim," and did "not foreclose
exploration of [that] topic at the evidentiary hearing." 3 State v. Cooke (Cooke
III), A-4265-04 (App. Div. June 27, 2006) (slip op. at 10).
Following an evidentiary hearing, the remand-PCR court denied
defendant's petition in a November 27, 2006 order. In affirming the denial, we
considered defendant's argument that the remand-PCR court erred by denying
the petition even though Ms. Harris's 4 evidentiary-hearing testimony, together
3
Defendant, in an undated "certification" notarized on May 21, 2004, in support
of his first PCR petition, maintained:
Ms. Harris had probative and factual testimony
regarding my prior relationship and background with
[the victim] prior to the alleged incident. Incredibly,
although my trial attorney asked me to have [Ms. Harris
and other witnesses who could have testified as to his
character] appear in [c]ourt so they could testify, my
trial attorney did not call a single witness at trial on my
behalf.
4
Ms. Harris had remarried after defendant's trial and we honored her preference
to be called Uhles. State v. Cooke (Cooke IV), A-4614-06 (App. Div. Feb. 23,
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with that of defendant and his trial counsel, established ineffective assistance of
counsel grounded, in part, on counsel's failure to call Harris as a witness in
support of his consent defense. Cooke IV, (slip op. at 14). We noted the record
disclosed "defendant's allegation of the existence of a prior relationship with the
victim, known to [Harris], but unexplored at trial." Id. at 14. We declined to
disturb the remand-PCR court's finding that "defendant, and by inference
[Harris], were not credible" in light of evidence adduced during the hearing of
defendant's statement to police on the day of his arrest in which he denied any
relationship with the victim – "a statement that defendant sought to repudiate at
the PCR hearing." Ibid. We concluded that "factual contradiction, together
with defendant's varying descriptions [of an incident regarding alleged juror
taint – another ground explored at the hearing –] provide[d] a solid foundation"
for the court's credibility findings. Ibid.
Defendant filed a second PCR petition in May 2013 which was denied
under Rule 3:22-4(b) without an evidentiary hearing. No appeal was filed.
Defendant filed the pro se petition that is the subject of this appeal on
March 13, 2015; appointed counsel filed an amended petition on May 31, 2016.
2010) (slip op. at 8 n.3). We refer to her as Harris only to avoid confusion; we
mean no disrespect.
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We agree with the PCR judge that defendant's petition is time-barred
under Rule 3:22-12(a)(2) which provides that a second or subsequent PCR
petition is untimely when filed more than one year after the latest date of: (A)
a newly asserted constitutional right was recognized and made retroactive; (B)
a newly discovered factual predicate was discovered, if it "could not have been
discovered earlier through reasonable diligence"; or (C) a prior PCR petition
was denied because PCR counsel was allegedly ineffective. Rule 3:22-12(a)(2)
imposes strict time limitations on the filing of second or subsequent PCR
petitions. "[E]nlargement of Rule 3:22-12's time limits 'is absolutely
prohibited.'" State v. Jackson, 454 N.J. Super. 284, 292 (App. Div. 2018)
(quoting Aujero v. Cirelli, 110 N.J. 566, 577 (1988)). Indeed, Rule 3:22-4(b)
requires the dismissal of a second PCR petition if untimely as defined under
Rule 3:22-12(a)(2).
Defendant's present petition – his third – was filed over sixteen years after
he was originally sentenced, over twelve years after his certification in support
of his first petition asserted that his trial counsel was ineffective for failing to
call Harris because she knew of his prior relationship with the victim, and almost
ten years after Harris testified at the evidentiary hearing about that knowledge
and the court's denial of that PCR petition after remand. The evidence he now
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claims is newly discovered had been known to him, asserted as PCR grounds,
and rejected after the evidentiary hearing following our remand of his first
petition. As the PCR judge found in ruling on this third petition, "[t]his 'new
evidence' is really not new evidence." Defendant raised this issue regarding
Harris's testimony, not only as a character witness, but as a fact witness, before.
The PCR judge correctly dismissed the present petition as time-barred.
We do not reach the merits of defendant's remaining arguments because
his third PCR petition was untimely under Rule 3:22-12(a)(2), and must be
dismissed pursuant to Rule 3:22-4(b)(1). We note the PCR judge concluded
defendant met neither prong of the Strickland-Fritz standard to establish trial
counsel's ineffectiveness. 5 The judge found that Harris had no knowledge of
defendant's relationship with the victim save for hearsay related to her by
defendant, and that she observed them together only on one occasion. In finding
defendant failed to show that counsel's ineffectiveness prejudiced his case, the
judge recognized, as did the remand-PCR court after the evidentiary hearing,
that Harris's potential testimony would have been undermined by, and would
5
To prevail on a claim of ineffective assistance, a defendant must satisfy the
two-part test established by Strickland v. Washington, 466 U.S. 668 (1984) and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The
defendant must show that his attorney's performance was deficient and that the
"deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
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have contradicted, defendant's statement to the police that he did not know the
victim.
Affirmed.
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