STATE OF NEW JERSEY VS. J.C. (04-11-2370, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-1220-17T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    J.C.,
    Defendant-Appellant.
    _________________________
    Submitted November 14, 2018 - Decided December 5, 2018
    Before Judges Currier and Mayer.
    On appeal from Superior Court of New Jersey, Law
    Division, Atlantic County, Indictment No. 04-11-2370.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Louis H. Miron, Designated Counsel, on the
    brief).
    Damon G. Tyner, Atlantic County Prosecutor, attorney
    for respondent (John J. Santoliquido, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant J.C. appeals from the denial of his petition for post-conviction
    relief without an evidentiary hearing. We affirm.
    Defendant was charged with first-degree aggravated sexual assault,
    N.J.S.A. 2C:14-2(a), two counts of second-degree sexual assault, N.J.S.A.
    2C:14-2(b); and two counts of third-degree endangering the welfare of a child,
    N.J.S.A. 2C:24-4(a), involving two victims who were under the age of thirteen.
    Defendant was the victims' neighbor and served as godparent to the younger
    victim.
    The victims gave recorded statements regarding the assaults and defense
    counsel stipulated to the use of the victims' statements at trial. Despite the
    stipulation, the trial judge conducted a hearing and granted the State's motion to
    admit the victims' statements.
    Defendant failed to appear for his trial. Defendant was tried in absentia
    from June 22 to June 29, 2006, and found guilty on all charges.           He was
    sentenced to thirty-three years in prison with a twenty-eight year period of
    parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
    Defendant filed a direct appeal, and we affirmed. The New Jersey
    Supreme Court denied defendant's petition for certification on February 17,
    2016.
    A-1220-17T1
    2
    Defendant filed his PCR petition on June 15, 2016. The PCR judge heard
    oral argument on the PCR application and denied the petition.
    In his August 7, 2017 written decision denying the PCR petition, Judge
    Bernard E. DeLury, Jr. summarized the testimony leading to defendant's
    conviction. The judge found defense counsel's stipulation to the admission of
    the victims' recorded statements did not constitute ineffective assistance of
    counsel. To the contrary, the judge concluded counsel's decision was a strategic
    determination "reserved to the judgment and discretion of trial counsel." Even
    if counsel's stipulation was flawed, the judge determined defendant "was not
    prejudiced because the trial court, on its own, chose to conduct a hearing as to
    whether the videotaped statements could be admissible under the tender years
    exception to the hearsay rule," and concluded the statements made by the two
    minor victims regarding the sexual assaults were admissible.         Therefore,
    defendant was not prejudiced by the stipulation. Because the trial judge held a
    hearing and found the videotaped statements were admissible, the PCR judge
    found defendant was not prejudiced by defense counsel stipulating to the
    admission of the statements.
    The PCR judge also rejected defendant's argument that his trial counsel
    was ineffective based on his failure to cross-examine the victims. The judge
    A-1220-17T1
    3
    concluded defense counsel's decision was "a strategic choice to forego an attack
    of the credibility and reliability of very young children who are alleged victims
    of sexual assault during cross-examination." The judge found defense counsel
    effectively attacked the inconsistencies between the children's recorded
    statements and their in-court testimony during closing argument.
    The judge made the same determination regarding trial counsel's failure
    to cross-examine the State's expert witness. Because the State's expert witness
    was not permitted to testify regarding information specific to these victims, "the
    defense ha[d] little to gain by allowing a trained and experienced witness to
    remain on the stand" and defendant's trial counsel made an appropriate tactical
    decision.
    In addition, the PCR judge rejected defendant's argument that his trial
    counsel failed to undertake an active defense on his behalf during the trial. The
    judge wrote:
    [Defendant] took it upon himself to not appear at his
    own trial. If [defendant] wished to participate more in
    his defense at trial, and guide his attorney's strategic
    decisions, he should have attended his own trial. By
    [defendant's] willful and culpable failure to attend trial,
    the [d]efendant placed his trial counsel in a nearly
    untenable position. Trial counsel, mindful of the eyes
    of the jurors upon an empty chair, likely strategized that
    frequent objections throughout trial would only draw
    attention to the fact that [defendant] did not attend his
    A-1220-17T1
    4
    own trial. The [c]ourt's instructions to the jury to
    decide the case fairly despite [defendant's] absence
    notwithstanding, experienced trial counsel know[] that
    jurors are human. Dealing with the absence of his
    client, trial counsel had little choice but to minimize the
    fact of the [d]efendant's absence. Trial counsel was not
    ineffective as he made proper strategic choices upon
    having to represent his absent client, against charges of
    sexual assault on two children.
    Defendant raises the following arguments:
    POINT I
    THE PCR COURT ERRED IN RULING THAT J.C.
    RECEIVED   EFFECTIVE   ASSISTANCE   OF
    COMPETENT TRIAL COUNSEL.
    A.    The Strickland-Cronic-Fritz Standard.
    POINT II
    TRIAL COUNSEL'S CUMULATIVE ERRORS
    MANDATE THAT J.C.'S CONVICTIONS BE
    REVERSED OR, IN THE ALTERNATIVE, THAT
    J.C. BE AFFORDED AN EVIDENTIARY HEARING.
    A-1220-17T1
    5
    POINT III
    THE PCR COURT SHOULD HAVE CONDUCTED
    AN EVIDENTIARY HEARING TO ADDRESS THE
    CLAIMS RAISED BY DEFENDANT.
    To establish a prima facie claim of ineffective assistance of counsel, a
    convicted defendant must satisfy the two-part test by demonstrating that: (1)
    counsel's performance was deficient, and (2) the deficient performance actually
    prejudiced the accused's defense. Strickland v. Washington, 
    466 U.S. 668
    , 682
    (1984); see also State v. Fritz, 
    105 N.J. 42
    , 58 (1987).
    In reviewing ineffective assistance claims, courts apply a strong presumption
    that a defendant's trial counsel "rendered adequate assistance and made all
    significant decisions in the exercise of reasonable professional judgment."
    Strickland, 
    466 U.S. at 690
    . "[C]omplaints 'merely of matters of trial strategy' will
    not serve to ground a constitutional claim of inadequacy[.]" Fritz, 
    105 N.J. at 54
    (citation omitted). "To establish a prima facie claim of ineffective assistance of
    counsel, a defendant must demonstrate a reasonable likelihood of succeeding under"
    the Strickland/Fritz test. See State v. Preciose, 
    129 N.J. 451
    , 463 (1992). To
    demonstrate the likelihood of succeeding under the Strickland/Fritz test, a defendant
    "must do more than make bald assertions[,] . . . [and] must allege facts sufficient to
    A-1220-17T1
    6
    demonstrate counsel's alleged substandard performance." State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div. 1999).
    Based on our review of the record, we are satisfied that defendant's claim of
    ineffective assistance of counsel is without merit for the reasons set forth in Judge
    DeLury's comprehensive and convincing written decision. The strategy advanced
    by defendant's trial counsel was a proper exercise of judgment given the age of the
    victims and allegations of sexual assault. Under these circumstances, the judgments
    and decisions made by trial counsel were an exercise of sound and reasonable trial
    strategy. See State v. Arthur, 
    184 N.J. 307
    , 332-33 (2005). The mere fact that a trial
    strategy failed does not establish a constitutional claim of inadequacy. Fritz, 
    105 N.J. at 54
    .
    We are satisfied defense counsel's actions did not fall below the requisite
    standard under either prong of the Strickland/Fritz test. Without presenting a
    prima facie case of ineffective assistance of counsel, defendant was not entitled
    to an evidentiary hearing on those issues. See Preciose, 
    129 N.J. at 462-63
    .
    Affirmed.
    A-1220-17T1
    7
    

Document Info

Docket Number: A-1220-17T1

Filed Date: 12/5/2018

Precedential Status: Non-Precedential

Modified Date: 8/20/2019