STATE OF NEW JERSEY VS. JOHN KATSIGIANNIS (08-06-1066, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )


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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    NOT FOR PUBLICATION WITHOUT THE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-3342-18T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JOHN KATSIGIANNIS,
    Defendant-Appellant.
    _______________________
    Submitted March 16, 2020 – Decided April 22, 2020
    Before Judges Sabatino and Natali.
    On appeal from the Superior Court of New Jersey, Law
    Division, Bergen County, Indictment No. 08-06-1066.
    Robert C. Pierce, attorney for appellant.
    Mark Musella, Bergen County Prosecutor, attorney for
    respondent (Edward F. Ray, Assistant Prosecutor, of
    counsel and on the brief).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    Defendant John Katsigiannis appeals from a March 4, 2019 order denying
    his petition for post-conviction relief (PCR) without an evidentiary hearing. We
    affirm.
    I.
    After defendant's first trial ended in a mistrial due to a hung jury, a second
    jury convicted him of first-degree aggravated sexual assault, contrary to
    N.J.S.A. 2C:14-2(a)(1). The charges arose out of defendant's digital penetration
    of the fifteen-month-old daughter of his then girlfriend. The court imposed a
    fifteen-year custodial sentence, with an eighty-five-percent period of parole
    ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, along
    with a mandatory five-year period of parole supervision.             We affirmed
    defendant's conviction but remanded for resentencing, see State v. Katsigiannis,
    No. A-4685-12 (App. Div. Oct. 1, 2014). At resentencing, the court stated it no
    longer relied upon aggravating factor one, but otherwise left defendant's
    sentence unchanged.      The Supreme Court denied defendant's petition for
    certification. State v. Katsigiannis, 
    221 N.J. 286
    (2015).
    The facts underlying defendant's convictions are detailed in our previous
    unpublished opinion. We nevertheless recount many of those facts to provide
    necessary context for this opinion.
    A-3342-18T2
    2
    At the time of the assault, K.P. (Kelly) 1 lived with her mother L.R. (Lucy)
    and maternal grandmother. Lucy had been dating defendant for a short period,
    and she testified that she and defendant would often bring Kelly along on dates,
    as she trusted defendant. Defendant occasionally assisted with Kelly's care by
    changing diapers and babysitting while Lucy was at work.
    Throughout the relationship, and because Lucy's mother would not allow
    defendant to spend nights at their residence, Lucy and Kelly frequently slept at
    defendant's house in Fair Lawn where defendant lived with his father, sister,
    uncle, and grandparents. One afternoon, defendant and Lucy invited friends
    over to defendant's backyard for a barbeque and then a visit to a nearby public
    pool. During the party, defendant offered to take Kelly inside for a nap. Lucy
    agreed because she thought defendant "was going to give [her] a little bit of a
    break to sit down" and she "didn't think there was anything odd about it at the
    time."
    When defendant did not soon return, Lucy testified at the second trial that
    she and defendant's friend D.C. (David) went into the house to look for him.
    Lucy stated that she and David went to defendant's bedroom upstairs and found
    1
    We employ initials and pseudonyms to protect the privacy of the parties. R.
    1:38-3(c)(9).
    A-3342-18T2
    3
    the door closed, so David opened it slightly. In response, according to Lucy,
    defendant closed the door and told them to go outside because defendant's
    grandmother was sleeping. Lucy testified that she assumed Kelly was in the
    room as well. She then stated that when she and David went downstairs, he said
    "[i]f that was my kid I would make sure she was okay." In response, because
    she trusted defendant, she told David that Kelly was "upstairs with [defendant],
    she's okay."
    As Lucy began to get ready to go to the pool, she noticed that defendant
    had changed Kelly into her "swimmie" diapers and bathing suit. At the pool,
    defendant and Lucy stayed in the shallow end with Kelly. Defendant was
    holding Kelly in the water when Lucy noticed "that she was uncomfortable and
    . . . it looked like she was cold . . . ." Lucy asked defendant to give Kelly to her,
    and while he initially stated "I got her, I got her," he eventually complied. Lucy
    walked to a bench and quickly changed Kelly into a dry diaper.
    Shortly thereafter, all members of the group except for David returned to
    defendant's house. According to Lucy, defendant left the house a few minutes
    later "to go see [David] about something regarding a laptop." When defendant
    returned, his friends left. At this point, Lucy stated she was going to bathe Kelly,
    but defendant insisted that he do so. Defendant walked her to the bathroom and
    A-3342-18T2
    4
    closed the door. Lucy testified that shortly thereafter, she opened the bathroom
    door and saw Kelly without her clothes on and a bloody diaper on the floor.
    Lucy grabbed Kelly, brought her back into the bedroom, and noticed an
    "open tear" on her vagina. Lucy screamed to call an ambulance, but defendant
    replied "[o]h, that doesn't look like anything. That's okay." In response, Lucy
    stated that if defendant did not take them to the hospital, she was going to call
    her mother to do so. Defendant drove Lucy and Kelly to the hospital, and Lucy
    spoke with emergency personnel regarding Kelly's condition.              Defendant
    testified that at this point, he left to meet with the party guests in order to "find
    out . . . any details about what had happened to [Kelly]." Defendant returned to
    the hospital at approximately 3:00 a.m.
    Leah Raguindin, M.D., was the first doctor to examine Kelly.                Dr.
    Raguindin determined that Kelly sustained multiple lacerations to her hymenial
    tissue and referred her to Victor Valda, M.D., for surgery. She also referred
    Kelly to Julia Debellis, M.D., because of the type of damage and the fact that
    there was "no explanation for the injury."
    Dr. Debellis, a board-certified specialist in child-abuse pediatrics,
    examined Kelly next. She spoke to defendant and Lucy separately regarding
    Kelly's injury.   Dr. Debellis then performed a physical examination which
    A-3342-18T2
    5
    revealed blood clots and bruising "all over the hymen," as well as lacerations on
    the hymen. She believed that the injury occurred within the previous day
    because the wound was "oozing blood" and concluded that the injury was caused
    by "[a]cute penetrating trauma." She also testified that the injury could not have
    been the result of activities such as "sitting in a baby's swing[,] . . . going down
    on a slide," or wiping the area. Dr. Debellis contacted the Division of Youth
    and Family Services (the Division) and the Bergen County Prosecutor's Office
    "because the injuries reflected penetrating trauma, and there was no history
    given about [Kelly] suffering penetrating trauma."
    Shortly thereafter, Detective Michael Guzman of the Bergen County
    Prosecutor's Office and Detectives James Corcoran and Jeff Welsh of the Fair
    Lawn Police Department (FLPD) arrived at the hospital. FLPD Officer Sean
    Macys provided them with written statements he had obtained from defendant
    and Lucy. In defendant's written statement, which was admitted at trial, he
    stated that prior to leaving for the pool, he "took [Kelly] up to [his] room a nd
    took her diaper off to put a swimming diaper on," and that night when he and
    Lucy "took [Kelly's] diaper off[,] [they] noticed it was full of blood." In Lucy's
    written statement, which she read into the record on cross-examination at the
    second trial, she stated that before they left for the pool, defendant changed
    A-3342-18T2
    6
    Kelly's diaper and she "was in the room." Lucy also wrote that later, as she
    prepared to bathe Kelly, "when [she] took off [Kelly's] diaper there was blood
    in it."
    After reviewing the statements, the officers confirmed the statements'
    contents with defendant and Lucy and asked defendant to accompany them to
    the pool. In his written report memorializing the investigation, Guzman noted
    that Lucy informed him that before they went to the pool, "with [defendant]
    present she changed [Kelly]'s diaper into a swimming diaper . . . ." Lucy also
    stated that later that night, she and defendant "decided to give [Kelly] a bath,"
    and while preparing to do so, "they took off her clothing and diaper and noticed
    blood in the diaper." Guzman further indicated that defendant "gave the same
    recollection of the day," but did not record any specific statements he made.
    At the pool, defendant led the officers to the garbage can containing the
    "swimmie" diaper, which they retrieved. Guzman opened the diaper and noticed
    "some type of pinkish fluid" inside it. The officers next sought to search
    defendant's home, and defendant signed a form indicating his consent. They
    traveled to defendant's home, and defendant directed them to his bedroom and
    the nearby bathroom where Kelly's diapers were thrown in the trash. Guzman
    retrieved baby wipes from the garbage can in the bedroom that he stated
    A-3342-18T2
    7
    appeared to have blood on them and obtained a bloody diaper from the garbage
    can in the bathroom.
    Once upstairs, defendant was not permitted to speak with his family
    members. Officers instructed defendant to remain in the upstairs bedroom, and
    he was always accompanied by one or more uniformed officers. Defendant's
    family members were congregated on couches in the family room, with a police
    officer stationed there. The police declined to allow defendant's father to join
    him upstairs, and they also did not allow defendant's grandmother to speak to
    him in Greek.
    After returning to the hospital, the officers obtained defendant's consent
    to search his vehicle.    Following that search, Corcoran and Welsh asked
    defendant to go with them to the FLPD for an interview and recorded statement,
    and defendant agreed to do so. Corcoran and Welsh brought defendant to "an
    open common area" in the Detective Bureau and advised him of his Miranda2
    rights. Defendant thereafter went into a nearby interview room and prepared a
    written statement, which was admitted at trial. In that second written statement,
    defendant again stated that "[he] took [Kelly] upstairs and changed her to her
    2
    Miranda v. Arizona, 
    374 U.S. 436
    (1966).
    A-3342-18T2
    8
    swim diaper" prior to going to the pool, and prior to bathing her, he and Lucy
    "took her diaper off . . . and saw she was bleeding."
    Guzman arrived at the station and interviewed defendant along with
    Corcoran and Welsh. At that interview, defendant initially denied injuring
    Kelly, but later admitted that when he was changing her, his "finger did go in by
    accident. It wasn't intentional," and "a little bit of blood came of f [his] finger."
    At this point, the officers arrested defendant.
    Defendant filed a PCR petition and the court then appointed PCR counsel.
    In his petition, defendant maintained that his trial counsel was ineffective for
    failing to: 1) call David and Macys as witnesses; 2) impeach or cross-examine
    Lucy with a prior inconsistent statement made to a doctor and two law
    enforcement officers; 3) cross-examine Guzman on his report stating Lucy
    changed Kelly's diaper; 4) cross-examine Guzman and Corcoran regarding the
    destruction of their notes and seek an adverse jury instruction; 5) object to
    Lucy's hearsay testimony regarding David's statement that "[i]f that was my kid
    I would make sure she was okay" or cross-examine her statement that she had
    never had prior contact with the Division; and 6) cross-examine Guzman
    regarding his testimony that David refused to be interviewed. PCR counsel also
    A-3342-18T2
    9
    argued that the State failed to provide defendant with Guzman's notes of the
    interview with David, in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963).
    Defendant also claimed his former appellate counsel's representation was
    deficient because he failed to: 1) challenge the State's improper burden-shifting
    when Guzman testified at trial that none of the other attendees to the barbeque
    had returned his request to provide statements; and 2) raise the issue that
    defendant's confession should have been suppressed based on an unlawful
    seizure.
    PCR counsel further argued that the cumulative errors at defendant's
    second trial and on his first appeal warranted either a reversal of his conviction
    and a new trial, or at least an evidentiary hearing regarding his ineffective
    assistance claims and the alleged Brady violation.
    Judge Christopher R. Kazlau issued a detailed written opinion in which he
    rejected defendant's PCR claims that trial counsel was ineffective under
    Strickland v. Washington, 
    466 U.S. 668
    (1984). The judge explained that
    defendant's disagreement with trial counsel's strategy was insufficient to
    establish a prima facie case of ineffective assistance. Specifically, Judge Kazlau
    determined that trial counsel's failure to call David as a witness was reasonable
    based on his assessment that David "was 'f---ed up and looked anxious'" (an
    A-3342-18T2
    10
    observation defendant recounted in his PCR certification) which "could have
    been a liability for the defense."    Further, the judge concluded that since
    defendant "initially lied to the police," his case would have been undermined if
    counsel called Macys as a witness.
    Judge Kazlau also explained that, contrary to defendant's assertion, trial
    counsel did cross-examine Lucy and Guzman, and just because he did so "in a
    manner not contemplated by [defendant]," that did not render counsel's
    performance ineffective as it "did not materially prejudice" defendant.
    Moreover, Judge Kazlau concluded that Lucy's testimony regarding David's
    statement that he "would make sure [Kelly] was okay" was "offered to show
    [David]'s state of mind at the time he made the statement," and thus was properly
    admitted.
    Judge Kazlau also concluded that defendant's request for an adverse jury
    instruction relating to the destruction of the interview notes was procedurally
    barred under Rule 3:22-5, as it was raised and rejected on his direct appeal. He
    further determined that no Brady violation occurred because the State did in fact
    give interview the notes from David's interview to defense counsel on September
    16, 2011.
    A-3342-18T2
    11
    Regarding defendant's claims of ineffective assistance of appellate
    counsel, Judge Kazlau concluded "the State did not shift the burden on
    [defendant]'s failure to produce a witness at his second trial." The judge also
    found that defendant "was not in custody for purposes of custodial interrogation
    until the detectives brought him to his residence, but the questioning did not
    trigger the duty to provide Miranda warnings." Hence, no alleged constitutional
    violation occurred that could have been successfully challenged on appeal. In
    addition, the judge concluded that there was no cumulative effect of errors by
    counsel that mandated reversal of defendant's conviction. Finally, the judge
    determined that defendant was not entitled to an evidentiary hearing.
    On appeal, PCR counsel raises substantially the same arguments rejected
    by the PCR court. Specifically, defendant claims:
    POINT ONE
    THE TRIAL COURT ERRED BY NOT ORDERING
    AN EVIDENTIARY HEARING.
    A. The prevailing legal principles
    regarding claims of ineffective assistance
    of counsel, evidentiary hearings and
    petitions for post-conviction relief.
    B. Trial counsel was ineffective for failing
    to call [David] as a defense witness.
    A-3342-18T2
    12
    C. Trial counsel was ineffective for failing
    to call Officer Sean Macys as a witness.
    D. Trial counsel was ineffective for failing
    to impeach [Lucy] with all of her prior
    inconsistent statements that [defendant]
    was in the room during the diaper change
    and to cross-examine Detective Guzman
    with his report.
    E. Trial counsel failed to cross-examine
    Detectives    Guzman      and    Corcoran
    concerning the destruction of their
    interview notes and, therefore, also failed
    to request an adverse inference jury
    instruction.
    F. Trial counsel was ineffective for failing
    to object to [Lucy]'s hearsay testimony that
    [David] told her, "If that was my kid I
    would make sure she was okay."
    G. Trial counsel failed to cross-examine
    Detective    Guzman     concerning   his
    testimony that [David] refused to be
    interviewed.
    H. Trial counsel failed to impeach [Lucy]
    when she testified that she never had a
    prior dealing with DYFS.
    POINT TWO
    THE TRIAL COURT ERRED BY NOT GRANTING
    [DEFENDANT]'S   PETITION   FOR   POST-
    CONVICTION    RELIEF     BECAUSE   HE
    ESTABLISHED THAT HE WAS DEPRIVED
    A-3342-18T2
    13
    EFFECTIVE       ASSISTANCE         OF     APPELLATE
    COUNSEL.
    A.    Appellate counsel failed to raise the
    issue that the State improperly shifted the
    burden of proof by asking Detective
    Guzman whether any of the names of
    persons, supplied by [defendant], agreed to
    give a statement to the police, which
    Guzman replied in the negative.
    B.    Appellate counsel failed to raise the
    issue that [defendant]'s alleged confession
    must be suppressed due to his unlawful
    Fourth Amendment seizure.
    In his supplemental pro se brief, defendant also argues:
    POINT ONE
    TRIAL COUNSEL WAS INEFFECTIVE FOR
    FAILING TO CALL [DAVID] AS A WITNESS.
    POINT TWO
    TRIAL COUNSEL FAILED TO OBJECT, MAKE A
    MOTION TO STRIKE THE RECORD OR REQUEST
    A CURATIVE JURY INSTRUCTION CONCERNING
    [LUCY]'S HEARSAY TESTIMONY THAT [DAVID]
    TOLD HER, "IF THAT WAS MY KID I WOULD
    MAKE SURE SHE WAS OKAY," CONSTITUTING
    INEFFECTIVE ASSISTANCE OF COU[]NSEL IN
    CONTRAVENTION TO THE SIXTH AMENDMENT
    TO THE UNITED STATES CONSTITUTION AND
    ARTICLE 1, PAR. 10 OF THE NEW JERSEY
    CONSTITUTION OF 1947.
    POINT THREE
    A-3342-18T2
    14
    JOHN KATSIGIANNI[S]' APPELLATE COUNSEL
    FAILED TO RAISE THE [FOURTH] AMENDMENT
    SEARCH AND SEIZURE VIOLATION HE WAS
    SUBJECTED TO CONSTITUTING INEFFECTIVE
    ASSISTANCE OF APPELLATE COUNSEL IN
    CONTRAVENTION TO THE SIXTH AMENDMENT
    TO THE UNITED STATES CONSTITUTION AND
    ARTICLE 1, [PAR.] 10 OF THE NEW JERSEY
    CONSTITUTION OF 1947.
    II.
    The PCR process provides a defendant a "last chance to challenge the
    'fairness and reliability of a criminal verdict . . . .'" State v. Nash, 
    212 N.J. 518
    ,
    540 (2013) (quoting State v. Feaster, 
    184 N.J. 235
    , 249 (2005)). When, as here,
    no evidentiary hearing is held we "conduct a de novo review of both the factual
    findings and legal conclusions of the PCR court." State v. Harris, 
    181 N.J. 391
    ,
    421 (2004).
    Because defendant's PCR petition is predicated on his claim that trial
    counsel was ineffective, he must satisfy the two-part test pronounced in
    Strickland by demonstrating that "counsel's performance was deficient," that is,
    "that counsel made errors so serious that counsel was not functioning as the
    'counsel' guaranteed the defendant by the Sixth 
    Amendment." 466 U.S. at 687
    ;
    see also State v. Fritz, 
    105 N.J. 42
    , 58 (1987). The first prong requires a showing
    A-3342-18T2
    15
    that     "counsel's   representation    fell      below   an   objective   standard   of
    reasonableness." 
    Strickland, 466 U.S. at 688
    .
    A defendant, however, must overcome a strong presumption that counsel
    rendered reasonable professional assistance.
    Id. at 689.
    "[C]omplaints 'merely
    of matters of trial strategy'" will not establish a valid ineffective assistance of
    counsel claim. 
    Fritz, 105 N.J. at 54
    (quoting State v. Williams, 
    39 N.J. 471
    , 489
    (1963)); see also Nash, 
    212 N.J. 518
    , 543 (2013) ("The test is not whether
    defense counsel could have done better, but whether he met the constitutional
    threshold for effectiveness.").        It is the defendant's burden to prove, by a
    preponderance of the evidence, that counsel's decisions about trial strategy were
    not within the broad spectrum of competent legal representation. 
    Fritz, 105 N.J. at 52
    .
    Under the second prong, a defendant must demonstrate that his counsel's
    errors prejudiced the defense such as to deprive defendant of a fair and reliable
    trial outcome. 
    Strickland, 466 U.S. at 687
    . To prove this element, a defendant
    must demonstrate "a reasonable probability that, but for counsel's unprofessional
    errors, the result of the proceeding would have been different."
    Id. at 694.
    III.
    A-3342-18T2
    16
    In defendant's first substantive point he contends that his trial counsel was
    ineffective because he failed "to bring to the jury's attention that [Lucy] . . . was
    in his small bedroom when [defendant] changed [Kelly]'s diaper," and this
    evidence "would have provided exculpatory evidence that the injury sustained
    by [Kelly] during the diaper change was caused by an accident and not a
    knowing first-degree assault." Defendant maintains such evidence would have
    been admitted if not for trial counsel's constitutional ineffectiveness in failing
    to call David and Macys as witnesses, impeach Lucy on her prior inconsistent
    statements, cross-examine Guzman and Corcoran regarding their notes from
    their interview with David, and object to a hearsay statement made by Lucy. We
    disagree.
    Defendant further explains that David would have provided "unbiased
    eyewitness testimony that [Lucy] was in [defendant]'s small bedroom when
    [Kelly] was changed," and therefore if the jury heard his testimony, defendant
    would have been acquitted. Defendant contends that Macys, as the first police
    officer to speak with Lucy and defendant at the hospital, should have been called
    as a witness because "during the first opportunity for [defendant] to tell the
    police what had happened, he informed . . . Macys that [Lucy] was in the room
    A-3342-18T2
    17
    when the diaper was changed" and thus Macys would have corroborated
    defendant's testimony and undermined Lucy's.
    "Determining which witnesses to call to the stand is one of the most
    difficult strategic decisions that any trial attorney must confront."     State v.
    Arthur, 
    184 N.J. 307
    , 320 (2005). Defense counsel's decision as to which
    witnesses he or she will call is "an art,"
    id. at 321
    (quoting 
    Strickland, 466 U.S. at 693
    ), and review of such a decision should be "highly deferential."
    Ibid. (quoting Strickland, 466
    U.S. at 689). Counsel has a duty, however, "to make
    reasonable investigations or to make a reasonable decision that makes particular
    investigations unnecessary." 
    Strickland, 466 U.S. at 691
    .
    In an affidavit provided to the PCR court, David stated that he routinely
    took painkillers and muscle relaxers due to injuries sustained as a result of
    multiple car accidents. As defendant further certified, on the day David was to
    be called as a witness, trial counsel informed defendant that David was "f—ked
    up and looked anxious." Defendant contended this was "just how [David] acts,"
    and trial counsel allegedly told defendant he would call David the next day. The
    following day, trial counsel ended its case-in-chief with defendant's testimony
    and advised defendant of his trial strategy that it was most effective to present
    defendant's testimony last. We agree with the PCR court that trial counsel's
    A-3342-18T2
    18
    assessment of David's demeanor on the first day of the defense's presentation
    and his strategy to end with defendant on the second day rendered his decision
    against calling David as a witness objectively reasonable under the
    circumstances.
    Further, as David stated in his affidavit in support of defendant's PCR
    petition, he "would have given the same testimony as [he] did at [defendant]'s
    first trial." Notably, at defendant's first trial, David never testified that he
    observed Lucy in defendant's bedroom at the time defendant changed Kelly, and
    only stated that he saw defendant, Lucy, and Kelly "coming down" the stairs.
    While he testified that Lucy "had to have been up[stairs] . . . because she came
    down," David admitted that he had not "heard her or s[een] her" upstairs.
    Moreover, David also testified on direct examination at the first trial that when
    he knocked on defendant's bedroom door, defendant "didn't tell [David] he was
    changing the diaper." This allowed the State to cross-examine him on a prior
    inconsistent statement he made to Guzman in which he stated he "knocked on
    the door and [defendant] said he was changing a diaper." David's testimony, as
    at the first trial, would have been subject to cross-examination regarding that
    prior inconsistent statement.
    A-3342-18T2
    19
    With respect to Macys, it was reasonable for trial counsel not to call him
    as a witness, as his testimony would have been duplicative. Defendant and Lucy
    both memorialized their statements to Macys in written form, and both
    statements were witnessed and signed by Macys. Defendant's written statement
    was admitted into evidence at the second trial and Lucy read the entirety of her
    statement to the jury on cross-examination, including the portion in which she
    stated that prior to going to the pool, she "went upstairs, [defendant] changed
    [Kelly's] diaper, [and she] was in the room."
    Further, as the State correctly argues, Macys would have been unable to
    testify regarding the truth of many of the hearsay statements in his reports.
    While police reports in the course of an investigation may be "admissible to
    prove, for example, that a report of crime was made by a member of the public"
    under the business record exception to the hearsay rule, "'citizen' declarations
    are virtually universally held to constitute excluded hearsay in respect of
    otherwise admissible police reports." State v. Lungsford, 
    167 N.J. Super. 296
    ,
    310 (App. Div. 1979); see also Ruroede v. Borough of Hasbrouck Heights, 
    214 N.J. 338
    , 361 (2013) (citing Lungsford in support of a determination that witness
    statements appended to an otherwise admissible investigative report were
    nevertheless hearsay). Moreover, there is always some inherent risk in a defense
    A-3342-18T2
    20
    attorney calling a police officer in a criminal trial as "a witness identified with
    an adverse party . . . ." See N.J.R.E. 611(c).
    The record also supports the PCR court's determination that trial counsel's
    failure to call Macys did not prejudice defendant. Defendant argues that Macys
    would have supported Lucy's and defendant's initial written statements that Lucy
    was in the room while defendant changed Kelly's diaper.            Lucy, however,
    admitted during the State's case-in-chief at the second trial that she lied in that
    statement to protect defendant. Thus, the jury was painstakingly aware of her
    earlier statements and the various claims regarding who was present in the room
    – none of which excluded defendant. Moreover, defendant himself omitted from
    his written statement that, as he later testified at trial, he "caused the injury but
    not on purpose."
    IV.
    Defendant also asserts that he received ineffective assistance of counsel
    when his attorney failed to impeach Lucy regarding her prior inconsistent
    statements to Dr. Debellis, Macys, and Guzman that she was in defendant's room
    while he changed Kelly's diaper, as well as her testimony that she had never
    been the subject of a Division investigation. Defendant further maintains that
    trial counsel's failure to cross-examine Guzman regarding the statements in his
    A-3342-18T2
    21
    written report that Lucy stated she changed Kelly's diaper and that defendant
    "gave the same recollection of the day" amounted to ineffective assistance.
    Trial counsel, however, did have Lucy read her entire written statement to
    the jury and cross-examined her on the portion of that statement in which she
    stated "I went upstairs[,] [defendant] changed [Kelly's] diaper[,] I was in the
    room." Further, as noted, Lucy had already admitted on direct examination that
    this statement was untruthful. Similarly, the jury was already aware that Lucy
    lied to protect defendant during her initial statements. Because the jury was
    fully cognizant of Lucy's initial statement to Guzman that "with [defendant]
    present she changed [Kelly]'s diaper into a swimming diaper" prior to leaving
    for the pool, counsel's performance did not prejudice defendant under the second
    Strickland prong. We reach the same conclusion with respect to counsel's failure
    to cross-examine Guzman with the statements in his report that defendant and
    Lucy "gave the same recollection of the day."
    Defendant further maintains that Lucy's testimony, in which she stated
    that she had "never dealt with [the Division] before," conflicted with evidence
    of a prior Division investigation in which she was involved, and thus trial
    counsel should have impeached her in order to "corroborate[] [defendant]'s
    testimony." Defendant certified before the PCR court that Lucy asked him to
    A-3342-18T2
    22
    tell the police "that [Lucy] was not in the room during the diaper change . . .
    because she was afraid of a second [Division] investigation." He also claimed
    that before his first trial, the court "concluded that there were [Division] reports
    of a previous incident, but they were not relevant to the issues in this case."
    As the PCR court correctly determined, counsel's failure to impeach Lucy
    "did not have a damaging impact so as to overcome the strong presumption that
    trial counsel exhibited reasonable professional judgment in shaping trial
    strategy." Even assuming counsel was ineffective for failing to impeach Lucy
    on this point, defendant failed to establish that the trial outcome would have
    been different, particularly considering defendant's admission and the expert
    testimony, had counsel raised the prior Division involvement with Lucy and thus
    we agree with the PCR court that defendant failed to satisfy the prejudice prong
    of the Strickland test.
    V.
    Defendant further maintains that he received ineffective assistance
    because trial counsel did not cross examine Corcoran or Guzman regarding the
    destruction of their interview notes, as those notes "would have rev ealed that
    [defendant] told them [Lucy] was in the room during the diaper change." As a
    corollary to this argument defendant also claims that trial counsel was required
    A-3342-18T2
    23
    to request that the jury be "told that [Guzman and Corcoran] were required,
    under the discovery rules, to provide [defendant] with the pre-interview notes
    and that their destruction allowed [the jury] to draw an inference that the notes
    would have been favorable to the defense." We disagree.
    Initially, however, we note that the PCR court incorrectly concluded that
    defendant's argument regarding the adverse jury instruction was "procedurally
    barred" pursuant to Rule 3:22-5. In defendant's direct appeal, it does not appear
    that defendant raised the issue of his trial counsel's failure to request an adverse
    jury inference. See Katsigiannis, slip op. at 2-3. Instead, the only jury charge
    issue raised by defendant on direct appeal was his argument that the trial court
    should have instructed the jury regarding lesser-included offenses.
    Ibid. "Under Rule 3:22-5,
    prior adjudication of an issue, including a decision
    on direct appeal, will ordinarily bar a subsequent post-conviction hearing on the
    same basis." State v. Afanador, 
    151 N.J. 41
    , 51 (1997). An issue is only barred
    under the Rule, however, if the issue sought to be precluded "'is identical or
    substantially equivalent' to the issue already adjudicated on the merits."
    Ibid. (quoting State v.
    McQuaid, 
    147 N.J. 464
    , 484 (1997)). Because "[i]neffective-
    assistance-of-counsel claims are particularly suited for post-conviction review,"
    see State v. Preciose, 
    129 N.J. 451
    , 460 (1992), the mere fact that we previously
    A-3342-18T2
    24
    adjudicated the issue of lesser-included offenses on defendant's direct appeal
    does not procedurally bar defendant from alleging in a PCR petition that his trial
    counsel was ineffective for failing to request an adverse jury charge relating to
    the destruction of interview notes.
    We conclude, however, that the record on appeal amply supports a
    determination that defendant failed to satisfy the Strickland test regarding
    counsel's failure to request an adverse jury instruction based on the alleged
    destruction of the detectives' interview notes. Defendant relies upon State v.
    W.B., 
    205 N.J. 588
    (2011), to support his contention that an adverse jury
    instruction should have been issued based on Corcoran's and Guzman's failure
    to preserve their interview notes and turn them over to defendant. His reliance
    is misplaced.
    In W.B., an investigator destroyed notes from her interviews of both the
    victim and the defendant after she incorporated them into her report.
    Id. at 607.
    Our Supreme Court concluded that such notes must be retained, holding that
    Rule 3:13-3, governing discovery and inspection, extended to "the writings of
    any police officer under the prosecutor's supervision."
    Id. at 607-08.
    Critically, however, the W.B. court made clear that its holding would be
    prospective only, stating that "starting thirty days" following the W.B. decision,
    A-3342-18T2
    25
    "if notes of a law enforcement officer are lost or destroyed before trial, a
    defendant, upon request, may be entitled to an adverse inference charge molded,
    after conference with counsel, to the facts of the case."
    Id. at 608-09;
    see also
    State v. Dabas, 
    215 N.J. 114
    , 137-38 (2013) ("We clearly signaled that the note-
    retention requirement would apply prospectively to pre-indictment cases
    beginning after the thirty-day grace period in W.B.").
    Defendant's interview took place on July 1, 2007, four years before W.B.
    took effect.   After W.B., the State provided defendant's trial counsel with
    Guzman's notes from his interviews with Lucy and David. Because defendant's
    interview took place four years prior to W.B., without evidence or even an
    allegation that Guzman or Corcoran destroyed their interview notes after W.B.,
    it was objectively reasonable for trial counsel not to cross-examine the
    detectives on the destruction of their notes at the second trial.
    While defendant contends that "[h]ad counsel provided effective
    assistance, this issue would have been brought to the attention of the jury and
    the outcome would likely have been different," he offers no support for that
    conclusion. Even if trial counsel had successfully requested an adverse jury
    inference, as noted, the jury was already aware that Lucy told the police that she
    A-3342-18T2
    26
    was in the bedroom while defendant was changing Kelly's diaper and that she
    later testified she lied to protect defendant.
    Further, the jury was aware that defendant's story changed between his
    initial statement to Guzman and his eventual confession later that day. Thus,
    because the jury already knew of the inconsistencies between Lucy's and
    defendant's oral statements to Guzman, their later written statements, and
    defendant's confession to the officers, any request by trial counsel for an adverse
    jury instruction regarding the officers' interview notes did not have a reasonable
    probability of changing the outcome. As such, defendant's argument fails the
    prejudice prong of Strickland.
    VI.
    Defendant next asserts that trial counsel improperly failed to object to the
    portion of Lucy's trial testimony in which she informed the jury that David told
    her, "[i]f [Kelly] was my kid I would make sure she was okay." Specifically, he
    avers that the statement was inadmissible hearsay pursuant to N.J.R.E. 801 and
    802, and that it prejudiced defendant because "it suggested that [David] knew
    something about [defendant's] past with regard[] to child molestation . . . ."
    Even assuming that David's statement did constitute inadmissible hearsay,
    we conclude that counsel's failure to object did not prejudice defendant in light
    A-3342-18T2
    27
    of the wealth of independent evidence indicating that defendant committed
    aggravated sexual assault, including his confession. By way of example, after
    an initial examination, Dr. Raguindin referred Kelly to Dr. Debellis, a child
    abuse specialist, based on the nature of her injuries and the lack of explanation
    by Lucy and defendant. In turn, Dr. Debellis offered expert testimony that
    "[a]cute penetrating trauma" caused Kelly's injuries and ruled out possible
    causes such as using a swing, going down a slide, or wiping the area. In addition,
    defendant admitted that he caused the injury when he confessed to Guzman,
    Corcoran, and Welsh that his "finger did go in by accident" while he was
    changing Kelly prior to going to the pool and "a little bit of blood came off [his]
    finger."
    VII.
    Defendant next contends that Guzman "presented false testimony"
    because he testified that David refused to provide a formal statement, but at the
    first trial, the State cross-examined David and made various references to "when
    . . . Guzman and I met with you," "when we talked to you," and "[w]hen we
    spoke three weeks ago . . . ." Based on trial counsel's failure to cross-examine
    Guzman on whether David provided a previous statement to police, defendant
    maintains he received ineffective assistance at his second trial.
    A-3342-18T2
    28
    Contrary to defendant's assertion, Guzman did not present false testimony.
    Indeed, Guzman admitted that he spoke to David in person regarding the
    investigation in October 2011, but accurately stated that David did not "provide
    a formal statement." Thus, even if trial counsel read portions of David's cross-
    examination at the first trial to Guzman, it would not have functioned as proper
    impeachment because Guzman's testimony was not inconsistent with the
    prosecutor's inquiries about meeting with David. Defendant's trial counsel was
    therefore not ineffective in failing to cross-examine Guzman on David's failure
    to provide a formal statement. In any event, based on our review of the trial
    record, we cannot conclude that trial counsel's failure to cross-examine Guzman
    on that point prejudiced defendant.
    VIII.
    We reach a similar conclusion with respect to defendant's claims that his
    appellate counsel was ineffective for failing to object to Guzman's testimony
    that none of the witnesses at the party or the pool provided statements to police
    because that "improperly shifted the burden of proof" to defendant to call those
    witnesses. Defendant maintains that had appellate counsel raised the issue on
    direct appeal, "[defendant's] conviction would have been reversed" because he
    was "stripped . . . of his presumption of innocence" and the jury was permitted
    A-3342-18T2
    29
    to infer from the non-production of those witnesses "that [their] testimony would
    have been unfavorable" to defendant.
    A defendant is entitled to effective assistance of counsel at all stages of
    the proceedings, including on a first appeal as of right. State v. Morrison, 
    215 N.J. Super. 540
    , 545 (App. Div. 1987). The standard of review for ineffective
    assistance of appellate counsel claims is the same two-pronged test set forth in
    Strickland. See State v. Gaither, 
    396 N.J. Super. 508
    , 513-14 (App. Div. 2007).
    "'[I]n applying the Strickland standard to assess a claim of ineffective assistance
    of appellate counsel, defendant must show not only that his attorney's
    representation fell below an objective standard, but also that he was prejudiced,
    i.e., but for counsel's unprofessional errors, the result would have been
    different.'"
    Id. at 513
    (quoting 
    Morrison, 215 N.J. Super. at 546
    ).
    "[A]ppellate counsel does not have a constitutional duty to raise every
    nonfrivolous issue requested by the defendant." 
    Morrison, 215 N.J. Super. at 549
    (citing Jones v. Barnes, 
    463 U.S. 745
    , 754 (1983)); see also 
    Gaither, 396 N.J. Super. at 516
    (holding that appellate counsel is not "required to advance
    every claim insisted upon by a client on appeal"). In this regard, a criminal
    defendant's counsel is not ineffective by failing to raise a meritless legal
    argument on the defendant's behalf. State v. Worlock, 
    117 N.J. 596
    , 625 (1990).
    A-3342-18T2
    30
    A criminal defendant is presumed innocent until proven guilty beyond a
    reasonable doubt. State v. Hill, 
    199 N.J. 545
    , 558-59 (2009). An adverse
    inference charge, however, is not "invariably available whenever a party does
    not call a witness who has knowledge of relevant facts." Washington v. Perez,
    
    430 N.J. Super. 121
    , 128 (App. Div. 2013) (quoting 
    Hill, 199 N.J. at 561
    ).
    Where the witness's testimony is unimportant, cumulative, or inferior to
    testimony already presented on the issue, it is reasonable to infer that non -
    production is explained by the fact that the testimony is unnecessary. State v.
    Velasquez, 
    391 N.J. Super. 291
    , 308-09 (App. Div. 2007) (citing State v.
    Clawans, 
    38 N.J. 162
    , 171 (1962)).
    Here, defendant's presumption of innocence was not undermined by
    Guzman's testimony that none of the other guests at the barbeque "ha[d] gotten
    back to [him]." Instead, as the State correctly argues, "the prosecutor merely
    established that Guzman investigated the matter fully and completely, an issue
    that trial counsel ultimately focused on during cross-examination."
    Further, the record, including testimony from defendant himself,
    established that the other guests at the barbeque would have provided testimony
    that was "unimportant, cumulative, or inferior to testimony already presented,"
    see 
    Velasquez, 391 N.J. Super. at 308
    , as the only witnesses with personal
    A-3342-18T2
    31
    knowledge as to whether defendant committed first-degree sexual assault were
    defendant, Lucy, and David. Moreover, even if the jury could have inferred that
    those witnesses' testimonies would have been unfavorable to defendant, the
    court reaffirmed defendant's presumption of innocence with the following jury
    instruction:
    [Defendant] is presumed to be innocent, and unless
    each and every element of the offense of aggravated
    sexual assault . . . is proven beyond a reasonable
    doubt[,] [defendant] must be found not guilty of that
    charge. And the burden of proving each and every
    element of the charge beyond a reasonable doubt rests
    upon the shoulders of . . . the State, and that burden
    never shifts to [defendant]. . . . [Defendant] has no
    obligation or duty to prove his innocence, or offer any
    proof relating to his innocence.
    Thus, appellate counsel was not ineffective for failing to object to Guzman's
    testimony because it did not shift the burden to defendant to call those witnesses.
    IX.
    We also reject defendant's ineffective assistance claim regarding appellate
    counsel's failure to raise the issue that defendant's confession to the officers
    should have been excluded at trial due to an "unlawful Fourth Amendment
    seizure" that allegedly occurred when the officers searched his home hours
    earlier.
    A-3342-18T2
    32
    The Fourth Amendment of the United States Constitution and Article I,
    Paragraph 7 of the New Jersey Constitution guarantee "[t]he right of the people
    to be secure in their persons, houses, papers, and effects, against unreasonable
    searches and seizures" by requiring warrants issued on probable cause. "Under
    our constitutional jurisprudence, when it is practicable to do so, the police are
    generally required to secure a warrant before conducting a search . . . ." State
    v. Hathaway, 
    222 N.J. 453
    , 468 (2015) (citations omitted).
    In New Jersey and federal courts, "[t]he exclusionary rule will not apply
    when the connection between the unconstitutional police action and the secured
    evidence becomes so attenuated as to dissipate the taint from the unlawful
    conduct." State v. Shaw, 
    213 N.J. 398
    , 414 (2012) (internal quotation marks
    omitted). "In making that determination, the test is not whether the authorities
    would have failed to obtain the challenged evidence 'but for' their illegal
    conduct." 
    Johnson, 118 N.J. at 653
    . Rather, "[t]he test followed by both federal
    and New Jersey courts is based on three factors: (1) the temporal proximity
    between the illegal conduct and the challenged evidence; (2) the presence of
    intervening circumstances; and (3) the flagrancy and purpose of the police
    misconduct."
    Ibid. (citing Brown v.
    Illinois, 
    422 U.S. 590
    , 603-04 (1975)).
    Applying those three factors, we have held that evidence seized after a
    A-3342-18T2
    33
    defendant's voluntary consent to search should not be excluded if the consent
    was "'sufficiently an act of free will to purge the primary taint.'"    State v.
    Chapman, 
    332 N.J. Super. 452
    , 468 (App. Div. 2000) (quoting Wong Sun v.
    United States, 
    371 U.S. 471
    , 486 (1963)).
    Relying on the Brown factors, defendant claims that had appellate counsel
    raised the Fourth Amendment argument on direct appeal, we would have
    determined that there was "an unbroken causal connection between his seizure
    and confession," that his confession should have been suppressed, and that his
    conviction would have been reversed. We disagree.
    Importantly, in our opinion affirming defendant's conviction, we "part[ed]
    company with the suppression judge" in that we concluded defendant was in
    custody "for purposes of self-incrimination analysis" at the time the police
    searched his home. Katsigiannis, slip op. at 27-28. We made no comment as
    to whether defendant was illegally seized in violation of the Fourth Amendment .
    As the State correctly argues, even if defendant was seized for Fourth
    Amendment purposes at the time the police searched his residence, he consented
    to the subsequent search. The State bears the burden to establish knowing and
    voluntary consent; in other words, "that the individual giving consent knew that
    he or she had a choice in the matter." State v. Hagans, 
    233 N.J. 30
    , 39 (2018)
    A-3342-18T2
    34
    (quoting State v. Carty, 
    170 N.J. 632
    , 639 (2002)). "The lynchpin to voluntary
    consent 'is whether a person has knowingly waived [his or her] right to refuse to
    consent to the search.'"
    Ibid. (quoting State v.
    Domicz, 
    188 N.J. 285
    , 308
    (2006)).
    Here, defendant signed a consent-to-search form permitting the officers to
    "conduct [a] complete search of the property and premises located at
    [defendant's address]." That form also stated that he provided "consent to search
    freely and voluntarily without fear, threat, coercion, or promises of any kind,"
    and that he knowingly waived his right to refuse consent. Further, he showed
    the officers the location of Kelly's bloody diaper and the baby wipes used by
    Lucy and defendant to attempt to clean Kelly's wound.
    And, even assuming defendant's consent to search the home did not render
    any Fourth Amendment seizure lawful, the State correctly asserts that his
    confession to the police nearly nine hours later was sufficiently attenuated as to
    render that confession admissible. Where the connection between the unlawful
    police conduct and the seizure of evidence is "so attenuated as to dissipate the
    taint" from the unlawful conduct, the evidence need not be excluded. 
    Brown, 422 U.S. at 609
    (1975); see also State v. Badessa, 
    185 N.J. 303
    , 311 (2005).
    A-3342-18T2
    35
    Applying the Brown factors, between eight and nine hours elapsed
    between the search of defendant's home and his confession at the police station.
    Any unreasonable police seizure at his home nine hours earlier did not influence
    defendant's confession. As such, the temporal proximity factor weighs in favor
    of the State.
    Regarding the second prong, defendant's written statement at the police
    station functions as an intervening event sufficient to purge the taint of any
    illegal seizure.   It was only after that statement, during a verbal recorded
    interview with Guzman, Corcoran, and Welsh that defendant admitted that his
    "finger did go in on accident" and that "a little bit of blood came off [his] finger."
    Finally, any alleged police misconduct in searching defendant's home was
    not flagrant. Defendant signed a consent form permitting the police to search
    his home and directed the police to the location of the trash can containing
    diapers while inside the home. The record does not indicate that defendant's
    consent was coerced or that the police engaged in any other misconduct while
    searching defendant's home. Based on the Brown factors, any illegal seizure of
    defendant by the police was sufficiently attenuated from his confession.
    In this regard, as noted, counsel has no obligation to put forth a meritless
    argument. See 
    Worlock, 117 N.J. at 625
    . As defendant's confession at the police
    A-3342-18T2
    36
    station after having written a nonconforming statement was sufficiently
    attenuated from any alleged Fourth Amendment seizure that occurred during the
    consent search of his home, defendant's claim was meritless. Thus, appellate
    counsel was not ineffective for failing to argue on defendant's direct appeal that
    defendant's confession should have been suppressed based on a Fourth
    Amendment violation.
    X.
    Last, we note that defendant's claim that he was entitled to an evidentiary
    hearing is without merit. Hearings in such cases are discretionary. R. 3:22-10.
    Trial courts should grant evidentiary hearings only if the defendant has
    presented a prima facie claim of ineffective assistance, material issues of
    disputed fact lie outside the record, and resolution of the issues necessitate a
    hearing. R. 3:22-10(b); 
    Porter, 216 N.J. at 355
    . That was not the case here.
    Judge Kazlau correctly concluded that defendant failed to establish a prima facie
    case of ineffective assistance of counsel. Therefore, we find that Judge Kazlau
    did not abuse his discretion in denying defendant's request for a hearing.
    To the extent not addressed, defendant's remaining arguments lack
    sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
    Affirmed.
    A-3342-18T2
    37