STATE OF NEW JERSEY VS. J.L.G. (12-11-1994, 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NOT FOR PUBLICATION WITHOUT THE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-0143-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.L.G.,
Defendant-Appellant.
________________________
Submitted May 10, 2021 – Decided July 23, 2021
Before Judges Messano and Hoffman.
On appeal from the Superior Court of Jersey, Law
Division, Hudson County, Indictment No. 12-11-1994.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant J.L.G. appeals from the July 25, 2019 Law Division order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
We set forth the following relevant facts in our opinion affirming
defendant's conviction:
Defendant began dating Jennifer 1 in 1996, when Bonnie
[Jennifer's daughter] was three months old. Shortly
thereafter, defendant moved in with Jennifer and
assumed the role of Bonnie's father. Defendant and
Jennifer had a son together, James, in 2002, and the four
lived together as a family in Jersey City.
Defendant began engaging in sexual activity with
Bonnie when she was fourteen. For the next eighteen
months, defendant engaged in a pattern of increasingly
aggressive sexual behavior with Bonnie. He made
Bonnie record him masturbating, performed oral and
digital sex on her, and engaged in vaginal intercourse
with her at least four times.
Bonnie testified she never wanted to engage in sexual
activity with defendant. Defendant would bribe her,
giving her substantial sums of money after every
encounter. Additionally, Bonnie testified defendant
would threaten her with physical violence, pointing a
gun at her and threatening to hurt her, her mother, and
[her brother] if she ever told anyone about the assaults.
1
We use pseudonyms to protect the minor victim's identity, pursuant to Rule
1:38-3(c)(9).
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Bonnie recorded [audio of] one of the last assaults on
her phone.
....
Bonnie finally informed her mother about the sexual
assaults in late June 2012, about ten days after
defendant last had sex with her. Jennifer called the
police, and an investigation ensued. Defendant fled the
scene before police arrived. After interviewing Bonnie,
the Special Victims Unit (SVU) conducted a
"consensual intercept," where they monitored and
recorded two phone calls from Bonnie to defendant.
During these calls, Bonnie tried to elicit a confession
and apology from defendant. Although defendant
never admitted [to] assaulting her, he apologized
several times for "making [her] miserable."
Importantly, he offered to give her money, presumably
in exchange for lying to the police and dropping any
charges against him. The police eventually found
defendant at a friend's house and arrested him.
[State v. J.L.G., No. A-3725-14 (App. Div. Dec. 12,
2016) (slip op. at 2-4), aff'd, 234 N.J. 265 (2018).]
On November 21, 2012, a Hudson County Grand Jury returned Indictment
No. 12-11-1994, charging defendant with: first-degree aggravated sexual
assault, N.J.S.A.2C:14-2a (count one); third-degree aggravated criminal sexual
contact, N.J.S.A. 2C:14-3a (count two); second-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4a (count three); abuse of a child cruelty/neglect,
N.J.S.A. 9:6-3 (count four); fourth-degree contempt, N.J.S.A. 2C:29-9 (counts
five and seven); third-degree stalking, in violation of N.J.S.A. 2C:12-10b (count
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six); fourth-degree stalking, N.J.S.A. 12-l0b (count eight); and third-degree
witness tampering, N.J.S.A. 2C:28-5a (count nine). The trial court granted
defendant's motion to sever counts five, six, seven, and eight, and the State
dismissed count four on a separate motion.
A jury trial began on counts one, two, three, and nine on December 3,
2014. The State presented testimony from Bonnie, Jennifer, Jennifer's friend,
and police officers. The State also presented the audio recordings and DNA
evidence from saliva found on the crotch area of a pair of Bonnie's shorts; DNA
testing revealed a small amount of male DNA, of which defendant could not be
confirmed or excluded as the source.
Over defense objection, the State called psychologist Lynn Taska to
testify as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS).
She explained the term CSAAS was coined by Dr. Roland Summit in 1983 and
explained the five characteristics Dr. Summit found to be frequently associated
with sexually abused children: secrecy, helplessness, entrapment or
accommodation, delayed or disorganized disclosure, and recantation.
Defendant did not testify at trial. Defendant's trial counsel presented
testimony from defendant's friend, who testified he regularly visited defendant's
home but never saw evidence of the alleged abuse. Counsel also emphasized
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the absence of physical evidence to support Bonnie's allegations, including the
inconclusive DNA evidence. Further, counsel challenged Bonnie's credibility,
emphasizing inconsistencies in her testimony, her delayed reporting, and a
possible ulterior motive to cooperate with the State due to pending criminal
charges against her.
At the conclusion of trial, the jury found defendant guilty on all counts.
On March 13, 2015, the trial court sentenced defendant to an aggregate term of
twenty-three years of imprisonment in state prison, subject to the No Early
Release Act (NERA), N.J.S.A. § 2C:43-7.2. The trial court also imposed
penalties and assessments, including Sex Crime Victim Treatment Fund
(SCVTF) penalties totaling $3,000, N.J.S.A. 2C:14-10.
Defendant appealed and we affirmed his conviction and sentence on
December 12, 2016, except for the SCVTF penalties, which we vacated and
remanded for correction. J.L.G., slip op. at 19. The trial court accordingly
amended the judgment of conviction on December 15, 2016.
Defendant filed a petition for certification, which our Supreme Court
granted, limited to the question of whether the trial court properly denied
defendant's motion to exclude the testimony of the State's expert regarding
CSAAS, on the grounds that CSAAS testimony was irrelevant to defendant's
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trial, that its admission was unduly prejudicial to defendant, and that CSAAS
testimony was not sufficiently reliable to meet the standard of N.J.R.E. 702.
State v. J.L.G., 229 N.J. 606, 607 (2018). The Court remanded the case to the
trial court for a hearing, pursuant to N.J.R.E. 104, to determine whether CSAAS
evidence meets the reliability standard of N.J.R.E. 702 in light of recent
scientific evidence. Id. Following a four-day hearing, the trial court "concluded
that CSAAS evidence did not meet the standard for admissibility under N.J.R.E.
702." J.L.G., 234 N.J. at 279.
Following this remand, the Court held it was error to admit testimony
about CSAAS, but concluded "the evidence was harmless in light of the
overwhelming evidence of defendant's guilt." Id. at 308. The Court therefore
upheld our affirmation of defendant's convictions and sentence on July 31, 2018.
Ibid.
On October 1, 2018, defendant filed for PCR and submitted a supporting
certification. Defendant asserted his trial counsel provided ineffective
assistance because she failed to: 1) interview and call James to testify about
never seeing evidence of abuse; 2) request that the jury make unanimous
findings of guilt for each alleged criminal act; and 3) properly explain to the
jury that the DNA evidence found in Bonnie's shorts did not identify defendant.
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After hearing oral argument on July 25, 2019, the PCR court denied
defendant's petition on the record without an evidentiary hearing, finding: 1)
defendant failed to provide a certification from James and the absence of his
testimony did not prejudice defendant; 2) trial counsel sufficiently explained the
DNA evidence; and 3) the Appellate Division already decided a specific
unanimity charge for each alleged act was unnecessary. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL
REGARDING HER FAILURE TO INTERVIEW AND
CALL [DEFENDANT]'S SON AS A WITNESS AT
TRIAL.
POINT II
THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL
REGARDING HER FAILURE TO OBJECT TO THE
TRIAL COURT'S FAILURE TO PROVIDE A
SPECIFIC UNANIMITY CHARGE TO THE JURY
FOR EACH ALLEGED ACT OF SEXUAL ABUSE.
POINT III
THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL
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REGARDING HER FAILURE TO EMPHASIZE TO
THE JURY THAT THE DNA EVIDENCE FOUND IN
THE VICTIM'S SHORTS DID NOT IMPLICATE
[DEFENDANT].
II.
When petitioning for PCR, a defendant must establish, by a preponderance
of the credible evidence, that he is entitled to the requested relief. State v. Nash,
212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain
that burden, the defendant must allege and articulate specific facts that "provide
the court with an adequate basis on which to rest its decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and he "must do more than make bald assertions that he was
denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999). Rather, courts should grant evidentiary hearings and
decide on the merits only if the defendant presented a prima facie claim, material
issues of disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a decision to deny PCR without an evidentiary hearing for abuse of
discretion. Preciose, 129 N.J. at 462.
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To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 689 (1984); State v. Fritz,
105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690. Further,
because prejudice is not presumed, the defendant must demonstrate "how
specific errors of counsel undermined the reliability" of the proceeding. United
States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
A.
We first address defendant's contention that trial counsel's failure to
interview and call James to testify amounts to ineffective assistance. Defendant
maintains James could have testified that he did not see any evidence of abuse,
despite being in the next room during alleged instances of abuse, and casted
reasonable doubt on Bonnie's allegations.
When a defendant claims that trial counsel inadequately investigated his
case, "he must assert the facts that an investigation would have revealed,
supported by affidavits or certifications based upon the personal knowledge of
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the affiant or the person making the certification." Cummings, 321 N.J. Super.
at 170. In addition, deciding which witnesses to call to the stand is "an art," and
we must be "highly deferential" to such choices. State v. Arthur, 184 N.J. 307,
321 (2005) (quoting Strickland, 466 U.S. at 689).
Here, defendant provided no such affidavit or certification from James.
Also, the fact that James did not see any evidence of abuse is not exculpatory.
Thus, this claim is supported by nothing more than bald assertions and lacks
merit.
B.
We next address defendant's contention that trial counsel's failure to
request a specific unanimity charge amounts to ineffective assistance. In our
prior opinion, we addressed whether the trial court's failure to give a specific
unanimity charge was plain error. J.L.G., slip op. at 11-12. We found the
"general jury instruction . . . did not prejudice defendant" because
nothing on cross-examination contradicted Bonnie's
claims with regard to one form of penetration over
another. [A] reasonable jury could not have found her
testimony credible with regard to one form of
penetration but not with regard to another, so the record
shows no tangible indication of jury confusion.
[Ibid. (internal citations and quotation omitted).]
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Therefore, even if counsel's failure to request a specific unanimity charge was
deficient performance, defendant was not prejudiced by this failure. See
Strickland, 466 U.S. at 157 ("defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.").
C.
We finally address defendant's contention that trial counsel failed to
properly explain the State's DNA evidence on summation, amounting to
ineffective assistance. Specifically, defendant asserts counsel "should have
focused on explaining in detail the DNA results and how he was not a match for
what was found in Bonnie's shorts and that someone else was more likely the
contributor."
Having carefully reviewed trial counsel's summation, however, we agree
with the PCR court's finding that counsel extensively discussed the DNA
evidence. Counsel explained how the State offered no DNA evidence, or other
physical evidence, conclusively proving the charges against defendant. She
addressed how, although defendant could not be excluded as the source of the
DNA evidence, neither could a large portion of the male population. When
concluding, she encouraged the jury to disregard the DNA evidence entirely.
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From our careful review, we conclude that counsel's summation "falls within the
wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
We discern no abuse of discretion in the PCR court's consideration of the
issues, or denial of defendant's petition without an evidentiary hearing. We are
satisfied that trial counsel's performance was not deficient, and defendant
provided nothing more than bald assertions to the contrary.
Affirmed.
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