STATE OF NEW JERSEY VS. VERNON J. PARKER(09-03-0830 AND 09-04-1087, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3133-13T1
A-0373-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON J. PARKER,
Defendant-Appellant.
________________________________________________________________
Submitted October 11, 2016 – Decided July 31, 2017
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
09-03-0830 and 09-04-1087.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the briefs).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the briefs).
PER CURIAM
A jury convicted defendant in July 2010, on one count of
second-degree endangering the welfare of a child (EWC), N.J.S.A.
2C:24-4(a), pertaining to his stepson, X.R. Pursuant to a plea
agreement, defendant then entered guilty pleas to a second count
of second-degree EWC pertaining to his stepdaughter, B.R., and to
one count of official misconduct, N.J.S.A. 2C:30-2, charged in an
unrelated indictment. He was sentenced to three concurrent terms
of eight years in accord with the plea agreement. Defendant did
not file a timely direct appeal.
In December 2013, he filed a motion for post-conviction relief
(PCR) in which he alleged, inter alia, that his three attorneys
failed to file a direct appeal on his behalf. Following an
evidentiary hearing, the PCR judge denied defendant's petition.
Defendant filed an appeal from that denial in March 2014 and a
direct appeal in June 2014. We stayed his appeal from the denial
of his PCR so it could be heard and decided with his direct appeal.
We now affirm both his convictions and the denial of his PCR
petition.
In his appeal from his convictions, defendant presents the
following arguments for our consideration:
POINT I
DEFENDANT'S DENIAL OF HIS MOTION TO
DISMISS COUNT 21 OF THE INDICTMENT
WAS IN ERROR BECAUSE THE CHARGE OF
2 A-3133-13T1
ENDANGERING THE WELFARE OF A CHILD
FAILED TO GIVE THE DEFENDANT NOTICE
OF WHAT HE NEEDED TO DEFEND.
POINT II
THE TRIAL COURT ERRED WHEN IT DENIED
TRIAL COUNSEL'S REQUEST TO ADMIT THE
DYFS[1] REPORT USED IN REFERENCE TO
X.R.'S TESTIMONY INTO EVIDENCE AS A
RECORDED RECOLLECTION BECAUSE IT
WAS APPARENT THE TESIMONY [SIC]
GIVEN WAS UNTRUSTWORTHY.
POINT III
DEFENDANT'S MOTION FOR AQUITTAL
[SIC] MADE AFTER THE STATE PRESENTED
ITS CASE WAS DENIED IN ERROR.
POINT IV
THE TRIAL JUUDGE [SIC] ERRED IN
DENYING DEFENDANT'S MOTION FOR A
MISTRIAL FOR THE COURT HAVING
ALLOWED REPEATED INCULPATORY
ALLEGATIONS AGAINST DEFENDANT
WITHOUT NOTICE OR A HEARING SO HE
MAY BE GIVEN THE OPPORUTNITY [SIC]
TO DEFEND AGAINST THEM WITHOUT
HAVING TO RELENQUISH HIS FIFTH
AMENDMENT RIGHT OF SELF
INCRIMINATION.
POINT V
DEFENDANT IS ENTITLED TO WITHDRAW
HIS PLEA BECAUSE THE NATURE AND
STRENGH [SIC] OF HIS CLAIM OUTWEIGH
THE STATE'S INTEREST IN PRESERVING
THE PLEA.
1
The Division of Youth and Family Services (DYFS) is now the
Division of Child Protection and Permanency.
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POINT VI
DEFENDANT IS ENTILTED [SIC] TO HAVE
HIS CONVICTION VACATED BECAUSE THE
SINGLE CHARGE GIVEN TO THE JURY ON
SIX DIFFERENT COUNTS OF ENDANGERING
THE WELFARE OF A CHILD CONFUSED THE
JURY AND INVITED THEM TO INTERCHANGE
THE PROOFS OFFERED BETWEEN THE
COUNTS TO ESTABLISH THE ELEMENTS OF
THE CRIME.
POINT VII
UNDER THE DOCTRINE OF CUMULATIVE
ERROR A NEW TRIAL SHOULD BE ORDERED
PURSUANT TO STATE v. ORECCHIO, 16
N.J. 125, 129 (1954).
Defendant's arguments in Points III and VII lack sufficient
merit to warrant discussion. R. 2:11-3(e)(2). His argument in
Point V, that he should be permitted to withdraw his guilty plea,
is not properly before this court because he has not filed a motion
in the trial court to withdraw his guilty plea pursuant to Rule
3:21-1. We conclude further that the remaining arguments in
defendant's direct appeal lack merit.
Defendant presents the following arguments in his appeal from
the denial of his PCR petition:
POINT I
DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HIM
TO POST CONVICTION RELIEF.
A. FAILURE TO FILE A DIRECT
APPEAL UPON REQUEST OF DEFENDANT.
4 A-3133-13T1
B. DEFENDANT WAS EFFECTIVELY
DEPRIVED FROM TESTIFYING FOR HIS OWN
DEFENSE AT TRIAL.
C. COUNSEL WAS INEFFECTIVE
FOR FAILING TO MOVE EXCULPATORY DYFS
REPORTS INTO EVIDENCE AT TRIAL.
Because defendant was provided with the opportunity to pursue
a direct appeal, which we now decide, his first allegation of
ineffective assistance of counsel is moot.
I.
Indictment No. 09-03-830 charged defendant, a former Newark
police officer, with twenty-two counts that alleged abuse of his
stepchildren. He was convicted on count twenty-one. The jury
acquitted him on counts one, two, four, five and fourteen and
could not reach a verdict on counts three, six through thirteen
and fifteen through twenty.2 Defendant's first argument in his
direct appeal is that the trial judge erred in failing to dismiss
count twenty-one, which alleged that, in August 2007, defendant
knowingly cause[d] X.R. . . . harm that would
make X.R. an abused, abandoned, or neglected
child as defined in Title 9 or a child upon
whom cruelty has been inflicted while
[defendant] had a legal duty or had assumed
the responsibility of caring for X.R., to wit:
by punching said child in the face while
wearing boxing gloves
2
Count twenty-two was dismissed before trial.
5 A-3133-13T1
The evidence presented to the grand jury regarding this count
can be summarized as follows:
Detective Miranda Mathis, an Essex County Prosecutor's Office
detective, testified before the grand jury. During the course of
her testimony, she read a written statement X.R. had given to a
West Orange Police detective in August 2007. In the statement,
X.R., who was fourteen years old, said he was required to explain
to his football coach why he had been absent from practice. He
stated he was home alone during the day and invited a fourteen-
year-old female friend to come to his house. They were sitting
on the bed in his mother and stepfather's bedroom, watching a
movie when his stepfather got home from work and found them in the
bedroom. X.R. stated defendant "got mad as soon as he walked in"
and ordered his friend to get out. Defendant called for X.R.'s
mother to come to the bedroom and she started screaming at him
because his friend was in the house without her permission. X.R.'s
mother started hitting his legs with a thin leather belt. X.R.
stated,
Then my stepfather punched me in the face and
left a bruise on my right cheek and bottom
lip. He then grabbed me around the neck,
leaving a mark on my throat. He also punched
me in my chest, kicked me in my legs and back.
He told me to get out and go to my room and
that is where I went until the next morning.
6 A-3133-13T1
When asked if he had any pain at the time of the interview,
X.R.'s only complaint was that his back was "a little sore." He
declined medical attention. He was not afraid to be in his house
but said, "I'm just afraid when my stepfather gets mad and he hits
on me."
The grand jury also had before it a series of photographs of
X.R. taken by the West Orange Police Department four days after
the incident. Detective Mathis described them as depicting "injury
to the young man's lip, face, neck and to some degree, back."
No evidence was presented to the grand jury that defendant
was wearing boxing gloves at the time he punched X.R. Nonetheless,
the indictment returned by the grand jury states he "punch[ed]
said child in the face while wearing boxing gloves."
Defendant filed a pretrial motion to dismiss various counts
of the indictment, including count twenty-one. He argued the
count failed to provide him with notice of "the essential factual
ingredients of the offense" and, further, should be dismissed
because there was no evidence presented in the grand jury that
defendant punched X.R. with a boxing glove. The State countered
that the lack of evidence regarding the boxing glove was not a
fatal error because "boxing gloves" are not an essential element
of the crime charged, and offered to remove the language from the
charge at trial. The court denied the motion, finding the count
7 A-3133-13T1
was not "manifestly deficient or palpably defective" because the
State was otherwise able to state and provide evidence of the
essential elements of EWC under N.J.S.A. 2C:24-4(a) and the factual
distinction of being punched with boxing gloves was "gratuitous,"
and "certainly not an element of the crime."
An abuse of discretion standard applies to our review of a
trial court's denial of a motion to dismiss an indictment. State
v. Saavedra, 222 N.J. 39, 55 (2015). We find none here.
The essential elements of the offense charged in count twenty-
one are:
1. That [the victim] was a child.
2. That defendant knowingly caused the child
harm that would make the child abused or
neglected;
3. That defendant knew that such conduct
would cause the child harm that would make the
child abused or neglected.
4. That defendant had a legal duty for the
care of the child or had assumed
responsibility for the care of the child.
[Model Jury Charge (Criminal), "Endangering
the Welfare of a Child, Abuse or Neglect
(Second Degree)" (2015).]
Defendant does not allege that the State failed to present
evidence to support any of these elements before the grand jury.
Defendant's sole challenge to this count of the indictment is the
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lack of proof regarding the use of a boxing glove. This challenge
lacks merit.
A trial court "should not disturb an indictment if there is
some evidence establishing each element of the crime to make out
a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006).
Dismissing an indictment is appropriate only "when it is
'manifestly deficient or palpably defective,' and then only when
the grounds for the dismissal can be described as the 'clearest
and plainest.'" State v. Mason, 355 N.J. Super. 296, 298 (App.
Div. 2002) (citations omitted).
The count itself "identif[ies] and explain[s] the criminal
offense so that the accused may prepare an adequate defense."
State v. Branch, 155 N.J. 317, 324 (1998). The State alleged the
essential elements of the offense charged and presented adequate
evidence of each element. The reference to the boxing gloves in
the count was mere surplusage; the failure to present evidence to
support that allegation does not constitute grounds for dismissal.
See State v. Ogar, 229 N.J. Super. 459, 471 (App. Div. 1989).
II.
At trial, X.R. stated he was four or five years old when
defendant began to live with his mother, sister and him. He
testified that when he got into trouble, defendant would tell X.R.
to strip down and take off his clothes and then proceed to hit
9 A-3133-13T1
X.R. with his work belt, leaving marks on his legs, back and
sometimes X.R.'s arms when he tried to "block the hits." X.R.
stated this happened on more than one occasion, whenever he got
in trouble in school. Defendant told X.R. not to tell anyone
about how he had received the marks. X.R. stated he refrained
from hanging out with his friends or seeing his biological father
when he had bruises from being hit and lacked a good excuse for
explaining them. He never confided in his father about being hit
because he had a temper and X.R. was "scared" about "how everything
will play out in the end." As X.R. got older, defendant stopped
using a belt to hit him and used an open hand or clenched fist.
Describing the August 2007 incident when defendant walked in
on him with a female friend, X.R. testified he and the girl "almost
had sexual intercourse but . . . didn't get to that point." He
stated defendant started yelling and hit him. Defendant called
X.R.'s mother upstairs and, after the girl left, defendant started
to hit X.R. again. According to X.R., defendant put on "UFC gloves
that had a lot of padding around the knuckles" and struck him
repeatedly. When the beating stopped, X.R.'s face was swollen;
he "had a busted lip" and "a mark around [his] neck." X.R. said
the mark around his neck was caused when defendant tried "to choke
[him] with [his] shirt, jacking up on [his] shirt and it pushing
up on [his] neck." His appearance did not improve the following
10 A-3133-13T1
day. Defendant told him to stay home and not go to football
practice.
X.R. returned to football practice the third day after the
incident. When asked to account for his absence from practice,
X.R. told his coach "the whole story." This was the first time
he had ever told anyone outside his home the truth about what
happened in his house.
The next day, two detectives from the West Orange Police
Department contacted X.R. and brought him to the police station,
where he gave a statement and a detective took photographs of him.
X.R. had not had an opportunity to review the statement. But he
testified he "told em' what happened in the household . . . when
it took place; how it took place," and that it was a truthful
account.
X.R. testified that, on occasion, his mother communicated
instructions to him from defendant on how to explain his injuries.
The assistant prosecutor asked him if there was any discussion
regarding the August 2007 incident "about what version of facts
to give to the Division of Youth and Family Services." When X.R.
answered, "[y]es" and began to explain, "Well, I was told from my
mother that was from him, to say that I tried to --," defense
counsel objected. Following a sidebar discussion, the trial judge
instructed the jury that the questions and answers regarding what
11 A-3133-13T1
X.R.'s mother told him to say were stricken as hearsay and were
not to be considered by the jury.
On cross-examination, X.R. was asked about a statement he
made to the police – that the August 2007 incident was the only
time he received a bruise from defendant. He explained he said
that "because [he] knew DYFS would get involved" and admitted that
was a lie. Counsel did not question X.R. about the account he
gave to DYFS.
Defense counsel later sought to admit the DYFS report of the
caseworker's interview with X.R. following the August 2007
incident, marked D-2, and another DYFS report, D-3, into evidence.
Counsel contended, erroneously, that D-2 had been used to impeach
X.R., and that the documents were admissible "to rebut any claim
of recent fabrication." The trial court ruled that neither
document was admissible.
During deliberations, the jury sent the court a note, asking
for a read-back of X.R.'s testimony and to see the DYFS "report
taken at the time of [X.R.]'s injury related to Count 21." The
trial judge clarified that the jury wanted a readback of X.R.'s
entire testimony and advised the jury they would be given that.
The trial judge denied the request for the DYFS report, explaining
to the jury that the report was not admitted into evidence but
12 A-3133-13T1
that the jury would have any testimony about the DYFS report in
the readback.
III.
In Point II of defendant's arguments in his direct appeal,
defendant argues the trial court erred in denying the admission
of the DYFS records that were marked for identification only at
trial. We disagree.
He first contends the reports were admissible as a past
recollection recorded pursuant to N.J.R.E. 803(c)(5). This
argument is entirely lacking in merit. For this hearsay exception
to apply, the statement must "concern[] a matter about which the
witness is unable to testify fully and accurately because of
insufficient present recollection." N.J.R.E. 803(c)(5). The
record offers no support for the premise that X.R. had
"insufficient present recollection" to allow him "to testify fully
and accurately." Ibid.Defendant also argues the reports should have been admitted
pursuant to N.J.R.E. 612 as a writing used to refresh a witness's
memory. This argument is equally unavailing because the document
was not used to refresh X.R.'s memory and, again, the record fails
to show his memory required refreshing.
A trial court abuses its discretion when it applies an
erroneous legal standard in making a decision, and when it makes
13 A-3133-13T1
an evidentiary ruling that is not grounded on reasonable, credible
evidence in the record. See State v. R.D., 169 N.J. 551, 559
(2001). There was no abuse of discretion here.
IV.
After the State rested, defendant made a motion for a mistrial
on the ground that there had been cumulative error in the trial.
Defendant argues the trial judge erred in denying the motion. We
disagree.3
"A mistrial is an extraordinary remedy that should be used
only to prevent a manifest injustice." State v. Goodman, 415 N.J.
Super. 210, 234 (App. Div. 2010), certif. denied, 205 N.J. 78(2011). We apply a deferential standard in reviewing a trial
judge's denial of a motion for a mistrial, and will not disturb a
trial court's ruling "absent an abuse of discretion that results
in a manifest injustice." State v. Jackson, 211 N.J. 394, 407
(2012) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert.
denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)).
Counsel argued there had been an "aggregate of errors,"
specifically the introduction of statements attributed to
3
Although defendant's point heading alleges error in the trial
judge's denial of his motion for a mistrial, his argument also
contends his motion for a new trial – which was made to preserve
an appellate challenge to the jury verdict – should have been
granted. To the extent this issue is raised, it also lacks merit.
14 A-3133-13T1
defendant during the direct examination of X.R. and his sister,
B.R., without a hearing pursuant to N.J.R.E. 104(c) to determine
"the evidentiary quality of the statements." The trial judge
noted he had ruled on objections to such statements when made
during the trial and rejected the argument that a R. 104(c) hearing
was required for every statement attributed to a defendant.
Defendant argues that the testimony of X.R. and B.R. included
statements attributable to him that characterized him as a bad
person and were akin to each, unfairly bolstering the credibility
of each other's testimony. The case for such prejudice is
substantially undermined by the fact the jury did not convict
defendant of any charge that he abused B.R.
In his brief, defendant identifies five instances in which
statements were attributable to defendant. He asserts his "counsel
objected to a number of statements, and her objections were
sustained" but he "could not overcome the prejudicial nature of
the repetitive inadmissible statements made against him." We note
that defendant has not identified any part of the record where a
Rule 104(c) hearing was requested or any adverse evidentiary ruling
on these objections that he contends was error. In at least some
instances, the trial judge gave curative instructions to the jury.
Defendant has not contended that any additional curative action
was requested or required.
15 A-3133-13T1
Instead, he argues the statements "were not tested by notice
or a hearing and were therefore improperly used against" him. As
to "notice," there is no contention that the State failed to honor
its discovery obligations here or that defendant was surprised by
any of the statements attributed to him.
Defendant has not identified what about the statements should
have been tested at a hearing. Ordinarily, a Rule 104(c) hearing
is conducted to make the preliminary legal determination as to
whether a defendant's statement to police is admissible. See,
e.g., State v. W.B., 205 N.J. 588, 602 (2011). Because N.J.R.E.
104(c)
is only operative "[w]here by virtue of any
rule of law a judge is required in a criminal
action to make a preliminary determination as
to the admissibility of a statement by the
defendant,". . . 104(c) hearings will be
required in such cases only where some "rule
of law" requires a preliminary finding by the
judge.
[Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, comment 6 on N.J.R.E. 803(b)(6)
(2017).]
No rule of law has been cited that required a preliminary
determination by the trial judge as to the admissibility of the
statements complained of on appeal.
In sum, defendant argues that, notwithstanding rulings and
cautionary instructions given by the trial judge following
16 A-3133-13T1
objections that are not challenged on appeal, the trial judge
committed reversible error by not conducting a Rule 104(c) hearing.
The trial judge's evidentiary rulings regarding the statements in
question are reviewed for abuse of discretion, R.D., supra, 169
N.J. at 559, and we find none.
V.
In Point VI of his direct appeal brief, defendant challenges
the jury instruction, arguing the trial judge committed reversible
error. We disagree.
Counts one, two, eighteen, nineteen, twenty and twenty-one
each charged defendant with second-degree EWC. Defense counsel
objected "to clumping all of the counts" that alleged corporal
punishment, arguing that the grouping of the counts might lead the
jury to believe "they must be identical in their results" and
invited "the jury to use the proofs of one in determining a
separate offense charged in a different count."
In denying defendant's request, the trial judge stated, "The
only thing that's being grouped together is that . . . the law
applicable to these six charges is identical." The trial judge
declined to "read the identical charge six times for each and
every separate count," and stated he would make it clear that the
jury needed to consider each count separately. The trial judge's
final charge to the jury on the six EWC counts stated:
17 A-3133-13T1
It is alleged that on various dates between
1998 through 2007, [defendant] did knowingly
cause [B.R.] . . . and [X.R.] . . . harm that
would make [B.R.] and [X.R.] an abused child
as defined in Title 9, or a child upon whom
cruelty has been inflicted while [defendant]
had a legal duty, or had assumed the
responsibility of caring for [B.R.] and
[X.R.].
Each count represents the abuse of [B.R.] and
[X.R.] individually, as well as the harm
inflicted by defendant on said child. Counts
1 and 2 allege that the defendant caused
[B.R.] and [X.R.] to strip naked and beat them
with a belt; while Counts 18 through 21 allege
that defendant caused [B.R.] and [X.R.] harm
by punching, choking, slapping and other acts
of physical abuse.
The trial judge also stated to the jury:
There are 21 offenses charged in the
indictment. They are separate offenses by
separate counts in the indictment. In your
determination of whether the [S]tate has
proven the defendant guilty of the crimes
charged in the indictment beyond a reasonable
doubt, the defendant is entitled to have each
count considered separately by the evidence
which is relevant and material to that
particular charge, based on the law as I give
it to you.
The trial judge then provided instructions to the jury on the
law governing the second-degree endangering the welfare of a child
counts, including reading the statutory language, explaining the
elements the State must prove to support a guilty verdict,
providing any necessary definitions, and identifying any relevant
exceptions the jury may consider. Finally, the trial judge
18 A-3133-13T1
instructed the jury that the verdict "must be unanimous," meaning
that all of the jurors "must agree if a defendant is guilty or not
guilty on each charge."
Generally, "a defendant is not 'entitled to have the jury
instructed in his own words.'" State v. Pigueiras, 344 N.J. Super.
297, 317 (App. Div. 2001) (quoting State v. Pleasant, 313 N.J.
Super. 325, 333 (App. Div. 1998), aff'd o.b., 158 N.J. 149 (1999),
certif. denied, 171 N.J. 337 (2002)).
A party is entitled only to a charge that is
accurate and that does not, on the whole,
contain prejudicial error. As such, the test
is to examine the charge in its entirety, to
ascertain whether it is either ambiguous and
misleading or fairly sets forth the
controlling legal principles relevant to the
facts of the case.
[State v. LaBrutto, 114 N.J. 187, 204 (1989)
(citation omitted).]
The jury instructions here accurately set forth the
controlling legal principles and contained no prejudicial error.
Moreover, because defendant was only convicted on one count, the
potential for prejudice articulated by defense counsel plainly was
not realized. Defendant's challenge to the jury charge therefore
provides no grounds for reversal.
VI.
We next turn to defendant's appeal from the denial of his PCR
petition. He argues he was denied the effective assistance of
19 A-3133-13T1
counsel because "he was unduly coerced into foregoing his
constitutional right to testify on his behalf" and "for failing
to move exculpatory DYFS reports into evidence at trial." We are
not persuaded by either of these arguments.
To prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test of establishing both that:
(l) "counsel's performance was deficient" and he or she made errors
so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052,
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05
N.J. 42, 52 (l987).
A.
The PCR judge conducted an evidentiary hearing regarding
defendant's claim that he was coerced into refraining from
testifying at his trial.
The record from defendant's trial revealed the trial judge
engaged in a thorough colloquy with defendant after defense counsel
advised the court that defendant had decided not to testify. The
20 A-3133-13T1
trial judge explained it was defendant's "absolute right to
testify, if [he] want[ed], and then . . . [he] would naturally be
subjected to cross-examination." Defendant replied, "I
understand." When the trial judge asked defendant, "And it's your
decision not to testify?," defendant replied, "That's correct."
The judge also reviewed the options regarding an instruction to
the jury if he chose not to testify and asked defendant if he had
discussed those options with counsel. Defendant stated he had
done so and asked the trial judge to instruct the jury regarding
his constitutional right to remain silent.
Defendant testified at the PCR hearing that he wanted to
testify at trial regarding his lack of a criminal record but was
advised against doing so by his trial counsel. He stated she told
him it was "better to be thought not smart than proven not smart"
and she coerced him to not testify. Specifically, he stated it
was his understanding that his trial counsel refused to question
him if he chose to testify.
Defendant's trial counsel testified defendant never told her
that he wanted to testify at trial. She said she reviewed with
him his right to testify, the positives and negatives of testifying
and the possible instructions that could be given to the jury at
defendant's election.
21 A-3133-13T1
The PCR judge found defendant's trial counsel "credible as
to her testimony regarding [defendant's] election not to testify"
and rejected defendant's claim he was coerced into refraining from
testifying. The PCR judge's evaluation of the witness's
credibility is entitled to our deference, State v. Pierre, 223
N.J. 560, 576 (2015), and her conclusion that defendant was not
coerced has ample support in the record.
B.
Defendant describes the DYFS report4 requested by the jury in
deliberations as "exculpatory to the foundation of the single
endangering charge the defendant was convicted of." Defendant
does not elaborate as to the exculpatory value of the DYFS report
and this characterization appears to be a gross
mischaracterization. The PCR judge found the report was not
clearly exculpatory and constituted inadmissible hearsay, and
concluded the decision not to move the record into evidence was a
matter of sound trial strategy. As we have concluded in our
consideration of defendant's direct appeal, defendant's argument
to the contrary lacks merit.
Defendant's convictions and the denial of his PCR petition
are affirmed.
4
Only one DYFS report was requested by the jury.
22 A-3133-13T1