State of New Jersey v. G.L. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-0979-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.L.,
Defendant-Appellant.
________________________
Submitted May 29, 2024 – Decided July 25, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Indictment No. 12-05-
0354.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant G.L. was convicted in 2016 of sexually assaulting his
daughter S.L., who was twelve years old when the abuse began, and was
sentenced an aggregate thirty-year prison term subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2. His conviction and sentence were affirmed on direct
appeal. State v. G.L., No. A-3162-16 (App. Div. Apr. 30, 2020), certif.
denied, 246 N.J. 239 (2021). We incorporate, by reference, the facts and
procedural history stated in that prior opinion. Ibid.Less than two years later, defendant petitioned for post-conviction relief
(PCR), alleging ineffective assistance by trial counsel. Relevantly, he claimed
counsel incorrectly advised him not to testify at trial and elicited prejudicial
and uncorroborated cross-examination testimony from his daughter that he
beat her and her brother. The PCR judge Marybel Mercado-Ramirez, who also
presided over defendant's trial, rendered an oral decision and entered an order
denying the petition without an evidentiary hearing.
Defendant appeals, arguing:
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A-0979-22
2
SUBPOINT A
Trial Counsel Elicited Unduly Prejudicial Testimony
from the Alleged Victim on Cross-Examination That
Defendant Had Assaulted His Children.
SUBPOINT B
Trial Counsel Abridged Defendant's Constitutional
Right to Testify.
Based upon our de novo review of the judge's factual findings made without an
evidentiary hearing and legal conclusions, State v. Belton, 452 N.J. Super.
528, 536 (App. Div. 2017), we are unpersuaded by these arguments and affirm
substantially for the cogent reasons explained in her oral decision.
In rejecting defendant's claims of ineffective assistance of counsel , the
judge applied the two-prong Strickland test that defendant had to show: one,
"counsel's performance was deficient"; and two, "the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). "An attorney's representation is
deficient when it '[falls] below an objective standard of reasonableness.'" State
v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in original) (quoting Strickland,
466 U.S. at 688). Prejudice requires "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Ibid. (quoting Strickland, 466 U.S. at 694).
A-0979-22
3
With respect to trial counsel's cross-examination of S.L., the judge found
there was no showing trial counsel was deficient. She determined counsel's
cross-examination was a logical attempt "to question [S.L.'s] credibility by
showing . . . her assertion[s] could not be corroborated by any evidence." To
repudiate her claims that defendant beat her, counsel emphasized no one ever
saw "any marks or bruises" caused by defendant beating S.L. The judge
rejected defendant's contention that "the jury would have never known that
S.L. had alleged he was a violent, physically abusive parent" absent counsel's
cross-examination, pointing out "the State questioned S.L. about the alleged
threat [he would kill her] and [her alleged claim he had a] the gun on direct
examination." The judge added that defendant suffered no prejudice because
the jury could have found him guilty based on S.L.'s direct-examination
testimony and his own confession.1
Defendant reiterates the arguments rejected by Judge Mercado-Ramirez.
We discern no reason to upset the judge's ruling as defendant failed to show
that counsel's cross-examination strategy regarding S.L. was a prima facie case
1
The jury was told by the investigating police detective that during police
questioning, defendant confessed he touched S.L. "inappropriately," had sex
with her, and believed he had once told her "not to tell anybody what
happened" between them.
A-0979-22
4
of ineffective assistance. "[C]omplaints 'merely of matters of trial strategy' will
not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J.
at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59 (2009).
"As a general rule, strategic miscalculations or trial mistakes are insufficient to
warrant reversal 'except in those rare instances where they are of such
magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v.
Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J.
22, 42 (1991)).
In S.L.'s direct examination, the State questioned her about defendant
hitting her, threatening her about using a gun, and his violent nature to explain
that she waited two years to report defendant's abuse because she believed
defendant would kill her if she told someone about his abuse. On cross-
examination, trial counsel reasonably highlighted weaknesses in S.L.'s
explanation, namely that no one saw any bruises as proof of beatings, and he
never specifically threatened to shoot her. This was a sound use of "cross-
examination . . . to test the credibility of a witness and the truth of [their]
testimony," which is "particularly critical in cases which are founded solely
upon the observations of a witness." State v. Garcia, 255 N.J. Super. 459, 466
(App. Div. 1992).
A-0979-22
5
Attacking an alleged child sex abuse victim's credibility is especially
challenging, where the victim may "delay in reporting the alleged abuse."
State v. P.H., 178 N.J. 378, 400 (2004). Understandably, trial counsel's
strategy of drawing more attention to defendant hitting his children was due to
the weight of the facts against him, something beyond counsel's control. See
State v. Nash, 212 N.J. 518, 543-44 (2013). But as the State correctly notes,
S.L. had already described defendant's threats and finding a gun in his pants
pocket during her direct testimony. Counsel arguably would have been
ineffective by not challenging S.L.'s credibility on cross-examination.
Turning to defendant's decision not to testify, the Judge Mercado-
Ramirez found trial counsel did not err by "fail[ing] to reassess his trial
strategy on whether defendant should testify [and] . . . rebut [S.L.'s]
allegations," as "[d]efendant himself elected not to testify after the [c]ourt
questioned him" on this choice. The judge noted that at the trial she expressly
"advised defendant that he did not have to accept his counsel's advice not to
testify," assuming defense counsel even gave any such advice. The court
found nothing suggested "counsel was obligated to reassess his [trial] strategy"
in these circumstances.
A-0979-22
6
We discern no basis to disturb the judge's ruling regarding defendant's
decision not to testify. Our examination of defendant's claim and review of the
record convinces us defendant had not established by a preponderance of
evidence a prima facie case of ineffective assistance of trial counsel when he
chose not to testify at his trial and, thus, there was no need for an evidentiary
hearing. See Nash, 212 N.J. at 541 (holding defendant has the burden to
establish his or her right to PCR "by a preponderance of the credible evidence"
(quoting State v. Preciose, 129 N.J. 451, 459 (1992))); Preciose, 129 N.J. at
462 (ruling a court reviewing a PCR petition based on claims of ineffective
assistance of counsel has the discretion to grant an evidentiary hearing if a
defendant establishes a prima facie showing in support of the requested relief).
There were no disputed issues of material facts regarding defendant's decision
to exercise his right not to testify that prevented the PCR judge from resolving
defendant's claim. See State v. Porter, 216 N.J. 343, 354 (2013).
Defendant's bald assertion that trial counsel should have "reassess[ed]
his strategy and allow[ed him] to testify" is insufficient basis for PCR. See
State v. Marshall, 148 N.J. 89, 158 (1997). Nothing in the record suggests
defendant unknowingly gave up his right to testify in his own defense. See
State v. Lopez, 417 N.J. Super. 34, 39 (App. Div. 2010). At trial, Judge
A-0979-22
7
Mercado-Ramirez directly advised him of his right to testify and confirmed he
spoke with defense counsel before deciding not to testify. See State v. Ball,
381 N.J. Super. 545, 556 (App. Div. 2005). During this exchange, he denied
anyone had forced him to waive his right to testify and he stated he had made
his choice not to testify freely. The judge then separately confirmed trial
counsel had advised defendant on this issue. Ibid. Only then did the judge
accept defendant's decision. There was no indication counsel did not properly
consult defendant. In fact, after the State completed its case, the judge granted
defendant's request "to sleep overnight on . . . whether or not to testify" on his
own behalf. The trial record speaks to the fact that defendant's decision not to
testify was ultimately his choice. Thus, there is no factual or legal basis to
disregard defendant's waiver of his constitutional right to testify.
Furthermore, the State correctly notes defendant's waiver did not
prejudice him because his testimony likely would not have countered the
combined weight of S.L.'s testimony and his own confession. See O'Neil, 219
N.J. at 611. Thus, defense counsel's advice against testifying did not
constitute ineffective assistance under Strickland's second prong. 466 U.S. at
687.
A-0979-22
8
To the extent we have not addressed defendant's arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
A-0979-22
9