STATE OF NEW JERSEY VS. A.M. (07-10-1621, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1528-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.M.,
Defendant-Appellant.
________________________________
Submitted June 1, 2017 – Decided July 6, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 07-
10-1621.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter B. Meadow, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, on the brief).
PER CURIAM
Defendant, A.M., appeals from the March 11, 2014 order denying
his petition for post-conviction relief (PCR) without conducting
an evidentiary hearing. Defendant is serving an aggregate sentence
of twenty-two years' imprisonment, fifteen years of which is
subject to an eighty-five percent parole disqualifier under the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. More
particularly, defendant was sentenced on two counts of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2a, to fifteen-
year NERA terms to be served concurrently; he was also sentenced
on one count of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4a, to a consecutive term of seven years.
Additionally, defendant was sentenced to community supervision for
life under Megan's Law, and all appropriate penalties and
assessments were imposed.
The convictions arose out of three sexual offenses defendant
committed against his granddaughter between 2000 and 2002. At the
time of the first offense, the victim was five years old. She was
six years old at the time of the second offense and seven years
old at the time of the third offense. At that time, defendant was
between seventy and seventy-two years old. The indictment was
returned in 2007. Defendant went to trial in 2009. After he was
convicted, he filed a direct appeal, and we affirmed his conviction
and sentence. State v. A.M., No. A-1190-09 (App. Div. Feb. 4,
2011).
In his pro se PCR petition, defendant raised two arguments.
He first claimed that his trial counsel was deficient during the
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voir dire process for not inquiring into potential bias of
prospective jurors, failing to exercise peremptory challenges to
remove jurors who were related to law enforcement officers, and
allowing a jury to be selected that was "full of females with
children, where the ratio was 3 to 1 females." In his second
argument, he contended his trial counsel was deficient for failing
to communicate a plea offer that could have resulted in a lower
sentence.
Defendant obtained counsel, who filed a supplemental PCR
brief raising the following three issues:
POINT I.
MR. [M.] WAS DENIED HIS RIGHT TO REMAIN SILENT
AND RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
DUE TO TRIAL COUNSEL'S REMARKS DURING HER
OPENING STATEMENT THAT MR. [M.] WOULD TESTIFY
DURING THE TRIAL.
POINT II.
MR. [M.]'S TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO THE STATE'S REFERENCE TO
IMPER[M]ISSIBLE EVIDENCE DURING THE STATE'S
DIRECT EXAMINATION OF MS. [V.] AND ITS
CLOSING.
POINT III.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
INVESTIGATE AND OFFER EVIDENCE OF C.V.'S BIAS
AND MOTIVE DURING CROSS EXAMINATION AND THE
DEFENSE'S CASE.
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Judge Robert A. Coogan heard oral argument on the PCR petition
on February 25, 2014. He reserved decision and issued a fifteen-
page written decision on March 11, 2014, together with an
accompanying order, denying defendant's petition.
In his decision, the judge discussed at length his basis for
rejecting the three points raised by defendant's counsel. The
judge did not specifically address the two points raised by
defendant in his pro se petition nor were those points addressed
by counsel during the oral argument. Perhaps they were deemed
abandoned as having been superseded by the arguments raised in the
supplemental brief filed by defendant's counsel.
On appeal, defendant now raises a single issue:
THE POST-CONVICTION RELIEF COURT BELOW ERRED
IN DENYING DEFENDANT'S PETITION WITHOUT THE
BENEFIT OF AN EVIDENTIARY HEARING.
We are unpersuaded by defendant's argument, and we affirm.
In Judge Coogan's written decision, he rejected the argument
that defendant was "forced" to testify because his attorney told
the jury in her opening statement that he would. To the extent
that defendant argued under this point that his Fifth Amendment
right against self-incrimination was violated, the judge concluded
that the claim was procedurally barred by Rule 3:22-4 because it
could have been raised on direct appeal. The trial record
contained colloquy between the trial judge and defendant regarding
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his right to testify. During that colloquy, trial counsel advised
the court that defendant had stated all along that he wanted to
testify. In response to the judge's questions, defendant
acknowledged that it was his choice to testify, he understood that
he did not have to testify and would be entitled to an instruction
advising the jury that they could not draw an adverse inference
from his failure to testify, and he acknowledged that his decision
was made without coercion or force. The judge further found that
because it was allegedly because of defense counsel's conduct, not
that of the prosecutor or the court, that defendant now asserts
he was compelled to testify, there could be no Fifth Amendment
violation.
Addressing the ineffective assistance claim, the judge
concluded that, applying the Strickland/Fritz1 test, defendant
could not prevail on either the deficiency or prejudice prong.
The judge concluded that counsel made a reasoned strategic
decision, and pursued an appropriate trial strategy in which
defendant would testify. It is noteworthy that in pretrial
proceedings, the trial court ruled that tape recorded
conversations in which defendant admitted to the misconduct and
1
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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his statement to the police in which he also admitted to it would
be admissible at trial. Accordingly, it was reasonable to develop
a trial strategy in which defendant would testify, deny the
incidents, and provide his explanation for any misunderstanding
he contended might have arisen from his prior statements that
would be in evidence.
Thus, Judge Coogan, abiding by the principle that counsel
should be accorded a presumption of reasonable strategic decisions
and should not be second-guessed in hindsight, concluded that
counsel's decision did not constitute deficient conduct. Further,
in light of the strong evidence against defendant, which included
his own words admitting to the offenses, there was no reasonable
probability that the result would have been different had he not
testified.
We further note that defendant did not submit an affidavit
or certification stating that he did not authorize his attorney
to tell the jurors he would testify, that he disagreed with that
strategy, that he would not have testified had his counsel not so
informed the jury, or the like. Under these circumstances, an
after-the-fact bald assertion that counsel's opening statement
constituted ineffective assistance could not establish a prima
facie case of ineffective assistance. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
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Judge Coogan also concluded that the second point raised in
PCR counsel's brief was procedurally barred by Rule 3:22-5, which
provides that "[a] prior adjudication upon the merits of any ground
for relief is conclusive." On this point, defendant argued that
in providing fresh complaint testimony, the victim's mother
described prejudicial details that went beyond what is permitted
in such testimony. The trial court gave a curative instruction.
In summation, the prosecutor referred to the same impermissible
testimony. There was no objection and no further curative
instruction.
Defendant raised this issue on direct appeal. We agreed that
the details of what the victim told her mother should not have
been permitted as part of the fresh complaint testimony. We
concluded, however, that any error was harmless. We further
concluded that the prosecutor's reference to that testimony in
summation was fleeting and did not have the probability of
affecting the outcome.
On the third point raised in the brief filed by defendant's
PCR counsel, Judge Coogan noted that trial counsel did cross-
examine C.V. extensively regarding her potential bias, going as
far as the trial court would permit. Judge Coogan found that
neither prong of the Strickland/Fritz test was met on this point.
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Imbedded in defendant's argument on this point was his
contention that his trial counsel failed to investigate the claim
of bias by C.V. that he now claims should have been, but was not,
exposed at trial. However, he has failed to produce an affidavit
or certification by anyone with personal knowledge of what such
an investigation would have revealed. Therefore, under Cummings,
he could not make a prima facie showing on this point. See
Cummings, supra, 321 N.J. Super. at 170.
Based upon our review of the record with respect to these
three points, we concur with Judge Coogan's findings, analysis,
and conclusions. None of these three arguments entitled defendant
to relief, nor did they establish a prima facie case that would
have entitled him to an evidentiary hearing.
We address the two points defendant raised in his pro se PCR
petition because he has raised them in his appellate brief. These
points lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We nevertheless make these brief
comments.
In the first point, defendant contends that his attorney was
deficient during voir dire. First, he has not provided transcripts
of the voir dire, which makes appellate review impossible. Second,
he has not pointed to any specific instances of deficient conduct.
He relies on his unsubstantiated assertion that his attorney picked
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a jury that he now claims, after-the-fact, was not likely to be
receptive to his case. These bald allegations provide no basis
for relief, nor do they establish a prima facie case that would
require an evidentiary hearing.
In his second point, defendant contends that his trial counsel
failed to communicate a plea offer that could have resulted in a
lower sentence. This contention is also unsupported by an
affidavit or certification. Further, it is contradicted by
defendant's pro se PCR brief, in which he said his trial counsel
did approach him with several plea bargain offers, one for ten
years, another for eight years, and a third for seven years. He
contended that he was interested in the seven year offer, but his
counsel did not provide him sufficient information "on the penal
consequences of the plea bargain." These conflicting and
conclusory statements constitute nothing more than bald assertions
and lack sufficient facts contained in an affidavit or
certification to establish a prima facie case of deficient conduct.
We affirm substantially for the reasons expressed by Judge
Coogan in his written decision of March 11, 2014, as supplemented
by our discussion of the two points defendant raised in his pro
se PCR petition.
Affirmed.
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