STATE OF NEW JERSEY VS. J.B., JR. (07-06-1176, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2056-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.B., Jr.,
Defendant-Appellant.
____________________________________________________
Submitted October 31, 2017 – Decided November 13, 2017
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
07-06-1176.
Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew J. Shaw, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
In 2010, defendant was convicted of aggravated sexual assault
against his stepdaughter between 2002 and 2004, when she was under
the age of thirteen, and between 2004 and 2006, when she was at
least thirteen but not yet sixteen years old.1 An extended fifty-
year prison term was imposed, as well as lesser concurrent prison
terms on other related offenses.2 Defendant appealed, arguing: the
trial court erred in denying his motion to suppress evidence; the
prosecutor introduced improper lay opinion and placed other-crimes
evidence before the jury; the judge failed to issue an appropriate
limiting instruction regarding the other-crimes evidence; the
prosecutor introduced expert testimony that was not disclosed
during discovery; the prosecutor gave an improper summation; the
judge erred in denying defendant's motions for acquittal or a new
trial; and the sentence imposed was excessive. We rejected all
these arguments and affirmed. State v. J.B., Jr., No. A-0612-10
(App. Div. Oct. 3, 2013). And the Supreme Court denied
certification. State v. J.B., Jr., 217 N.J. 304 (2014).
In 2014, defendant filed a pro se PCR petition. He later
moved to recuse the PCR judge because that judge had presided over
1
The circumstances surrounding defendant's crimes are discussed
at some length in our opinion on defendant's direct appeal and
need not be repeated.
2
Defendant was also tried in 2011, when he was fifty-four years
old, for the 1972 murder of his younger brother when defendant was
a juvenile. The judge in that matter – who was the post-conviction
relief (PCR) judge here – imposed a twenty-year period of
incarceration. We affirmed that determination in 2013. State in
the Interest of J.B., Jr., No. A-0366-11 (App. Div. July 11, 2013).
2 A-2056-15T1
the juvenile matter. Both the PCR petition and the recusal motion
were denied, and defendant appeals, arguing:
I. THE PCR COURT ERRED IN DENYING THE PCR
PETITION WI[TH]OUT HOLDING AN EVIDENTIARY
HEARING.
A. Trial Counsel's Failure to Timely
Object to the Testimony of Dr.
Stewart.
B. Trial Counsel's Failure to Object
to the Admission of Other Crimes
Evidence or to Seek a Limiting
Instruction.
C. Trial Counsel's Failure to
Request a Change of Venue.
D. Trial Counsel's Cumulative
Errors.
II. THE PCR COURT ERRED IN DENYING THE MOTION
FOR RECUSAL.
We find insufficient merit in these arguments to warrant further
discussion in a written opinion, R. 2:11-3(e)(2), and affirm. We
add only the following brief comments.
In his PCR petition, defendant claimed his trial attorney was
ineffective for the reasons set forth in the subsections to his
Point I above.
As for defendant's arguments in Point I(A) about Dr. Stewart's
testimony – that counsel failed to adequately respond to Dr.
Stewart's reliance on a study that supported his view that
penetration of the vagina or anus of an adolescent girl would not
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necessarily cause visible trauma – fails to satisfy the
requirements of the second prong of the Strickland/Fritz3 test
because defendant was not convicted of any count alleging vaginal
or anal penetration of the victim.
In Point I(B), defendant argues, first, that counsel was
ineffective in failing to object to evidence regarding the victim's
late assertion of vaginal penetration. As noted above, defendant
was not convicted of any such conduct, but he argues now – without
having first made this argument to the PCR judge – that his trial
attorney should have sought to bar any such evidence and was
consequently ineffective. We reject that argument not only because
it was not argued to the PCR judge and not only because arguments
regarding other-crimes evidence were raised in the direct appeal
and rejected by us, but also because defendant has failed to show
how this evidence – or the admission of a letter which was raised
in the PCR court – prejudiced his right to a fair trial.
Defendant's argument in Point I(C) – that his trial attorney
was ineffective in failing to seek a change of venue – does not
warrant further comment.
We affirm the denial of defendant's recusal motion – which
was based solely on the fact that the PCR judge was also the trial
3
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).
4 A-2056-15T1
judge, and therefore the factfinder, in the unrelated 2011 juvenile
matter – substantially for the reasons set forth by the PCR judge
in his oral decision.
Affirmed.
5 A-2056-15T1