STATE OF NEW JERSEY VS. D.D.Z.(03-06-0881, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4645-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.D.Z.,
Defendant-Appellant.
_______________________________
Submitted September 19, 2017 – Decided October 24, 2017
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
03-06-0881.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant D.D.Z. appeals from an order entered by the Law
Division on March 11, 2016, which denied his petition for post-
conviction relief (PCR) without an evidentiary hearing. We affirm.
A Middlesex County grand jury indicted defendant of second-
degree sexual assault of a child less than thirteen years old,
N.J.S.A. 2C:14-2(b) (Count One); and third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two). Defendant
was tried before a jury.
The following facts are taken from the record. The State
alleged defendant sexually assaulted and endangered the welfare
of a child, specifically, his nephew S.Z.1 The State alleged the
incident that formed the basis for the charges occurred sometime
between February 1997 and February 1998, when S.Z. was between the
ages of four and five, in defendant's parent's home.
S.Z. testified defendant touched his "private parts," which
he defined as his "penis and butt." S.Z. said the incident
occurred when he was five years old in the bathroom of his
grandparent's home. S.Z. testified defendant had asked him to
remove his clothes and said it was okay to do so because he was a
doctor. S.Z. stated defendant also told him "to keep this hush-
1
We use initials to protect the identities of the minor and his
mother.
2 A-4645-15T1
hush," which was why he did not tell anyone about the incident for
several years.
S.Z.'s mother, defendant's former sister-in-law, testified
at trial. She stated she had a conversation with defendant's
nephews, R.Z. and S.Z., during which she informed them defendant
"had a sickness, and it was called pedophilia." She then told
R.Z. and S.Z. pedophilia meant their uncle touched boys
inappropriately, and no one had the right to do so. After this
conversation, S.Z. told his mother he remembered something, but
he did not know if the memory was real or not. S.Z.'s mother
instructed him not to worry whether the memory was real and to
tell her what he remembered. S.Z. then relayed the details of the
bathroom encounter to his mother. Shortly after this conversation,
S.Z.'s mother notified the police who conducted an investigation.
Defendant was convicted on both counts. Defendant was
sentenced to a seventeen-year term on Count One, and a concurrent
five-year term on Count Two. Both sentences were subject to a
parole disqualifier under the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2.
Defendant appealed and we affirmed his conviction, but
remanded for resentencing. State v. D.D.Z., No. A-3328-04 (App.
Div. Feb. 25, 2008). Defendant then filed a petition for PCR,
3 A-4645-15T1
however the petition was dismissed without prejudice since
defendant had not yet been resentenced.
Defendant filed a PCR petition on January 7, 2014, claiming
ineffective assistance of counsel because counsel: (1) deprived
him of his right to testify; (2) failed to request a "taint"
hearing pursuant to State v. Michaels, 136 N.J. 299 (1994); (3)
failed to conduct proper cross examination of the State's
witnesses, including S.Z. and S.Z.'s mother; (4) failed to call
expert witnesses; (5) was hostile toward defendant after he
rejected a plea deal; and (6) failed to conduct a sufficient
investigation prior to trial.
Defendant also argues the jury instructions were improper and
prosecutorial misconduct occurred during both summation and the
grand jury proceedings, depriving him of a fair trial. Although
defendant's PCR petition was filed after the five-year time limit
in Rule 3:22-12(a)(1), he contends it should not be time-barred
because the failure to address the important issues raised in it
would result in a fundamental injustice.
On April 23, 2015, the PCR court considered oral argument and
issued a written opinion on March 11, 2016, denying defendant's
petition. The PCR court found defendant's petition was time-
barred pursuant to Rule 3:22-12(a)(1) because he had five years
from the date of his conviction, January 28, 2005, to file his
4 A-4645-15T1
petition. The PCR court found defendant had not received
ineffective assistance of counsel, the court's limiting
instructions were proper, and defendant's contentions regarding
prosecutorial misconduct were without merit. This appeal
followed.
On appeal, defendant raises the following claims through
counsel:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF, IN PART, UPON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-12(a)(1).
POINT II
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL IN SEVERAL
DIFFERENT RESPECTS.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL,
EVIDENTIARY HEARINGS AND PETITIONS
FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF
COUNSEL'S DECISION TO PERMIT THE
STATE TO ELICIT TESTIMONY FROM THE
VICTIM'S MOTHER CHARACTERIZING THE
DEFENDANT AS A "PEDOPHILE."
5 A-4645-15T1
C. TRIAL COUNSEL DID NOT
ADEQUATELY REPRESENT THE DEFENDANT
ARISING OUT OF HIS FAILURE TO
THOROUGHLY DISCUSS WITH HIS CLIENT
ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION
WHETHER OR NOT TO TESTIFY, AS A
RESULT OF WHICH THE DEFENDANT DID
NOT TESTIFY IN HIS OWN DEFENSE.
Defendant also raises the following points in his supplemental pro
se brief:
POINT I
DEFENDANT WAS DENIED DUE PROCESS OF LAW AND
THE RIGHT TO PREPARE HIS DEFENSE WHERE THE
PROSECUTOR WITHHELD MATERIALS FROM THE GRAND
JURY THAT WOULD BE EXCULPATORY TO THE
DEFENDANT.
POINT II
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO EFFECTIVE REPRESENTATION BY COUNSEL
BY VIRTUE OF HIS COURT-APPOINTED LAWYER'S
FAILURE TO ADEQUATE INVESTIGATE THE
DEFENDANT'S CASE AND FAILURE TO PRESENT
EVIDENCE AT TRIAL.
POINT III
THE DEFENDANT WAS PREJUDICED BY THE PREMATURE
COMMENCEMENT OF HIS TRIAL.
POINT IV
SEEN EVEN UNDER THE MOST LENIENT LIGHT, JUDGE
NIEVES' REMARKS, MADE JUST BEFORE HE WAS TO
PRESIDE BEFORE A CHILD SEX ABUSE CASE WERE NOT
ONLY IMPROPER, BUT MORE IMPORTANTLY
UNDOUBTEDLY PREJUDICED THE COURT AGAINST
[D.D.Z.] AFTER THOSE REMARKS, IT WAS
6 A-4645-15T1
IMPOSSIBLE FOR [D.D.Z.], OR ANY DEFENDANT IN
HIS SITUATION, TO RECEIVE AN UNBIASED HEARING.
POINT V
DENIAL OF APPELLANT'S APPLICATION WAS CONTRARY
TO ESTABLISHED LAW REGARDING INEFFICIENT
ASSISTANCE OF COUNSEL.
I.
Defendant argues the trial court erred in denying his PCR
petition on grounds it was time-barred pursuant to Rule 3:22-
12(a)(1). We disagree.
Rule 3:22-12(a)(1) states:
[N]o petition shall be filed pursuant to this
rule more than [five] years after the date of
entry . . . of the judgment of conviction that
is being challenged unless:
(A) it alleges facts showing that the delay
beyond said time was due to defendant's
excusable neglect and that there is a
reasonable probability that if defendant's
factual assertions were found to be true
enforcement of the time bar would result in a
fundamental injustice[.]
The burden rests with defendant to establish excusable
neglect. State v. Milne, 178 N.J. 486, 492 (2004). "The New
Jersey Supreme Court has required a showing of 'compelling,
extenuating circumstances' or, alternatively, 'exceptional
circumstances,' to relax the time limitation for a PCR petition."
State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013)
(quoting Milne, supra, 178 N.J. at 492). The Court has explained
7 A-4645-15T1
the decision to relax the time bar should occur only under
exceptional circumstances and the court should consider: (1) "the
extent and cause of the delay"; (2) "the prejudice to the State";
and (3) "the importance of the petitioner's claim in determining
whether there has been an 'injustice' sufficient to relax the time
limits." State v. Afanador, 151 N.J. 41, 52 (1997) (quoting State
v. Mitchell, 126 N.J. 565, 580 (1992)).
Defendant argues that his petition for PCR is not time-barred
because he established excusable neglect as shown by the "apparent
failure of the defendant's attorneys to have abided by their
responsibilities and obligations toward the defendant."
Specifically, defendant argues that the trial court and trial
counsel's failure to advise defendant of the time frame to file a
petition for PCR constitutes excusable neglect.
The record shows that defendant initially filed his PCR
petition on August 15, 2010. However, defendant's petition was
denied without prejudice, because we had previously remanded the
matter for resentencing, which had not yet occurred. Defendant
then refiled his PCR petition on January 22, 2014.
8 A-4645-15T1
Defendant's judgment of conviction was dated January 28,
2004.2 Therefore, pursuant to Rule 3:22-12(a)(1), defendant's PCR
petition should have been filed by January 28, 2009. Defendant's
initial petition was one year and eight months late, and his
present petition is five years late.
Defendant argues that the trial court and trial counsel's
failure to inform him of the time within which a PCR petition must
be filed constitutes excusable neglect. We disagree. A
"[d]efendant's assertion that he lacks sophistication in the law
does not [constitute] exceptional circumstances." State v.
Murray, 162 N.J. 240, 246 (2000).
Additionally, defendant does not meet the criteria outlined
in Afanador, supra, to relax the time bar. He has not provided
an adequate reason for the delay in filing the PCR petition, and
has not demonstrated that enforcement of the time-bar would result
in a fundamental injustice. Therefore, we conclude the PCR judge
correctly found that defendant's petition was time-barred.
Notwithstanding, the PCR judge addressed the merits of defendant's
petition, which we turn to next.
2
Defendant's brief, the State's brief and the trial court's order
all indicate defendant was originally sentenced on January 28,
2005. However, we utilize the date on the Judgment of Conviction,
which is January 28, 2004.
9 A-4645-15T1
II.
Defendant asserts the PCR court erred because it denied him
an evidentiary hearing to address his claim of ineffective
assistance of counsel relating to his trial. We disagree.
Rule 3:22-10(b) provides:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
Furthermore, Rule 3:22-10(e) provides the court shall not
grant an evidentiary hearing if: (1) it "will not aid [in] the
court's analysis of the defendant's entitlement to post-conviction
relief"; (2) "the defendant's allegations are too vague,
conclusory or speculative"; or (3) the defendant is attempting to
use the hearing to explore or investigate other possible
unsubstantiated PCR claims.
The decision as to whether to hold an evidentiary hearing on
a PCR petition is committed to the sound discretion of the PCR
judge. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.),
10 A-4645-15T1
certif. denied, 162 N.J. 199 (1999). The judge should grant an
evidentiary hearing and make a determination on the merits of a
defendant's claim only if the defendant has presented a prima
facie claim of ineffective assistance. Preciose, supra, 129 N.J.
at 462.
In determining whether a prima facie claim has been
established, the facts should be viewed "in the light most
favorable to a defendant." Id. at 462-63. Additionally, "[a]
petitioner must establish the right to such relief by a
preponderance of the credible evidence." Id. at 459. "To sustain
that burden, specific facts must be alleged and articulated" to
"provide the court with an adequate basis on which to rest its
decision." Mitchell, supra, 126 N.J. at 579.
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
11 A-4645-15T1
[Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); State v. Fritz, 105 N.J. 42, 52 (1987)
(quoting Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that [counsel's] conduct falls
within the wide range of reasonable professional assistance.'"
Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S.
at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.). "To rebut
that strong presumption, a [petitioner] must establish . . . trial
counsel's actions did not equate to 'sound trial strategy.'" State
v. Castagna, 187 N.J. 293, 314 (2005) (quoting Strickland, supra,466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; see
also State v. Savage, 120 N.J. 594, 618 (1990) ("[C]ounsel has a
duty to make reasonable investigations or to make a 'reasonable
decision that makes particular investigations unnecessary.' A
failure to do so will render the lawyer's performance deficient.")
(citation omitted). "Mere dissatisfaction with a counsel's
exercise of judgment is insufficient to warrant overturning a
conviction." State v. Nash, 212 N.J. 518, 542 (2013)(internal
quotations omitted).
To prove prejudice, "'actual ineffectiveness' . . . must
[generally] be proved." Fritz, supra, 105 N.J. at 52. Petitioner
12 A-4645-15T1
must show the existence of "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Savage, supra, 120 N.J. at 614 (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
It is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland, supra, 466 U.S. at 693, 104 S.
Ct. at 2067, 80 L. Ed. 2d at 691 (internal
citation omitted).]
Prejudice may be presumed when "counsel entirely fails to subject
the prosecution's case to meaningful adversarial testing[.]"
United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047,
80 L. Ed. 2d 657, 667-68 (1984).
Defendant contends trial counsel erroneously permitted the
State to elicit testimony from S.Z.'s mother, who characterized
defendant as a "pedophile." He claims the PCR court summarily
dismissed the issue by incorrectly concluding that the testimony
had been given outside the presence of the jury. Defendant argues
13 A-4645-15T1
the trial court erred by dismissing these claims without an
evidentiary hearing.
The testimony in question was initially addressed before
trial. The court asked the prosecutor if she had considered how
to present to the jury that S.Z.'s mother told S.Z. defendant was
a pedophile. The prosecutor responded she had, and if there was
an objection, a limiting instruction would be appropriate. Defense
counsel stated he preferred the jury not hear that "sort of
allegation," but it was important the jury hear an explanation of
how the allegation arose and that it was not spontaneously reported
by the child. Following this exchange, the court stated counsel
should agree before the testimony of S.Z.'s mother.
S.Z.'s mother then testified during a N.J.R.E. 401 hearing,
stating she:
sat the boys down to tell them that [she] had
found out some information about their uncle.
And [she] sat them down and told them that
Uncle [D.D.Z.] had a sickness, and that it was
called pedophilia. And what it meant was that
he touched boys inappropriately, and no one
had any right to do that to anybody . . .
whether they're a stranger or family member
. . . no one has any right to do that.
The trial court found S.Z.'s mother's statements were
admissible, but reiterated "this question of the defendant being
characterized as a pedophile has to be addressed." Defense counsel
stated he wanted the jury to hear S.Z.'s mother's characterization
14 A-4645-15T1
of defendant as a pedophile because it would raise questions about
the authenticity of S.Z.'s statements, but he did not want S.Z.'s
mother to testify as to how she obtained that information. The
prosecutor indicated she could instruct S.Z.'s mother to limit her
testimony as long as it was clear the State was not attempting to
elicit "some type of bad character evidence." The trial court
concurred.
During trial, S.Z.'s mother testified as follows:
I was talking to my sons about pedophilia.
And I told them that their uncle had a disease,
and it was called pedophilia. And it meant
that he touched children inappropriately. And
I told them that no one had any right to do
that to them, whether it was a stranger or a
family member, that it was just wrong.
In addition, during defense counsel's opening, cross-examination
and summation, as well as during S.Z.'s and S.Z.'s mother's
testimony, defendant was characterized as a pedophile.
The court instructed the jury on S.Z.'s mother's testimony
regarding how S.Z. informed her sons about the charges against
defendant. The court stated:
you [] heard some evidence that [S.Z.'s
mother] told her sons that their uncle, the
defendant, was a pedophile and that he had
inappropriately touched boys. Now, normally
in a criminal case evidence like that would
never be permitted . . . however from time to
time our rules do permit evidence when it's
offered for a limited purpose . . . in this
particular case this evidence was allowed for
15 A-4645-15T1
a limited purpose . . . so that you could hear
the discussions . . . between [S.Z.'s mother]
and [S.Z.], and . . . evaluate whether you
think anything [S.Z.'s mother] said to [S.Z.]
in any way . . . influenced his statements
about what happened to him . . . You cannot
. . . conclude that because [S.Z.'s mother]
characterized the defendant as a pedophile
that he must be guilty of the crimes charged
in this indictment.
During the jury charge, the trial court reiterated the limiting
instruction as to how the jury should consider S.Z.'s mother's
statements to her sons that defendant was a pedophile.
Now defendant claims counsel's decision to agree to a limiting
instruction, rather than seek to bar the statements, demonstrates
ineffective assistance of counsel. Defendant claims the second
prong of Strickland is satisfied because the use of the term
"pedophile" clearly prejudiced the jury. In response, the State
contends the testimony in question "was a necessary component in
assessing the trustworthiness of the victim's disclosure," "[t]he
trial court admitted the statements . . . and the Appellate
Division affirmed that ruling."
Although we agree with defendant the PCR court was mistaken
in finding the testimony in question occurred outside of the
presence of the jury, it does not change the outcome. Defense
counsel's decision to allow the testimony with a limiting
instruction was a tactical decision, which should be afforded
16 A-4645-15T1
"extreme deference." State v. Arthur, 184 N.J. 307, 322 (2005)
(citations omitted). Defendant must therefore demonstrate
counsel's decision constitutes a serious error that prejudiced the
jury.
Defendant's argument does not meet the first prong of the
Strickland test. The mere fact there existed another strategy,
namely, to keep the statement out of evidence altogether, is not
prima facie evidence of a serious error. Additionally, the record
supports the decision to permit the testimony and use a limiting
instruction was not done without cause, but was a deliberate
strategic decision. This claim does not demonstrate a material
dispute warranting an evidentiary hearing.
Next, defendant claims he was deprived of effective
assistance of counsel as a result of trial counsel's failure to
call him to testify on his own behalf. Defendant certifies that
despite his "deep desire to testify at trial and profess his
innocence," he did not testify "because of trial counsel's utter
failure to properly prepare [defendant] to do so." Defendant
further contends the trial court's failure to address this issue
at an evidentiary hearing was also error. We disagree.
Generally, "[i]t is the responsibility of a defendant's
counsel, not the trial court, to advise defendant on whether or
not to testify and to explain the tactical advantages and
17 A-4645-15T1
disadvantages of doing so or [] not doing so." State v. Bogus,
223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567(1988). Notwithstanding, the record demonstrates that during the
trial, the court took special care to remind defendant of his
right to testify.
THE COURT: All right. [D.D.Z.], do you
understand that in this case you have a right
to testify?
[D.D.Z.]: Yes, sir, your Honor.
THE COURT: And you understand that if you
choose to testify, of course, the prosecutor
will have an opportunity to question you about
anything that is relevant to these proceedings
and also question you about your prior
criminal convictions. You understand that?
[D.D.Z.]: Yes, sir.
THE COURT: Of course, you also have a right
not to testify, right?
[D.D.Z.]: (Nods)
THE COURT: And if you elect not to testify, I
will instruct the jury that that cannot be
held against you. And they have to consider
the charges against you based on the evidence
that they have heard, but they can't hold it
against you that you have chosen not to
testify. Do you understand that?
[D.D.Z.]: Yes, sir.
THE COURT: Now, you've had an opportunity, I'm
sure, to consult with [counsel] about this
decision regarding whether or not to testify?
[D.D.Z.]: Yes, sir.
18 A-4645-15T1
THE COURT: Is that a yes?
[D.D.Z.]: Yes, your Honor.
THE COURT: Do you understand that even though
[counsel] has a duty to give you his best legal
advice, the decision regarding your testimony
has to be your personal decision, right?
[D.D.Z.]: Yes, your Honor.
THE COURT: And is it your personal decision
that you've decided not to testify?
[D.D.Z.]: That is correct your Honor.
The trial court addressed the issue again the following day,
asking if defense counsel had the opportunity to speak with
defendant regarding whether he would testify. Counsel stated he
had not, and the trial court directed he do so before the jury
returned. Following the testimony of two defense witnesses, the
trial court held a sidebar and again inquired if defendant would
be called to testify. Counsel indicated the defense would rest.
Defendant was clearly advised of his right to testify and
declined to do so. For these reasons, we reject defendant's claim
the "colloquy which took place between the trial court, trial
counsel and the defendant was inadequate and insufficient to reach
an informed conclusion that the defendant's decision not to testify
had been knowingly, voluntarily and intelligently made." Given
the thoroughness of the trial judge's inquiry into defendant's
19 A-4645-15T1
right to testify, the PCR court's denial of an evidentiary hearing
was warranted.
In his pro se supplemental brief, defendant claims he was
denied the ineffective assistance of counsel because his trial
counsel failed to adequately investigate the case or introduce
evidence. Specifically, defendant contends trial counsel had a
report from the Division of Youth and Family Services 3 (Division)
as well as other transcripts, including a transcript from the
initial police interview, which counsel did not investigate or
introduce into evidence. The Division's report found S.Z.'s
allegations were "unsubstantiated." Defendant claims that his
attorney was deficient in failing to investigate and produce the
Division's report at trial. He asserts that had counsel
investigated the matter and presented the report, he would likely
have been acquitted.
The failure by trial counsel to conduct a pre-trial
investigation may give rise to a claim of ineffective assistance
of counsel. Preciose, supra, 129 N.J. at 464. A defendant's
right to a "vigorous defense" means defense counsel must
3
On June 29, 2012, the Governor signed into law A-3101, which
reorganizes the Department of Children and Families, which
includes the renaming of the Division as the Division of Child
Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
20 A-4645-15T1
"investigate all substantial defenses available." State v. Russo,
333 N.J. Super. 119, 139 (App. Div. 2000).
However, defendant is required to plead more than "bald
assertions" when alleging ineffective assistance of counsel
because of a failure to investigate. Cummings, supra, 321 N.J.
Super. at 170. Defendant "must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Ibid. If defendant
merely speculates the evidence would have been exculpatory, the
claim will fail. Fritz, 105 N.J. at 63.
We reject defendant's claim that the evidence from the
Division records and the interview of S.Z. was either exculpatory
or presented an adequate defense. At trial, the State presented
the videotape of S.Z.'s statement. However, defendant's reliance
on S.Z.'s statement from the videotaped interview: "I kind of
remember it pretty unclearly," relating to the abuse would be
useful only for the limited purpose of impeaching S.Z.'s testimony.
Also, the Division's determination the abuse was unsubstantiated
is not exculpatory evidence. The Division's regulations at the
time defined unsubstantiated findings as circumstances where the
evidence is insufficient to make an evaluation. N.J.A.C. 10:129A-
3.3(a)(2).
21 A-4645-15T1
Thus, admission of the evidence from the Division would not
have negated the elements of the offense established by the weight
of the evidence presented by the State. Defendant's pro se brief
concedes this evidence only had the potential to exculpate.
Therefore, the failure to adduce the Division's records into
evidence did not prejudice defendant, and the admission of S.Z.'s
statement into evidence did not exculpate him. Defendant's
assertions are merely speculative. See Fritz, supra, 105 N.J. at
63. Because the existing record was sufficient to resolve
defendant's claims, and he did not establish a prima facie case
for PCR, the PCR court was not required to hold an evidentiary
hearing.
Lastly, defendant, in his pro se supplemental brief, argues
his first attorney filed a motion to suppress the videotaped
statement of S.Z., but his trial counsel withdrew the motion.
Defendant claims this proves ineffective assistance of counsel.
There is no evidence in the record the decision to withdraw
the motion to suppress was deficient. Defendant does not
articulate how S.Z.'s statements would have been suppressed. As
previously stated, "a [petitioner] must establish . . . trial
counsel's actions did not equate to sound trial strategy."
Castagna, supra, 187 N.J. at 314; see Savage, supra, 120 N.J. at
618. As defendant has not established trial counsel was deficient,
22 A-4645-15T1
the first prong of Strickland is not met and this claim fails.
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698.
The remaining arguments in defendant's pro se brief are
without sufficient merit to warrant discussion in a written
opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
23 A-4645-15T1