STATE OF NEW JERSEY VS. J.S. (06-10-1466, 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NOT FOR PUBLICATION WITHOUT THE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-3030-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant.
______________________________
Submitted April 3, 2019 – Decided November 15, 2019
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 06-10-
1466.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew Robert Burroughs, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
NUGENT, J.A.D.
Defendant, J.S., is serving an aggregate twenty-four year and three month
prison term on two counts of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a), two counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a), and one count of fourth-degree contempt, N.J.S.A. 2C:29-
9. A jury convicted him of the aggravated sexual assault offenses based
primarily on the testimony of his daughters, E and V.1 Defendant exhausted his
direct appeals and a court denied his first post-conviction relief (PCR) petition.
Defendant has filed this appeal from an order denying reconsideration of his
second PCR petition. In his second petition, defendant claimed various counsel
who represented him did so ineffectively and newly discovered evidence calls
into question the veracity of his daughters' testimony. Finding no error in the
trial court's rejection of defendant's claims of ineffective assistance of counsel
or its determination that the purported newly discovered evidence did not
constitute sufficient legal grounds for a new trial, we affirm.
I.
A.
1
We use letters to protect the privacy of the victims.
A-3030-17T4
2
The evidence the State presented at defendant's trial is detailed in our
opinion affirming defendant's conviction, State v. J.S., No. A-1603-07 (App.
Div. April 15, 2010) (slip op. at 3-5), certif. denied, 203 N.J. 96 (2010) and need
not be repeated in its entirety. In short, the State presented evidence that
defendant was a strict parent who wanted his children to do well in school. He
punished his daughters, E and V, both under the age of sixteen at the time, by
requiring them to stay in their rooms and read rather than watch television or
talk on the phone. Id. at 3. Eventually, defendant offered to commute their
punishments in exchange for their submitting to his sexual demands. Id. at 3-4.
The children waited two years before disclosing the abuse. Id. at 4.
Defendant testified and denied the allegations. He acknowledged he
wanted his daughters to excel in school and he punished them by requiring them
to remain in their rooms and read books. They both made the honor roll, one
with straight A's. He testified he would initially require them to remain in their
rooms for a month, but usually let them out after a week or two weeks, because
they behaved, not because they submitted to his sexual demands. Id. at 4-5. The
jury rejected his testimony.
B.
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3
In addition to filing a direct appeal, defendant filed a PCR petition, which
the trial court denied. Defendant appealed and we affirmed. State v. J.S., No.
A-2490-12 (App. Div. Apr. 1, 2014). One year and thirteen days after we
affirmed the denial of defendant's first PCR petition, defendant filed a second
PCR petition dated June 2, 2015. The order denying the second petition is the
subject of this appeal.
In his form petition, in response to the written directive to specify the facts
upon which relief was based, as well as the legal argument and all claims,
defendant wrote: "[c]laiming ineffective counsel, lawyer failed to investigate,
failure to present alibi, failure to communicate and provide discovery. New
evidence waiting on Affidavit in near future."
The judge who heard defendant's second PCR petition denied it on January
13, 2016. In a written opinion, the court noted defendant had "raised the same
and substantially similar issues in his first [PCR] application and had the
opportunity to address the issues now raised in his recent application." Because
defendant raised the same issues he had raised in his first PCR petition, and
failed to provide evidence to support the issues raised in his second PCR petition
despite the opportunity to do so, the court concluded defendant had failed to
establish a prima facie case of ineffectiveness entitling him to a hearing.
A-3030-17T4
4
The following month, defendant filed a motion for reconsideration. In his
supporting certification, defendant averred that when he appeared before the
court on October 29, 2015, to argue his PCR petition, he informed the court,
among other things, that he was in the process of obtaining an affidavit from a
witness critical to his petition. According to him, though the judge gave him a
fourteen-day extension, the witness did not get the statement notarized until
December 10, 2015. Defendant claimed that once he received the notarized
certification, he wrote to the Criminal Division Manager to determine the name
of the judge he had appeared before. The next thing he received was the order
denying his petition.
On February 17, 2016, the same judge who had denied defendant's second
PCR petition entered an order that granted defendant the opportunity to seek
counsel. The judge also scheduled a status conference on April 8, 2016. The
court was persuaded by the notarized statement defendant attached to his motion
for reconsideration that he should have been granted additional time. The court
noted, "the Affidavit raises an issue of recantation by the victim." The court
concluded the order with this statement: "Based on the recent Affidavit, the
Court grants the defendant the opportunity to explore the issue of possible
A-3030-17T4
5
recantation by the victim by permitting Defendant an opportunity to seek
counsel on his application for [PCR]."
The affidavit was that of defendant's nephew, who stated:
I, on many different occasions have been told by
[defendant's son] that [V] said to him, "if you don't
leave me alone, I will do to you what I did to dad," in
reference to her conspiring a story to falsely accuse him
of acts to lead him to imprisonment. I also requested to
testify as a witness, which I was never allowed to. I
have spen[t] enough time around both parties to know
whoms [sic] stories are less fluid and more truthful.
Throughout my childhood and adolescence, I've spen[t]
countless days and nights in the household where
crimes were said to have occurred and saw no
suspicious behavior. I have also heard [E] while
inebriated, say she was saddened and felt horrible about
her father being incarcerated and that "it wasn't her
idea." I would be willing to testify[,] explain and stand
behind everything I have written.
Defendant obtained counsel whose investigator recorded interviews from
defendant's nephew and son and supplemented the record. Amplifying his
notarized affidavit, defendant's nephew explained that he was the victims'
cousin. He was ten or eleven years old when his cousins made their allegations.
From ages ten through fourteen, he spent time with them, staying at their home
more than he stayed at his own home. As of the date he gave the statement, he
still talked to them three or four times a month.
A-3030-17T4
6
In his statement, defendant's nephew said that approximately two years
previously he spoke to E about the allegations against defendant. He claimed E
was intoxicated. He told her he knew everything that had happened and how he
felt about it. The two went for a walk to get cigarettes and during the walk
defendant's nephew repeatedly told E he knew defendant "didn't do it." He also
said he just wanted to know "which one of you thought of doing this."
According to the nephew, E was crying and just kept crying. She told him it
was not her idea. He pressed, but she continued to cry and would not answer
him further.
Defendant's son also gave a recorded interview. In his interview, he
confirmed defendant was the family disciplinarian, whereas the children could
get away with things with their mother. Defendant's son became the
disciplinarian after his father was locked up. His sisters had a problem both
with authority and with listening. One day he told V she had to do her homework
before she could go out. V said if he didn't "calm down [his] authoritativeness,
that [he] would be next." He repeated that V told him "to watch what [he] was
doing, she said [he] would end up like [defendant]." Defendant's son interpreted
this to mean that, like his father, he would be locked up, too.
A-3030-17T4
7
Defendant's son added that after his father was locked up, "everything
. . . went crazy." E and V did whatever they wanted, stayed out as late as they
wanted, began getting into trouble, and did not complete high school.
Defendant's son also overheard a conversation between E and V two or
three months after his father was arrested. He sensed E "was going to crack and
tell the truth." He heard V tell E, "you better not say anything, and keep your
mouth shut. We're good."
The court denied defendant a hearing on his PCR petition. The judge who
had determined that the nephew's affidavit raised an issue of recantation b y the
victim did not make the final decision on defendant's motion for reconsideration.
A different judge made that decision and denied the motion.
The judge who denied defendant's motion for reconsideration did so in an
opinion he announced from the bench following oral argument. In rejecting
defendant's arguments, he noted defendant's witnesses could "in no way, shape
or form provide complete 100 percent exculpation as alleged." The judge
commented that testimony from defendant's son and nephew that they observed
no suspicious behavior in the home, and that E and V ran with the wrong crowd,
would have been inadmissible at trial. Nor would a video showing E and V in
compromising positions with older men have been admissible. The judge
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8
determined "the statement attributed to one of the victims that they would have
locked him up again does not provide the level of exculpation that warrants the
[p]etitioner receiving post-conviction relief."
Concerning trial counsel not calling at trial the witnesses defendant
identified in his PCR petition, the judge concluded "it would have been
within . . . reasonable professional judgment not to call those witnesses as part
of trial strategy, because they really do not add here. They would have been for
the purposes of impeachment only." In so concluding, the court noted:
[T]his Defendant took the stand and testified in his own
behalf and countered all the allegations that his
daughters made against him. So the jury was presented
with a distinct choice here whether to believe the
daughters or to believe the Defendant with respect to
the allegations that were here, and they chose to believe
the daughter.
The court concluded, "[t]here's nothing here that indicates that the acts or
omission of trial counsel were outside the wide range of professional competent
assistance in light of all the circumstances." The court found defendant had
failed to demonstrate that trial counsel's performance was so deficient as t o
create a reasonable probability the deficiencies contributed to the conviction.
The court characterized the affidavit of defendant's nephew as well as his
statement, and the statement of defendant's son as newly discovered evidence.
A-3030-17T4
9
The court decided the affidavit from defendant's nephew did not warrant a new
trial:
This is allegedly impeaching material, and it is
cumulative, the defense that the [d]efendant's actions in
this case, that the allegation that the children fabricated
the motive in this case was an issue before the court
based on the disciplinary style of the father.
Also, the second prong is the evidence was
discovered after the completion of the trial. It was not
discoverable by reasonable diligence before.
[Defendant's] alleged evidence, some of it predates the
trial; some of it does not. So that factor may go in favor
of the [p]etitioner, but the [c]ourt finds that the
evidence would not probably change the jury's verdict
if a new trial was granted, and so that factor goes
against the [p]etitioner.
Again, the [c]ourt finds that most of this evidence
by [defendant] is, and the son, is cumulative,
impeaching and contradictory. It does not establish an
alibi. It does not establish third-party guilt.
Because all three prongs of the test are not
satisfied, the [d]efendant is not entitled to the relief of
a new trial.
Noting defendant "already had an opportunity to explain his claims in his
first petition for post-conviction relief," the court commented, "a procedural bar
could apply here." The court summarized its decision:
So there is no newly discovered evidence warranting
relief, [defendant] has not established that he's entitled
to relief under the Strickland v. Washington standard,
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even assuming that the petition can go forward, and,
lastly, the case should be procedurally barred because
of time. So any one of those three is sufficient basis to
deny the request for an evidentiary hearing or for PCR
relief.
The court entered a memorializing order and this appeal followed.
II.
On appeal, defendant argues:
POINT I
THE PROCEDURAL BAR SHOULD BE EXCUSED
DUE TO INEFFECTIVE ASSISTANCE OF PCR AND
APPELLATE COUNSEL.
POINT II
BECAUSE DEFENSE COUNSEL FAILED TO
ADEQUATELY INVESTIGATE THE CASE,
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
POINT III
DEFENDANT IS ENTITLED TO A NEW TRIAL
BASED ON NEWLY DISCOVERED EVIDENCE.
POINT IV
AS THERE ARE GENUINE ISSUES OF MATERIAL
FACT IN DISPUTE, AN EVIDENTIARY HEARING
WAS REQUIRED.
A.
We are unpersuaded by defendant's first two arguments. In his first
argument point heading, defendant asserts "the procedural bar" should be
excused, but he does not identify the specific procedural bar, either in the point
A-3030-17T4
11
heading or in his argument. A second or subsequent PCR petition must be filed
within one year of the occurrence of specified events. R. 3:22-12(a)(2). The
event that appears to apply here is "the date of the denial of the first or
subsequent application for post-conviction relief where ineffective assistance of
counsel that represented the defendant on the first or subsequent application for
post-conviction relief is being alleged." R. 3:22-12(a)(2)(C). Defendant alleges
that his first PCR counsel as well as the attorney who filed his appeal were
ineffective, but the appeal was decided on May 20, 2014, and defendant filed
his second PCR petition on June 2, 2015.
Defendant is out of time. R. 3:22-12(b) ("These time limits shall not be
relaxed, except as provided herein."). Defendant does not identify any exception
"provided herein."
In his second point, in which he elaborates on his first point, defendant
identifies three witnesses he claims would have provided exculpatory testimony.
He also claims he gave their names to trial counsel, who neither interviewed
them, requested that they testify, or presented their testimony at defendant's trial.
But defendant has not produced certifications from the witnesses explaining
what they knew. These witnesses are not defendant's nephew or son, who
provided statements.
A-3030-17T4
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In order to establish the two elements of an ineffective assistance claim
that are required by Strickland v. Washington, 466 U.S. 668, 687 (1984) and
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in
New Jersey), a defendant must do more than make bald assertions that he was
denied effective assistance of counsel; he must allege specific facts sufficient to
demonstrate counsel's alleged substandard performance. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Thus, "when a petitioner claims his
trial attorney inadequately investigated his case, he 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. Here, defendant has failed to provide such certifications or
affidavits. For that reason, his argument is unavailing.
Because defendant has failed to present a prima facie case of ineffective
assistance of counsel, we reject his argument in Point IV that he was entitled to
an evidentiary hearing on these claims.
B.
We next address defendant's third argument that newly discovered
evidence warrants a new trial. Defendant bases his argument on the statements
A-3030-17T4
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of his son and nephew. Settled principles inform our analysis of defendant's
arguments:
To meet the standard for a new trial based on newly
discovered evidence, defendant must show that the
evidence is 1) material, and not "merely" cumulative,
impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was 'not
discoverable by reasonable diligence beforehand'; and
3) that the evidence "would probably change the jury's
verdict if a new trial were granted."
[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State
v. Carter, 85 N.J. 300, 314 (1981)).]
Under the first of the three criteria, a defendant must show the evidence
"ha[s] some bearing on the claims being advanced." Id. at 188 (quoting State v.
Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). Thus, a court must
evaluate "the probable impact such evidence would have on a jury verdict." Id.
at 188-89. Under the second criteria, "the new evidence must have been
discovered after completion of trial and must not have been discoverable earlier
through the exercise of reasonable diligence." Id. at 192. A defendant must "act
with reasonable dispatch in searching for evidence before the start of the trial."
Ibid. Under the third criteria, a defendant must show the evidence "would
probably change the jury's verdict if a new trial were granted." Id. at 189
(quoting Carter, 85 N.J. at 314). "The power of the newly discovered evidence
A-3030-17T4
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to alter the verdict is the central issue . . . ." Id. at 191. "[T]he test is whether
the evidence if introduced is such as ought to have led the jury to a different
conclusion—one of probability and not mere possibility[.]" State v. Haines, 20
N.J. 438, 445 (1956).
Motions for a new trial based on newly discovered evidence are "not
favored and should be granted with caution by a trial court since [they] disrupt[]
the judicial process." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.
1984) (citing Haines, 20 N.J. at 443). Such motions are "addressed to the sound
discretion of the trial court, and its determination will not be reversed on appeal
unless there has been a clear abuse of that discretion." State v. Puchalski, 45
N.J. 97, 107 (1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)); accord,
State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). From our review of
the record in the case before us, we cannot conclude the trial court abused its
discretion by denying defendant's motion. Although defendant's son does not
specify precisely when his sisters made the statements he attributes to them, they
appear to have been made shortly after defendant was arrested and before his
trial. Defendant has provided no explanation as to why he disclosed them for
the first time after filing his second PCR petition, or why the evidenc e was not
available before the start of his trial. Concerning the statements made by
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defendant's nephew, it is unclear why defendant could not have provided the
information before filing his first PCR petition.
More significantly, defendant's nephew's statements consist mostly of
hearsay, and the statement he attributes to E is ambiguous at best. Although one
could draw an inference that E's statement, while she was upset, that it was not
her idea, referred to the victims making up their accusations, the statement could
also suggest that it was not E's idea to disclose the sexual abuse perpetrated by
defendant.
The conversation between E and V, overhead by defendant's son, is
similarly ambiguous. Moreover, failure by defendant and his son to explain the
reason the son did not disclose V's statements before trial or when defendant
filed his first PCR petition validates the principle that granting a new trial based
on such tenuous allegations is not a favored course of action and should be
approached with caution.
In short, we cannot conclude "the evidence if introduced is such as ought
to have led the jury to a different conclusion—one of probability and not mere
possibility. . . ." Haines, 20 N.J. at 445. Stated differently, the trial court did
not clearly abuse its discretion in denying defendant's motion.
Affirmed.
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