Opinion
DOCKET NO. A-1012-10T1
06-14-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. C.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-04-00541.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant C.S. appeals from the order of the Criminal Part denying his post conviction relief (PCR) petition. We affirm.
On the last day of a five-day trial that ended on January 22, 2004, a jury convicted defendant of one count of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; two counts of second degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2a and N.J.S.A. 2C:5-1, as lesser included offenses of first degree aggravated sexual assault; and one count of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The court sentenced defendant on June 18, 2004, to an aggregate term of twenty-two years imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction on direct appeal, but remanded for the court to reconsider the sentence in light of the New Jersey Supreme Court's then recent opinion in State v. Natale, 184 N.J. 458, 496 (2005), and vacated the NERA parole disqualifier as to two of the counts that had occurred on "unspecified dates." State v. C.S., No. A-7129-03 (App. Div. October 27, 2006) (slip op. at 13). The trial court resentenced defendant on December 1, 2006, resulting in an aggregate custodial term of twenty-two years with over ten years of parole ineligibility. The Supreme Court denied defendant's petition for certification. State v. C.S., 189 N.J. 429 (2007).
We were unable to ascertain the exact period of parole ineligibility because the parties did not include a copy of the final judgment of conviction as part of the appellate record. We note, however, that defendant did not challenge the sentence imposed by the court in this PCR petition.
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Defendant filed this pro se PCR petition on March 20, 2007. Defendant argued that he was denied the effective assistance of counsel because the attorney assigned to represent him at trial by the Public Defender's Office assumed defendant was guilty merely because defendant is African American. He also accused this attorney of breaching his ethical duties to keep him informed of the evidence against him.
Defendant further argued that the trial court erred by: 1) not permitting the jury access to the complete medical records of the physician who examined the victim; 2) admitting testimony concerning the laboratory analysis conducted by the State Police of bodily fluids found on the victim; and 3) by permitting the jury to see videotaped interviews of the child victim by law enforcement investigators.
After this pro se petition and brief were filed, defendant was assigned counsel to represent him in prosecuting the PCR petition. PCR counsel submitted additional memoranda in support of defendant's petition, and presented a certification signed by defendant detailing the alleged errors committed by his trial counsel. The PCR petition came for adjudication before the trial court on March 16, 2010. After considering the arguments of counsel in light of the applicable legal standards, Judge Billmeier denied the petition without an evidentiary hearing. Judge Billmeier explained his decision in a written opinion.
Defendant now appeals raising the following arguments.
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE PCR COURT'S RULING DENYING POST-CONVICTION-RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
(A)
TRIAL COURT ERR[ED] IN NOT ALLOWING THE OPINION OF THE EMERGENCY ROOM ATTENDING PHYSICIAN (DR. CHAUDRI, M.D.) WHO EXAMINED THE ALLEGED VICTIM AND COMPLETE[D] A FULL MEDICAL REPORT OF HIS FINDINGS TO BE ENTERED INTO THE RECORD OF THE TRIAL TO ASSIST THE TRIER OF FACT (THE JURY) IN DETERMINING THE
TRUTH OF THE ISSUE BEFORE THEM AT DEFENDANT'S TRIAL. THIS VIOLATED
DEFENDANT'S RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONST., ART. 1, ¶10, OF THE N.J. CONST., AS WELL AS N.J.R.E. 701 AND 702(4).
(B)
TRIAL COURT ERROR IN ALLOWING FLAWED TEST RESULTS TO BE ENTERED INTO EVIDENCE AND THE OPINION OF THE STATE'S EXPERT WITNESS (I.E., THE STATE POLICE CRIME LAB REPORT AND MS. LAURA TRAMONTIN'S TESTIMONY). THIS EVIDENCE AND THE OPINION OF MS. TRAMONTIN WERE BOTH BASED ON [FAULTY] DATA THAT DID NOT COINCIDE WITH THE ACTUAL TEST RESULTS THEMSELVES. THIS IS A VIOLATION OF THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONST., ART. 1 ¶10, OF THE N.J. CONST., N.J.R.E. 702(2) AND (3), 703(2), (3), AND (4), 705 (3) AND 104(A).
(C)
DEFENDANT WAS ILLEGALLY CONVICTED OF THE LESSER INCLUDED OFFENSE OF ATTEMPTED AGGRAVATED SEXUAL ASSAULT ON COUNTS 1 AND 3 OF HIS INDICTMENT AND ILLEGALLY CHARGED WITH THE SAME OFFENSE ON COUNT 2 OF HIS INDICTMENT AT THE JURY PHASE OF HIS TRIAL. THIS WAS IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONST., AND ART. 1, ¶8 AND 10 OF THE N.J. CONST., N.J.S.A. 2C:1-8 (12) AND 2C:5-1A.
(D)
DEFENDANT'S POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE HIS CONVICTION IS BASED ON AN INDICTMENT, TRIAL AND VERDICT, WHICH CAME FROM TAINTED, INFLUENCED, AND SUGGESTIVE INFORMATION RECEIVED THROUGH IMPROPER INTERVIEW TECHNIQUES. THESE VIDEOTAPED STATEMENTS WERE PLAYED FOR THE GRAND JURY AND AT TRIAL, AND WERE ALLOWED TO BE GIVEN TO THE JURY DURING DELIBERATIONS.
(E)
COURT ERRED IN ALLOWING JURY TO TAKE VIDEO TAPE INTO JURY DELIBERATION ROOM. THIS VIOLATED COURT RULES AND THE DEFENDANT[']S RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONST. THIS FURTHER AMELIORATED (SIC) ANY POTENTIAL PREJUDICE HAD BY THE JURY BECAUSE OF THE AGE OF THE ALLEGED VICTIM AND THE NATURE OF THE ALLEGED OFFENSE.
In lieu of reciting the facts underpinning defendant's conviction, we incorporate by reference the factual recitation in our opinion affirming defendant's conviction on direct appeal. C.S., supra, slip op. at 5-10. Defendant claims he is entitled to PCR because he received ineffective assistance of counsel during his trial. The thrust of defendant's argument is based on defense counsel's failure to present expert testimony to explain that the blood found in the victim's specimens was likely due to the examination itself and not previous trauma, as well as counsel's failure to elicit testimony that his biological daughter (the victim of defendant's assault) had denied that the assault had occurred to her pediatrician, who was treating her for a urinary tract infection.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Judge Billmeier applied this two-prong test to the factual allegations presented to him by defendant and found that they did not establish a prima facie case of ineffective assistance of counsel. After reviewing the record before us, we agree and affirm substantially for the reasons expressed by Judge Billmeier in his memorandum of opinion dated March 16, 2010. None of the arguments raised by defendant have sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION