STATE OF NEW JERSEY v. T.K., Defendant–Appellant.

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. T.K., Defendant–Appellant.

DOCKET NO. A–4853–11T2

Decided: March 28, 2014

Before Judges Fuentes and Simonelli. Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Defendant T.K. appeals from the denial of his post-conviction relief (PCR) petition.   We affirm.

Defendant was tried before a jury over a four-day period in March 2006 and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14–2a(1), and second degree endangering the welfare of a child, N.J.S.A. 2C:24–4a.   The victim of these crimes was defendant's daughter, who was nine years old at the time.   The court sentenced defendant on May 12, 2006 to an aggregate term of eleven years, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision as required under the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2.1 The judge signed the Judgment of Conviction on May 21, 2006.

By order dated September 10, 2007, we granted defendant's motion to file his notice of appeal nunc pro tunc, and referred the matter to the Public Defender's Office to assign counsel to represent defendant in the prosecution of his direct appeal, “subject to an investigation and determination of indigency, as [defendant] was represented by retained counsel in the Law Division.”   On defendant's direct appeal, prosecuted by an Assistant Deputy Public Defender, we affirmed defendant's conviction and sentence in a 2010 decision.

Defendant filed a pro se PCR petition on February 3, 2011, in which he made a generalized allegation of ineffective assistance of counsel, without providing any specific details to support the claim.2  At the hearing conducted by the PCR court to consider defendant's petition, the judge gave the following description of defendant's claims of ineffective assistance of trial and appellate counsel:

The Defendant now asserts that throughout trial his counsel was grossly inadequate.   Indeed, ineffective in terms of assistance to which the Defendant was then entitled, citing, or alleging, an inability to properly present a defense or to cross-examine the State's witnesses.   These inadequacies the Defendant claims to have occurred in several ways.

First, counsel repeatedly having objections sustained regarding his questioning;  second, repeated alleged inability of counsel to ask direct questions to the defense witnesses;  third, the alleged necessity of the Court to direct trial counsel on how to properly ask questions of its own witnesses;  fourth, use of open ended questions on cross-examination of the State's witnesses.   When viewed cumulatively, claims the Defendant, these errors resulted in ineffective assistance of counsel.

Defendant also argues that his Appellate counsel was ineffective for failing to raise the issue that he had previously cited during his appeal, ineffective assistance.

The PCR judge also noted and considered defendant's pro se brief in support of his petition for PCR. In this brief, defendant argued that trial counsel's failure to object to the trial court's decision to admit the child's mother's testimony under the fresh complaint or tender years exception to the hearsay rule under N.J.R.E. 803(c)(27) is indicative of ineffective assistance.   Despite characterizing defendant's pro se brief as “excellent,” the PCR judge rejected defendant's arguments.

Defendant now appeals from the denial of PCR petition, raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING [T.K.'S] PETITION FOR POST–CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

THE PCR COURT IMPROPERLY DENIED [T.K.'S] PETITION FOR POST–CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.

POINT III

THE POST CONVICTION RELIEF COURT ERRED IN DENYING [T.K.'S] PETITION FOR RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

In his pro se supplemental brief, defendant raises the following arguments:

POINT I

COURT ERRORED [SIC] IN NOT PROPERLY FOLLOWING THE LEGISLATIVE PROCEDURE OUTLINED IN N.J.S.A. 2C:44–1 WHEN SENTENCING DEFENDANT.

POINT II

COURT ABUSED ITS DESCRETION [SIC] BY NOT IDENTIFYING ALL THE MITIGATING SENTENCING FACTORS RELEVANT TO INSITANT [SIC] CASE PURSUANT TO N.J.S.A. 2C:44–6 AND R.3:21–2.

POINT III

IN THE INTEREST OF JUSTICE, TRIAL JUDGE SHOULD HAVE RECUSED HERSELF FROM PRESIDING OVER DEFENDANT'S TRIAL PROCEEDINGS.

POINT IV

COURT ABUSED ITS DISCRETION BY NOT DOWNGRADING DEFENDANT'S SENTECE [SIC] ONE DEGREE LOWER PURSUANT TO N.J.S.A. 2C;44–1(f).

In lieu of describing the factual details of defendant's crimes, we incorporate by reference our description of these facts reflected in our 2010 unpublished opinion affirming defendant's conviction and sentence.   We reject defendant's arguments in this appeal substantially for the reasons expressed by Judge Raymond A. Batten in his oral opinion delivered from the bench on January 31, 2012.   We add only the following brief comments.

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 his attorney'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.

This case involved allegations of aggravated sexual assault made by a nine-year-old girl against her father.   Defendant's general dissatisfaction with the manner his trial attorney questioned witnesses, including the child herself, in this exquisitely delicate case is not enough to meet the first prong under Strickland /Fritz.   As our Supreme Court noted in State v. Hightower, 120 N.J. 378, 409 (1990), “[n]owhere does defendant suggest what questions counsel should have asked․”  Equally baseless are defendant's generalized criticisms of defense counsel's performance as “confusing to the jury.”   As Judge Batten noted:

I am not able to find that counsel's performance was deficient as measured by any objective standard of reasonableness under prevailing professional norms.   [Defense counsel's] openings and closings, in this Court's view, accurately and appropriately hammered at the State's proofs or what he perceived to be the lack of the State's proofs, both factual and expert.

Finally, because defendant did not present a prima facie case of ineffective assistance of counsel, Judge Batten did not abuse his discretionary authority when he denied defendant's request for a plenary hearing.  State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

FOOTNOTES

1.  FN1. Defendant was examined by a staff psychologist at the Adult Diagnostic and Treatment Center (ADTC) to determine if he met the criteria for commitment under the Sex Offender Act, N.J.S.A. 2C:47–3.   After considering the report submitted by the ADTC psychologist, the trial court determined defendant was not eligible for commitment at this facility.

2.  FN2. The court assigned an attorney to represent defendant in this endeavor;  PCR counsel thereafter filed a letter-brief in support of the petition.

PER CURIAM

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