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NOT FOR PUBLICATION WITHOUT THE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-5659-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.F.,
Defendant-Appellant.
_____________________________
Submitted February 16, 2017 – Decided April 12, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
11-02-0203.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant R.F. appeals from a June 4, 2015 order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
We have outlined the relevant facts in our prior opinion
affirming defendant's conviction on direct appeal. State v. R.F.,
No. A-5423-11 (App. Div. Sept. 5, 2013), certif. denied, 217 N.J.
294 (2014). We need not repeat them here.
Defendant was tried before a jury and convicted of six counts
of first-degree aggravated sexual assault of his daughter, in
violation of N.J.S.A. 2C:14-2a(2)(a), and one count of second-
degree endangering the welfare of a child, in violation of N.J.S.A.
2C:24-4a. Defendant was sentenced to an aggregate term of thirty-
four years, subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. On appeal, defendant's period of parole supervision
was reduced from thirty years to ten years.
Defendant filed a petition for PCR, and oral argument was
held on May 18, 2015. The PCR judge issued a written opinion
denying defendant's petition for PCR on June 4, 2015, finding
defendant did not meet the Strickland/Fritz standard.1 This appeal
followed.
1 Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42,
58 (1987).
2 A-5659-14T1
On appeal, defendant argues:
POINT I: THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF.
Defendant's petition for PCR raised various arguments;
however, on appeal, defendant focuses solely on his appellate
counsel's failure to challenge remarks made by the assistant
prosecutor. Defendant argues his appellate counsel was
ineffective for failing to argue the assistant prosecutor engaged
in misconduct during his opening statement by making remarks that
deprived him of a fair trial. We disagree.
We initially observe the PCR judge's factual findings are
well grounded in the evidence adduced at the hearing, and as a
result, they are entitled to our deference. See State v. Locurto,
157 N.J. 463, 470-71 (1999). While a review of a claim of
ineffective assistance of counsel involves matters of fact, it
ultimately requires a determination of law, and "[a] trial court's
interpretations of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
State v. Harris, 181 N.J. 391, 419 (2004) (quoting Manalapan Realty
v. Twp. Comm., 140 N.J. 366, 378 (1995)).
To prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test: (l) counsel's performance
was deficient and he or she made errors that were so egregious
3 A-5659-14T1
counsel was not functioning effectively as guaranteed by the Sixth
Amendment to the United States Constitution; and (2) "defendant
must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 687,
694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; Fritz,
supra, 105 N.J. at 52.
Under the first prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Strickland,
supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
We must determine whether the acts or omissions of counsel "were
outside the wide range of professionally competent assistance."
Ibid. Adequate assistance of counsel must be measured by a
standard of "reasonable competence." State v. Jack, 144 N.J. 240,
248 (1996) (citing Fritz, supra, 105 N.J. at 53).
Under the second prong of Strickland, the defendant must
prove prejudice. Fritz, supra, 105 N.J. at 52. The defendant
must show a "reasonable probability" counsel's deficient
performance affected the outcome of the proceeding. Strickland,
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A reasonable probability is defined as "a probability sufficient
to undermine confidence in the outcome." Ibid.
4 A-5659-14T1
We review defendant's claims of ineffective assistance of
appellate counsel under the same standard as claims of ineffective
assistance of trial counsel. See State v. Morrison, 215 N.J.
Super. 540, 545-46 (App. Div. 1987) (noting "due process guarantees
a criminal defendant effective assistance of counsel on a first
appeal as of right" (citing Evitts v. Lucey, 459 U.S. 387, 105 S.
Ct. 830, 83 L. Ed. 2d 821 (1985))). We also note "[t]he failure
to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel." State v. Worlock, 117 N.J.
596, 625 (1990) (citing Strickland, supra, 446 U.S. at 688, 104
S. Ct. at 2064, 80 L. Ed. at 693).
Prosecutorial misconduct may be grounds for reversal "where
the prosecutor's misconduct was so egregious that it deprived the
defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999)
(citing State v. Ramseur, 106 N.J. 123, 322 (1987)). We "must
take into account the tenor of the trial and the degree of
responsiveness of both counsel and the court to improprieties when
they occurred." State v. Marshall, 123 N.J. 1, 153 (1991). We
consider "(1) whether defense counsel made timely and proper
objections to the improper remarks; (2) whether the remarks were
withdrawn promptly; and (3) whether the court ordered the remarks
stricken from the record and instructed the jury to disregard
them." Frost, supra, 158 N.J. at 83. If defense counsel failed
5 A-5659-14T1
to object, we find "defense counsel did not believe the remarks
were prejudicial at the time they were made." Id. at 84.
Defendant argues three comments made during the prosecutor's
opening statement constituted misconduct and his appellate counsel
was ineffective for failing to challenge the statements on appeal.
First, the prosecutor informed the jury the victim was defendant's
daughter and identified the victim's mother sitting in the front
row of the courtroom. Trial counsel immediately objected and was
heard at sidebar. Trial counsel did not ask for an instruction
but asked the prosecutor not to refer to the victim's mother again.
Defendant offers no reason why appellate counsel was ineffective
for failing to raise this issue on appeal. The trial judge told
the prosecutor not to refer to the victim's mother or her family,
and the prosecutor agreed. Because trial counsel objected timely
and the trial judge instructed the prosecutor to not refer to the
victim's family any further, appellate counsel did not render
ineffective assistance of counsel by not raising an unsuccessful
legal argument on appeal. See Worlock, supra, 117 N.J. at 625.
Second, defendant takes issue with the prosecutor's remarks
concerning the victim's testimony and credibility. Specifically,
the prosecutor stated,
What if . . . Judge Guida said to you
when you stand up and tell us about yourself,
tell us about your very first sexual
6 A-5659-14T1
experience. Tell us about where it was and
when it was. Share it with all of us. How
would you feel?
Well I submit to you now that's how [the
victim] feels so when you consider her
testimony, ladies and gentlemen, I ask you to
consider her credibility because ultimately
that is the issue before you.
At the conclusion of the prosecutor's opening statement, defense
counsel objected, arguing the prosecutor asked the jury to "put
themselves in the place of the alleged victim," and requested a
mistrial. The judge denied a mistrial but instructed the jury at
the end of the trial on credibility. As before, trial counsel
timely objected, and the trial judge determined an instruction on
credibility would address any prejudice. Nothing in the record
supports the argument appellate counsel was ineffective for not
raising the issue. Moreover, the remark did not deprive defendant
of a fair trial.
Last, defendant asserts the prosecutor engaged in misconduct
because he stated the victim has no reason to lie. The prosecutor
told the jury, "[T]he evidence will show, [the victim] has
absolutely no reason or motive to lie." At trial, defense counsel
did not object. As previously stated, when trial counsel fails
to object, it suggests trial counsel "did not believe the remarks
were prejudicial at the time they were made." Frost, supra, 158
N.J. at 84. By failing to object at trial, it deprives the court
7 A-5659-14T1
of the "opportunity to take curative action." Ibid. (citing State
v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied,
150 N.J. 25 (1997)).
It is improper for a prosecutor to argue its witness has no
motive to lie. See State v. R.B., 183 N.J. 308, 331-34 (2005).
However, it is not "plain error" for the court to allow the
prosecutor to assert the victim did not have a motive to lie.
Additionally, the comment, standing alone, does not require a new
trial. See id. at 333. "Generally, if no objection was made to
the improper remarks, the remarks will not be deemed prejudicial."
State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534
U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Counsel's lack
of a timely objection suggests "defense counsel did not believe
the remarks were prejudicial at the time they were made." Ibid.
We are satisfied that this comment had no effect on the outcome
of defendant's trial and did not amount to plain error. We find
the prosecutor's remarks, individually and in combination, did not
deprive defendant of a fair trial nor was his appellate counsel
ineffective for failing to raise these issues on appeal.
Affirmed.
8 A-5659-14T1