IN THE MATTER OF DELINDA HOLMES, PATERSON HOUSING AUTHORITY(CIVIL SERVICE COMMISSION)

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NOT FOR PUBLICATION WITHOUT THE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