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NOT FOR PUBLICATION WITHOUT THE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-5358-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant.
_________________________
Submitted October 4, 2018 – Decided February 8, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 11-06-1052.
Joseph E. Krakora, Public Defender, attorney for
appellant (John V. Molitor, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, for
respondent (Charles C. Cho, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant J.C.1 appeals from the April 24, 2017 order of the Law Division
denying his petition for post-conviction relief (PCR) following an evidentiary
hearing. We affirm.
I.
The following facts are derived from the record. E.T. gave birth to Lacey
in 1996. Defendant is not related to Lacey, but was in a relationship with E.T.
from about the time Lacey was three months old. Defendant had other children
with E.T. He and Lacey maintained a father-daughter relationship.
During the underlying criminal trial, Lacey testified that defendant
sexually abused her in 2007, when she was ten or eleven years old, by touching
her vagina, buttocks, and breasts. After Lacey turned twelve in 2008, defendant
sucked on her breasts, including during a "pinching game." Lacey testified that
in January 2011, when she was fourteen, she went to defendant's store after
school. While she was there, defendant had her sit on his lap, began touching
his penis, turned on graphic pornography, touched Lacey's breasts and vaginal
area through her clothes, and pressed his penis against her buttocks. Defendant
also told Lacey she was "f'ing sexy." Lacey left the store, too scared to report
the incident to her mother.
1
We use pseudonyms and initials to protect the identity of the victim.
A-5358-16T2
2
On January 25, 2011, Lacey told friends that her father was abusing her.
A day or two later, one of her friends told a school counselor who, in turn,
reported the abuse to authorities. As a result, police interviewed defendant. He
initially denied touching Lacey inappropriately. In a later recorded statement,
however, defendant admitted that he played a pinching game with Lacy during
which he pinched her breasts and nipples, and that he had put his mouth on her
breast and tried to bite her nipple through her clothing. He added that they also
played a game in which he smacked Lacey's buttocks, but he stopped because
they were "taking it to a sexual point." Defendant said that Lacey "comes on to
me . . . sexually." When asked about the incident in the store, defendant
admitted that Lacey sat on his lap, and that the two watched pornography, but
said that Lacey turned on the pornography.
On June 15, 2011, a Hudson County grand jury indicted defendant,
charging him with second-degree sexual assault on a victim less than thirteen
years old, N.J.S.A. 2C:14-2(b) (count one), third-degree aggravated criminal
sexual contact with a child at least thirteen and less than sixteen years old,
N.J.S.A. 2C:14-3(a) (count two), second-degree endangering the welfare of a
child through sexual conduct, N.J.S.A. 2C:24-4(a) (count three), and fourth-
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degree abuse, cruelty, and neglect of a child, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3
(count four). Count four was dismissed before trial.
At trial, after the State rested, the court held a discussion with counsel
regarding defendant's planned testimony. Defendant's counsel revealed that he
planned to question defendant about the prior sexual abuse of Lacey by
defendant's son, her stepbrother. He argued that the prior abuse was relevant to
Lacey's knowledge of sexual activity, and her awareness that a report of sexual
abuse against defendant could result in his removal from the household, as
revelation of her stepbrother's abuse had resulted in her stepbrother being
removed from the home. Counsel argued that Lacey was motivated to fabricate
allegations against defendant because she resented his having disciplined her
over her cellphone use.
The first time that defendant's counsel raised this issue with the trial court
was at the conclusion of the State's case. The court called on counsel to address
whether the proffered evidence was admissible under the Rape Shield Law,
N.J.S.A. 2C:14-7. Defendant's counsel was unprepared to respond to the court's
inquiry. The court excluded the testimony, finding that its evidentiary value, if
any, was outweighed by its potential to humiliate Lacey and invade her privacy.
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Defendant's counsel later filed a letter arguing that the evidence was admissible
under State v. Schnabel, 196 N.J. 116 (2008). The trial court disagreed.
On January 23, 2014, a jury found defendant guilty of third-degree
aggravated criminal sexual contact with a child at least thirteen and less than
sixteen years old, N.J.S.A. 2C:14-3(a), and second-degree endangering the
welfare of a child through sexual conduct, N.J.S.A. 2C:24-4(a), which were
based on acts after Lacey turned thirteen. He was acquitted of second-degree
sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(b). The
court sentenced defendant to seven years in prison on the second-degree offense,
and four years in prison on the third-degree offense, to run concurrently.
Defendant appealed and, before us, argued that the trial court erred when
it: (1) failed to give fresh complaint limiting instructions; and (2) barred
evidence of the stepbrother's abuse of Lacey.
We affirmed. See State v. J.C., No. A-0379-14 (App. Div. Aug. 24, 2016).
We held that the trial court correctly concluded that evidence of the stepbrother's
abuse of Lacey was inadmissible under the Rape Shield Law, and that Schnabel,
where evidence of a victim's prior sexual abuse was held admissible, did not
apply here. We also rejected defendant's fresh complaint limiting instructions
argument. That aspect of our decision is not germane to this appeal.
A-5358-16T2
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On January 24, 2017, defendant filed a petition in the Law Division for
PCR, arguing that his trial counsel was ineffective because he: (1) failed to
research and understand the Rape Shield Law, resulting in his failure to make a
pretrial motion to admit the evidence of the prior sexual abuse of Lacey and her
motive to improperly accuse defendant; (2) attempted to force defendant to plead
guilty; and (3) failed to interview a witness, an employee of the store who
allegedly was present during the 2011 incident, identified by defendant.
The trial court held an evidentiary hearing, at which defendant's trial
counsel testified. He admitted that he was unprepared at trial to address whether
the Rape Shield Law precluded the introduction of evidence of the stepbrother's
abuse of Lacey. He also described his relationship with defendant as
"contentious" and marked by "antagonism." He testified that he put pressure on
defendant to accept the State's best offer for a plea agreement, a seven-year term
of incarceration, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, given
the strength of the evidence against him, particularly his admission of sexual
activity with Lacey. Finally, counsel admitted that he did not investigate the
possibility of calling as a defense witness the employee identified by defendant.
On April 24, 2017, Judge Patrick J. Arre issued a comprehensive written
opinion and order denying defendant's petition. The PCR court noted that on
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direct appeal we affirmed the court's ruling that evidence of the prior sexual
abuse of Lacey was inadmissible. Thus, the PCR court concluded, defendant
did not establish that he was harmed by his counsel's failure to make a pretrial
motion regarding that evidence, or his failure to cite Schnabel at the time that
the issue was first addressed by the trial court. In addition, the court noted that
defendant's counsel elicited testimony regarding Lacey's motive to falsely
accuse defendant. During cross-examination, counsel questioned Lacey
regarding the dispute she had with defendant over her cellphone. She admitted
that she was angry with defendant over the incident, and that her accusations
against defendant came to light shortly after the incident. Defendant's counsel
also addressed Lacey's alleged improper motive during his summation.
The court noted that defendant's argument regarding evidence of the prior
abuse of Lacey overlooked the significance of his recorded admission to having
engaged in sexual behavior with Lacey. As the PCR court observed, the jury
found defendant guilty only of count two and count three, which stemmed from
conduct occurring during the same time frame as defendant's admitted sexual
assaults of Lacey, including his admissions of sexual activity at the store.
The PCR court also rejected defendant's argument that his decision to
reject the State's plea offer was affected by his counsel's erroneous advice that
A-5358-16T2
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evidence of the prior sexual abuse of Lacey would be admissible. The court
concluded that the record compiled at the evidentiary hearing established that
defendant was intent on going to trial despite the strong encouragement of his
counsel to accept a plea. Thus, the court concluded, even though trial counsel
provided erroneous advice regarding the evidence of prior abuse, defendant did
not prove that he was harmed by that advice when he elected to proceed to trial.
Finally, the PCR court rejected defendant's argument with respect to trial
counsel's decision not to investigate the witness identified by defendant. The
court concluded that defendant failed to produce any evidence with respect to
how the testimony of that witness would have assisted in his defense, or changed
the outcome of the trial.
This appeal followed. Defendant raises the following arguments:
POINT I
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE DEFENDANT'S TRIAL COUNSEL'S
ACKNOWLEDGED LACK OF PREPARATION
MADE HIS TRIAL PERFORMANCE
CONSTITUTIONALLY DEFICIENT.
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POINT II
THIS COURT SHOULD REVERSE THE [PCR]
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE DEFENDANT'S TRIAL COUNSEL'S
HOSTILITY TO DEFENDANT MADE HIS TRIAL
PERFORMANCE CONSTITUTIONALLY
DEFICIENT.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-
2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial
denial in the conviction proceedings of defendant's rights under the Constitution
of the United States or the Constitution or laws of the State of New Jersey[.]"
"A petitioner must establish the right to such relief by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific
facts" that "provide the court with an adequate basis on which to rest its
decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
A-5358-16T2
9
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland,
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense." Id. at 687. A defendant must establish that "there is a
reasonable probability that, but for counsel's unprofessional errors, the r esult of
the proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome"
of the trial. Ibid. "[A] court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89,
261 (1997). "If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course
should be followed." Strickland, 466 U.S. at 697.
A-5358-16T2
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"We defer to trial court's factual findings made after an evidentiary
hearing on a petition for PCR." State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). "However, we do not defer to legal conclusions, which we review
de novo." State v. Holland, 449 N.J. Super. 427, 434 (App. Div. 2017).
Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the April 24, 2017 order of the Law
Division for the reasons stated by Judge Arre in his thorough and well-reasoned
written opinion. We add the following comments.
We agree with the PCR court that defendant's arguments with respect to
the admissibility of evidence of the prior sexual abuse of Lacey were effectively
resolved on direct appeal. "PCR provides a defendant with a means to challenge
the legality of a sentence or final judgment of conviction which could not have
been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482 (1997). PCR
does not allow a defendant "to relitigate a claim already decided on the merit s."
Id. at 483. Rule 3:22-5 makes clear that "[a] prior adjudication upon the merits
of any ground for relief is conclusive whether made in the proceedings resulting
in the conviction or . . . in any appeal taken from such proceedings." An
argument is barred from being pursued in a PCR petition "if the issue raised is
A-5358-16T2
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identical or substantially equivalent to that adjudicated previously on direct
appeal." State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div. 1979).
On direct appeal, we affirmed the trial court's decision to preclude
evidence of the stepbrother's abuse of Lacey. As a result, trial counsel's failure
to make a pretrial motion regarding the evidence, to be prepared to address the
issue when it was raised by the trial court, or to alert the court to the holding in
Schnabel earlier, did not harm defendant.
We are also satisfied that defendant did not establish the second prong of
the Strickland test with respect to his allegation that his trial counsel failed to
interview a witness. "[W]hen 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." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant produced no
evidence supporting his claim that the employee he alleges was present at the
store when defendant assaulted Lacey would have provided evidence that would
have changed the outcome of the trial.
Finally, the record amply supports the PCR court's determination with
respect to defendant's decision to proceed to trial. While counsel may have
A-5358-16T2
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incorrectly advised defendant that evidence of the stepbrother's abuse of Lacey
would be admissible, it is clear that defendant was determined to proceed to
trial, despite counsel's advice to the contrary.
Affirmed.
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