RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1220-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant.
_________________________
Submitted November 14, 2018 - Decided December 5, 2018
Before Judges Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 04-11-2370.
Joseph E. Krakora, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant J.C. appeals from the denial of his petition for post-conviction
relief without an evidentiary hearing. We affirm.
Defendant was charged with first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a), two counts of second-degree sexual assault, N.J.S.A.
2C:14-2(b); and two counts of third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a), involving two victims who were under the age of thirteen.
Defendant was the victims' neighbor and served as godparent to the younger
victim.
The victims gave recorded statements regarding the assaults and defense
counsel stipulated to the use of the victims' statements at trial. Despite the
stipulation, the trial judge conducted a hearing and granted the State's motion to
admit the victims' statements.
Defendant failed to appear for his trial. Defendant was tried in absentia
from June 22 to June 29, 2006, and found guilty on all charges. He was
sentenced to thirty-three years in prison with a twenty-eight year period of
parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal, and we affirmed. The New Jersey
Supreme Court denied defendant's petition for certification on February 17,
2016.
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Defendant filed his PCR petition on June 15, 2016. The PCR judge heard
oral argument on the PCR application and denied the petition.
In his August 7, 2017 written decision denying the PCR petition, Judge
Bernard E. DeLury, Jr. summarized the testimony leading to defendant's
conviction. The judge found defense counsel's stipulation to the admission of
the victims' recorded statements did not constitute ineffective assistance of
counsel. To the contrary, the judge concluded counsel's decision was a strategic
determination "reserved to the judgment and discretion of trial counsel." Even
if counsel's stipulation was flawed, the judge determined defendant "was not
prejudiced because the trial court, on its own, chose to conduct a hearing as to
whether the videotaped statements could be admissible under the tender years
exception to the hearsay rule," and concluded the statements made by the two
minor victims regarding the sexual assaults were admissible. Therefore,
defendant was not prejudiced by the stipulation. Because the trial judge held a
hearing and found the videotaped statements were admissible, the PCR judge
found defendant was not prejudiced by defense counsel stipulating to the
admission of the statements.
The PCR judge also rejected defendant's argument that his trial counsel
was ineffective based on his failure to cross-examine the victims. The judge
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concluded defense counsel's decision was "a strategic choice to forego an attack
of the credibility and reliability of very young children who are alleged victims
of sexual assault during cross-examination." The judge found defense counsel
effectively attacked the inconsistencies between the children's recorded
statements and their in-court testimony during closing argument.
The judge made the same determination regarding trial counsel's failure
to cross-examine the State's expert witness. Because the State's expert witness
was not permitted to testify regarding information specific to these victims, "the
defense ha[d] little to gain by allowing a trained and experienced witness to
remain on the stand" and defendant's trial counsel made an appropriate tactical
decision.
In addition, the PCR judge rejected defendant's argument that his trial
counsel failed to undertake an active defense on his behalf during the trial. The
judge wrote:
[Defendant] took it upon himself to not appear at his
own trial. If [defendant] wished to participate more in
his defense at trial, and guide his attorney's strategic
decisions, he should have attended his own trial. By
[defendant's] willful and culpable failure to attend trial,
the [d]efendant placed his trial counsel in a nearly
untenable position. Trial counsel, mindful of the eyes
of the jurors upon an empty chair, likely strategized that
frequent objections throughout trial would only draw
attention to the fact that [defendant] did not attend his
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own trial. The [c]ourt's instructions to the jury to
decide the case fairly despite [defendant's] absence
notwithstanding, experienced trial counsel know[] that
jurors are human. Dealing with the absence of his
client, trial counsel had little choice but to minimize the
fact of the [d]efendant's absence. Trial counsel was not
ineffective as he made proper strategic choices upon
having to represent his absent client, against charges of
sexual assault on two children.
Defendant raises the following arguments:
POINT I
THE PCR COURT ERRED IN RULING THAT J.C.
RECEIVED EFFECTIVE ASSISTANCE OF
COMPETENT TRIAL COUNSEL.
A. The Strickland-Cronic-Fritz Standard.
POINT II
TRIAL COUNSEL'S CUMULATIVE ERRORS
MANDATE THAT J.C.'S CONVICTIONS BE
REVERSED OR, IN THE ALTERNATIVE, THAT
J.C. BE AFFORDED AN EVIDENTIARY HEARING.
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POINT III
THE PCR COURT SHOULD HAVE CONDUCTED
AN EVIDENTIARY HEARING TO ADDRESS THE
CLAIMS RAISED BY DEFENDANT.
To establish a prima facie claim of ineffective assistance of counsel, a
convicted defendant must satisfy the two-part test by demonstrating that: (1)
counsel's performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 682
(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).
In reviewing ineffective assistance claims, courts apply a strong presumption
that a defendant's trial counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will
not serve to ground a constitutional claim of inadequacy[.]" Fritz, 105 N.J. at 54
(citation omitted). "To establish a prima facie claim of ineffective assistance of
counsel, a defendant must demonstrate a reasonable likelihood of succeeding under"
the Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 463 (1992). To
demonstrate the likelihood of succeeding under the Strickland/Fritz test, a defendant
"must do more than make bald assertions[,] . . . [and] must allege facts sufficient to
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demonstrate counsel's alleged substandard performance." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999).
Based on our review of the record, we are satisfied that defendant's claim of
ineffective assistance of counsel is without merit for the reasons set forth in Judge
DeLury's comprehensive and convincing written decision. The strategy advanced
by defendant's trial counsel was a proper exercise of judgment given the age of the
victims and allegations of sexual assault. Under these circumstances, the judgments
and decisions made by trial counsel were an exercise of sound and reasonable trial
strategy. See State v. Arthur, 184 N.J. 307, 332-33 (2005). The mere fact that a trial
strategy failed does not establish a constitutional claim of inadequacy. Fritz, 105
N.J. at 54.
We are satisfied defense counsel's actions did not fall below the requisite
standard under either prong of the Strickland/Fritz test. Without presenting a
prima facie case of ineffective assistance of counsel, defendant was not entitled
to an evidentiary hearing on those issues. See Preciose, 129 N.J. at 462-63.
Affirmed.
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