STATE OF NEW JERSEY VS. GRADY RADFORD (09-07-0600, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3590-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GRADY RADFORD,

Defendant-Appellant.
_______________________________________

Submitted March 21, 2018 – Decided August 13, 2018

Before Judges Fuentes and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 09-07-0600.

Joseph E. Krakora, Public Defender, attorney
for appellant (David J. Reich, 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 Grady Radford appeals from the order of the Criminal

Part denying his post-conviction relief (PCR) petition. We affirm.
 Defendant was forty-six years old and worked as a registered

nurse at Bridgeton Hospital at the time the State alleged he

sexually assaulted a seventeen-year-old girl, A.M.1, who had been

admitted as a psychiatric patient in the Hospital's Crisis Center.

According to A.M., defendant sexually assaulted her on multiple

occasions from June 2008 to July 2008. On July 22, 2009, a

Cumberland County2 Grand Jury returned an indictment charging

defendant with three counts of second degree sexual assault of

A.M., N.J.S.A. 14-2(c), two counts of fourth degree criminal sexual

contact of A.M. and another victim, A.H., N.J.S.A. 2C:14-3(b), and

one count of third degree tampering with a witness, A.H., N.J.S.A.

2C:28-5(a).

Defendant retained private counsel, who employed a private

investigator to probe into the State's case and develop an

appropriate defense strategy. The record contains a number of

internal memoranda written by defense counsel, as well as reports

submitted by the investigator memorializing the discussions they

had with defendant and summarizing the strengths and weaknesses

1
We use initials or pseudonyms to refer to the victims of these
crimes pursuant to Rule 1:38-3(c)(9) and N.J.S.A. 2A:82-46(b).
2
Although this case originated in Cumberland County, the Attorney
General transferred the prosecution to Atlantic County due to a
conflict of interest with the Cumberland County Prosecutor's
Office.

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of the State's case. These records show defendant believed a key

aspect of his defense strategy involved the physical layout of the

nurses' station, where A.M. alleged she was sexually assaulted by

defendant. An internal confidential memorandum written by defense

counsel on March 26, 2010, documents in great detail what was

discussed at a pretrial conference held before the trial judge

concerning the State's plea offer. Defense counsel noted that the

trial judge viewed the State's offer of probation to be very

generous to defendant.

On June 15, 2010, defendant negotiated an agreement with the

State through which he agreed to plead guilty to fourth degree

child abuse of A.M., N.J.S.A. 9:6-3, and the petty disorderly

persons offense of harassment, for offensive touching of A.H.,

N.J.S.A. 2C:33-4(b). In exchange, the State agreed to dismiss the

charges in the indictment and recommend that the court sentence

defendant to a term of probation, subject to the mandatory fines

and penalties. Although defendant would not be required to

register as a convicted sex offender under N.J.S.A. 2C:7-1 to -

19, he was required to surrender his nursing license "in

perpetuity."

The record of the plea hearing shows the judge addressed

defendant directly as required under Rule 3:9-2, to ensure he

understood the terms of the plea agreement. With respect to the

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forfeiture of his nurse's license, the judge asked defendant: "Do

you understand that the surrendering of that license means that

you will never be able to hold an R.N. license again in this or

any other State?" Defendant responded: "[T]hat's fine. Yes."

After reviewing the content of the plea form, the judge asked

defendant: "One more time. Do you feel that you need more time

to talk to [defense counsel] about any of these issues?" Defendant

responded: "No."

In response to his attorney's and the judge's questions,

defendant provided the following factual basis in support of his

guilty plea for fourth degree child abuse:

Q. Mr. Radford, on dates between June 2nd of
2008 and July 5th of 2008, were you in the
City of Bridgeton?

A. Yes.

Q. Between those dates, were you employed by
the Crisis Unit in the City of Bridgeton?

A. Yes.

Q. While employed by the Crisis Unit, did you
come to know a female minor with the initials
"A.M"?

A. Yes.

Q. On one of those dates between June 2nd of
2008 and July 5th of 2008, did you place your
hand under A.M.'s shirt and over her bra on
her breast?

A. Yes.

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Q. Do you agree that this singular act would
tend to debauch A.M.'s morals?

A. Yes.

Q. And do you agree that that act constitutes
an act of abuse under [N.J.S.A.] 9:6-3, the
statute that you . . . went over?

A. Yes.

THE COURT: Let me ask you a few more questions
of you . . . .

By this "Crisis Unit" you are talking about
. . . the Child and Adolescent Unit[,] or
. . . the Intermediate Unit I believe it is
referred to at Bridgeton Hospital of South
Jersey Healthcare Systems; is that correct?

A. That's correct; yes.

THE COURT: And you were employed there at the
time; is that correct?

A. Yes.

THE COURT: And in that capacity, do you agree
that you had care, custody, or control of a
child who is referred to as . . . "A.M."?

A. Yes.

THE COURT: And you were, in fact, caring for
her; is that correct?

A. Yes.

THE COURT: And she was a patient at that unit;
is that correct?

A. Yes.

. . . .

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 THE COURT: And at the time that this happened,
she was 17 years old; is that correct?

A. Yes.

Defendant provided the following factual basis with respect
to his guilty plea to the petty disorderly persons offense of
harassment involving A.H.:
Q. Mr. Radford, . . . on dates between June
2nd of 2008 and July 5th of 2008, were you in
the City of Bridgeton?

A. Yes.

. . . .

Q. Were you employed there as a registered
nurse?

A. Yes.

Q. While employed at the Crisis Unit, did you
come to know a female minor with the initials
"A.H."?

A. Yes.

Q. All right. On one of those dates between
June 2nd of 2008 and July 5th of 2008, while
employed at the Crisis Unit in Bridgeton, did
you grab A.H.'s buttocks over her clothes?

A. Yes.

Q. Do you agree that this singular act
constitutes harassment by offensive touching?

A. Yes.

The sentencing hearing occurred on July 16, 2010. A.M. and

members of her immediate family addressed the court and described

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the great emotional and psychological harm they had suffered as a

result of defendant's criminal conduct. They were greatly

disappointed and frustrated that the plea agreement did not

authorize the court to impose a term of imprisonment. In response,

the prosecutor addressed the court as follows:

I myself have 27 years [of] experience as a
Prosecutor in the criminal justice system,
trying cases of this type. These are perhaps
. . . the most difficult kinds of cases to
resolve. And in this particular case, Judge,
there were significant proof issues. And they
are significant enough that I and [the First
Assistant Prosecutor and the Prosecutor]
. . . were doubtful about being able to prevail
at trial. And by that I mean prove these
charges beyond a reasonable doubt.

. . . .

I have conferred with [defense counsel] on
many, many occasions regarding this case and
regarding possible pleas. I am satisfied that
the plea agreement that is presently entered
into which calls for a period of probation, a
criminal conviction for Mr. Radford, and a
voluntary surrender of his nursing license in
perpetuity is the most we are going to get by
way of a plea in this case, which leaves us
with the alternative of going to trial. So
that's the alternative that we have, Judge.

[(Emphasis added).]

Defendant declined to make any statement or address the court.

Before imposing sentence, the judge made the following comments

with respect to his views concerning the fairness of the plea

agreement:

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Now I have an advantage in this case. I've
had other cases where victims have come in and
objected. But I have an advantage in this
case because at . . . a stage of this case
before a plea was entered, I was asked to
review the full hospital records from
Bridgeton Hospital . . . where the victim was
a patient for a lengthy period of time.

I also have an advantage in this case because
for almost an eight-year period, I was the
Judge who went two weeks in Bridgeton Hospital
and conducted civil commitment hearings.
Although . . . I'm sure this victim appeared
before me many times at those hearings.

The Bridgeton Intermediate Unit is a unit that
is designed, set-up, and functions to deal
with the our most damaged - - our most
vulnerable, our most in need - - citizens. It
is a unit - - because I dealt with these
children for eight years - - I have a great
deal of respect for what they are able to do
and how they're able to get these kids back
on their feet and get better.

. . . .

But I, . . . have to look at my role as a
Judge in deciding whether the Prosecutor has
abused his discretion. I have to look at what
I saw in [the victim's] records. I know what
lawyers can do at trial; I know what defense
lawyers can do to witnesses at trial; I know
what defense lawyers can do to witnesses at
trial. I know how difficult this trial would
have been on this victim. I saw these records.
I spent hours and hours and hours going
through these records. I felt that, myself,
I was violating this victim by going through
her most personal records. And I know how
difficult this trial would have been.

I am not going to articulate things I saw; I'm
not going to put the victim through any

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 particular further damage here. But by
reviewing those records and by hearing the
comments of the Prosecutor, I cannot conclude
that this Prosecutor is abusing his
discretion. And therefore, I won't reject
this plea agreement.

The court sentenced defendant in accordance with the plea

agreement to a three-year term of probation, subject to the

mandatory fines and penalties, and to defendant voluntarily

surrendering his Registered Nurse's license. Defendant did not

file a direct appeal challenging any aspect of his sentence or the

propriety of the plea hearing.

On August 5, 2014, defendant filed what appears to be a pro

se PCR petition. Thereafter, defendant's PCR counsel filed an

amended petition in which defendant claimed, inter alia, that his

original counsel "failed to discuss or recommend any measures that

[defendant] could take to gain access to the facility [(Bridgeton

Hospital)], its records or its employees for the purpose of

investigating and developing the defense." The matter came before

the PCR judge for oral argument on February 3, 2017. The judge

found defendant did not make out a prima facie case of ineffective

assistance of counsel warranting an evidentiary hearing. The PCR

judge noted that defense counsel's memoranda documented the

discussions he had with defendant concerning access to the

location. The PCR judge concluded that defendant failed to show

9 A-3590-16T4
"that trial counsel deviated from [his] responsibilities in

failing to conduct the investigation." The PCR judge denied

defendant's petition in an order dated February 3, 2017.

Defendant now appeals raising the following arguments:

POINT I

THE COURT BELOW ERRED IN DENYING [DEFENDANT'S]
PETITION WITHOUT AN EVIDENTIARY HEARING
CONCERNING HIS CLAIM THAT HIS COUNSEL'S
FAILURE TO PROPERLY INVESTIGATE AND PREPARE
HIS CASE DEPRIVED HIM OF HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL AND COMPELLED
HIM TO PLEAD GUILTY.

POINT II

THE COURT BELOW ERRED IN DENYING [DEFENDANT'S]
REQUEST FOR AN EVIDENTIARY HEARING IN VIEW OF
NEWLY DISCOVERED EVIDENCE OF DEPOSITION
TESTIMONY BY [DEFENDANT'S] ACCUSER WHICH
CONTRADICTED HER EARLIER STATEMENT.

New Jersey courts have adopted the rule formulated in

Strickland v. Washington, 466 U.S. 668 (1984) for determining

whether counsel's performance was ineffective for purposes of

the Sixth Amendment. See State v. Fritz, 105 N.J. 42 (1987). To

show ineffective assistance of counsel, a defendant must: (1)

"show that counsel's performance was deficient" such that "counsel

was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment," and (2) "show that the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687. "Unless a

defendant makes both showings, it cannot be said that the

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conviction . . . resulted from a breakdown in the adversary process

that renders the result unreliable." Ibid.

To establish a prima facie case of ineffective assistance of

counsel when a defendant pleads guilty, a defendant must produce

evidence that: (1) "counsel's assistance was not 'within the range

of competence demanded of attorneys in criminal cases;'" and (2)

"'there is a reasonable probability that, but for counsel's errors,

[the defendant] would not have pled guilty and would have insisted

on going to trial.'" State v. Agathis, 424 N.J. Super. 16, 23

(App. Div. 2012) (alteration in original) (quoting State v. Nunez-

Valdez, 200 N.J. 129, 139 (2009)). Defendant did not satisfy this

standard. The record shows defense counsel conducted a thorough

investigation of the evidence the State had against defendant and

used the fruits of these efforts to negotiate an extremely

favorable plea agreement. Defendant thereafter made a strategic,

well-informed decision to accept the State's plea offer to avoid

the uncertainty of a jury trial with a potentially emotionally

compelling juvenile victim.

Affirmed.

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