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NOT FOR PUBLICATION WITHOUT THE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-1331-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH A. RANDONE,
Defendant-Appellant.
_________________________
Submitted November 4, 2019 – Decided February 4, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 10-04-0646.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Nicole Paton, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Joseph A. Randone was convicted of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a) (counts two, four and seven);1 second-
degree sexual assault, N.J.S.A. 2C:14-2(a) (count three);2 and first-degree
kidnapping, N.J.S.A. 2C:13-1(b) (count six); all counts involved the victim,
D.C., who was twelve and thirteen years old at the time of the crimes.3
Defendant appeals the denial of his petition for post-conviction relief (PCR),
arguing:
POINT I
THE PCR COURT ERRED WHERE IT DID NOT
ANALYZE THE CREDIBILITY OF THE ABSENT
WITNESS[, A DIVISION OF YOUTH AND FAMILY
SERVICES (DYFS)4 CASEWORKER,] OR HOW
1
Defendant was also indicted for third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a) (counts eight, nine and ten), in connection with other
victims. He was found guilty on counts eight and nine. The trial judge
dismissed count ten. He does not raise any issue with regard to those counts in
his merits brief.
2
Count three of the indictment originally charged first-degree sexual assault.
It was later amended to second-degree sexual assault.
3
Defendant was found not guilty of second-degree burglary, N.J.S.A. 2C:18-2
(a)(1) (count five).
4
Effective June 29, 2012, the Department of Children and Families was
reorganized and the Division of Youth and Family Services was rebranded as
A-1331-18T2
2
HER TESTIMONY REGARDING THE DYFS
INVESTIGATION WOULD HAVE IMPACTED THE
STATE'S CASE.
POINT II
THE PCR COURT ERRED WHERE IT
DETERMINED THAT DEFENDANT'S CLAIM OF
INEFFECTIVENESS REGARDING THE FAILURE
TO FURNISH TO THE STATE D.C.'S DIARY
ENTRIES AS RECIPROCAL DISCOVERY WAS
BARRED BECAUSE THE ISSUE WAS
ADJUDICATED ON HIS DIRECT APPEAL.
POINT III
THE PCR COURT ERRED WHERE IT
DETERMINED THAT AN EVIDENTIARY
HEARING WAS NOT NECESSARY TO RESOLVE
DEFENDANT'S INEFFECTIVENESS CLAIM
REGARDING HIS DECISION TO WAIVE HIS
RIGHT TO TESTIFY.
We are unpersuaded by these arguments and affirm.
The PCR court granted an evidentiary hearing on defendant's trial
counsel’s failure to call the DYFS caseworker to testify at trial but denied a
hearing on defendant’s other two claims. As to the findings made by the judge
after the evidentiary hearing, "[o]ur standard of review is necessarily
the Division of Child Protection and Permanency. L. 2012, c. 16. We use the
appellation in effect at the time of defendant's trial and sentencing, the latter of
which occurred on June 15, 2012.
A-1331-18T2
3
deferential" so long as the findings are supported by "sufficient credible
evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). "Those
findings warrant particular deference when they are 'substantially influenced by
[the PCR court's] opportunity to hear and see the witnesses and to have the "feel"
of the case, which a reviewing court cannot enjoy.'" State v. Rockford, 213 N.J.
424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Absent an
evidentiary hearing, however, our review of the factual inferences drawn by the
PCR court from the record is de novo, as is our review of the judge's legal
conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
Turning first to the matters decided without an evidentiary hearing, the
PCR court concluded defendant's claim that his trial counsel was ineffective for
failing to provide the State with D.C.'s diary entries during pretrial discovery,
thereby resulting in the trial judge's preclusion of that evidence, with which trial
counsel attempted to impeach D.C., was barred because the issue was decided
on direct appeal. See R. 3:22-5. "Under Rule 3:22-5, prior adjudication of an
issue, including a decision on direct appeal, will ordinarily bar a subsequent
post-conviction hearing on the same basis." State v. Afanador, 151 N.J. 41, 51
(1997). An issue is only barred under the Rule, however, if the issue sought to
be precluded "'is identical or substantially equivalent' to the issue already
A-1331-18T2
4
adjudicated on the merits." Ibid. (quoting State v. McQuaid, 147 N.J. 464, 484
(1997)).
We previously considered defendant's claims on direct appeal that his trial
counsel did not violate pretrial discovery Rules, and even if he did, preclusion
of the evidence was too extreme a remedy. State v. Randone, No. A-6300-11
(App. Div. June 17, 2014) (slip op. at 6-7). There we set forth the facts of this
case, and we will not repeat them here except as required to address the present
issues. Although we determined the trial judge failed to "read the documents 5
to determine how material the statements reflected therein were to defendant's
right to confront" D.C., and should have considered a lesser sanction than
preclusion, applying the harmful error standard,6 we "declin[ed] to reverse . . .
5
On direct appeal, we identified the documents with which trial counsel
attempted to impeach D.C. as letters. Defendant's trial counsel, in arguing a
motion for new trial just prior to sentencing, referenced entries in D.C.'s diary—
or journal—as the documents he sought to use during his cross-examination of
D.C. as well as the diary—or journal, as we named it in our prior decision.
Defendant does not raise any issue with regard to the letters in his merits brief,
only the diary entries.
6
We stated: "Because defendant objected to the preclusion of the writings, the
harmful error standard applies. We must disregard any error unless it was
'clearly capable of producing an unjust result.'" Randone, slip op. at 10 (quoting
R. 2:10-2).
A-1331-18T2
5
because [those] errors did not have the capacity of depriving defendant of his
constitutional right to a fair trial." Id. at 12.
Defendant argues that "the appellate panel's finding that the trial judge's
pretrial ruling with respect to the use of the diary entries was not harmful error
is not the same as determining whether a right to relief is present under the
Strickland/Fritz test."7 In support of his argument that the issues are different,
he points to the different standards of proof: an error must be sufficient to raise
a reasonable doubt in the outcome of a jury trial in order to be considered
harmful, whereas the second prong of Strickland/Fritz is satisfied if defendant
can demonstrate by a preponderance of the evidence that he was prejudiced by
counsel’s unprofessional mistakes.
We agree with defendant that the analysis of a PCR claim is different from
that required under Rule 2:10-2. We also recognize that the issue on appeal was
7
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the test formulated in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), first by showing "that counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz,
105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); then by proving he suffered
prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687,
691-92. Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.
A-1331-18T2
6
the averred error by the trial judge in precluding the evidence. Here, defen dant
claims his trial counsel was ineffective for failing to turn over that evidence in
pretrial discovery. Although the arguments have some common facts, they are
discrete. We will, therefore, especially in light of our conclusion on direct
appeal that "defense counsel violated the reciprocal discovery [Rule]," Randone,
slip op. at 11, consider the substantive merits of his argument which was not
procedurally barred.
Our review of the diary entries and trial testimony leads us to conclude
defendant was not prejudiced by the preclusion of those entries. As we noted
on direct appeal,
[d]efense counsel was able to elicit testimony from
D.C. similar to that contained in the writings, including
that: D.C.'s mother hit her frequently; D.C. was
sometimes afraid of her mother; defendant treated D.C.
well and was "more like a father than [the boyfriend]";
D.C. told her mother that she liked defendant and
wanted to go to his apartment; D.C.'s mother told her to
lie to the police and DYFS about the mother's drinking;
and D.C. told DYFS staff that her mother drank and hit
D.C.
[Id. at 12-13 (second alteration in original).]
We also determined the lead detective in the case
testified about the content of the writings, stating that
"[s]ome of them were cards, some of them were letters
stating [D.C.'s] love for [defendant]." He characterized
A-1331-18T2
7
the letters as "odd," but stated that there was nothing
negative about defendant in the letters that would lead
him to believe that defendant was sexually assaulting
D.C.
[Id. at 13 (alterations in original).]
And, as defendant's trial counsel noted during his summation, in
discrediting D.C.'s contention that she went to defendant's apartment only
because her mother sent her there against her will, D.C.'s sister testified D.C.
went to defendant's apartment "all the time" and that she wanted to go there.
"[H]er sister testified that she went over there frequently and she went over there
willingly, [and] that she liked [defendant]."
Trial counsel continued:
And . . . you heard the circumstances[,] . . . the overall
. . . picture here of what was going on. And [defendant]
was nice not only to [D.C.] but to all of the children,
that he did things for them, that he was kind to them,
and he treated them better . . . in a lot of ways than . . .
their mother did.
Because defendant was able to elicit testimony that was almost identical
to the contents of the diary entries, he cannot establish he was prejudiced by
counsel's failure to provide the writings in discovery. As such, the PCR court
correctly denied his claim without granting an evidentiary hearing.
A-1331-18T2
8
We also determine the PCR court properly denied defendant's claim,
without an evidentiary hearing, that his "trial attorney [was ineffective because
he] did not prepare him to testify . . . or consult with him at any time prior to
trial as to the benefits and consequences that may result. Defendant was unable
to make an informed decision" before he waived his right to testify.
The trial judge addressed defendant during trial, telling him:
You have a right to testify. If you do, you could
be cross-examined by [the State]. I already made a
ruling as to certain prior convictions of yours that might
be used by her. A jury could hear the fact that you were
convicted of certain things in terms of the crime and the
degree because it's not the same as what you're charged
with here. I made that ruling so you would be subjected
to cross-examination and also those items would come
out and the jury would hear them.
You also have the right to remain silent. You
have the right not to say a thing and I could give a jury
charge and the charge would be that the jury is not to
consider for any purpose or any manner, way, shape or
form, in arriving at your verdict, the fact that
[defendant] did not testify nor should that fact enter into
your deliberations or discussions in any manner in any
way, shape or form.
The judge continued, referring to a jury instruction:
[Defendant] is entitled to have you, the jury,
consider all the evidence but he's entitled to the
presumption of innocence even if he doesn't testify
because it is his constitutional right to remain silent and
that should not be held against him.
A-1331-18T2
9
The trial judge then asked defendant if it was his desire to testify or remain
silent; defendant responded, "[s]ilent."
The judge followed up with questions regarding the basis for defendant's
choice:
[THE COURT]: And you did that after discussing that
with [defense counsel]?
[DEFENDANT]: Yes.
[THE COURT]: You had enough time to speak to him?
[DEFENDANT]: Yes.
[THE COURT]: Satisfied with his services?
[DEFENDANT]: Yeah.
[THE COURT]: Is that a voluntary decision on your
part?
[DEFENDANT]: Yeah.
[THE COURT]: Anybody pressure you one way or the
other?
[DEFENDANT]: No.
The record belies defendant's assertion that he made an uninformed,
uncounseled decision not to testify. "Defendant may not create a genuine issue
A-1331-18T2
10
of fact, warranting an evidentiary hearing, by contradicting his prior statements
without explanation." Blake, 444 N.J. Super. at 299.
Further, defendant did not divulge what he would have offered if he
testified at trial, proffering "specific facts and evidence supporting his
allegations." State v. Porter, 216 N.J. 343, 355 (2013). Nor did he explain how
his testimony would have impacted the outcome of the trial, satisfying the
second Strickland/Fritz prong. "[I]n order to establish a prima facie claim, a
petitioner must do more than make bald assertions that he was denied the
effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999). Defendant failed to meet that threshold. See State v.
Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-10(b). Furthermore, an
evidentiary hearing cannot be used to explore PCR claims. See State v.
Marshall, 148 N.J. 89, 157-58 (1997). As such, an evidentiary hearing was
properly denied.
Finally, defendant claims his trial counsel was ineffective because he
failed to call a DYFS caseworker to testify at trial regarding a 2008 investigation
into D.C.'s allegations which DYFS determined were "unfounded." Defendant
averred at the evidentiary hearing he told his counsel of a letter stating as much,
and that counsel's decision not to call the caseworker was "non-sensical,"
A-1331-18T2
11
because the caseworker would have "explain[ed] why [DYFS] concluded the
sexual assault allegations were 'unfounded,'" and could have altered the jury’s
verdict because she was "an objective state agen[t]" who contradicted the State's
chief witness, D.C.
Trial counsel testified at the evidentiary hearing that he did not call the
caseworker to discuss the DYFS investigation or the confirmatory letter because
he was able to elicit from D.C. that she did not report that she was sexually
assaulted to DYFS, the Prosecutor's Office or an examining doctor in 2008, and
that she previously lied in denying allegations of an assault. As such, counsel
determined that the caseworker's testimony would be repetitive.
We review defense counsel's actions under the familiar standards
synopsized by the Court in State v. Arthur, 184 N.J. 307, 318-19 (2005)
(alterations in original):
In determining whether defense counsel's
representation was deficient, "'[j]udicial scrutiny . . .
must be highly deferential,' and must avoid viewing the
performance under the 'distorting effects of hindsight.'"
State v. Norman, 151 N.J. 5, 37 (1997). Because of the
inherent difficulties in evaluating a defense counsel's
tactical decisions from his or her perspective during
trial, "a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action 'might be
A-1331-18T2
12
considered sound trial strategy.'" Strickland, 466 U.S.
at 689.
In determining whether defense counsel's alleged
deficient performance prejudiced the defense, "[i]t is
not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the
proceedings." Id. at 693. Rather, defendant bears the
burden of showing that "there is a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694.
We agree with defendant that the PCR court did not consider "(1) the
credibility of all witnesses, including the likely impeachment of the uncalled
defense witnesses; (2) the interplay of the uncalled witnesses with the actual
defense witnesses called; and (3) the strength of the evidence actually presented
by the prosecution." State v. L.A., 433 N.J. Super. 1, 16-17 (App. Div. 2013)
(quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996)). Of
course, the PCR court was not presented the opportunity to assess the
caseworker's credibility because she was not called to testify at the evidentiary
hearing.
Defendant argues in his merits brief that, during cross-examination of
D.C. at trial, defendant's counsel was able to portray D.C. as a liar because she
did not inform authorities in 2008 she was being sexually assaulted. In making
A-1331-18T2
13
that point, defendant highlights that portion of the cross-examination in which
D.C. admitted a caseworker inquired if she was sexually assaulted, suggesting
the reason the allegations of sexual assault were unfounded is because D.C. lied.
Even accepting that argument, the caseworker still would not have been allowed
to give her opinion about D.C.'s credibility, State v. McLean, 205 N.J. 438, 453
(2011), or whether the charges based on D.C.'s allegations against defendant had
any merit because that determination was to be made by the jury, see State v.
Odom, 116 N.J. 65, 77 (1989) ("[w]e have repeatedly and consistently
recognized that a jury's determination of criminal guilt or innocence is its
exclusive responsibility"); see also State v. Frisby, 174 N.J. 583, 593-94 (2002)
(finding a police officer testifying as a fact witness was not allowed to opine
regarding whether the defendant committed the crime).
To rebut the State's evidence, including D.C.'s explicitly-detailed account
regarding defendant's first sexual assault, defendant's trial counsel emphasized
in summation that D.C.'s multiple lies to authorities, and that "there was an
investigation conducted [in 2008] and there were no charges brought against"
defendant. Counsel argued to the jury:
It tells you that she lied at some point in this case,
that she lied to the authorities, and that she's
comfortable with lying to the authorities, I would
submit, ladies and gentlemen. As a result of the
A-1331-18T2
14
influence of her mother, I would suggest to you where
she had been – where that type of behavior was
condoned in the household, she was able to lie to the
authorities and I would submit to you, ladies and
gentlemen, she's able to lie to you in court[.]
The defense strategy was to paint D.C. as a liar about: her relationship
with defendant; the reasons she went to defendant's residence; and her
allegations of sexual assault. As defendant's counsel told the jury, "[a]ll of the
proof regarding the aggravated sexual assault and sexual assault is riding on
[D.C.'s] credibility. There's no other evidence. There's no medical evidence, no
scientific evidence, nothing at all. No one heard anything. She didn't say
anything to anyone to corroborate anything she says regarding that."
According the presumption that counsel's conduct fell within the range of
reasonable professional assistance, Arthur, 184 N.J. at 318-19, and adhering to
the tenet that "an otherwise valid conviction will not be overturned merely
because the defendant is dissatisfied with his or her counsel's exercise of
judgment during the trial," State v. Castagna, 187 N.J. 293, 314 (2006), we
determine defendant has not established his counsel's performance was
deficient. Nor, in light of the fact that counsel was able to argue that the prior
investigation did not result in any charges against defendant, do we conclude
A-1331-18T2
15
there is a reasonable probability, but for the failure to call the caseworker, the
result of the trial would have been different.
Affirmed.
A-1331-18T2
16