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NOT FOR PUBLICATION WITHOUT THE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-0273-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
S.P.,
Defendant-Appellant.
_____________________________
Submitted December 19, 2019 – Decided February 11, 2020
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 09-08-1483.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira Rahman Scurato, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant, S.P., appeals from an order that denied his third petition for
post-conviction relief (PCR). He argues the following points:
POINT I
THE PCR COURT ERRED IN NOT HOLDING AN
EVIDENTIARY HEARING AND IN FINDING THAT
THE FAILURE TO CALL TWO SPECIFIC
WITNESSES WAS NOT INEFFECTIVE
ASSISTANCE OF COUNSEL.
A. The PCR Court Erred in Denying an
Evidentiary Hearing on This PCR Petition
When Defendant Himself Brought Forth
Evidence that PCR Counsel Assigned to
His First PCR Failed to Investigate.
B. Trial Counsel was Clearly
Ineffective for Failing to Interview and
Present Two Specific Witnesses.
For the reasons that follow, we affirm.
A jury convicted defendant of two counts each of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a), second-degree sexual assault, N.J.S.A.
2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a). For these offenses, a judge sentenced defendant to an aggregate
thirty-year prison term subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2; parole supervision for life (PSL), N.J.S.A. 2C:43-6.4; and the
registration requirements of Megan's Law, N.J.S.A. 2C:7-2. The victims were
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2
defendant's minor daughters, C.A. and J.P. Their trial testimony provides the
context for defendant's third PCR petition and this appeal. We summarized their
testimony in our opinion rejecting defendant's direct appeal:
C.A. testified that defendant placed his penis into
her vagina on approximately six or seven occasions
when she was ten- or eleven-years-old. She explained
to the jury that on the first occasion they played hide-
and-seek, he took her into his bedroom, and then
defendant removed her pants and underwear and
performed the act. She testified that "he got on top of
me and started humping me." The other incidents
occurred in the home too. She stated at trial that
defendant directed her not to tell anyone and offered
her money to keep the sexual abuse a secret. C.A.
testified, without objection, that defendant drank beer
when he performed some of the acts.
....
J.P. testified that defendant inserted his penis into
her vagina when she was seven-years-old and repeated
this conduct three times per week until she was
approximately ten- or eleven-years-old. J.P. explained
that most of the acts occurred in her parents' bedroom,
where defendant directed her to remove her pants and
underwear, but that defendant also performed these acts
in a bathroom at a construction site where he had
worked. J.P. also provided to the jury details of the
sexual abuse. She testified that he used a condom and
"moved back and forth," which caused her physical
pain. J.P. told a friend from school about the sexual
abuse during the time frame when defendant was
performing the acts; J.P. informed her mother about
what had occurred after her mother learned that
defendant had been sexually assaulting C.A.
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[State v. S.P., No. A-3331-10 (App. Div. Oct. 4, 2013)
(slip op. at 2-4), certif. denied, 217 N.J. 588 (2014).]
Defendant denied his daughters' allegations. He testified he worked six
days a week as a landscaper and each working day he worked approximately
twelve and one-half hours, from 6:30 a.m. to 7:00 p.m. Id. at 7. He claimed he
never missed work as a result of being hung over and rarely missed work for any
other reason. Ibid. In addition, he testified he did not spend time alone with the
victims and never played hide-and-seek with them. Ibid. Defendant called five
character witnesses, who testified that he was truthful, respectful, and honest.
Ibid. The jury found the victims credible and convicted defendant of the crimes
we have enumerated above.
In June 2014, defendant filed his first PCR petition, which the trial court
denied without an evidentiary hearing. Defendant alleged his trial counsel
"failed to adequately prepare. Counsel failed to call witnesses." The trial court
found defendant's petition was "factually unsupported, R. 3:22-8." State v. S.P.,
No. A-1886-14 (App. Div. July 7, 2016) (slip op. at 2), certif. denied, 229 N.J.
160 (2017). On appeal, defendant argued:
POINT I
THE PCR COURT ERRED IN DENYING AN
EVIDENTIARY HEARING BECAUSE THE
DEFENDANT HAD ESTABLISHED A
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4
REASONABLE LIKELIHOOD THAT HIS CLAIMS
OF INEFFECTIVE ASSISTANCE OF COUNSEL
WOULD ULTIMATELY SUCCEED ON THE
MERITS.
A. Trial Counsel was Ineffective by Failing
to Conduct an Investigation Prior to Trial
and, as a Result, Failed to Call Favorable
Witnesses at Trial.
B. The PCR Court Should have Conducted
an Evidentiary Hearing on the Defendant's
Claims.
We affirmed the trial court's denial of defendant's first PCR petition. Ibid.
We noted defendant had "failed to specifically identify counsel's acts or
omissions evincing a lack of preparation or supply statements from witnesses
whose testimony would have aided his defense." Id. at 4.
Defendant filed a second PCR petition, which the trial court dismissed on
January 26, 2015, because defendant's appeal from his first PCR petition was
pending. R. 3:22-6A(2). Defendant filed his third PCR petition—the subject of
this appeal—on April 5, 2017. He alleged his trial counsel was ineffective
because he failed to investigate two witnesses and present their testimony at
trial. This time, he included certifications of the witnesses with his petition.
The first witness (the Construction Site Owner) co-owned the property
that defendant's daughter, J.P., referred to in her trial testimony as the
A-0273-18T4
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"construction site" where defendant had sexually assaulted her in a bathroom.
The Construction Site Owner explained that two houses were located on the site.
Defendant often worked on the grounds on weekends, setting bricks and stone
walls, and working on patios and retaining walls. He often brought his daughters
with him. They played with her children.
The Construction Site Owner and her husband lived in the larger house.
Her parents lived in the smaller house—where the sexual assaults allegedly
occurred in 2003 and 2004—from 2002 to 2008. Not only did her parents live
in the smaller house where they were present most days and weekends, but there
were cameras on the property used for security and surveillance. According to
the Construction Site Owner, "[i]t is simply not possible [to commit such an
assault] from the layout of the house, and go unnoticed." Moreover, she stated
the children never showed signs of having been traumatized, such as sadness or
depression; rather, they were happy, cheerful, playing with each other and with
the dog.
The second witness, defendant's co-worker from 1995 to 2009 (the Co-
worker), confirmed he and defendant did a substantial amount of work on
weekends at the property defendant's daughter had referred to as the construction
site. The Co-worker confirmed the site included two homes, the larger occupied
A-0273-18T4
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by the Construction Site Owner, her husband, and their children, the smaller
occupied by her parents, who passed away in 2007. These parents were at the
smaller house "mostly every weekend." According to the Co-worker, "[n]one
of the workers had unrestricted access to [the smaller] house, and would
therefore be noticed going in[.]" The Co-worker further averred he "was present
when any work was being done on that house between 2002 and 2004, and never
saw any of [defendant's] children enter the smaller house[.]"
The Co-worker "never saw any signs of abuse on [defendant's] children,
and remember[ed] his daughter [J.P.] always playing with the [Construction Site
Owner's] children and their dog. [J.P.] never looked down or depressed, or
showed any type of behavior that would make you think that she was sad or that
she had been abused." Rather, according to the Co-worker, J.P. was always
happy and playing with the other children.
The Co-worker's observations of J.P. were not limited to her activities at
the construction site. He and defendant shared family activities, such as birthday
parties. He never witnessed any type of behavior in defendant's children at such
events that would indicate something was wrong, nor did he ever observe
defendant demonstrate any behavior that would lead him to believe defendant
was a threat to the children.
A-0273-18T4
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Because defendant alleged in his third PCR petition ineffective assistance
of both his trial counsel and his previous PCR counsel, the trial court assigned
counsel to assist him. Assigned counsel supplemented defendant's petition and
submitted a letter-brief to the court. Counsel argued trial counsel had been
ineffective for failing to interview the "exculpatory witnesses" who had
provided the certifications. He also argued defendant was entitled to an
evidentiary hearing because defendant's previous PCR counsel had been
ineffective for failing to properly investigate defendant's claims and obtain
statements from the witnesses who had not been presented at trial. He argued
that previous appellate counsel had also been ineffective and that his petition
was not time barred.
The trial court denied defendant's petition in a written opinion. The court
first considered—and rejected—defendant's argument his first PCR counsel was
ineffective. The court found PCR counsel made appropriate arguments and
incorporated by reference other arguments defendant had raised in his petition.
Concerning PCR counsel's failure to call witnesses, the court noted defendant
had raised his trial counsel's failure to call witnesses in his pro se brief and PCR
counsel incorporated the argument by reference in his own brief. Thus, the judge
who heard the first PCR petition had the opportunity to consider the arguments.
A-0273-18T4
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Noting that case law does not mandate PCR counsel articulate every argument
raised by a defendant but permits counsel to incorporate arguments by reference,
and reiterating that PCR counsel incorporated defendant's argument by
reference, the court concluded PCR counsel had effectively represented
defendant.
Turning to defendant's next argument, the court rejected the claims that
trial counsel had failed to properly investigate and review the case and had
committed errors that cumulatively denied defendant effective assistance.
Specifically, defendant alleged trial counsel had failed to investigate and present
at trial the Construction Site Owner and the Co-worker. The court noted
defendant had raised the same claims in his first PCR petition and the judge that
heard the first PCR petition had rejected these claims. Because the claims had
been heard and rejected previously, and because defendant was not alleging that
this was new evidence, the court rejected defendant's arguments.
The court did not stop there. Rather, the court noted that even if the
alleged exculpatory testimony from the Construction Site Owner and the Co-
worker were considered new evidence, "a complete analysis of the testimony
and its use, or lack thereof, does not warrant a finding of ineffective counsel."
The court determined the proffered evidence did not place the integrity of
A-0273-18T4
9
defendant's conviction in doubt. The court noted defendant failed to provide
"any explanation or assertion that prior counsel—trial, appellate, or PCR—were
informed of the two witnesses." Consequently, the court was unable to conclude
whether the evidence was available at trial or not. The court rejected the
argument because defendant had not demonstrated the proffered testimony was
more than merely cumulative, impeaching or contradictory; nor had he shown it
was discovered after trial and would probably change the jury's verdict.
Concluding defendant had failed to establish a prima facie case of
ineffective assistance, the court denied the PCR petition. This appeal followed.
To establish a PCR claim that trial counsel was constitutionally
ineffective, a defendant must prove two elements: first, that "counsel's
performance was deficient[,]" that is, "that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment"[;] second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord
State v. Fritz, 105 N.J. 42, 58 (1987).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
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trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
(2013) (citation omitted). To prove the second element, a defendant must
demonstrate "how specific errors of counsel undermined the reliability of the
finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). "To sustain that burden, specific facts must be alleged and articulated"
that would "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992). A petitioner must do
more than make bald assertions that he was denied effective assistance of
counsel; he must allege specific facts sufficient to demonstrate counsel's alleged
substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). For example, "when 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." Ibid.
This standard applies as well to a defendant's claim of ineffective assistance of
appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007).
A-0273-18T4
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Whether a PCR hearing on an ineffective-assistance-of-counsel petition is
necessary is a matter within the court's discretion. See Preciose, 129 N.J. at 462;
see also R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie case in support of post-conviction
relief, a determination by the court that there are material issues of disputed fact
that cannot be resolved by reference to the existing record, and a determination
that an evidentiary hearing is necessary to resolve the claims for relief.").
Here, we agree with the trial court that defendant failed to establish a
prima facie case that his trial counsel was ineffective. Specifically, a study of
the record confirms the trial court's observation that defendant proffered no
competent evidence trial counsel was made aware of either the names of the
Construction Site Owner and Co-worker or that they could offer potentially
exculpatory evidence, assuming their statements can be so construed. In fact, in
defendant's PCR petition, he refers to the statements of these witnesses as
"newly discovered evidence."
Had defendant alleged he had provided trial counsel with the names of the
Construction Site Owner and Co-worker, or that they could provide exculpatory
testimony, he might have been entitled to an evidentiary hearing. Indisputably,
"counsel has a duty to make 'reasonable investigations or to make a reasonable
A-0273-18T4
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decision that makes particular investigations unnecessary.' A failure to do so
will render the lawyer's performance deficient." State v. Chew, 179 N.J. 186,
205 (2004) (quoting State v. Savage, 120 N.J. 594, 617-18 (1990)). Having
failed to present competent evidence trial counsel was made aware of the
Construction Site Owner and Co-worker, defendant has failed to present a prima
facie case that his trial counsel was ineffective for not investigating them and
presenting their testimony at trial. Preciose, 129 N.J. at 459.
In view of our conclusion that defendant failed to establish a prima facie
case that his trial counsel was ineffective, we cannot conclude his first PCR
counsel was ineffective. To be sure, if defendant's first PCR counsel knew trial
counsel was aware of but did not investigate two witnesses who could provide
potentially exculpatory testimony, then first PCR counsel was obligated to
obtain certifications or affidavits from the witnesses. Cummings, 321 N.J.
Super. at 170. As we have discussed however, there is no evidence trial counsel
was aware of these witnesses or, for that matter, any evidence they could have
provided exculpatory testimony. Consequently, even if defendant could
establish a prima facie case that his first PCR counsel violated Strickland's first
prong by failing to conduct a reasonable investigation, he could not establish a
prima facie case of the second Strickland prong, namely, there is a reasonable
A-0273-18T4
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probability that, but for the first PCR counsel's inadequate or non-existent
investigation, the result of the first PCR proceeding would have been different.
Strickland, 466 U.S. at 694.
Defendant's remaining arguments are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(2).
Affirmed.
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