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NOT FOR PUBLICATION WITHOUT THE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-2484-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
I.S.,
Defendant-Appellant.
Submitted March 12, 2020 – Decided June 19, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-02-0315.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven E. Braun, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
Appellant filed a supplemental pro se brief.
PER CURIAM
Defendant I.S. appeals the November 30, 2018 Law Division denial of his
post-conviction relief (PCR) petition, alleging ineffective assistance of appellate
and trial counsel. For the reasons stated by Judge John A. Young, we affirm.
We add the following.
Defendant was convicted of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a), in that he sexually penetrated the victim, J.U., when she
was at least thirteen but less than sixteen, and stood in loco parentis to her. The
jury heard that defendant, who was J.U.’s mother’s live-in boyfriend, raped her
on two different occasions when she was fourteen. As a result of the second
incident, she became pregnant. She did not disclose this history until years later
in 2012, when she sought child support.
At the time of trial, J.U. was twenty-five years old. DNA testing verified
the child was defendant's son. When interviewed by police, defendant readily
acknowledged having intercourse with J.U., and admitted knowing she was
younger than eighteen, but denied knowing she was fourteen. He claimed the
relationship was consensual.
The jury also convicted defendant of second-degree child endangering.
That indictment count alleged that while having a legal duty of care for J.U .,
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who was born in December 1989, he knowingly engaged in sexual conduct
which would impair or debauch her morals. See N.J.S.A. 2C:24-4(a).
Finally, the jury convicted defendant of fourth-degree child abuse, that he,
"having the care, custody and control of J.U., born December [], 1989, did abuse
J.U. by performing any indecent, immoral or unlawful act or deed . . . that may
tend to debauch or endanger or degrade [her] morals[.]" See N.J.S.A. 9:6-1, -3.
The jury acquitted defendant of third-degree terroristic threats. J.U.
testified that she did not disclose these incidents while defendant lived with her,
her mother, and her brother, because he threatened to kill the family if she
reported them. See N.J.S.A. 2C:12-3(a).
We remanded as to the sentence only. The trial judge on May 18, 2017,
imposed fifteen years imprisonment subject to the No Early Release Act's
(NERA) eighty-five percent parole ineligibility, N.J.S.A. 2C:43-7.2. The judge
merged the child endangering and child abuse convictions into the greater crime,
the aggravated sexual assault. We affirmed the convictions. State v. Sosa, No.
A-5030-14 (App. Div. Dec. 20, 2016). The Supreme Court denied certification.
State v. Sosa, 230 N.J. 227 (2017).
At trial, defendant challenged J.U.'s birthdate, suggesting the conduct was
consensual and therefore lawful. When interviewed by police, defendant had
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said J.U.'s mother approved of the relationship. J.U. was born in Mexico and
brought here as a child. The family lived with defendant for some unspecified
period of time. The assaults occurred months after she arrived here.
A principal argument in the PCR petition and on appeal is that trial
counsel was ineffective because she did not move to dismiss counts two through
four of the indictment on the grounds the relevant statute of limitations had run.
J.U. reported the sexual assaults on December 7, 2012; defendant was not
indicted until February 26, 2014. N.J.S.A. 2C:1-6(a)(1) states that prosecutions
brought under the aggravated sexual assault statute "may be commenced at any
time." N.J.S.A. 2C:1-6(b)(4) provides, however, that a prosecution brought
under N.J.S.A. 2C:24-4 "when the victim at the time of the offenses is below the
age of [eighteen] years, must be commenced within five years of the victim's
attaining the age of [eighteen] . . . ." Presumably, a charge of child abuse is
subject to the five year from date of occurrence catch-all provision found in
N.J.S.A. 2C:1-6(b)(1).
"A prosecution is commenced for a crime when an indictment is
found . . . ." N.J.S.A. 2C:1-6(d). J.U. turned eighteen in December 2007. That
means prosecution on the child endangering had to be commenced on or before
December 2012—but defendant was not indicted until February 26, 2014. The
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time for prosecution on the child abuse offense had run by at least J.U.'s
nineteenth birthday.
While on the stand, J.U. said when she gave birth, defendant and her
mother had separated, and she lied to her mother about the identity of the father
of the child. Defendant on one occasion attempted to see the child, but has never
had a relationship with him.
During the trial, J.U. was extensively cross-examined on the issue of her
age. She produced her driver's license in order to corroborate her birthdate.
Trial counsel's Reyes1 motion for acquittal was actually based on the purported
lack of proof of J.U.'s birthdate. In summation, trial counsel again returned to
the issue of the State's alleged failure to prove J.U.'s birthdate.
Defendant argued in his PCR petition that J.U.'s lack of proof of age was
a fatal flaw in the State's case. He also claimed that the only way she could have
obtained a New Jersey driver's license would have been to submit false
documents stating that she was a lawful permanent resident or United States
citizen. When she testified, J.U. said she obtained her driver's license by
submitting a resident alien card.
1
State v. Reyes, 50 N.J. 454 (1967).
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The judge found no merit to defendant's argument. J.U. testified as to her
birthdate, age, and that she was fourteen years old when defendant committed
the crimes in 2004. The judge opined the testimony alone was sufficient to
prove the requisite element of age.
In denying PCR relief, the judge also addressed the argument that trial
counsel was obliged to contact the Mexican government to verify J.U.'s
birthdate, or to consult an expert with regard to the New Jersey driver's license
application process. Defendant, other than speculation, had no basis to
challenge J.U.'s age, thus making the contention nothing more than an
impermissible bald assertion.
The judge added that the defense of mistake of fact is unavailable to those
charged with aggravated sexual assault. N.J.S.A. 2C:14-5(c) provides that "[i]t
shall be no defense to a prosecution for a crime under this chapter that the actor
believed the victim to be above the age stated for the offense, even if such
mistaken belief was reasonable."
With regard to the statute of limitations argument, although it met the first
prong, pursuant to Strickland v. Washington, 466 U.S. 668, 688 (1984), that the
representation fell below an objective standard of reasonableness, the judge
found the mistake did not affect the outcome, the second prong of the Strickland
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test. Id. at 694. The charges were merged into the greater offense, and the
elements of the crimes were the same. Defendant was sentenced only on the
count to which the statute did not apply. The jury acquitted on the terroristic
threats. Thus, the judge held that defendant failed to meet the Strickland
standard and denied the petition.
Now on appeal, defendant raises the following arguments:
POINT I – TRIAL COUNSEL AND APPELLATE
DEFENSE COUNSEL WERE INEFFECTIVE FOR
FAILING TO MOVE TO DISMISS COUNT TWO OF
THE INDICTMENT, ALLEGING ENDANGERING
THE WELFARE OF A CHILD, AND COUNT
THREE, ALLEGING CHILD ABUSE, BECAUSE
THE STATUTE OF LIMITATIONS REGARDING
THOSE OFFENSES HAD EXPIRED.
POINT II – TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE BY PERMITTING THE STATE TO
AMEND COUNT ONE OF THE INDICTMENT
BECAUSE THE AMENDMENT CHANGED THE
SUBSTANCE OF THE OFFENSE, AND THE
MATTER THEREFORE SHOULD HAVE BEEN
SENT BACK TO THE GRAND JURY.
POINT III – TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE BY FAILING TO VERIFY THE
ALLEGED VICTIM'S DATE OF BIRTH WITH
OFFICIALS OF THE MEXICAN GOVERNMENT.
POINT IV – TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE BY FAILING TO PRESENT EXPERT
TESTIMONY.
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POINT V – TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE BY FAILING TO RAISE THE
DEFENSES OF MISTAKE OF FACT OR LAW.
In an uncounseled brief, defendant asserts:
POINT 1. [DEFENDANT] WAS DENIED HIS
RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL DUE TO COUNSEL'S FAILURE TO
RAISE A MISTAKE-OF-FACT DEFENSE.
POINT 2. [DEFENDANT] WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL WHEN
HIS ATTORNEY FAILED TO FILE A CLEARLY
MERITORIOUS MOTION TO QUASH THE
INDICTMENT AS TO COUNTS 2, 3, AND 4.
We address the issues without distinguishing the point headings as
formulated by counsel for defendant on appeal and defendant pro se.
Defendant's uncounseled brief raises the same issues.
We review a judge's decision to deny a PCR petition without evidentiary
hearing for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992).
It is also well-established that in order to make out a prima facie claim, a
defendant "must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient to demonstrate
counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super
154, 170 (App. Div. 1999). It is defendant's burden to establish by a
preponderance of the credible evidence that he is entitled to relief. State v. Nash,
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212 N.J. 518, 541 (2013). In order to prevail, a defendant must establish not
only that counsel's representation was deficient, but that the deficiency
prejudiced his right to a fair trial. Strickland, 466 U.S. at 687.
I.
There can be no doubt that the statute of limitations issue should have
been raised. That omission is a mistake outside the realm of constitutionally
adequate representation, and meets the first prong of Strickland. Nonetheless, in
this case, defendant was acquitted of the threats, and counts two and three
required the very proofs the jury found applicable to the greater offense—the
aggravated sexual assault of a victim between the ages of thirteen and sixteen.
In other words, once having found defendant guilty of sexual penetration with
J.U. when she was at least thirteen, but less than sixteen, a person to whom he
stood in loco parentis, the elements of the other two crimes were satisfied. That
is the reason the trial judge merged counts two and three into count one. The
outcome of defendant's trial remained unaffected—and being charged with
counts two and three did not make it more likely he would be convicted of count
one. An aggravated sexual assault of a child with whom a person stands in loco
parentis is per se an act of child endangering and child abuse. Thus, counsel's
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error did not prejudice the outcome, and since defendant does not meet the
Strickland second prong, there is no merit to the appeal on that basis.
II.
Defendant argues for the first time on appeal that trial defense counsel
was ineffective because counsel permitted the amendment of count one from
language alleging that defendant was related to J.U. by blood or affinity to the
third-degree, to language alleging defendant's status in loco parentis. We know
nothing about the circumstances of the amendment, or that it even was an
amendment, as the issue was not raised before Judge Young, and the point is not
fully explained in the brief on appeal. 2 It is counsel's duty to support "legal
argument with appropriate record references . . . ." State v. Hild, 148 N.J. Super.
294, 296 (App. Div. 1977). It is not a reviewing court's duty to search the record
to substantiate defendant's argument. See 700 Highway 33 LLC v. Pollio, 421
N.J. Super. 231, 238 (App. Div. 2011). We do not even know the stage in the
proceedings at which the alteration was made. In any event, the change was not
consequential.
Ultimately, whether in loco parentis or because of a familial relationship,
the relationship had to be proven by the State beyond a reasonable doubt. We
2
The State did not respond to this argument in its brief.
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do not see how the amendment would have created prejudice, as defendant did
not deny living with the family and being responsible for the children whe n
J.U.'s mother was at work. This argument does not establish plain error, required
under Rule 2:10-2. The apparent alteration on the face of the indictment was
not an error "clearly capable of producing an unjust result[.]" R. 2:10-2.
III.
We address the issue of the victim's birthdate in combination with the
contention that an expert should have been retained. First, the opinion upon
which defendant relies is an unpublished federal opinion. See Siguenza v.
Roddy, No. 13-2005, 2016 U.S. Dist. LEXIS 69553 (D.N.J. May 27, 2016). 3
In that case, a plaintiff sued his criminal defense attorney for malpractice,
alleging counsel was deficient in his representation of him in a sexual assault
matter involving a minor because he did not obtain a certified document
verifying the victim's birthdate. In the criminal case, the age of the victim was
a crucial issue, as Siguenza alleged that the victim consented and that her age of
majority was "well known in the community." The issue regarding the birth
3
Since the opinion is unpublished, it is not precedential and is not binding on
this court. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 270 n.3 (App.
Div. 2011); R. 1:36-3. However, since on appeal counsel relies on the analysis
in support of his argument, we nonetheless address the case.
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certificate was investigated by counsel, who obtained, it later turned out, a false
birth certificate from the prosecutor, who had in turn obtained it from the
victim's family. The birth certificate was neither notarized nor certified, and
was handwritten in Spanish, purporting to originate in Honduras. Nonetheless,
Siguenza was advised by his attorney to take the plea offer, and did so.
Obviously, the failure to exhaustively investigate the victim's age has far
greater impact when the matter is not explored at trial. This is a significant
distinction between the circumstances in this case and the federal matter.
In contrast to the plea in Siguenza, here J.U. testified unequivocally about
her birthdate, and produced a driver's license bearing her date of birth.
Defendant acknowledged to police a romantic relationship with the victim's
mother and the fact that the family lived with him, and that he cared for the
children while J.U.'s mother worked. Unlike Siguenza, this defendant knew
about J.U.'s age from being in the same household. It is unreasonable, given
these factual distinctions, to impose on this defense counsel the obligation to
procure a birth certificate or an expert to more aggressively challenge the issue
of age.
The victim's testimony in this case sufficed to prove the element of the
crime, as opposed to the plea of guilty in the federal case. See State v. Reilly,
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111 N.J. Super. 551, 552 (App. Div. 1970). It was sufficient with regard to her
age. Ibid. Therefore, neither Strickland prong was met. Defendant's attorney's
failure to more fully corroborate the victim's age was not less than adequate
representation. Defendant lived with this family. This is indeed a bald
assertion—defendant has no basis for his assumption that had a more expansive
investigation occurred, there would have been an effect on the outcome. See
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Nothing in the
record supports the allegation that the victim was being untruthful.
IV.
Defendant again contends that the defense of mistake of fact or mistake
of law should have been raised by his attorney, and that counsel's failure to do
so meant his attorney functioned outside the constitutionally required norms.
The argument hinges on defendant's willingness to testify, which he did not , at
the trial. The argument is founded on mere speculation.
Additionally, N.J.S.A. 2C:14-5 makes clear that it is not a defense to the
charge that the actor believed the victim to be above the age required for the
offense, even if such a mistaken belief was reasonable. This argument does not
warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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