STATE OF NEW JERSEY VS. M.C.-A. (13-08-1143, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4515-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.C.-A.,

Defendant-Appellant.
_______________________

Submitted December 16, 2020 – Decided July 26, 2021

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-08-
1143.

Joseph E. Krakora, Public Defender, attorney for
appellant (John J. Bannan, Designated Counsel, on the
brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit, Assistant
Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant M.C.-A. appeals from the trial court's order denying, without

an evidentiary hearing, his petition for post-conviction relief (PCR). 1 Defendant

collaterally attacks his jury trial conviction of multiple crimes arising out of his

sexual assault of his step-daughter, E.D. (Edith), when she was between nine

and sixteen years old. The convictions include two counts of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of first-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3); and four second-

and third-degree crimes. Defendant received an aggregate thirty-four-year

custodial term, subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and the No Early

Release Act, N.J.S.A. 2C:43-7.2.

We assume the reader's familiarity with the facts that supported

defendant's conviction, which we reviewed in detail in affirming defendant's

conviction and sentence on direct appeal. See State v. M.C.-A., No. A-1509-14

(App. Div. Aug. 8, 2017) (M.C.-A. I), certif. denied, 232 N.J. 104 (2018).

1
We variously employ initials and fictitious names to identify defendant, the
juvenile victim of the crimes for which defendant was convicted, and other
witnesses because disclosure of the identity of a victim of sexual assault under
the age of eighteen is prohibited, N.J.S.A. 2A:82-46, and because the names of
child victims of sexual assault under N.J.S.A. 2A:82-46, and the names of
victims of sexual offenses, are otherwise excluded from public access, R. 1:38-
2(c)(9), (12).

2 A-4515-18
 Defendant's pro se petition identified no grounds for relief, stating he

would provide them after counsel was assigned. In his counseled petition, he

asserted his trial counsel was ineffective. He identified two issues that he

claimed he brought to his attorney's attention, but which his attorney ignored.

First, he contended that counsel did not adequately pursue Edith's alleged

recantation. Defendant stated that Edith sent him an "email/Facebook Instant

Message where she apologized for accusing me and recanted her statements."

Defendant claimed his step-daughter wrote, "I'm sorry Daddy. I didn't want to

do this to you. Mommy made me do this. Mommy didn't believe me that it

didn't happen." Defendant claimed he "accidentally deleted the message." He

asked his attorney to retain an expert to retrieve the message and his attorney

did not do so, and his attorney did not cross-examine Edith about the alleged

message at trial.

Second, he contended that his former co-worker A.H. (Andrew) — who

testified that defendant told him that "what happened between him and his

stepdaughter was 'mutual,'" M.C.-A. I, (slip op. at 4) — was an "illegal

immigrant" who used a false name. Defendant contended that he asked his trial

attorney to confront Andrew about his immigration status, but his counsel did

not.

3 A-4515-18
 Notably, defendant made these factual allegations in a "verified petition"

that was not properly verified. Rather, he stated only that his allegations were

"true to the best of [his] knowledge and belief."

In his counseled brief, defendant amplified these points under the rubric

that "counsel failed to conduct [an] investigation, failed to consult an expert

witness and failed to properly present the defense." He also contended that

counsel did not vigorously cross-examine defendant's wife L.C. (Lucy) to elicit

evidence supporting his claim that she worked as a go-go dancer, and she had

an affair with Andrew, the co-worker who testified against him.

Defendant also argued in his counseled brief that trial counsel was

ineffective by failing to object to testimony from the State's Child Sexual Abuse

Accommodation Syndrome (CSAAS) expert (which we summarized in M.C.-A.

I, (slip op. at 12)). In State v. J.L.G., 234 N.J. 265 (2018), the Court held "expert

testimony about CSAAS in general, and its component behaviors other than

delayed disclosure, may no longer be admitted at criminal trials. Evidence about

delayed disclosure can be presented if it satisfies all parts" of N.J.R.E. 702. "In

particular, the State must show that the evidence is beyond the understanding of

the average juror," which will be a case-by-case, fact-sensitive determination.

4 A-4515-18
Ibid. At oral argument, PCR counsel contended that the Supreme Court's

holding in J.L.G. should apply to defendant's case.

The PCR court denied the petition in a written decision that focused on

the CSAAS issue. The court noted we rejected defendant's claim on direct

appeal that the decision to permit the CSAAS testimony was plain error.

Assuming for argument's sake that J.L.G. applied to defendant's case (although

defendant's appeal was no longer pending when J.L.G. was decided), the PCR

court held it did not warrant PCR, because Edith's testimony was not the

"lynchpin" of the State's case. In so holding, the PCR court referred to a factor

in our plain error analysis in G.E.P., after we held that J.L.G. applied to the

pipeline cases. See State v. G.E.P., 458 N.J. Super. 436, 454 (App. Div. 2019)

(holding in G.E.P. that admitting CSAAS testimony was plain error because the

alleged victim's testimony was the "lynchpin" of the State's case). 2 However,

the Supreme Court held that the other evidence of guilt supported affirming

G.E.P.'s conviction. G.E.P., 243 N.J. at 390-93. In any event, the PCR court

noted the victim's testimony here was not the "lynchpin" of the prosecution,

2
In G.E.P., we consolidated the appeals of four different defendants, including
G.E.P. We reversed the convictions of all four defendants. G.E.P., 458 N.J.
Super. at 443. The Supreme Court affirmed as to all but G.E.P. State v. G.E.P.,
243 N.J. 362, 393 (2020).

5 A-4515-18
because Edith's sister K.C. (Kelly), her mother Lucy, and defendant's co-worker

provided "significant corroborating evidence" of defendant's guilt; and, the

deleted pictures retrieved from the camera located in defendant's truck depicted

sex acts occurring between defendant and the victim.

The PCR court also briefly addressed defendant's claims that trial counsel

failed to investigate a defense, which we discuss at greater length below. The

court found that even if the co-worker testified falsely, "the result of the

proceedings would not have been different" because of "the strength of the

evidence supporting [defendant's] guilt." With little elaboration, the PCR court

also rejected defendant's claim that trial counsel was ineffective by failing to

retain an expert witness to investigate the "email/Facebook Instant Message."

In his appeal, defendant reasserts the claims he presented to the PCR

court, and he asserts two new ones:

POINT I

BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR PCR.

A. Legal Standards Governing Applications For Post-
Conviction Relief.

B. Trial Counsel Failed to Object to the CSAAS
Witness' Testimony and Failed to Object to the

6 A-4515-18
 Reliability of the Social Science Supporting Her
Explanation.

C. Trial Counsel failed to Object to the Trial Judge
Applying the Wrong Standard in Deciding the
Admissibility of Sexual History under the Rape Shield
Law.

D. Trial Counsel was Ineffective When He Failed to
Move For Separate Trials of Counts one and Three from
the Rest of the Counts.

E. Trial Counsel Failed to Conduct Investigation,
Failed to Consult an Expert Witness and Failed to
Properly Present the Defense.

POINT II

BECAUSE THERE ARE GENUINE ISSUES OF
MATERIAL FACT IN DISPUTE, THE PCR COURT
ERRED IN DENYING AN EVIDENTIARY
HEARING.

A. Legal Standards Governing Post-Conviction Relief
Evidentiary Hearings.

B. Petitioner is Entitled to an Evidentiary Hearing.

Defendant also filed a pro se brief, advancing one claim:

POINT I

PETITIONER SHOULD BE GIVEN THE
RETROACTIVE EFFECT OF State v. J.L.G. and State
v. G.E.P. AS HIS CASE WAS PENDING [ON]
DIRECT APPEAL WHILE J.L.G. WAS PENDING
REVIEW.

7 A-4515-18
 When a PCR court does not hold an evidentiary hearing, we "conduct a de

novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State

v. Harris, 181 N.J. 391, 421 (2004)). To obtain an evidentiary hearing on a

PCR petition, a defendant must establish a prima facie case for relief,

demonstrate there exist material issues of disputed fact, and show that an

evidentiary hearing is necessary to resolve the claims. R. 3:22-10(b). We

review an order declining to hold an evidentiary hearing for an abuse of

discretion. State v. Preciose, 129 N.J. 451, 462 (1992).

As defendant rests all his claims for relief on his trial counsel's alleged

ineffective assistance, we review his claims under the familiar two-pronged

standard in Strickland v. Washington, 466 U.S. 668 (1984), which our Court

adopted in State v. Fritz, 105 N.J. 42 (1987). To prevail on an ineffective-

assistance-of-counsel claim, a defendant must establish: (l) his counsel

performed deficiently and made errors so egregious he was not functioning

effectively as the Sixth Amendment guarantees; and (2) "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 687, 694.

8 A-4515-18
 I.

We first dispatch the CSAAS issue, which defendant raises in his

counseled and pro se briefs. There is no merit to defendant's contention that his

trial counsel, during a trial in 2014, was ineffective by failing to mount a

challenge to the admissibility of CSAAS testimony, which at that point had been

well-established. See Bullock v. Carver, 297 F.3d 1036, 1052-53 (10th Cir.

2002) (rejecting ineffective assistance claim "where a defendant 'faults his

former counsel not for failing to find existing law, but for failing to predict

future law'" (quoting United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542

(10th Cir. 1995) (overruled on other grounds by United States v. Flowers, 464

F.3d 1127 (10th Cir. 2006)))).

Nonetheless, defendant contends that J.L.G.'s restriction on using CSAAS

testimony should apply to his petition. 3 Defendant misconceives pipeline

retroactivity. Under that limited form of retroactivity, a new rule of law applies

to new cases, retroactively to the case in which the rule is announced, and any

cases pending on direct appeal when the rule is announced. G.E.P., 243 N.J. at

3
Defendant does not identify the basis for presenting this ground for relief,
other than ineffective assistance of counsel, but we may assume for the sake of
argument that the contention is raised under Rule 3:22-4(a)(1), permitting a
defendant to raise a "ground for relief not previously asserted [that] could not
reasonably have been raised in any prior proceeding."

9 A-4515-18
386. But, J.L.G. established the new rule pertaining to CSAAS testimony on

July 31, 2018. By that time, defendant's direct appeal was no longer pending.

We decided M.C.-A. I on August 8, 2017 and the Supreme Court denied

certification on February 2, 2018. 232 N.J. 104. Defendant could get the benefit

of J.L.G. only if the Court granted it "complete retroactive effect, applying it to

all cases, even those where final judgments have been entered and all avenues

of direct review exhausted," State v. Burstein, 85 N.J. 394, 403 (1981). That,

the Court did not do.

Defendant also argues in his pro se brief that his appellate counsel was

ineffective by failing to move to stay consideration of his petition for

certification in his direct appeal until the Supreme Court decided J.L.G., which

would have assured that it remained in the "pipeline."

We first note defendant did not raise this claim before the PCR court. See

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (recognizing that

appellate courts will decline to address issues not brought to the attention of the

trial court, unless they pertain to the court's jurisdiction or an issue of substantial

public importance); State v. Arthur, 184 N.J. 307, 327 (2005) (applying Nieder

to PCR appeal). Although we are not obliged to address the claim, we do so to

fully address defendant's CSAAS arguments.

10 A-4515-18
 Defendant's appeal was submitted on February 7, 2017, and decided six

months later. While his appeal was pending decision, the Supreme Court

granted certification in J.L.G. on March 17, 2017, and remanded for an

evidentiary hearing on CSAAS's scientific reliability. State v. J.L.G., 229 N.J.

606 (2017). An attentive and forward-looking attorney may well have

recognized the possibility of a change in the law and requested a stay of

decision. 4

But, it is uncertain that it was constitutionally deficient not to request a

stay. "The Strickland/Fritz standard may not require appellate counsel to have

the foresight to raise a cutting-edge issue or anticipate a change in the law not

evident in existing jurisprudence." State v. O'Neil, 219 N.J. 598, 616 (2014);

see also Moore v. Mitchell, 708 F.3d 760, 793 (6th Cir. 2013) (stating

"[a]ppellate counsel must be competent, not clairvoyant"). On the other hand,

one might argue the Supreme Court's remand in J.L.G. should have signaled

such a possible change in the law. See Lucas v. O'Dea, 179 F.3d 412, 420 (6th

Cir. 1999) (stating that "counsel's failure to raise an issue whose resolution is

4
For example, on July 21, 2017, we granted a motion from G.E.P.'s counsel to
stay appellate proceedings in his appeal pending decision in J.L.G. G.E.P.'s
appeal had already been submitted for decision on May 2, 2017. Thus, G.E.P.
was assured the benefit of pipeline retroactivity, although, as we have noted, it
did not result in reversal.

11 A-4515-18
clearly foreshadowed by existing decisions might constitute ineffective

assistance").

Ultimately, it is unnecessary to decide whether appellate counsel was

deficient by not requesting a stay. Even if we sua sponte stayed the direct appeal

to await decision in J.L.G. (or if the Supreme Court granted a motion to stay

decision on defendant's petition for certification) thereby assuring that the J.L.G.

rule applied to defendant's case, there is not a reasonable probability that the

result of defendant's direct appeal would have been different. We acknowledge

that if we applied the J.L.G. rule, we would hold that the CSAAS testimony in

defendant's case was erroneously admitted. That is because Edith's explanation

that she was "scared" to tell anyone about the abuse would not have been

admissible to prove a fact beyond the ken of the average juror. See N.J.R.E.

702. But, for the reasons we stated on direct appeal, the CSAAS testimony had

little, if any, impact on the jury's verdict. See M.C.-A. I, (slip op. at 13-14). We

remain "convinced" that the expert's "brief summary of the CSAAS did not

affect the outcome of this case in light of the substantial evidence of guilt and

the minor role her testimony played in the trial." M.C.-A. I, (slip op. at 13).

In particular, Edith's testimony did not reflect any of the five CSAAS

components. In fact, defendant's trial counsel highlighted in summation that the

12 A-4515-18
expert testified that a child rarely discloses abuse all at once, but Edith did.

Furthermore, Edith's testimony, which Kelly and Lucy partly corroborated,

provided a clear narrative about the abuse she had suffered for many years. Both

Edith and Lucy identified defendant as the man in the deleted pictures, which

established powerful evidence of defendant's guilt. See J.L.G., 234 N.J. at 306-

07 (erroneous admission of CSAAS evidence found to be harmless where State

provided "powerful evidence of defendant's guilt," including iPhone recording

of one instance of sexual abuse). The overwhelming strength of the State's

evidence therefore clearly outweighed any conceivable prejudice defendant may

have suffered. Therefore, defendant's petition failed to establish a reasonable

probability that but for trial counsel's failure to object (and appellate counsel's

failure to request a stay of decision on direct appeal), the results of the trial and

direct appeal would have been different. Defendant therefore failed to satisfy

his burden under Strickland's second prong. Strickland, 466 U.S. at 694.

II.

Defendant next claims trial counsel was constitutionally ineffective by

failing to adequately investigate issues defendant raised with him. "An

ineffective assistance of counsel claim may occur when counsel fails to conduct

an adequate pre-trial investigation." State v. Porter, 216 N.J. 343, 352 (2013).

13 A-4515-18
"A counsel's failure to do so will 'render the lawyer's performance deficient.'"

Id. at 353 (quoting State v. Chew, 179 N.J. 186, 217 (2004)). "[W]hen 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." State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999).

Defendant asserts trial counsel should have questioned both his wife and

his co-worker about their alleged relationship, to persuade the jury they shared

a common interest in seeing defendant sent to prison. Defendant also asserts his

counsel should have challenged the co-worker's credibility by cross-examining

him about using a false name to conceal his immigration status. Lastly,

defendant asserts trial counsel was ineffective by failing to hire an expert

witness to retrieve Edith's alleged recantation in an "email/Facebook Instant

Message," and by failing to cross-examine Edith about the alleged recantation.

These are the types of "bald assertion[s]" that are insufficient to warrant

PCR. See ibid. Defendant provides no proof that Andrew lied about his name;

moreover, defendant's counsel vigorously attacked Andrew's credibility on

cross-examination. For example, counsel established the incongruity of

14 A-4515-18
Andrew's claims that he had known defendant for seventeen years, but did not

know Lucy's name even though Lucy called Andrew after she learned of the

allegations against defendant. Counsel also asked Andrew what his name was,

and what name appeared on his driver's license.

Moreover, defendant's own testimony revealed that, although he claims to

have not trusted Andrew, defendant still appeared to support him. Defendant

stated (although Andrew denied it) that he loaned Andrew a few thousand dollars

to support Andrew's goal of owning a truck. Defendant's counsel also attempted

to question defendant about seeing Lucy and Andrew together while Lucy was

dancing at a go-go bar, but the trial judge barred the questioning as irrelevant.

Regarding the allegedly recanting email or message from Edith,

defendant provides no competent evidence the communication existed. Notably,

in the "verified petition" of his counseled petition for PCR, defendant stated only

that his allegations — including the one about the alleged recantation — were

made "to the best of [his] knowledge and belief." However, "factual assertions

based merely upon 'information and belief' are patently inadequate" under Rule

1:6-6. Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div.

1998); see also Lippmann v. Hydro-Space Tech., Inc., 77 N.J. Super. 497, 504

(App. Div. 1962) (verification "to the best of the knowledge and belief of [the]

15 A-4515-18
deponent" is defective). Furthermore, any factual assertion supporting a PCR

petition "must be made by an affidavit or certification pursuant to Rule 1:4-4

and based on the personal knowledge of the declarant." R. 3:22-10(c); see also

R. 1:4-4(a) and (b).

Also, defendant does not specify whether the message was an email or a

Facebook Instant Message — two distinct forms of communication; when it was

sent; over what device he viewed it; what prompted it (such as a request from

defendant); when he deleted it; and when he advised counsel he had done so.

He offers no certification from anyone with whom he shared the alleged

communication, nor does he provide a certification from Edith admitting she

sent the message. Although he claims defense counsel was ineffective by failing

to retain an expert to retrieve the alleged communication, he provides no

evidence that an expert could do so after whatever delay occurred between when

defendant allegedly received and deleted it.

Even accepting defendant's claim concerning the alleged email, parsed

closely, it falls short of a clear recantation. The first three sentences merely

express reluctance to testify: "I'm sorry Daddy. I didn't want to do this to you.

Mommy made me do this." They do not state Edith's accusations were false.

Even the last sentence of the supposed communication — "Mommy didn't

16 A-4515-18
believe me that it didn't happen" — is at best ambiguous. Defendant wants us

to infer that Edith tried recanting to her mother, who did not believe her. But

Edith did not say the abuse "didn't happen." Conceivably, she tried recanting

(falsely) at defendant's behest, but her mother — who identified defendant's

body in a photo depicting him sexually assaulting Edith — would not hear of it.

Finally, we are unconvinced that had trial counsel utilized the alleged

communication at trial, there is a reasonable probability the verdict would have

been different. "Courts generally regard recantation testimony as suspect and

untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976). Jurors likely do as

well. Notwithstanding any attempt to recant, Edith stuck to her guns at trial.

And her allegations were corroborated, in part, by Edith's sister and mother and

the other powerful evidence of defendant's guilt.

III.

Defendant raises two additional claims for the first time on appeal.

Defendant contends trial counsel was ineffective for failing to move to sever the

indictment into two separate trials based on counts alleging aggravated sexual

assault over the age of thirteen, and under the age of thirteen. Defendant also

asserts trial counsel failed to object to the trial court applying the wrong standard

under the Rape Shield Law, N.J.S.A. 2C:14-7(a), in denying his request to

17 A-4515-18
question Edith on her alleged sexual history with her then-boyfriend. As

defendant raised neither of these claims before the PCR court, we are not obliged

to address them for the first time on appeal. See Nieder, 62 N.J. at 234; Arthur,

184 N.J. at 327.

Nonetheless, for the sake of completeness, we will address each in turn.

A.

Defendant contends the trial court applied the wrong standard in deciding

his motion for leave to ask Edith about her sexual history with her boyfriend,

and trial counsel was ineffective for failing to object. Before denying

defendant's motion mid-trial, the court noted defendant was obligated to file a

motion pre-trial to decide the issue. Counsel conceded he had failed to do so.

Counsel also acknowledged his motion was not based on newly discovered

information, the lone statutory exception allowing a mid-trial motion.

Nonetheless, the court addressed the motion, and denied it.

The court found defendant had "not met the standard . . . demonstrating

why evidence of the victim's sexual history is relevant and highly material or

that the probative value of such evidence substantially outweighs the risk of

undue prejudice and the invasion of privacy of the victim." The court found

defendant's argument that Edith would have fabricated her claims against

18 A-4515-18
defendant to prevent the family from moving to North Carolina because she had

a sexual relationship with her boyfriend to "not [be] sufficiently probative to

outweigh the presumption that the victim's privacy is protected." Defendant

could instead argue Edith had a long-standing boyfriend that she did not want to

leave behind.

Second, with respect to the argument that her boyfriend may have been

the individual in the pictures, the court allowed counsel to ask Edith "whether

her boyfriend took the pictures or whether the victim herself took the pictures

. . . of her boyfriend or whether the boyfriend is the body in the pictures."

However, counsel could not ask additional questions surrounding any sexual

relationship Edith may have had with her boyfriend.

Defendant is correct that the trial judge applied a heightened standard that

our Court has disavowed. In State v. Budis, 125 N.J. 519, 532 (1991), the Court

held that, to avoid a clash with the Sixth Amendment's Confrontation Clause, a

court must depart from N.J.S.A. 2C:14-7(a)'s literal language. Instead of

determining whether the evidence is "relevant and highly material" and "the

probative value of the evidence offered substantially outweigh its collateral

nature," N.J.S.A. 2C:14-7(a), a court must consider whether "the evidence [is]

relevant to the defense," and "whether its probative value outweighs its

19 A-4515-18
prejudicial effect," Budis, 125 N.J. at 532; see also State v. J.A.C., 210 N.J. 281,

298-99 (2012) (same).

However, even under the applicable standard, defendant's request would

have been denied. The court struck an appropriate balance between the proposed

questioning's probative value and its prejudicial effect. Defendant was

permitted to ask if the strength of Edith's relationship with her boyfriend made

her want to stay in New Jersey. Delving further into her private life would not

have yielded any additional probative evidence.

Defendant contends "[e]vidence of [Edith's] sexual history with her

boyfriend would have allowed the jury to infer that the male who took and was

depicted in the photos was [her boyfriend] and not [defendant]." However, the

court's order allowed defendant to ask Edith whether her boyfriend was the male

in the pictures, or the male taking the pictures. If she had answered in the

affirmative, that would have established a sexual relationship between them.

Defendant thus was permitted to establish the same fact through different means.

In sum, although trial counsel did not object when the trial court applied

a heightened standard to defendant's motion, defendant suffered no prejudice.

20 A-4515-18
 B.

Lastly, we address defendant's claim that trial counsel was ineffective by

failing to move to sever counts one and three from the remainder of the

indictment. Counts one and three charged defendant with first degree-

aggravated sexual assault and second-degree sexual assault when Edith was

under the age of thirteen. Because the photos introduced at trial depicted sex

acts between defendant and Edith after she turned thirteen, defendant asserts

those pictures, which he contends were highly prejudicial, would not have been

admitted at a separate trial on counts one and three.

Defendant would have faced a high burden to secure a severance. "More

than a cavil allegation of prejudice must be offered to warrant an order for

separate trials of properly joined offenses." State v. Reldan, 167 N.J. Super.

595, 598 (Law. Div. 1979), aff'd in part, rev'd in part on other grounds,185 N.J.

Super. 494 (App. Div. 1982). "[I]f separate offenses were required to be tried

separately in all circumstances, the multiplicity of trials would disserve the State

and defendants alike." State v. Manney, 26 N.J. 362, 366 (1958). "Central to

the inquiry is 'whether, assuming the charges were tried separately, evidence of

the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)]

in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334,

21 A-4515-18
341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02

(1989)). "If the evidence would be admissible at both trials, then the trial court

may consolidate the charges because 'a defendant will not suffer any more

prejudice in a joint trial than he would in separate trials.'" Ibid. (quoting State

v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531

(1983)).

Therefore, the central inquiry concerns whether the pictures of Edith when

she was over the age of thirteen would have been admissible at a trial of just

counts one and three, charging defendant with crimes against Edith when she

was under thirteen, as "other crimes" evidence pursuant to N.J.R.E. 404(b). We

conclude they would have been admissible.

"N.J.R.E. 404(b) is a rule of exclusion." State v. Vargas, 463 N.J. Super.

598, 611 (App. Div.), certif. denied, 244 N.J. 302 (2020). "Because other-

crimes evidence has a 'unique tendency' to prejudice a jury against the

defendant, it must be admitted cautiously." State v. Gillispie, 208 N.J. 59, 85

(2011) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). To admit other

crimes evidence, the proponent must satisfy the test established in State v.

Cofield, 127 N.J. 328, 338 (1992):

(1) It must be relevant to a material issue; (2) It must
be similar in kind and reasonably close in time to the

22 A-4515-18
 offense charged; (3) The evidence of the other crime
must be clear and convincing; and (4) The probative
value of the evidence must not be outweighed by its
apparent prejudice.

[State v. Covell, 157 N.J. 554, 564 (1999).]

The pictures would have been "relevant to a material issue" as they would

have demonstrated that defendant had sexually assaulted Edith, albeit outside

the time frame of counts one and three. The pictures also would have been "clear

and convincing" evidence, as they depicted sex acts occurring between Edith

and a male that both Edith and Lucy identified as defendant. And with respect

to the second prong, "[t]he Supreme Court has made clear that the second-prong

test should be limited to Cofield-type situations and need not be given 'universal

application.'" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt.

8b on N.J.R.E. 404(b) (2020) (quoting State v. Williams, 190 N.J. 114, 131

(2007)). "Cofield involved proof that the defendant constructively possessed

certain drugs, because he possessed similar drugs shortly after the event subject

to prosecution," Vargas, 463 N.J. Super. at 613, a fact pattern not replicated

here.

Regarding prong four, we are unconvinced that the prejudice of

introducing the photos would outweigh their probative value. "[T]he

fourth Cofield prong is generally the most difficult to satisfy." Id. at 614. No

23 A-4515-18
doubt, the photographs are prejudicial. But, they were significantly probative

on several levels. The photographs would have filled an important gap in the

chronology between the assaults when Edith was a pre-teen, and her ultimate

disclosure when she was sixteen; the photographs demonstrated that the assaults

were continuing. See State v. Garrison, 228 N.J. 182, 198 (2017) (stating that

other crimes evidence in sexual assault case was material because it filled a gap

in the chronology).

The photographs also would have revealed defendant's motive and intent

to escalate Edith's abuse over many years, and his opportunity to assault Edith

in the privacy of his truck and his home when Lucy was not around. Edith

testified the abuse began when she was around nine years old. The abuse

initially involved inappropriate touching all over her body, as well as oral sex.

This continued for the next four years, until she turned thirteen, at which point

defendant then forced Edith to have intercourse. The photographs of the abuse

when she was thirteen and older would have supported Edith's testimony that

the abuse began when she was younger and escalated over the coming years.

Presumably, at a trial of just counts one and three, defendant would have

still contended his wife, his step-daughter, his co-worker and his own daughter

had lied about his sexual abuse of Edith for their own motives. The photographs

24 A-4515-18
— which were found on a camera in defendant's truck — would have been

powerful probative evidence that the sexual abuse was real.

In sum, the prejudice of introducing the photographs in a severed trial

would not have outweighed their probative value. Therefore, trial counsel's

failure to request severance of the indictment did not render his performance

constitutionally ineffective, as the motion would not have succeeded. And it is

not ineffective assistance of counsel to withhold a meritless motion. State v.

O'Neal, 190 N.J. 601, 619 (2007).

To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

25 A-4515-18