On appeal from Superior Court of New Jersey, Law Division, Essex County.
King, Gaulkin and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The issue is whether defendant was denied effective assistance of counsel because his trial counsel did not subject defendant to a lie-detector pre-test before defendant submitted, pursuant to a stipulation, to a lie-detector test administered by the Essex County Prosecutor's office.
On March 27, 1980 a jury convicted defendant of rape (N.J.S.A. 2A:138-1) and of rape while armed (N.J.S.A. 2A:151-5). Defendant was sentenced to five to seven years imprisonment on the rape charge and to a consecutive term of one to three years on the rape while armed charge. Defendant appealed and we affirmed his conviction in an unreported opinion on July 8, 1981 (Dkt. A-4111-79-T4). Defendant's petition for certification to the Supreme Court was denied. State v. Sloan, 88 N.J. 484 (1981).
On May 16, 1986, defendant filed a petition for post-conviction relief, alleging that he had been denied the effective assistance of counsel. After a hearing, the petition was denied. Defendant now appeals.
Based on the evidence, the jury could have found that on December 26, 1978, S.T. and defendant were in the Kings and Queens Bar on Halsey Street in Newark. Defendant approached
S.T. and the two began to talk. After several drinks, S.T. left with defendant who had offered to drive her to a bus stop. As they were leaving the Kings and Queens Bar, defendant suggested that they get something to eat. They stopped briefly at another tavern which did not serve food, and S.T. asked defendant to take her to a bus stop. Defendant then stated that he knew of another bar down the street which served food. While running across the sidewalk to the bar, S.T. heard what she described as a "clunk". Turning around, she observed a gun on the pavement. She asked defendant what the object was and he responded "That's my gun."
At the third bar, defendant made romantic overtures toward S.T. which were rebuffed. Following this rejection, defendant stated that he would take her home. S.T. left with defendant, believing that he was taking her to a bus stop. Instead, he took her to the Sussex Mall Shopping Plaza.
At the mall, defendant drew a gun on S.T. and indicated that he intended to have intercourse with her. Frightened, S.T. attempted to stall defendant by suggesting that they go to a motel. Defendant continued to brandish the weapon and threatened to kill S.T. if she did not get undressed. Shortly thereafter, he forced S.T. to have sexual intercourse.
Thereafter, defendant drove S.T. to a bar called Umojo's where he gave her five dollars to get a taxi. He also informed her that she could notify the police or anyone else if she wanted. Upon entering the tavern, S.T. approached a bartender, informed him of the rape and requested assistance. The bartender arranged for transportation to her home.
Initially S.T. did not tell her family about the incident. However, the following evening, she told her sister-in-law about the attack and, shortly thereafter, reported the incident to the Newark Police Department.
At trial, defendant testified that upon meeting S.T., it was his intention to have intercourse with her and that he had lied to her in his attempt to persuade her to submit to his advances. Defendant also testified that S.T. did not resist his advances
and that she seemed to be falling in love with him. But later in the evening defendant offered S.T. fifty dollars to have intercourse with him. Defendant further testified that prior to leaving the bar, S.T. asked him whether he was carrying a gun under his jacket. On direct, the defendant claimed that he merely laughed at her query and did not respond. However, during cross-examination, he sought to explain his reaction by stating that what S.T. felt was his electronic beeper.
According to defendant, S.T. agreed to have intercourse with him for fifty dollars. He testified that after taking her to the Sussex Mall and engaging in sexual intercourse there, he began to drive her home. Defendant became annoyed when S.T. asked for the fifty dollars, a sum he had no intention of paying. Defendant claimed that he stopped his car and ordered her to get out. Before he drove away, defendant gave S.T. some money to get home.
Prior to trial, defendant's counsel, Norman Fishbein, arranged for defendant to submit to a polygraph examination to be administered by the prosecutor's office. Pursuant to this arrangement, defendant and the State entered into a signed stipulation. According to the defendant's testimony at the post-conviction relief hearing, Fishbein*fn1 had not arranged for defendant to undergo a privately administered polygraph test prior to ...