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State v. Velez

March 13, 2000

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINGO VELEZ, JR., DEFENDANT-APPELLANT.



Before Judges Baime, Brochin and Eichen.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, 2000

On appeal from Superior Court of New Jersey, Law Division, Cumberland County.

Following a protracted trial, defendant was acquitted of two counts of aggravated sexual assault (N.J.S.A. 2C:14-2a(1) and (3)), but was convicted of second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), first degree kidnaping (N.J.S.A. 2C:13-1b), and fourth degree endangering the welfare of a child (N.J.S.A. 2C:24-4a). We affirmed defendant's convictions in an unreported opinion, but remanded the matter to the Law Division to correct an illegal sentence. Defendant was ultimately sentenced to sixty years imprisonment with a thirty year parole disqualifier. After our affirmance of the corrected sentence, defendant filed a pro se petition for post-conviction relief. The Law Division denied defendant's petition, and he now appeals. We hold that defendant was denied the effective assistance of counsel in the post-conviction relief proceedings.

I.

We need not recount the facts at length because they are described in detail in our earlier opinion. Suffice it to say, the three year old victim was abducted from her home and beaten and raped. Even to seasoned judges hardened to society's pathology, this case is marked by the outrageous brutality of the sexual attack. The victim was indeed a pitiful figure and was found to be incompetent to testify.

In the early morning hours of February 22, 1992, Terry Robinson was awakened by a barking dog. Upon opening the front door, he observed the battered and bruised victim. When asked whether her "daddy" had done this to her, the child nodded in the affirmative. The victim also indicated that she had been attacked in the woods adjacent to Robinson's house.

The police were summoned and the victim was transported to the hospital. There was no question but that the child had been beaten and raped. Pine cone needles were matted in her hair, her face was bruised and bloodied, a patch of hair had been ripped from her scalp, her hymen had been penetrated, and there was a deep laceration from the back of her vagina to the front of her anus.

The police were later contacted by the victim's aunt, Mildred M., who indicated that the child had been abducted from her bedroom the night before. Eventually, the child's mother, Diane M., was located and appeared at the hospital. When asked who had beaten her, the victim responded, "Junior." Diane identified "Junior" as defendant, her sister Betty's boyfriend. Defendant had visited Mildred's house several hours before the abduction of the victim. He appeared drunk and left. The child identified defendant's picture from a photographic array. Upon seeing defendant's photograph, the child's demeanor changed "drastically" and she began to cry. In subsequent interviews with a sexual assault specialist, the victim indicated that defendant was not alone when she was attacked. She asserted that "daddy" and other "monsters" were with defendant.

The man who the victim described as "daddy" was never apprehended or identified. The police ruled out the child's biological father who visited her at the hospital and who was warmly greeted by her. The victim's mother had engaged in a four month relationship with a man the child called "daddy," but he had moved out of her residence. Diane indicated that she knew the man as "Freddy" and never learned his last name.

Defendant was arrested and gave a written statement. The defense was one of alibi. Defendant claimed that he was at his girlfriend's house on the date the crimes were committed. At trial, defendant's statement and testimony were corroborated by his girlfriend. However, the prosecution called a surprise witness, Corrections Officer Keith Fauconniere, who testified that while defendant was being "processed" in jail, he confessed "[he] did it." According to Fauconniere, defendant asked, "[s]o what's the big deal," "it's only a little kid." Fauconniere claimed that he did not volunteer this information before trial because he had "always been told not to get involved with any criminal investigations or interviews."

We briefly describe the police investigation. The police found several items at the scene of the crime. Although pine needles similar to those in the wooded area in which the crimes were committed were found in defendant's car, none of the other tangible evidence implicated defendant. Semen found in a condom discovered at the scene was subjected to DNA testing and was determined not to be that of defendant. Semen found in a second condom was tested, but the results were inconclusive. Semen on the victim's pants was conclusively found not to be that of defendant. Semen on the child's sweatshirt and pants was tested, but like the semen in the second condom, the results were inconclusive. A blonde pubic hair found on the child's pants was that of a Caucasian. Defendant is a dark-haired Hispanic.

Much of the trial was devoted to the physical evidence. Defendant's attorney argued vigorously that this evidence excluded defendant as a suspect and bolstered his alibi defense. In ...


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