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State v. Cusumano

May 24, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK CUSUMANO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. 98-10-0054.

Before Judges Petrella, Collester and Fuentes.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 19, 2004

In this appeal, the principal question we are called upon to answer is whether the trial court's instructions, advising those in attendance at this criminal trial, that no persons will be permitted to leave or enter the courtroom while the adolescent victim of sexual assault was on the witness stand, unconstitutionally deprived defendant's and the public's right to a public trial. Defendant Mark Cusumano brings this issue before us in his appeal from the order of the Criminal Part denying his post-conviction relief (PCR) petition. In this PCR petition, defendant alleged ineffective assistance of counsel based, in part, on counsel's failure to object to this procedure.

We now hold that the procedure employed by the trial court here constituted a reasonable and constitutionally permissible limitation on the public's right of access. This procedure properly balanced the right of a public trial against the child victim's right to be treated with a modicum of sensitivity in this most difficult of circumstances.

I.

Defendant was convicted of second-degree sexual assault N.J.S.A. 2C:14-2c and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to a term of ten years. We affirmed his conviction on direct appeal, State v. Cusumano, No. A-7041-98 (App. Div. June 1, 2001), and the Supreme Court denied certification. 170 N.J. 89 (2001).

On March 15, 2002, defendant filed a pro se PCR petition raising ineffective assistance of counsel claims. Assigned counsel filed a brief thereafter in support of the PCR petition. The Criminal Part denied defendant's petition without an evidentiary hearing. The court determined that defendant had failed to set out a prima facie case of ineffective assistance of counsel.

Defendant now appeals raising the following arguments:

THE PETITION FOR POST-CONVICTION RELIEF ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THUS THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING

A. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

B. FAILURE TO OBJECT TO CLOSING OF COURTROOM

C. FAILURE TO ADVISE DEFENDANT OF HIS ...


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