On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment No. 04-12-1669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Holston, Jr.
Defendant, L.I.H., was convicted on December 10, 2004 by a jury on Middlesex County Indictment No. 04-12-1669 of fourth-degree criminal sexual contact on diverse dates between November 1 and November 15, 2003, contrary to N.J.S.A. 2C:14-3(b) (count one) and third-degree endangering the welfare of a child on diverse dates between November 1 and November 15, 2003, contrary to N.J.S.A. 2C:24-4(a) (count two). Defendant had been convicted of lewdness, based on a plea of guilty seven years prior. After an Adult Diagnostic and Treatment Center (ADTC) determination of repetitiveness and compulsiveness, defendant was sentenced on June 3, 2005 to a four-year term of imprisonment at the ADTC on the third-degree endangering the welfare of a child charge. The court merged the fourth-degree criminal sexual contact into the third-degree endangering charge for sentencing purposes. Defendant appeals both his conviction and sentence. We affirm.
The jury found defendant had engaged in conduct, which would debauch the morals of a child under the age of sixteen. Defendant was age thirty nine. The child was the thirteen-year-old daughter of defendant's live-in girlfriend. During the last two weeks before defendant and his girlfriend broke up, the events underlying the offenses occurred. The minor alleged that defendant told her that for $200 he would have sexual relations with her and for $100 he would have sexual relations with her friend. He also disclosed to the minor aspects of his sex life with her mother and asked her about her physical relationship with her twelve-year-old boyfriend. Defendant told the minor that he was older, more experienced, and would be better able to satisfy her sexually. He then put his hands on the inside of her thigh.
On another occasion when the minor was taking a ride with defendant, he offered her a beer, which she refused. He attempted to put the bottle in her mouth, spilling the beer down her front.
At the time defendant and his girlfriend broke up, each had obtained a domestic violence restraining order against the other. Additionally, defendant was indicted for burglary and terroristic threats against his girlfriend, but the indictment was dismissed. All of the domestic violence restraining orders were also dismissed.
Defendant raises three points for our consideration: (1) he was denied effective assistance of counsel; (2) the prosecutor's misconduct denied him due process of law; and (3) his sentence is manifestly excessive.
Defendant contends his trial counsel failed to effectively present the prior criminal charges brought by his girlfriend against him for terroristic threats and burglary, which were dismissed by the prosecutor, and failed to present the domestic violence complaints by his girlfriend, which were also dismissed. Defendant claims evidence of these events would have helped him to demonstrate that the minor's allegations of improper sexual contact by him against her were part of a conspiracy between the minor and her mother to harm him. Defendant contends that had trial counsel placed the minor's allegations in the context of a pattern of harassment by her mother that he would have been acquitted. Defendant claims that his trial counsel could have elicited this information from defendant himself, when he testified in his own defense. As a result, defendant asserts that he was not afforded the opportunity to explain those unfounded allegations.
Defendant also contends that the investigating officer, Detective Reilly, who confirmed that the victim's mother had made other complaints against him, could have been cross-examined concerning those unfounded allegations. Defendant claims that had his trial counsel taken the opportunity to demonstrate the minor's mother's harassment, the jury would have concluded that the minor fabricated the claims that gave rise to his conviction, in order to further the interests of her mother.
Defendant must establish two elements to show that he was denied effective assistance of counsel. First, defendant must show by identifying acts or omissions that his trial counsel was deficient, failing to fulfill the counsel guarantee of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 90 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). With respect to deficient performance, the Court in Strickland, supra, held that the defendant challenging assistance of counsel must demonstrate that ...