On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 97-12-1897.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2007
Before Judges Weissbard and Lihotz.
Defendant R.W. appeals from the denial of his petition for post-conviction relief (PCR), alleging that he had been denied the effective assistance of counsel. We affirm.
Defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, (count one), second-degree sexual assault, N.J.S.A. 2C:14-2c (count three), second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, (count five), and fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count six),*fn1 following a second jury trial, after his 1999 judgment of conviction on the same indictment was reversed on appeal. On September 29, 2001, the trial court imposed sentence of fifteen years incarceration on the first-degree aggravated sexual assault conviction, and a concurrent sentence of seven years incarceration on the second-degree endangering conviction. The other convictions were merged. Defendant's conviction and sentence were affirmed by us in an unpublished opinion. Certification was denied.
The basic facts supporting conviction were that from approximately April 1995 to April 1997, defendant assisted his aunt in the care and discipline of her three minor adopted children: R.G., who, was age twelve in April 1995, and her two younger siblings. On the pretense that he was taking R.G. to the store, defendant, instead, took the child to his home to engage in sexual intercourse. On other occasions, when defendant took all the children to his home, he accompanied R.G. upstairs while the other children played in the basement. R.G. disclosed to her guardian, Ms. W., that defendant had been raping her.
Defendant's PCR application to the Law Division presented three bases for relief: (1) counsel did not introduce defendant's work records for the period 1995 to 1997, to prove he worked in New York City each weekday evening, rebutting the allegations that sexual assaults occurred when he took R.G. to his home after school; (2) counsel did not present character witnesses at trial to bolster defendant's credibility; and (3) counsel failed to present fact witnesses to verify the longstanding feud between defendant and Ms. W., which would explain why false claims were made against him. In addition to the claims against trial counsel, defendant asserted that appellate counsel was ineffective to the extent that the issues should have been raised on appeal and were not.
Defendant has chosen not to appeal the denial of relief based upon the failure to introduce his work records, so we will not discuss this issue further. Regarding the second assertion, defendant claimed that counsel failed to call witnesses to testify regarding his reputation for truthfulness and veracity despite being provided with a witness list. Defendant argued that he had no prior criminal convictions, and the investigation reports obtained after interviewing the proposed witnesses in support of the PCR petition revealed the witnesses were favorably disposed to discuss his good character. Since credibility was an issue, he maintained that the witnesses should have been presented. Finally, evidence that defendant had a previous disagreement with Ms. W., who was his aunt, over insurance proceeds paid after the death of defendant's father, who was also Ms. W.'s brother, was presented in the first trial, and also should have been presented during retrial.
The State argued that each of these decisions fell within the bounds of trial strategy. More specifically, the State contended that the character witnesses could not testify as to a trait pertinent to the charged offense, so it was reasonable that none were called. The dispute between Ms. W. and defendant was raised in the first trial resulting in extensive cross-examination aimed at deteriorating defendant's credibility. The first trial ended in defendant's conviction, making it a strategic decision not to present the evidence in the second trial.
The motion judge determined that an evidentiary hearing was necessary only on the issue involving character witnesses because the record did not reveal the reasons for the decision not to call such witnesses. In reviewing the arguments regarding Ms. W.'s illwill, the trial judge stated:
[S]uffice it to say, that nothing prohibited the [d]efendant, who testified at trial from introducing those facts.
In fact, the prosecutor asked the [d]efendant the following question regarding possible motivations the ...