On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-02-0234.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Graves.
Defendant, S.R., appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In 1996, defendant was indicted for the following offenses: two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one and two); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts three and four); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts five and six); and two counts of fourth-degree child abuse, N.J.S.A. 2C:9:6-1 and N.J.S.A. 2C:9:6-3 (counts seven and eight).
On November 21, 1996, defendant waived jurisdiction from the Juvenile Division to the Law Division pursuant to N.J.S.A. 2A:4A-27 and R. 5:22-1. Tried before a jury from June 30 through July 2, 1997, defendant was convicted on all counts. On January 8, 1998, the judge sentenced defendant as follows: on count one, to a term of twenty years, ten years to be served without parole eligibility; count two, to a term of twenty years, with ten years of parole ineligibility to be served concurrent to count one; count five, to a term of five years, two and one-half years of parole ineligibility to be served concurrent to counts one and two; and, count six, to a term of five years, two and one-half years of parole ineligibility to be served concurrent to counts one, two and five.*fn1 Counts three, four, seven, and eight were merged with his other convictions.
Defendant filed a timely appeal arguing prosecutorial misconduct, merger of the aggravated sexual assault and endangering convictions, and that his sentence was excessive. In an unpublished opinion dated June 25, 1999, we affirmed defendant's convictions and sentences, but remanded for amendment of the Judgment of Conviction to reflect the merger of counts five and six into counts one and two. Defendant's Petition for Certification was denied.
On or about December 18, 2002, defendant filed a pro se PCR petition. By order of October 10, 2003, the petition was dismissed without prejudice. Defendant, represented by counsel, re-filed the petition on February 13, 2004. After a hearing on October 1, 2004, the petition was denied.
At some point between October 1, 1989 and October 1, 1990, the victim, C.M., alleged that defendant had sexually assaulted him on two separate occasions. At the time of the first assault, C.M. was approximately three and one-half years old and was at his home with defendant, a juvenile at the time, who is C.M.'s cousin. C.M. testified at trial that defendant "told [C.M.] his private part was [a] bottle, and [he] make [sic] me suck it." Defendant then told C.M. not to tell anyone what had happened.
Approximately one year later, when C.M. was four and one-half years old, defendant's mother was baby-sitting C.M., as she did during the week from about 7:00 a.m. until 2:30 p.m. each day. Defendant, who was normally at school during this time, happened to also be in the apartment while his mother was baby-sitting. C.M. testified that while defendant's mother was sleeping, defendant asked him if he wanted to play his football game on his Nintendo. After C.M. agreed, defendant pushed him onto the bed and took off his clothes. Defendant then inserted his penis into C.M.'s anus and "moved up and down." C.M. then ran out of the room screaming. Defendant warned C.M. that if he told anyone what had happened he "was going to get [him]."
Several months after the second incident, C.M. began having "nightmares" and "bad dreams and thoughts" about the incident with defendant. After one of these nightmares, while seeking comfort from his mother, C.M. told his mother, D.M., what had taken place between him and defendant. D.M. testified that C.M. told her that defendant "made him suck on his private parts" and had "tried to put his [the defendant's] private parts in [C.M.'s] backside." D.M. then told this to C.M.'s father, who confronted defendant's mother, his aunt, about the incident. After denials from defendant and his mother, no report was made to the authorities.
Approximately five to six years after the assault took place, C.M. participated in a Child Abuse Prevention program (CAP) sponsored by his elementary school, during which time C.M. learned about different types of child abuse, what to look out for, and who to turn to when abused. Following the program, C.M. approached one of the administrators of the program and told them that he had been abused by his cousin. The CAP personnel referred C.M.'s claims to DYFS, which in turn referred the claim to the Pleasantville Police Department.
On March 30, 1996, Lt. Walter Coleman of the Pleasantville Police Department interviewed C.M. and arranged for Investigator Theresa Constantini of the Atlantic County Prosecutor's Office to take a videotaped statement from C.M. that was admitted into evidence at defendant's trial.
In April 1996, C.M. was examined by Dr. Martin A. Finkel, an expert in the area of child sexual assault and child abuse. C.M. told Dr. Finkel that defendant "stuck his penis in my buttocks and he went up and down." Dr. Finkel then showed C.M. an anatomical model and C.M. indicated "penetration into the anal/rectal canal." With regard to the first incident, C.M. told Dr. Finkel that when he was three-years-old, defendant made him suck on his penis. Regarding the second incident, C.M. told Dr. Finkel that defendant told C.M. that they would play a game, but that instead defendant pushed him on the bed and pulled his pants down.
Dr. Finkel found C.M.'s statements to be truthful based on the concrete nature of his statements and his comparison of the pain caused by the second incident to a suppository or when he had a bowel movement. Additionally, most children C.M.'s age would not have specific knowledge about the sexual acts performed on him, absent having the acts actually performed or having been exposed to sexual experiences. Dr. Finkel's physical examination of C.M. revealed no findings of injury, as was to be expected in light of the lapse of time between the assaults and the report of abuse.
Defendant testified at trial and denied all the allegations. The defense presented testimony that C.M. and defendant had had contact at numerous family functions over the years, had played together, and that no one had ever witnessed any discomfort or fear of the defendant on C.M.'s part. The defense also presented the alternate theory that the story was fabricated ...