On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 90-10-2764.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Lefelt.
Defendant Thomas Card is serving a lengthy prison sentence for first-degree aggravated sexual assault, two counts of second-degree sexual assault, and second-degree endangering the welfare of a child. In this matter, he petitioned for post-conviction relief (PCR) advancing, among other contentions, that a new trial was necessary because of the trial court's erroneous fresh complaint instruction. On appeal from Judge Venable's denial of PCR, defendant restructured his fresh complaint argument by contending that "[State v.] P.H.[, 178 N.J. 378, 397 (2004), decided ten years after defendant's trial] should be applied to this case and defendant should receive a new trial."
On defendant's direct appeal, we determined that the trial court's fresh complaint charge "was appropriate and correct in the context of the trial strategies defendant was employing and with due regard for defendant's requests to charge." Accordingly, Judge Venable correctly found that defendant's PCR petition was barred under R. 3:22-5, as a defendant may not use a PCR petition to re-litigate a claim already decided on the merits. State v. McQuaid, 147 N.J. 464, 484 (1997).
Furthermore, defendant's attempt to restructure his fresh complaint claim as a retroactive application of P.H., supra, 178 N.J. at 397, fails because the case did not articulate a "new rule of law," which is necessary to invoke retroactivity analysis. See State v. Purnett, 161 N.J. 44, 53 (1999). State v. P.H. was far from a "sudden and generally unanticipated repudiation of a long-standing practice." Ibid. (quoting State v. Afanador, 151 N.J. 41, 58 (1997)). Additionally, the trial court's charge in this case did not present the stark inconsistency involved in P.H. that engendered jury confusion requiring redress, but instead was appropriately tailored to the testimony that had been presented.
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