On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-01-00089.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Gilroy.
On January 19, 2005, a Middlesex County Grand Jury returned Indictment No. 05-01-00089 charging defendant, Richard Wood, with two counts of second degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c (counts one and four); two counts of fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b (counts two and five); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). At trial, count four was dismissed on motion at the conclusion of the State's case due to insufficient evidence of force or coercion.
On October 28, 2005, the jury returned its verdict convicting defendant on counts two and three and acquitting him on the remaining charges. At the sentencing hearing, on February 10, 2006, the court merged count three with count two and sentenced defendant to a period of five years probation on condition that he serve 180 days incarceration at the Middlesex County Adult Correctional Center. The court also ordered that defendant comply with Megan's Law and have no contact with any children under the age of sixteen, excluding his own children.
Defendant now appeals from the February 10, 2006, judgment of conviction. He raises the following arguments:
POINT I: THE FAILURE OF TRIAL COUNSEL TO REQUEST A MIRANDA HEARING TO CHALLENGE THE ADMISSIBILITY OF APPELLANT'S INCRIMINATING STATEMENT VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
A. IT WAS OBJECTIVELY UNREASONABLE FOR APPELLANT'S TRIAL COUNSEL TO NOT REQUEST A MIRANDA HEARING.
1. A REASONABLE ATTORNEY WOULD NOT HAVE DEPRIVED APPELLANT OF HIS RIGHT TO HAVE AN INDEPENDENT FACT FINDER DETERMINE THE ADMISSIBILITY OF HIS INCULPATORY STATEMENT.
2. FAILURE TO REQUEST A MIRANDA HEARING WAS NOT LITIGATION STRATEGY BUT AN UNREASONABLE OMISSION BY DEFENSE TRIAL COUNSEL.
B. APPELLANT WOULD LIKELY NOT HAVE BEEN CONVICTED BUT FOR DEFENSE TRIAL COUNSEL'S FAILURE TO ...