On appeal from the Superior Court of Jersey, Law Division, Atlantic County, Indictment No. 97-07-1640.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges S.L. Reisner and Gilroy.
Defendant Angel Cremadelly appeals from a November 9, 2006 order of the trial court denying his petition for post-conviction relief (PCR). We affirm, substantially for the reasons stated by Judge Garafolo in his oral opinion placed on the record on October 26, 2006.
Defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, and third-degree terroristic threats, N.J.S.A. 2C:12-3a, in connection with an incident in which he entered his ex-girlfriend's house and molested her six-year old daughter. He received an aggregate sentence of fourteen years in prison, to be followed by community supervision for life and sex offender registration required by Megan's Law, N.J.S.A. 2C:7-2a. We affirmed defendant's conviction and his sentence on direct appeal. State v. Cremadelly, Docket No. A-3583-00 (App. Div. Nov. 19, 2003).
Defendant next filed the PCR petition which gave rise to this appeal. The petition alleged in general, without any supporting detail or legally competent evidence, that trial counsel had failed to investigate exculpatory evidence, failed to file "motions to suppress evidence," failed to effectively cross-examine the accusing witness and "demonstrate that [the] accuser had made similar false claims against petitioner in the past," that defense counsel failed to object to "exculpatory evidence" withheld by the State, that defendant's consultation with counsel was "non-existent," that the court translator was "ineffective," and that all of these issues should have been raised on direct appeal as well as at trial.
At oral argument on this PCR, defense counsel argued that defendant's sentence was illegal, in that the Megan's Law registration and community supervision for life components were "based upon aggravating factors not included in the indictment and submitted to the jury for their determination." He also argued that defendant's trial counsel was ineffective in failing to object to these components of the sentence. In addition, defendant came to court with his own brief, alleging an alibi defense. Although the alibi issue was raised for the first time at the oral argument, Judge Garafolo addressed the issue, as well as those argued by defense counsel.
In his oral opinion, Judge Garafolo concluded that none of defendant's PCR contentions were supported by any legally competent evidence. In particular, defendant did not produce any legally competent evidence to support his alibi defense, or his claim that his trial counsel did not properly "investigate exculpatory evidence."
The allegations raised by [defense counsel] really fall within . . . the . . . category of . . . bald assertions [citing State v. Cummings [321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999)]. In the brief . . . there [are] just general allegations of lack of investigation or failure to advance certain arguments . . . but without specificity.
He concluded that without any evidence in the form of "documentary proof or a certification of a witness who presumably would come to Court and testify consistent with what is presented to me," there was not a prima facie case of ineffective assistance of counsel so as to justify an evidentiary hearing on the PCR. Judge Garafolo also rejected defendant's argument that the jury had to make findings that Megan's Law would apply so as to justify imposition of ...