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State v. Cremadelly

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 9, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGEL CREMADELLY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of Jersey, Law Division, Atlantic County, Indictment No. 97-07-1640.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 community supervision and notification. He concluded that the jury's verdict automatically carried those consequences.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. The Trial Counsel Failed To Conduct An Adequate Investigation.

B. The Trial Counsel Failed To Cross-Examine In An Effective Manner.

C. The Trial Counsel Failed To Consult With Defendant.

D. The Trial Counsel Failed To File Crucial Motions.

E. The Trial Counsel Failed To Ascertain The date And Time Of The Alleged Offenses.

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV: THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT V: THE IMPOSITION OF THE SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

POINT VI: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT VII: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE CHARGE TO THE JURY WAS IMPROPER.

POINT VIII: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT IX: THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Having reviewed the record, we conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comment.

We agree with Judge Garafolo that defendant did not submit any legally competent evidence to support his PCR contentions and there was thus no basis to conduct an evidentiary hearing on his PCR petition. See Cummings, supra, 321 N.J. Super. at 170 ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984); State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

20071109

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