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State v. G.U.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
G.U., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 01-01-0029-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Judges Skillman and Winkelstein.

Defendant G.U. appeals from a June 19, 2006 order denying his petition for post-conviction relief. We affirm.

Following a jury trial in August 2001, defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The jury acquitted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The trial judge, Judge Anzaldi, merged the convictions for sentencing and imposed an eight-year prison term. Defendant was also ordered to register and comply with Megan's Law. N.J.S.A. 2C:7-1 to -19.

On direct appeal, defendant raised the following points:

POINT I

THE TRIAL COURT'S JURY CHARGE INTENDED TO BREAK THE DEADLOCK CONSTITUTES REVERS[I]BLE ERROR.

POINT II

THE ADMISSION OF THE FRESH COMPLAINT TESTIMONY CONSTITUTES REVERS[I]BLE ERROR. (Not raised below).

POINT III

DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT RECOGNIZED INAPPROPRIATE AGGRAVATING FACTORS. (Not raised below).

We affirmed defendant's conviction, State v. G.U., A-3943-01 (App. Div. Oct. 10, 2003), and the Supreme Court denied his petition for certification. State v. G.U., 178 N.J. 376 (2003).

In defendant's post-conviction relief petition, he alleged that trial counsel was ineffective for "not conducting a thorough investigation into the allegations after being provided with several request[s] such as but not limited to witnesses and character witnesses." Defendant also raised a question concerning his sentence.

After hearing argument from defense counsel and the State, Judge Anzaldi denied defendant's petition. The judge concluded, among other things, that the evidence was insufficient to infer that defense counsel failed to perform a proper investigation. The judge reviewed the letters from the proposed character witnesses and determined that calling the witnesses may not have been beneficial to defendant given the potential detriment of their cross-examinations. Thus, the court concluded that counsel was not ineffective for not calling those witnesses at trial.

On appeal to this court, defendant raises two points:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

We have given careful consideration to defendant's arguments in light of the record and the prevailing law. We conclude that his arguments for post-conviction relief are without merit, and we affirm substantially for the reasons expressed by Judge Anzaldi. Defendant has not established a prima facie case of ineffective assistance of counsel. He has not demonstrated either that counsel's performance was deficient or that, if it was deficient, there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984). Defendant's arguments are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20071231

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