On appeal from Superior Court of New Jersey, Law Division, Camden County, Ind. No. 00-11-3466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Fuentes and Chambers.
In this appeal of the denial of defendant's application for post-conviction relief, defendant contends that he was denied effective assistance of post-conviction relief counsel.
On May 25, 2001, defendant was convicted by a jury verdict of second-degree attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3) (count two); first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1) and/or (2) (count three); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count five); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a) and/or (b) (count six); fourth-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5) (count nine); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count ten).
Defendant received an aggregate sentence of thirty-five years with fifteen years of parole ineligibility. Count six (terroristic threats) was merged into count five (aggravated assault), and count nine (aggravated assault on a police officer) was merged into count ten (resisting arrest). The requisite fines, penalties and assessments were imposed, and restitution was ordered in the sum of $1,808.
The conviction and sentence were affirmed by the Appellate Division on February 20, 2003, with the exception of an adjustment in the sentence to allow the sentence on count five to run concurrent with the other convictions. This adjustment did not change the aggregate sentence noted above. Defendant's petition for certification was denied by the Supreme Court on July 3, 2003.
On September 12, 2003, defendant filed a pro se Petition for Post-Conviction relief. Appointed counsel filed a letter brief in support of the application on August 14, 2006. The application was denied on November 3, 2006. This appeal followed.
Defendant's conviction arises out of the assault upon a woman on August 20, 2000. On that day, the victim had gone to a bar with defendant, whom she knew casually. About an hour after she dropped defendant off and went home, defendant appeared at her door purportedly to borrow five dollars. She testified that he thereafter attempted to sexually assault her at knife point, attempted to strangle her, and beat her in the face. After the attack, she sought help from neighbors. Her jaw and face were so badly swollen that the responding police officer found it difficult to understand what she was saying, her arms and legs were bloody, she was wearing only a shirt and underwear, and a neighbor described her as "more crawling than she was walking" and stated that she looked like she had been beaten up. The police found blood stains throughout her apartment. Defendant was seen by the neighbor leaving the victim's apartment shortly after the attack. Blood stains were found on clothing in defendant's home, and the victim's cell phone was also found in his home.
Defendant, who testified at the trial, contended that the victim had become intoxicated when she went to the bar with him. He testified that when he went to the victim's apartment about a half-hour later, she became sexually aggressive with him and charged at him with a knife, and when he attempted to defend himself, they both fell.
Post-conviction relief counsel argued before the trial court that trial counsel had been deficient in failing to introduce evidence that the victim was intoxicated at the time of the alleged attack. Evidence of her intoxication would impugn the credibility of her testimony. See State v. Wormley, 305 N.J. Super. 57, 67 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998). When denying the application for post-conviction relief, the trial court noted that defendant had come forward with no evidence that trial counsel should have produced.
In this appeal, defendant raises the following issue: "Defendant was denied the effective assistance of post-conviction relief counsel." Defendant maintains that post-conviction relief counsel was deficient for failing to produce the evidence of the victim's intoxication. He contends that post-conviction relief counsel should have obtained the victim's treatment records or sought a statement from the bartender and other patrons of the bar to confirm defendant's contention that the victim was intoxicated.
On appeal, the deficiency noted by the trial court is still present. No evidence has been presented indicating that such statements are available. Further, the medical ...