On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Burlington County, Ind. No. 84-09-0681.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2008
Before Judges Grall and Chambers.
After a second trial, defendant was found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count five); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count six); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count seven); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (count eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine); and second-degree burglary, N.J.S.A. 2C:18-2 (count twelve). Counts six, seven, and eight were merged into the conviction for aggravated sexual assault, and defendant received an aggregate sentence of thirty years, consisting of twenty years on the aggravated sexual assault conviction, a concurrent sentence of five years on the conviction for possession of a weapon for an unlawful purpose, and a consecutive sentence of ten years for the burglary conviction.
Defendant now appeals from the denial of his application for post-conviction relief. We affirm for the reasons set forth by the trial judge in his written decision.
These convictions arise from a sexual assault that took place on July 12, 1984, at a private home in Florence. The victim was asleep on the couch in the middle of the night when an intruder entered the house and sexually assaulted her. While the victim did not see the face of the intruder, she was able to provide a description of his clothing, his general build, age, and ethnicity. She also had heard his voice, and she advised the police that he had a strong body odor. The next day, when defendant was arrested, the arresting officer noted that he had strong body odor and that his clothing matched the description provided by the victim. The victim identified defendant in a voice lineup. The victim also identified defendant's clothing. However, no fingerprints, hair samples or other physical evidence taken from the scene matched defendant. Defendant testified at trial, denying the charges and maintaining that he was home at the time.
Defendant's first trial arising from these events resulted in a conviction that was overturned by the Appellate Division. State v. Harris, No. A-2191-85T4 (App. Div. February 26, 1987) (slip op. at 18). Defendant was retried and on August 7, 1987, he was convicted of the charges noted above. However, the recording of the voice lineup was not included in the evidence in the second trial because it had been lost by the trial court after the first trial, and was not found until after the second trial was concluded. On January 12, 1988, defendant was sentenced. The judgment of conviction was affirmed on direct appeal by the Appellate Division. State v. Harris, No. A-3022-87T4 (App. Div. February 14, 1990) (slip op. at 7). Certification was denied by the Supreme Court. State v. Harris, 122 N.J. 187 (1990).
On September 22, 1987, shortly after the second trial, defendant's sister executed an affidavit providing an alibi for defendant, stating that he was at home in bed on the night of the crime. She further stated that she had discussed this fact twice with defense counsel, but he advised her that her testimony would not be helpful since she would be viewed by the jury as a biased witness. Defendant's sister is now deceased and so is no longer available as a witness.
Over ten years later, in March 1998, defendant filed his petition for post-conviction relief pursuant to Rule 3:22. That petition was dismissed without prejudice for procedural reasons on September 17, 1999. The petition for post-conviction relief was not refiled until September 25, 2003. Defendant attributes the gap in time due to delays in having counsel assigned to him by the Public Defender's Office. The trial court denied the application for post-conviction relief in a written opinion dated February 10, 2006. This appeal followed.
Defendant raises the following issues in this appeal:
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE CONSIDERED ON THE ...