On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 98-10-0960.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
This is an appeal from the denial of a petition by defendant, Andre Simpson, for Post-Conviction Relief (PCR). Defendant was charged under Passaic County Indictment No. 98-10- 0960 with third-degree criminal restraint, N.J.S.A. 2C:13-2a (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and third-degree terroristic threat, N.J.S.A. 2C:12-3a and/or N.J.S.A. 2C:12-3b (Count Four). Following a five-day trial, a jury found defendant guilty of Counts One, Two, and Four. Defendant was also found guilty of third-degree assault, a lesser-included offense under Count Three. The jury also answered in the affirmative a special interrogatory, finding that defendant committed sexual assault by use of physical force and coercion.
On July 11, 2001, defendant was sentenced to an extended term of twenty years with eighty-five percent parole ineligibility to be served at the Avenel Adult Diagnostic and Treatment Center, pursuant to N.J.S.A. 2C:47-1. In an unreported opinion, we affirmed defendant's conviction. The Supreme Court denied defendant's petition for certification on December 12, 2002.*fn1 Defendant, thereafter, filed a pro se petition for PCR and, on April 21, 2006, counsel for defendant submitted an amended PCR petition in support of defendant's application. On appeal, defendant essentially asserts ineffectiveness of trial counsel, trial errors, and prosecutorial misconduct. We reject defendant's contentions and affirm.
The underlying facts reveal that on July 20, 1998, defendant and T.G. stopped at T.G.'s residence so that T.G. could pick up some papers that she needed. Defendant and T.G. had a prior romantic relationship, which T.G. ended in February 1996 upon learning that defendant was having homosexual relations with Effrain Gonzales. T.G. asked defendant to wait outside while she went into her apartment. Despite T.G.'s request for him to wait outside, defendant eventually entered the apartment and proceeded to block T.G. from leaving the bedroom.
He physically forced T.G. into the bedroom, slammed the door behind him, and pushed her onto the bed with his hands around her neck. After threatening that he would kill her if she did not undress, defendant grabbed T.G.'s cat by the throat and stated that he would not release the cat until T.G. got undressed. T.G. complied, took off her clothes, and laid flat on her stomach on the bed. Standing above her, defendant began choking T.G. and holding her head down in a pillow. He yelled, "if I can't have you, no one is going to have you."
Securing T.G. by using one of his legs, defendant attempted to put on a condom. T.G. however managed to get free and ran into the bathroom where she locked the door and stood in the bathtub. Defendant kicked in the door, pushed T.G. down into the tub, and forced his penis into her mouth and his fingers into her vagina. When defendant stopped to answer the telephone, T.G. ran downstairs to her cousin's apartment and banged on the door. Although T.G.'s cousin did not open the door, the police were called. Defendant eventually fled the scene before police arrived. An officer observed that the bathroom door was off one of its hinges and the shower curtain had been pulled down.
Defendant claimed in his amended PCR petition that: (1) his motion for mistrial should have been granted because the victim was seen sitting outside of the courtroom with jurors prior to reconvening the court session after the lunch break; (2) he was wrongfully excluded from the jury selection process, particularly by his counsel's failure to peremptorily challenge two jurors; (3) the trial judge improperly permitted the State to introduce into evidence a sexual device, known as a "bracelet" or "leather strap," found at the scene, as well as testimony from the prosecutor's investigator who ascertained from an adult bookstore clerk that the item was a sexual device; (4) the prosecutor engaged in misconduct in her summation; (5) his trial counsel was ineffective for not calling Gonzales and defendant's former fiancée, B.V., as witnesses, and was unprepared for trial by registering surprise when the State called Sharon Herman as a witness.
The judge held an evidentiary hearing limited to defendant's claims that he was shut out of the jury selection process and received ineffective assistance of counsel by his attorney's failure to call Gonzales as a witness. Following the hearing, the judge issued a written opinion. He credited trial counsel's testimony that, although he could not remember whether defendant asked him to excuse jurors, had defendant expressed a desire to take a certain individual off the jury, he would have complied with that request. The judge found that defendant was not shut out of the jury selection process as he claimed.
The judge also accepted defense counsel's testimony that, based upon counsel's investigation and interview of Gonzales, Gonzales would not withstand the rigors of cross-examination and that he would "in essence" corroborate the victim's story because his relationship with defendant "was not any new news to the victim." The judge found that defense counsel's strategy not to call Gonzales as a witness was sound and in keeping with his fifteen years of experience with the Public Defender's Office. Regarding defendant's remaining contentions, which were not the subject of the evidentiary hearing, the judge determined that either defendant failed to present a prima facie case or the issues were addressed on direct appeal, or were not sufficiently prejudicial to affect the results of the trial in view of the extensive evidence of defendant's guilt.
On appeal defendant raises the following points:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND ...