On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 95-02-0313.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
Defendant is serving an aggregate sentence of sixty years imprisonment with a thirty-year parole disqualifier, resulting from a 1996 trial. Defendant was convicted of sexual offenses against six victims, all young boys. The offenses occurred between 1986 and 1994 at several residences in which defendant lived in Middlesex and Monmouth Counties. As to three of the victims, defendant was found guilty of one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) or (2). Those convictions served as the lead counts for defendant's sentence. The judge sentenced defendant to twenty years imprisonment with a ten-year parole disqualifier on each of those counts, and ordered that they run consecutively. Sentences on the remaining counts were ordered to run concurrently with the lead counts.
Prior to sentencing, defendant's trial counsel filed a motion for judgment of acquittal notwithstanding the verdict or a new trial. The judge denied the motions. Defendant also submitted a pro se motion for a new trial alleging ineffective assistance of trial counsel. The judge denied that motion as well, and proceeded to sentence defendant.
Defendant appealed, and in an unreported decision, we affirmed his conviction and sentence. State v. R.S., A-3299-96T4 (App. Div. Oct. 21, 1998). The Supreme Court denied certification. State v. R.S., 157 N.J. 646 (1999).
Defendant filed a pro se petition for post-conviction relief (PCR) on December 17, 2001. Assigned counsel filed an amended petition on June 24, 2005. The petition alleged various acts of ineffective assistance of trial and appellate counsel. The PCR proceeding was conducted by a judge other than the trial judge (who was then deceased). Without granting an evidentiary hearing, the judge issued a written opinion on October 27, 2006, and a corresponding order denying the PCR petition. This appeal followed.
In the appeal filed by his attorney, defendant argues:
THE DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO DO ANY MEANINGFUL INVESTIGATION OF THE CASE.
A. The investigation was clearly deficient.
B. The PCR court clearly used the wrong standard in finding that defendant had failed to establish a prima facie case of ineffectiveness.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE COURT'S SUPPLEMENTAL JURY INSTRUCTION, WHICH ALLOWED THE JURORS TO FIND SEXUAL PENETRATION BASED UPON "RUBBING THE PENIS BACK AND FORTH BETWEEN THE INNER THIGH." APPELLATE COUNSEL WAS EQUALLY INEFFECTIVE IN FAILING TO RAISE THIS OBVIOUSLY ERRONEOUS JURY INSTRUCTION AS PLAIN ERROR.
A. The trial court incorrectly allowed the jury to find sexual penetration by rubbing the penis against the victim's thigh.
B. Counsel were ineffective in failing to object to the incorrect jury instruction and in failing to raise the issue on appeal.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE COURT'S INSTRUCTION ON RULE 404(b), WHICH COMPLETELY FAILED TO TELL THE JURY THAT EVIDENCE OF THE OUT-OF-STATE SEXUAL ASSAULTS WAS "NOT ADMISSIBLE TO PROVE THE DISPOSITION OF [THE DEFENDANT] IN ORDER TO SHOW THAT HE ACTED IN CONFORMITY THEREWITH." APPELLATE COUNSEL WAS EQUALLY INEFFECTIVE IN FAILING TO CHALLENGE THE CLEARLY INSUFFICIENT LIMITING INSTRUCTION GIVEN BY THE TRIAL COURT.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBTAIN THE PRIOR TRIAL TESTIMONY OF [J.Q.] AND [D.S.], INCLUDING TESTIMONY IN WHICH [J.Q.] SPECIFICALLY DENIED THAT DEFENDANT HAD EVER TOUCHED HIM INAPPROPRIATELY AND [D.S.] WAS QUOTED AS TELLING THE POLICE THAT HE HAD NOT BEEN THE VICTIM OF ANY IMPROPER TOUCHING. IN ADDITION, COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH [S.F.] WITH HIS PRIOR INCONSISTENT TESTIMONY.
COUNSEL WAS INEFFECTIVE IN FAILING TO REBUT [J.Q.]'S AND [D.S.]'S TESTIMONY ABOUT SEXUAL ASSAULTS WHICH SUPPOSEDLY OCCURRED AT DEFENDANT'S HOME IN WOODBRIDGE FROM NOVEMBER, 1984, UNTIL MAY, 1989, BY PRESENTING PROOF THAT DEFENDANT ACTUALLY LIVED IN OLD BRIDGE AND LAURENCE HARBOR DURING MOST OF THAT TIME.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT WHEN DEFENDANT WAS BROUGHT TO TRIAL DURING JURY SELECTION WEARING THE SAME SOILED AND WRINKLED CLOTHING IN WHICH HE HAD BEEN ARRESTED.
In a supplemental pro se brief, defendant further argues:
COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A JURY INSTRUCTION ON THE ELEMENT OF TERRITORIAL JURISDICTION EVEN THOUGH MUCH OF THE TESTIMONY RELATED TO EVENTS IN OTHER STATES, INCLUDING ALLEGED SEXUAL ASSAULTS IN MARYLAND AND FLORIDA. APPELLATE COUNSEL WAS ALSO INEFFECTIVE IN FAILING TO RAISE THIS OBVIOUSLY MERITORIOUS ISSUE ON APPEAL.
COUNSEL WAS INEFFECTIVE IN FAILING TO IMPEACH [D.S.] AND [J.Q.] WITH EVIDENCE THAT DEFENDANT HAD FILED CRIMINAL CHARGES AGAINST THEM FOR STEALING ABOUT $22,000.00 WORTH OF GOODS FROM HIS APARTMENT AFTER HIS ARREST.
COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT AVAILABLE MITIGATING EVIDENCE AT DEFENDANT'S SENTENCING.
We reject these arguments and affirm.
At the time of trial, defendant was forty-six years old. He moved to Woodbridge Township (Hopelawn) in 1985 to open a karate school. He moved to Laurence Harbor in Old Bridge Township sometime between the spring of 1987 and the spring of 1988. He lived there with his "common law" wife and her son. In June 1989, he moved to Matawan Terrace Apartments, and then in 1990 to Barrington Gardens in Aberdeen.
During the span when these crimes occurred, defendant made it a practice of befriending young boys who had no father in the home and typically who were troubled in some way. Some of the boys stayed with him overnight from time to time. Others lived with him for extended periods. He took some of the boys on trips out of state, including to Maryland and Florida.
Defendant focuses on the three lead counts we have mentioned, in which he was convicted of first-degree aggravated sexual assault. More particularly, count one charged that in August 1994 in Aberdeen defendant committed an act of sexual penetration with S.F., who was less than thirteen years old; count twelve charged that between September 1, 1990 and July 31, 1994 in Aberdeen defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old or when D.S. was at least thirteen but less than sixteen years old and defendant had supervisory or disciplinary power over D.S.; count eighteen charged that between November 19, 1984 and May 31, 1989 in Woodbridge defendant committed an act of sexual penetration with J.Q. when J.Q. was less than thirteen years old or when J.Q. was at least thirteen but less than sixteen years old and defendant had supervisory or disciplinary power over J.Q.
Defendant was also charged with two other counts of first-degree aggravated assault against D.S. Count six charged that between October 17, 1985 and May 31, 1989 in Woodbridge defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old. And count nine charged that between June 1, 1989 and August 31, 1990 in Matawan and/or Aberdeen defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old. The jury acquitted defendant of counts six and nine.
Each of the six boys testified at trial, as did defendant. Defendant denied any sexual conduct at any time with any of the boys. In our prior opinion, we summarized the sexual misconduct alleged by each victim, as described in their trial testimony. We repeat those summaries here:
S.F. was twelve years old when the alleged incidents took place in 1994. At that time he lived in Staten Island, New York with his mother. S.F. met defendant in May 1994 and knew defendant as "Sam." Defendant informed S.F. that he was a police officer and a karate teacher. He befriended S.F. and often took S.F. on trips to flea markets, carnivals and amusement parks. Defendant also took S.F. on trips to Maryland and Florida as well as to defendant's home. In May 1994, defendant took S.F. and his brother to Cumberland, Maryland during Memorial Day weekend. On the first night of this trip, S.F. went to bed next to his brother who slept next to defendant. When S.F. awoke, defendant was next to S.F. On the second night, defendant slept next to S.F. and placed his hand under S.F.'s underwear and rubbed his hand on S.F.'s penis for about five to ten minutes. The next night, defendant also slept next to S.F. and rubbed S.F.'s penis for about five to ten minutes.
Defendant took S.F. on a 10 day trip to Gainesville, Florida during the July 4 weekend in 1994. During the first night, while S.F. slept on the floor, defendant rubbed his hand on S.F.'s penis. On the third night, S.F. awoke again to find defendant rubbing his hand on ...