On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sapp-Peterson.
Defendant appeals from an order of December 14, 2006, denying his petition for post-conviction relief (PCR). He had been convicted of two counts of attempting to lure and entice a nine-and-a-half year old, C.P., and a twelve-and-a-half year old, J.H., into a car to commit an offense, contrary to N.J.S.A. 2C:13-6. In denying a motion for judgment of acquittal at the trial, the judge concluded that there was sufficient evidence to reasonably infer that defendant "tried to entice or lure the children . . . into the car" and that defendant's "purpose was to have sexual contact with these children."
Defendant received concurrent sentences aggregating eight years, with four to be served before parole eligibility -- the extended term sentence imposed on one of the counts. On his direct appeal, we rejected arguments directed to the sufficiency of the evidence and the prosecutor's comments to the jury, and concluded that the identifications were not unduly suggestive and were reliable. We also upheld the discretionary extended term sentence. See N.J.S.A. 2C:44-3a, 44-5a(2).
Defendant now claims he was denied "effective assistance of counsel." With two exceptions, we reject the contention and defer to the trial judge's conclusion, based on his observations at trial, that counsel's conduct did not rise to the level of depriving defendant of the effective assistance of counsel within the meaning of the two-part test embodied in Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674,695 (1984), and State v. Fritz, 105 N.J. 42, 58 (1985).
Defendant claims trial counsel was ineffective for "failure to apply for ancillary services" from the Public Defender because he failed to obtain transcripts of pretrial statements for the purpose of impeaching the witnesses. However, the trial judge found on the PCR that defendant failed to point to any significant inconsistent statement which could have made a difference in the outcome. We cannot disagree. The same can be said about counsel's cross-examination of witnesses and failure to object to testimony. This is particularly so because, in the judge's words, this was "an overwhelming case in terms of the strength of the state's proofs."
During cross-examination of three young females - ages eleven, twelve and thirteen - trial counsel elicited testimony from each that she could not explain the difference between the truth and a lie. On the appeal, we rejected an argument regarding the victims' lack of truth-telling capability and stated "the victims' full testimony evidences their knowledge of the difference between the truth and a lie." Defendant then argued on PCR that trial counsel should have objected to this testimony and an evidentiary hearing should be granted due to trial counsel's failure to object to their competency to testify. The PCR court addressed defendant's argument:
[A] specific reference is made by counsel to . . . the failure to follow up on the statements made concerning ability to discern the truth from lies. I believe the Appellate Division did have before it a sufficient record to make an assessment, did make that assessment, which is not contrary to my own, that these were not children of tender years that would compel needing at the outset some examination and findings of their competency.
They took the stand, and I believe 10 or 11 years of age, I believe the law would allow their competency to be presumed and they did display a very capable ability to answer the questions forthrightly appropriately, coherently, and cogently, actually.
The issue that Mr. Mills raises today is, had there been a more thorough searching -- or search made as a result of what they said, . . . there might have been a better record from which the Appellate Division could have made that assessment, but that is entirely speculative. It is hard to envision that, given the substance of the testimony of these girls, that the Court would have found that they were not capable of truth telling or understanding . . . the obligation to tell the truth. And I don't -- don't think that, you know, the Court can consider granting relief today on mere speculation alone.
Defendant offers no explanation of how trial counsel would have succeeded in attacking capacity had he objected or sought a hearing before they testified. On the defendant's appeal we reviewed the girls' testimony and noted it demonstrated that they ...