July 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GAMALIEL DELGADO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
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 knew "the difference between the truth and a lie." See R. 3:22-5.
On this appeal, defendant also argues that trial counsel was ineffective for failing to request a lesser-included harassment charge. Defendant asserts that a jury could have convicted him of harassment because of "ample evidence of annoyance and offensive touching" against him.
A defendant is entitled to have a lesser offense included in a charge, upon his request, if "there is a rational basis" to convict a defendant of that offense. N.J.S.A. 2C:1-8(e); State v. Savage, 172 N.J. 374, 396-97 (2002); State v. Brent, 137 N.J. 107, 116-17 (1994); State v. Sloane, 111 N.J. 293, 303 (1988). The Legislature enacted the luring/enticing of a child offense in an effort to bridge the "gap" between attempted kidnapping and harassment where the defendant tries to lure a child into a car with a criminal purpose. See, e.g., State v. Perez, 177 N.J. 540, 547-48 (2003). However, the elements of harassment remain separate and distinct from those for the offense of luring/enticing of a child. The criminal offense of which defendant was convicted requires commission of the luring "to a motor vehicle or isolated area . . . with a purpose to commit a criminal offense with or against the child." N.J.S.A. 2C:13-6(a). On the other hand, a harassment conviction requires commission of an act, such as offensive touching or alarming conduct, "with the purpose to harass another." N.J.S.A. 2C:33-4(a)-(c).
In any event, defendant fails to show that the evidence presents "a rational basis" on which the jury could acquit the defendant of luring/enticing of children and convict the defendant of the lesser harassment charge had counsel requested the charge and the court granted the request. See State v. Brent, supra, 137 N.J. at 116-17; see also State v. Perez, supra, 177 N.J. at 550-53 (sustaining child-luring conviction). Moreover, the trial judge now indicates he would not have charged the lesser-included if requested -- a decision which we undoubtedly would have affirmed if presented to us. Hence, the failure to request the lesser-included offense was harmless.
Defendant's pre-sentence report (PSR) contains the statement that defendant "told the girls that if they told their parent[s] about him, he would rape them." The State never attempted to prove this assertion at trial. At sentencing, trial counsel noted the improper inclusion of this statement, but did not request the court to correct the PSR. The PCR court later addressed defendant's concern with this statement in the pre-sentence report, noting that it played no role in the sentencing decision.
Defendant now argues that his trial counsel was ineffective for failing to request removal of this statement from the PSR, asserting that the statement substantially prejudiced him. Defendant further contends that the court "should have held an evidentiary hearing to determine whether [this] ineffectiveness prejudiced [him] as he serves his sentence."
The PCR judge's decision makes clear that defendant's alleged threats to "rape" the children did not impact his sentence, and defendant therefore advances no cognizable claim upon which this court could find that his trial counsel was ineffective. However, the comment in the PSR could possibly affect defendant's classification in custody and for Megan's Law purposes, as well as his parole and possible review under the Sexual Violent Predator Act. Accordingly, we remand the matter and direct the judge to order a correction of the PSR, and to write a letter to the Department of Corrections or to take whatever action he may deem appropriate to communicate to the Department that the reference to the threat has been deleted from the PSR in the absence of any proof in the record to support it, and that it was not relied upon in the disposition of the case. Cf. R. 3:21-2(a)-(c); State v. Kunz, 55 N.J. 128, 144-45 (1969).
Defendant's PCR appellate counsel incorporates all arguments taken from defendant's pro se PCR brief and PCR counsel's PCR brief. See State v. Webster, 187 N.J. 254 (2006). They are:
(1) COUNSEL FAILED TO CHALLENGE THE INDICTMENT'S FAILURE TO ALLEGE FACTS CONSTITUTING THE ATTEMPT TO LURE OR ENTICE MINORS;
(2) COUNSEL FAILED TO REQUEST JURY INSTRUCTIONS ON THE LESSER INCLUDED OFFENSE OF HARRASSMENT;
(3) COUNSEL GAVE DEFENDANT ILL ADVICE WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE;
(4) THE EXTENDED SENTENCE BEYOND THE FOUR-YEAR PRESUMPTIVE IS ILLEGAL UNDER THE RECENT DECISION OF BLAKELY V. WASHINGTON, 124 S.Ct. 2531 (2004).
(5) COUNSEL WAS INEFFECTIVE BY FAILING TO APPLY FOR ANCILARY SERVICES;
(6) COUNSEL'S INADEQUATE CROSS EXAMINATION AMOUNTS TO INEFFECTIVE ASSISTANCE OF COUNSEL;
(7) COUNSEL'S TRIAL STRATEGY WAS SO BAD AS TO BE NO STRATGEY AT ALL;
(8) COUNSEL FAILED TO APPROPRIATELY OBJECT;
(9) PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING;
(10) COUNSEL FAILED TO DISCUSS THE ADVANTAGES AND/OR DISADVANTAGES OF TESTIFYING OR NOT TESTIFIYING;
(11) THE COURT FAILED TO CHARGE ALL LESSER INCLUDED OFFENSES AND COUNSEL FAILED TO ASK FOR THE SAME;
(12) THE CUMULATIVE ERRORS COMMITTED BY COUNSEL AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL; and
(13) APPELLATE COUNSEL WAS INEFFECTIVE. We comment only as follows. R. 2:11-3(e)(2).
Defendant's argues that trial counsel was ineffective because he did not advise defendant that, if he testified and the prosecutor impeached him with his prior convictions, the trial court would sanitize them.*fn1 The PCR court addressed this argument, noting defendant did not submit convincing proofs that trial counsel failed to advise him properly and that he would have taken the stand if properly advised. Moreover, the PCR court doubted that defendant's testimony would have caused the jury to find him not guilty because at sentencing, defendant admitted his presence with the young girls but disclaimed his intent, and presumably would not have testified differently. We part company with the PCR judge only to the extent that we believe the decision should have awaited more development of the point and an assessment of defendant's credibility.
In the legal argument attached to his verified petition, defendant argued:
Counsel Gave Defendant Ill Advice Which Deprived Defendant Of His Right To Testify In His Own Defense
Defendant contends that he was denied effective assistance of counsel when counsel gave him ill and erroneous advice not to testify in his own defense. Specifically, defendant wanted to testify, but counsel gave him ill advice that, if he testified that he would be found guilty regardless of the evidence, once the jury learns that he had a prior sexual assault conviction. Counsel did not inform defendant that, if he took the stand, the jury could only be told that he had a previous conviction but not the name of the charge. But for this erroneous advice of counsel, defendant would have taken the stand and testified that his "purpose" was not sexual, as required for conviction.*fn2
We are satisfied that defendant is entitled to an evidentiary hearing as to: 1) what advice he was given and whether it was proper;*fn3 2) why he did not take the stand; 3) whether he would have testified if given the proper advice (assuming a finding that he was not); and 4) whether defendant's testimony may have made a difference, thereby warranting a new trial. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 1999 (1999). See also State v. Garcia, __ N.J. __ (2008) (remanding for hearing as opposed to reversing conviction).
Finally, we note that defendant's sentence was imposed prior to the United States Supreme Court opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and was no longer in the pipeline when our Supreme Court decided State v. Natale, 184 N.J. 458 (2005), or State v. Pierce, 188 N.J. 155 (2006).
Affirmed as modified, but remanded for further proceedings consistent with this opinion.