On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-03-0425.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Payne and Waugh.
Defendant Anthony Massey appeals from the denial of his petition for post-conviction relief. We affirm in part and remand in part.
Massey was charged in Hudson County with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); forth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); fourth-degree child abuse, N.J.S.A. 9:6-1(e) and 9:6-3 (count nine); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten); third-degree possession of a weapon, a knife with a sharpened edge, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); and first degree armed robbery, N.J.S.A. 2C:15-1 (count twelve).
Following a pretrial hearing, the trial judge denied Massey's motion to suppress the statements he gave to the investigating police officers. The case then went to trial before a jury. The trial judge dismissed the child abuse and endangering charges in counts nine and ten at the conclusion of the evidence. The jury found Massey not guilty of the aggravated assault charge contained in count eight, but convicted him on all other counts.
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact, and criminal sexual contact convictions from counts three, four, and five into the first-degree aggravated sexual assault conviction from count one, and sentenced Massey to a twenty-year term of imprisonment, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year period of imprisonment, with a NERA eighty-five percent parole disqualifier, on the second-degree armed burglary conviction from count two, and a concurrent five-year term, with a two and one-half year parole disqualifier, on the third-degree criminal restraint conviction from count seven.
The trial judge merged the terroristic threats and weapon convictions from counts six and eleven into the first-degree armed robbery conviction from count twelve, and sentenced Massey to a fifteen-year term of imprisonment, with a NERA eighty-five percent parole disqualifier, to run consecutive to the other sentences. Consequently, the aggregate term of imprisonment was thirty-five years with an eighty-five percent term of parole ineligibility. Applicable mandatory fines, penalties, and a period of parole supervision were also imposed.
Massey appealed his conviction and we affirmed. State v. Massey, No. A-5709-01T4 (App. Div. Oct. 15, 2003). The Supreme Court denied Massey's petition for certification. State v. Massey, 179 N.J. 310 (2004).
Massey filed his petition for post-conviction relief (PCR) in March 2004. He was represented by designated counsel, and also filed a pro se brief and appendix in support of his petition. Oral argument was held on October 19, 2006. The PCR judge denied Massey's request for an evidentiary hearing and dismissed the petition for post-conviction relief in an oral decision delivered following the argument. An appropriate order was entered on October 23, 2006. This appeal followed.
Massey's conviction arises out of an incident that took place on July 22, 1998, in the victim's third-floor apartment in North Bergen. J.L., the victim, resided in the apartment with her two-year old son, B.L. They went to sleep at approximately 11:30 p.m., with B.L. sleeping beside J.L. in her bed. At approximately 2:00 a.m., J.L. was awakened by "a yell." When she opened her eyes, a man, later identified by her as Massey, was next to her holding a metal spatula and telling her not to yell. Massey "started putting his hand under [J.L.'s] pajama, and . . . said he wanted money, $2,000." Massey assaulted her with the spatula. J.L. testified that Massey then "started rubbing [her] all over."
The incident awoke B.L., who started to yell. Massey shouted, "Fuck you, baby." He then slapped B.L., knocking him off the bed. At that point, J.L. told Massey, "Do whatever you want with me, but please don't do anything to my son." J.L. testified that she did not resist.
Massey "started inserting his finger into" her vagina and anus. After finishing his assault of J.L., Massey again demanded money. When J.L. turned on the light to look for money, she saw Massey's face. Massey was known to her because he had performed some work in her apartment when she first moved in.
Massey threw her against the wall, and pulled her back onto the bed. J.L. testified that he penetrated her three times, forced his penis into her mouth during the continued assault, and took thirty or forty dollars. ...