On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-0125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2008
Before Judges Stern and Waugh.
Defendant appeals from the denial, on July 6, 2007, of his petition for post-conviction relief (PCR). He had pled guilty on April 14, 2003, to a count charging distribution of CDS (count one of indictment 01-07-408), and one count of indictment 02-02-125 amended to sexual assault. The remaining counts of both indictments were dismissed. The recommended disposition was for a 10-year sentence with the No Early Release Act (NERA) to apply on the sexual assault and a consecutive five-year sentence with two years to be served before parole eligibility for the CDS violation. That sentence was imposed.*fn1
Defendant acknowledges that he: testified [at his plea] that on November 29, 2001, he penetrated F.H.'s anus with his penis. He acknowledged that the penetration was not consensual. He also stated that he sold five bags of crack cocaine to an undercover officer on May 24, 2001. [citations omitted]
The defendant states that if counsel had requested a DNA test and had it demonstrated he "was not involved in the assault upon the victim, defendant would have declined [to enter] the plea." However, there is no suggestion that he was not the perpetrator, as he admitted, and no basis suggested for granting an evidentiary hearing on the PCR. To the contrary, this was a negotiated disposition as to two indictments, and the sexual assault was downgraded. Hence, there is no legitimate basis for concluding that he would not have pled guilty even if counsel were ineffective in not securing a DNA test. See, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985); State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In fact, defendant now acknowledges the lack of record for a hearing on the PCR, and raises on this appeal that PCR counsel was ineffective because he did not demonstrate "familiarity with the protocol set forth . . . for obtaining DNA testing." He states "[e]ven in [the PCR] venue, counsel failed to address any of the factors that would establish defendant's right to [a DNA test]." However, there is no suggestion that the result of the case would have been different even if the DNA result did not reveal defendant's sperm. Here both parties acknowledged they knew each other and had sexual intercourse. See State v. Halsey, 329 N.J. Super. 553 (App. Div.), certif. denied, 165 N.J. 491 (2000). See also, e.g., State v. DeMarco, 387 N.J. Super. 506, 516-17 (App. Div. 2006); State v. Cann, 342 N.J. Super. 93, 104 (App. Div.), certif. denied, 170 N.J. 208 (2001). Defendant also gave a statement to the police acknowledging consensual vaginal intercourse thinking the victim was eighteen years old.
Defendant pled guilty to an amended charge of sexual assault in exchange for dismissal of kidnapping and aggravated sexual assault charges, as well as a count of CDS distribution, as part of a negotiated disposition. The factual basis, which defendant has not repudiated, admitted forcible penetration with the victim he knew. To the extent defendant's statement to the police was relevant to the lack of a request for a DNA evaluation by defense counsel, defendant acknowledged consensual vaginal intercourse (as opposed to anal intercourse by force). See N.J.S.A. 2C:14-2c.
The denial of PCR is affirmed substantially for the reasons stated by Judge Carmen H. Alvarez in her oral opinion of June 22, 2007, as supplemented herein.