On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-04-995.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Carchman and Sabatino.
Following a jury trial, defendant, Robert Garon was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. At sentencing, the trial judge denied the State's motion for an extended term and sentenced defendant on the aggravated sexual assault charge to a term of twenty years with ten years without parole eligibility. The sentences on the other counts were to run concurrent. In addition, the judge credited defendant for time served, imposed the statutory fines and penalties and required community supervision for life.
Defendant appealed, and we affirmed. The Supreme Court denied certification. State v. Garon, 167 N.J. 636 (2001). Thereafter, in November 2002, defendant filed a pro se petition for post-conviction relief (PCR). Despite assignment to the Office of Public Defender's PCR unit one month later, a verified PCR petition was not filed until 2006. The Law Division judge denied a hearing and denied defendant relief.
Defendant appeals, and we affirm.
We briefly set forth the relevant facts. In January 1996, Defendant, then thirty-two years old, resided with D.B. and her six-year-old daughter, T.B., in Atco. T.B. "has had multiple behavioral problems including a diagnosis of attention deficit disorder and . . . oppositional defiant behavior," resulting in school behavioral problems and necessitating medical care and medication.
In July 1996, the Division of Youth and Family Service (DYFS) and Waterford Township Police Department responded to allegations of a sexual assault emanating from a drawing T.B. had made in school which depicted a nude man with a penis and pubic hair. T.B. related that "she touched the penis and pubic hair  and identified this person as Bob."
On July 25, 1996, at approximately 9:25 p.m., Sergeant Allison Turner of the Camden County Prosecutor's Office conducted a videotaped interview of T.B. During the extensive interview, T.B. stated that the drawing depicted defendant. She set forth a litany of sexually related incidents including that she and defendant would play "naked games" or have "naked parties" at home. T.B. mentioned that she doesn't want her mother to know about the "naked parties," that "[her mother will] get really upset" because "she doesn't want [them] all naked" since "it's not good to do."
Investigator Willie Mahan, also of the Prosecutor's Office, questioned defendant based on the information he received from T.B.'s interview. After reading to the defendant his Miranda*fn1 rights, which defendant waived, Mahan conducted an initial interview followed by a taped statement, conducted in the presence of Waterford Township Police Detective Thomas Kalik.
After again receiving his Miranda rights, defendant admitted to graphic, repeated and inappropriate behavior with T.B. such as taking a shower together, laying with a naked T.B. on the couch while in his underclothes with an erection and playing "doctor" with T.B. Defendant also admitted that T.B. had seen him watching pornographic material on TV, had seen his penis several times and had seen defendant and T.B.'s mother engaging in sexual intercourse.
At the conclusion of the interview, defendant was not charged, but T.B. was removed by DYFS from her home and placed with her grandmother. The next day, Dr. Katherine Coffman examined T.B. at the request of DYFS. She found no physical evidence of sexual victimization, and T.B. denied she had been abused, but T.B. was "very upset, very clinging [sic] to her mother" and when separated, "literally tore the waiting room apart, threw things on the floor [and] [w]as very angry." That conduct stopped and T.B., "very abruptly . . . became extremely affectionate" and "she would come over, touch [her], hug [her], and was distracted."
In early September 1996, D.B. reported that T.B. had told her mother that she had engaged in oral sex with defendant. This allegation prompted Sergeant Turner from the Prosecutor's Office to conduct a second videotaped interview of T.B. on September 13, 1996.
During the interview, T.B. initially denied saying anything to her mother but eventually admitted to playing a "naked game" with defendant and that defendant made her touch his penis while watching a pornographic video where a woman was performing fellatio on a man. She also stated that defendant made her perform oral sex on him and told her not to tell D.B.
Based on the information received during the interview, a complaint and warrant were issued, and defendant was arrested on September 17, 1996. Defendant was interviewed the next day and during the interview, defendant stated that in July 1996, T.B. had come inside the house, gave him a hug and a kiss, and sat next to him on the sofa. At the time, defendant was watching an adult movie on television. Defendant stated that there was a fellatio scene involving a man and a woman on the screen, and T.B. had asked him whether her mother ever performed that kind of act. Defendant then claimed that he changed the channel to something more appropriate and "adamantly" denied the allegations. He did admit, however, that during his residence with T.B., he suffered from genital warts caused by the Human Papilloma Virus (HPV), which he has had for at least eight months.
Defendant did not testify at trial and following the jury verdict and sentencing, defendant filed an appeal. On the direct appeal, defendant raised the following issues:
POINT I DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE WAS SEVERELY PREJUDICED BY COMMENTS MADE IN THE PROSECUTOR'S SUMMATION (not raised below).
POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR AN ENTRY OF A JUDGMENT OF ACQUITTAL WHEN THE STATE FAILED TO PRODUCE EVIDENCE SUFFICIENT TO WARRANT A CONVICTION.
POINT III DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A TRIAL BY AN IMPARTIAL JURY (not raised below).
POINT IV THE WEIGHT OF THE EVIDENCE WAS AGAINST THE JURY'S FINDING DEFENDANT GUILTY OF THE THREE COUNTS OF THE INDICTMENT AND, THEREFORE, HIS CONVICTIONS SHOULD BE REVERSED (not raised below).
POINT V DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY ...