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State v. D.R.

December 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.R., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-02-0387.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2008

Before Judges Reisner, Sapp-Peterson, and Alvarez.

Defendant, D.R., appeals from a November 3, 2006 order denying his petition for post-conviction relief (PCR). All of defendant's contentions but one, that trial counsel had a conflict of interest, were initially rejected by the PCR judge without an evidentiary hearing. Following an evidentiary hearing on the alleged conflict of interest, the application was denied. For the reasons that follow, we affirm.

On November 20, 2002, defendant was found guilty by a Monmouth County jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was seven-year-old E.A., the niece of defendant's fiancée, E.N. Defendant had been convicted the prior year in Ocean County of similar charges as a result of his sexual abuse of E.N.'s daughter. On February 28, 2003, defendant was sentenced to an aggregate term of seventeen years in state prison, which was to be served consecutive to the Ocean County sentence. The Monmouth County convictions were affirmed on direct appeal. State v. D.R., No. A-5027-02 (App. Div. May 18, 2004). Certification was denied on July 12, 2004. State v. D.R., 181 N.J. 285 (2004).

The PCR judge who considered the matter in its entirety ordered that an evidentiary hearing be conducted on the conflict of interest issue, which was actually heard by a second judge. On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT

POINT II

THE PCR COURT ERRED IN DENYING THE PCR MOTION BECAUSE THERE WAS A CONFLICT OF INTEREST BETWEEN [DEFENSE COUNSEL] AND THE DEFENDANT

POINT III

THE PCR COURT ERRED WHEN IT FAILED TO HOLD THAT COUNSEL WAS INEFFECTIVE AS HE FAILED TO OBJECT TO THE COURT'S INQUIRY INTO THE COMPETENCE OF THE CHILD WITNESS IN FRONT OF THE JURY

POINT IV

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO QUESTIONING OF THE VICTIM WHICH CLEARLY ...


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