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State v. W.S.

January 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
W.S., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-08-1434.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2008

Before Judges Wefing, Parker and LeWinn.

Defendant W.S. appeals from an order entered on January 9, 2007 denying his petition for post-conviction relief (PCR). We affirm.

A judgment of conviction was entered on February 25, 2000, after a jury found defendant guilty of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); 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. The trial court denied the State's motion to sentence defendant to an extended term. After the appropriate mergers, defendant was sentenced to a term of twenty years and community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19.

On direct appeal, we ordered a limited remand for the trial court to rule on defendant's claims of ineffective assistance of trial counsel. State v. W.G.S., No. A-4093-99 (App. Div. July 2, 2001). After that hearing was conducted, the trial court found that trial counsel was not ineffective and on January 3, 2002, we affirmed defendant's conviction. State v. W.G.S., No. A-4093-99 (App. Div. Jan. 3, 2002) (Slip Op. at 4). The Supreme Court denied certification on May 22, 2002. State v. W.G.S., 172 N.J. 359 (2002). Defendant filed his PCR petition on September 26, 2006.

The charges against defendant arose out of allegations by his daughter, P.S., that he sexually abused and assaulted her between September 1991 and December 1992 when she was six years old. The abuse was not reported, however, until 1997, when the child saw a video in school and realized that her father's conduct when she was younger was wrong.

The child reported the incidents in March 1997, after which defendant was advised of his Miranda*fn1 rights before he was interviewed by Sergeant Peter Weinrich. He waived his Miranda rights a second time before giving a sworn statement. Defendant admitted sexual contact with the child three or four times. He claimed, however, that the contacts were accidents.

When defendant gave his sworn statement to the police, he refused to sign it, although he agreed that it accurately reflected the questions he was asked and the answers he gave. Defendant never denied the truth of his statement.

After defendant's conviction, P.S. made allegations of sexual abuse against two other men. In December 2001, P.S. reported that her mother's boyfriend, D.G., sexually assaulted her over a period of three years from March 1997 to June 2000. D.G. was charged with aggravated sexual assault upon a juvenile of whom he was a guardian, N.J.S.A. 2C:14-2; and endangering the welfare of a child over whom he was a guardian, N.J.S.A. 2C:24-4. When the matter was presented to the Grand Jury, it returned no bill of indictment.

In August 2002, P.S. reported that R.S., a juvenile with whom she worked at a deli, sexually assaulted her at work. Because R.S. was a juvenile, there is no available information as to the outcome of the matter.

In his PCR petition, defendant raised a number of issues which had been litigated and adjudicated on direct appeal. The trial court correctly found that those claims were precluded by Rule 3:22-5. Defendant also argued that he is entitled to a hearing pursuant N.J.R.E. 104 to determine the girl's credibility in light of those allegedly false allegations.

The trial court found that argument lacking merit because:

Defendant asks this court to believe that somehow defendant's trial was constitutionally flawed because of the failure to introduce facts that did not exist at the time of trial. The reports attached to defense counsel's petition note an allegation . . . on December 10, 2001, thirty-two months after the defendant was convicted. A second allegation was made against a ...


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