On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-07-0861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Lihotz and Messano.
Defendant Elliot Rivera appeals from a Law Division order denying his second motion for post-conviction relief (PCR). We affirm.
Following trial by jury, defendant was convicted of two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); two counts of second degree sexual assault, N.J.S.A. 2C:14-2(b) and (c); and the third degree crimes of terroristic threats, N.J.S.A. 2C:12-3(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After merger, defendant was sentenced to an aggregate term of incarceration of twenty years with a ten-year period of parole ineligibility.
On direct appeal, this court affirmed defendant's convictions and sentence. State v. Rivera, No. A-4314-98 (App. Div. Nov. 9, 2000). The Supreme Court denied certification. State v. Rivera, 167 N.J. 632 (2001).
Defendant filed his first PCR petition raising sixteen issues. After an evidentiary hearing, the PCR judge denied defendant's petition. On appeal from that order this court affirmed the denial of relief based upon the issues addressed by the PCR judge, however, we remanded for further proceedings on an issue raised sua sponte.
Years after defendant's direct appeal, but while his appeal of the denial of his PCR petition was pending, the Supreme Court rendered its opinion in State v. P.H., 178 N.J. 378 (2004), holding "a child witness's belated disclosure of alleged sexual assault [is] one of the factors relevant to credibility." Id. at 390. During defendant's trial, the jury was instructed on delayed disclosures by a child victim. The jury instruction stated the jury "need not" consider the child's failure to complain as evidence weighing against the credibility of the alleged victim. This jury charge was not as egregious as the one examined in P.H., which implicated Confrontation Clause concerns, as it instructed the jury it could not consider such delayed disclosures as weighing on the child witness's credibility. Id. at 389-90.
We remanded this matter to the PCR court, instructing the PCR judge to analyze in the first instance the Court's retroactivity principles as they might apply to the failure to report the sexual abuse aspect of P.H. If the court determines that P.H. is retroactive, rendering the charge in this case erroneous, it will, as it did earlier, have to decide whether the charge might have affected the outcome of defendant's trial, given that the child's credibility was the key issue in the case. [State v. E.R., No. A-3701-03 (July 29, 2005) (slip. op. at 24).]
We also suggested if the PCR judge concluded P.H. was applicable and the erroneous charge likely affected the verdict, she could reconsider the issues raised in defendant's PCR petition.
Before the initial PCR judge's review, defendant filed a second PCR petition, presenting the issue we identified. The second PCR petition was reviewed by a different judge who concluded P.H. did not have complete retroactivity to encompass cases on collateral review where all avenues of direct appeal had been exhausted. Further, the jury charge used at trial allowed the jury to consider whether the delayed disclosure impacted the credibility of the child witness, essentially effectuating the mandate announced in P.H., supra, 178 N.J. at 391-92.
On appeal, defendant presents these arguments:
POINT I. COMPLETE RETROACTIVITY SHOULD BE IMPOSED WHERE THE PURPOSE OF THE NEW RULE SUBSTANTIALLY AFFECTS THE ...