On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-10-00812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Fisher and King.
In this appeal from the denial of a petition for post-conviction relief, we reject defendants' many contentions that he was denied the effective assistance of counsel and affirm.
The testimony adduced at trial revealed that S.L.M., a fifteen-year old girl, had moved with her family to North Carolina a few years earlier but periodically returned to New Jersey. At the time of the incident in question, S.L.M. was visiting with her aunt, who lived across the street from defendant, who was then twenty-years old.
On the evening of June 2, 2003, defendant invited S.L.M. and his younger sister, Kim, to his grandparents' house. Kim and a friend of defendant's left by 10:00 p.m.; S.L.M. remained with defendant. They drank vodka out of the bottle, and played a drinking game. At the start of the evening, defendant gave S.L.M. a pill that "would help with the hangover"; he gave her a second pill later in the evening. S.L.M. testified that the pills "[m]ight have been hydrocodone."
S.L.M. "blacked out" and when she woke, she was "forced to give oral sex" to defendant. She blacked out again and awoke to find defendant having vaginal intercourse with her. She told him to stop, and that he was hurting her, and blacked out again.
Defendant's uncle later arrived. S.L.M. awoke to defendant "yelling" for her "to put her clothes on." She blacked out again, but woke in defendant's van as he was having sexual intercourse with her. Once again, she told defendant to stop, blacked out, and later awoke as she was being forced to engage in oral sex. At the end of the evening, defendant told S.L.M. "not to tell anybody," and walked her home.
The next morning, S.L.M. went to see Kim and told her what had happened, then went to the police and to a local hospital. The nurse who examined S.L.M. testified that her condition was "consistent with sexual penetration." S.L.M.'s parents arrived on June 4, 2003 and accompanied her to the police station, where she gave a statement.
A forensic scientist employed by the New Jersey State Police tested S.L.M.'s undergarments and confirmed the presence of blood and seminal material. DNA taken from the undergarments matched DNA in a buccal swab obtained from defendant. And S.L.M.'s urine sample tested positive for opiates and marijuana.
Defendant was arrested on June 4, 2003. After being advised of his Miranda*fn1 rights, defendant gave a statement acknowledging that he had consensual sexual relations with S.L.M.
Defendant was charged in an indictment with one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1) and (4), and one count of ...