On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 00-06-0848.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Payne and Lyons.
On May 14, 2001, defendant, John Tate, pled guilty to two counts of second-degree sexual assault on a minor, N.J.S.A. 2C:14-2c(4), reduced to third-degree crimes for purposes of the plea, and two counts of fourth-degree sexual contact (touching), N.J.S.A. 2C:14-3b, receiving a five-year sentence, with no period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC). Defendant appealed his sentence, and we affirmed it, after a hearing on our excessive sentencing oral argument calendar, in an order dated June 12, 2003. Defendant did not petition for certification.
On January 5, 2004, defendant filed a pro se petition for post-conviction relief, which was later supplemented by a brief filed on defendant's behalf by the Office of the Public Defender. Upon consideration of the petition, the motion judge ordered a testimonial hearing, State v. Preciose, 129 N.J. 451 (1992), which occurred on February 22 and 27, 2007. At its conclusion, the judge denied relief. This appeal followed.
On appeal, defendant raises the following issues:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE EVIDENCE CLEARLY PROVED THAT PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE-ASSISTANCE-OF-COUNSEL BY FAILING TO PROPERLY INFORM DEFENDANT ON [THE] STATUS OF HIS CASE REGARDING PRE-TRIAL MOTIONS AS ALLEGED, AND BY FAILING TO NEGOTIATE THE BEST PLEA OFFER, THEREBY LEADING TO A BREAK-DOWN OF THE ATTORNEY-CLIENT RELATIONSHIP RENDERING THE ENTRY OF THE PLEA INVOLUNTARY AND UNKNOWING.
B. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED SINCE TRIAL COUNSEL PROVIDED INEFFECTIVE-ASSISTANCE-OF-COUNSEL BY FAILING TO PROPERLY INFORM DEFENDANT AS TO THE POTENTIAL APPLICABILITY [OF] CIVIL COMMITMENT FOLLOWING SENTENCING, THEREBY RENDERING ENTRY OF THE PLEA INVOLUNTARY AND UNKNOWING, AND APPELLATE COUNSEL WAS FURTHER INEFFECTIVE BY FAILING TO RAISE THE ISSUE ON APPEAL THEREBY DENYING DEFENDANT THE BENEFIT OF HIS RIGHTS UNDER STATE V. BELLAMY, 178 N.J. 127 (2003).
Having carefully considered the record in light of applicable precedent, including the two-pronged standard for granting post-conviction relief in cases alleging ineffective assistance of counsel, established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and recognized in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), we affirm.
The record establishes that, in the period between 1996 and 1999, defendant, a fifty-one-year-old teacher at Passaic Vocational Technical School and a counselor with the Morris County Youth Advocate Program (YAP), molested four boys under the age of sixteen. In his plea, defendant admitted to digital penetration of two of the boys and to touching the intimate parts of the other two while the boys were in defendant's charge as a YAP counselor. Following defendant's arrest, he retained the law firm of Alan Zegas to represent him in the criminal prosecution. Handling of the pre-trial aspects of the case was assigned by Zegas to an associate, Patricia Lee, who appeared in court on defendant's behalf and prepared and argued an omnibus multi-issue motion seeking, among other things, dismissal of the indictment, suppression of defendant's ...