On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Lyons.
The State appeals on leave granted from an order entered on October 16, 2008, granting a petition by defendant Lewis I. Hagan for post-conviction relief (PCR). Upon review of the facts and the applicable law, we affirm.
In late 2003, defendant was in a two year dating relationship with F.B. While the couple were not living together, defendant often spent the night at F.B.'s home. F.B. had three children who also resided with her, ranging in ages from twelve to eighteen-years-old. Defendant testified that he was close to all the children, including F.B.'s youngest daughter, D.B.
Defendant testified during his trial that in the fall of 2003, his relationship with F.B. began to deteriorate. He later testified at his PCR hearing that he was concerned because F.B. was physically abusing D.B., who was thirteen-years-old at the time. Accordingly, he stated during his PCR hearing that on October 8, 2003, he reported the alleged abuse to D.B.'s school principal. During that meeting, the principal informed defendant that D.B. cut class and had problems with authority, so defendant authorized the school to give D.B. detention when necessary. The principal made a record of defendant's report and notified the Division of Youth and Family Services (DYFS), who investigated.
Soon after defendant notified D.B.'s school, between November 1 and November 15, 2003, D.B. claimed defendant began to proposition her for sex and engage her in inappropriate conversations regarding his physical relationship with F.B. She also alleged that defendant placed his hand on her inner thigh. D.B. stated she did not tell her mother about defendant's behavior immediately because she did not think F.B. would believe her.
On November 17, 2003, defendant obtained a temporary domestic violence restraining order against F.B., who filed for a cross-domestic violence restraining order on November 18, 2003. F.B. alleged that defendant had burglarized her home and had made terroristic threats against her.
On December 4, 2003, D.B. informed her mother of defendant's behavior towards her and F.B. took D.B. to police headquarters to report the incident. Detective Donald Reilly interviewed D.B. in the presence of F.B. and then contacted defendant by phone and asked him to come to the police station to be interviewed. Defendant complied. During the course of his interview, defendant admitted having sexual discussions with D.B. but contended they were more in the nature of father-daughter discussions in order to educate her on sexual matters. Detective Reilly placed defendant under arrest.
On January 7, 2004, a Family Part court granted defendant's motion for a permanent restraining order against F.B. and vacated F.B.'s temporary restraining order against defendant.
On December 2, 2004,*fn1 a Middlesex County grand jury returned Indictment No. 04-12-1669, charging defendant with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count one) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). The prosecutor dismissed the charges of terroristic threats and burglary brought by F.B.
Defendant was tried before a jury on December 9 and 10, 2004. During the course of his trial, defendant's counsel, Robert White, did not present any evidence of defendant's child abuse report or DYFS's involvement with the family, though, according to defendant, he informed White of the DYFS referral by letter in May 2004. White also failed to present evidence of the permanent restraining order defendant secured against F.B., except for briefly mentioning it in his summation by stating "[a]lso convenient that this only finally comes up and is brought to the police's attention two days after mom goes to answer and file restraining orders because, obviously, she and Lewis are having problems, that time line is very convenient ...