On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-10-1598.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Parker and LeWinn.
Defendant D.I. appeals from an order entered on November 26, 2007, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
In 1998, defendant was indicted on several counts of aggravated sexual assault, child abuse and endangering the welfare of a child. Defendant's first two trials resulted in hung juries. Following a third trial, the jury found defendant guilty of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); fourth-degree child abuse, N.J.S.A. 9:6-1 and -3; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was defendant's then eight-year-old daughter, J.R.
On June 11, 2001, defendant was sentenced to three concurrent terms of twenty years subject to a ten-year parole ineligibility period on the first-degree aggravated sexual assault counts, and a consecutive seven-year term with a three-and-a-half-year parole ineligibility period on the endangering count; the fourth-degree child abuse conviction merged into the endangering count. Defendant appealed, and we affirmed his convictions and sentence. State v. [D.I.], No. A-1531-01 (App. Div. April 10, 2003). The Supreme Court denied defendant's petition for certification on July 21, 2003. 177 N.J. 495 (2003).
In our prior opinion we summarized the pertinent trial evidence, which included testimony by J.R., who "provided graphic details of the various sex acts that her father performed on her." State v. [D.I.], supra, slip op. at 4. In addition, defendant gave a statement to the police, which the trial court found to be voluntary and admissible. In that statement, defendant "confessed to sexually assaulting J.R." Id. at 3. At trial, however, defendant testified that his confession had been "scripted and coerced." Id. at 5. The State presented the testimony of Dr. Frances Pelliccia who examined J.R. on May 13, 1998, shortly after the sexual assault and testified that J.R.'s "'hymenal ring measured out to be 1.5 centimeters which is the size of an adult vaginal opening[,]' [and]... was consistent with penetration by an object 'wider than 1.5 centimeters.'" Id. at 3.
On February 13, 2007, defendant filed a pro se PCR petition. Counsel was assigned and, on June 27, 2007, counsel filed a brief in support of defendant's PCR petition, as well as a motion for the production of J.R.'s medical records. Defendant contended that those medical records contained information that contradicted the State's case against him; therefore, defendant argued, those records should be viewed as "newly[-]discovered evidence...." Defendant further argued that his trial attorney's failure to introduce those medical records constituted ineffective assistance of counsel. The specific records defendant sought were: (1) an examination of J.R. that occurred on October 26, 1998, approximately five months after Dr. Pelliccia's examination; and (2) the record of an examination of J.R. five years earlier.
In denying defendant's request regarding the earlier examination, the PCR judge found that defendant had failed to provide "specific information as to when or where the alleged examination occurred[,]" or to identify the examining physician. The State represented that it had no information concerning such an examination. The judge concluded, therefore, that defendant had failed to provide sufficient information to establish that such an examination had occurred.
Regarding defendant's request for records of the October 1998 medical examination, the judge considered this request to be moot, stating:
Subsequent to the filing of the [p]etition, [defendant] provided the [c]court with a copy of the records of that examination. Perhaps the most significant portion of those records appears across the top of the front page. It is there indicated that those same records were faxed by the [p]rosecutor to [d]efense [c]counsel prior to the first trial of this case. Insofar as those records have been in the possession of the [d]efense prior to trial, they are clearly not "newly-discovered," and do not form the basis for a new trial....*fn1
Upon further examination of the October 1998 medical report, the PCR judge concluded that trial counsel had not been ineffective in failing to produce it at trial. The judge found that any discrepancy between that medical record and Dr. Pelliccia's trial testimony was, at best, an "unimportant detail" and that the ...