On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 98-06-0322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing and Messano.
Defendant A.J. appeals from the denial of his petition for post-conviction relief (PCR). His sole argument on appeal is that the PCR judge erred in rejecting his claim of ineffective assistance of counsel at trial. We have considered defendant's contention in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
Tried by a jury, defendant was convicted of two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(5). After appropriate mergers, the trial judge sentenced defendant to an aggregate twenty-six year term of imprisonment, with a thirteen-year period of parole ineligibility. We affirmed his conviction and sentence on direct appeal. State v. A.J., No. A-1216-01 (App. Div. December 6, 2002). Defendant's petition for certification to the Supreme Court was denied. State v. A.J., 177 N.J. 222 (2003).
We provide the necessary factual background by quoting from our earlier opinion.
At trial the State contended that from June 1996 through August 1997, defendant, then thirty-three years old, engaged in a pattern of criminal sexual conduct with his step-daughters, thirteen-year old Y.A. and sixteen-year old N.G.
At all times pertinent to the charges defendant was married to C.J. In June 1996, defendant and C.J. along with her daughters Y.A. and N.G. as well as her six year-old son, M.J., moved to a one-family house in Plainfield. C.J. worked full time during the day and occasionally on weekends as a court reporter in New York. Defendant was unemployed and was at home with the children. According to Y.A., defendant began treating her better than the other children, giving her money to buy things. At the same time[,] defendant began sexually abusing Y.A. including sexual penetration and having her perform fellatio on him.
N.G. testified that she and . . . defendant did not get along well. She said that defendant favored Y.A., often giving her money and wanting to "keep her around him." N.G. said that defendant would often send her to the store or keep her away or at other times would stay upstairs in the bedroom with Y.A. when their mother was not home.
On one occasion . . . defendant asked N.G. to have sex with him . . . . N.G. declined. She further testified that when her mother was not at home, defendant would walk in the house naked or wearing only a towel. On other occasions, . . . defendant would enter the bathroom when N.G. was taking a shower and offer to dry her off. At times, she would permit him, and he would rub lotion all over her body.
Y.A. . . . told her sister . . . of the history of . . . defendant sexually abusing her. Y.A. then went to New York City to tell her grandmother what had happened. She telephoned her mother at work to say that . . . defendant had "molested her" and her mother took her to the police station and a doctor's office for examination . . . .
Dr. Linda Shaw, an expert witness in pediatrics and child sexual abuse, . . . testified that she conducted a physical examination of Y.A. which revealed a lack of hymenal tissue across the bottom of the vaginal wall, a finding that would not be consistent with a child of the same age and no sexual penetration. Based on the fact that the hymenal tissue was missing in that area, Dr. Shaw opined that some sort of penetrating trauma caused the tissue to be injured.
Testifying for the defense, Dr. Jocelyn Brown, an expert in pediatrics and child abuse, testified that most experts use a colposcope to document child abuse. Dr. Shaw had indicated that she had used a magnification lamp rather than a colposcope. Dr. Brown testified that even assuming that Y.A. lacked hymenal tissue, this finding which normally raised a suspicion of sexual abuse would not be determinative because of the absence of prior medical records or baseline for a present evaluation. She further opined that assuming thirty incidents of vaginal penetration by an adult penis, there would have been more definitive findings such as a cleft or notches as contrasted with the mere lack of hymenal tissue.
Defendant testified on his own behalf and denied any sexual contact with either Y.A. or N.G. He said that he had been a strict disciplinarian with both girls and made sure that their social lives were secondary to their school work. [A.J., supra, slip op. at 2-5.]
After summations and charge, the jury commenced deliberations for approximately one hour on the first day. The jurors deliberated a second day before sending out a note near five p.m., indicating that they were deadlocked and could not reach a verdict. The judge provided the appropriate supplemental charge and dismissed the jury for the day. Deliberations commenced the next morning at nine a.m., and the jury returned its verdict shortly after twelve noon.
In his petition for PCR filed on March 4, 2005, defendant alleged ineffective assistance of his trial counsel.*fn1 He claimed this was demonstrated, in particular, through the ineffective cross-examination of Y.A. and N.G., and the trial testimony of several defense witnesses. We turn now to that trial testimony because defendant reiterates before us his claim that this testimony, in conjunction with the evidence adduced at the PCR hearing, established his claim and entitled him to a new trial.
Despite having documented information in her possession that Y.A. and N.G. had told their mother that they had fabricated the charges against defendant, trial counsel never questioned the two girls, or their mother, about it. We detail below the information that counsel possessed, and her reasons for not posing any questions about this alleged recantation.
Trial counsel called E.J., defendant's mother, as a character witness. She opined that defendant was "truthful" and "honest," however, counsel's attempts to elicit E.J.'s opinions regarding the "truthfulness and honesty" of N.G. met with vigorous objections from the prosecutor who claimed that she had no notice of the proffered testimony. A lengthy legal argument ensued, E.J. was excused from the witness stand, and the judge decided to consider the issue more fully the next day. For reasons that were unexplained, E.J. was never called back to complete her testimony.*fn2
Defendant called L.S. as the next character witness. She testified that defendant was honest and truthful. She also testified that she had been defendant's fiancée for the last four years. Her testimony placed the start of the relationship at a time when defendant was married to C.J. and living with her ...