Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State v. Krivacska


November 20, 2009


On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Criminal Part, Indictment No. 96-02-0214.

Per curiam.



Submitted September 15, 2009

Before Judges Parrillo, Lihotz and Ashrafi.

Defendant James Krivacska appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Following joinder of his accusation and indictment, defendant was tried by a jury for sexual offenses against two thirteen-year-old mentally challenged boys, T.A. and M.B. He was convicted of one count of first-degree aggravated assault (M.B.), N.J.S.A. 2C:14-2a(2); two counts of second-degree child endangerment (T.A. and M.B.), N.J.S.A. 2C:24-4a; and two counts of third-degree aggravated criminal sexual contact, (T.A. and M.B.) N.J.S.A. 2C:14-3a. Defendant was acquitted of a second count of aggravated sexual assault (T.A.). He was sentenced to an aggregate twenty-six years imprisonment under the Sex Offender Act, N.J.S.A. 2C:47-1 to 10.

The facts comprising these offenses and their aftermath are taken from our previous decision affirming defendant's conviction, State v. Krivacska, 341 N.J. Super. 1 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, Krivacska v. New Jersey, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002):

Defendant, a licensed psychologist, was the clinical director of the Children's Center of Monmouth County, a school for individuals with special needs. The alleged victims, T.A. and M.B., were students at the school.

As clinical director of the Center, defendant had a wide range of responsibilities, including intervention and behavioral counseling and the development of programs and curricula. Defendant's counseling duties often required him to meet with students in private sessions.

In the Autumn of 1993, defendant moved to Building 4, which was known at the time as the "new" building. Defendant's office was perhaps slightly more isolated, but nevertheless was located in close proximity to a supervisor's office, the school store, the school kitchen, and staff and student bathrooms. The office was ground-level with windows looking out into the street. The door had a rectangular window, and a lever handle with an inside button which could be pushed to lock it from the inside.

During the school year 1993-1994, T.A. was a student in Naomi Azar's class in the new building. . . . T.A.'s IQ score was between fifty and sixty, approaching the lowest point that can be measured. At thirteen years old, T.A. was older than the students in his class and was maturing physically. On several occasions Azar noticed that T.A. had erections in class, causing him to become nervous and flustered and preventing him from being able to answer simple questions. The problem took on added urgency because in the Spring of that school year, Azar was informed that T.A. was moving to Miami, Florida where he was to be "mainstreamed" into the public school system. Azar referred T.A. to defendant for private counseling sessions.

T.A. would go to and return from defendant's office on his own. If he did not return in an appropriate amount of time, a teacher would go to defendant's office and bring him back. According to T.A.'s testimony, it was at these private sessions that defendant sexually assaulted him. T.A. testified that defendant commonly hung his jacket on the door, covering the rectangular window. T.A. would sit in a regular chair, while defendant would be seated in a chair with wheels. Defendant would instruct T.A. to pull his pants down to mid-thigh, place his hands on T.A.'s penis and "shake" it until T.A. ejaculated. On one occasion, defendant allegedly "put his mouth" on T.A.'s penis. On another, defendant stood with T.A. facing him and their penises touching. According to T.A., defendant would show him photographs depicting sexual organs, which he identified on cross-examination as the drawings in a pamphlet, A Kid's First Book About Sex. Defendant would explain to T.A. the sexual organs depicted in the pamphlet.

T.A. recounted that defendant asked him to visit at his house, noting that he did not have a wife or children. T.A. thought it "odd," however, and declined defendant's invitation. Defendant cautioned T.A. never to tell anyone what happened between them.

T.A. abided by that admonition until he moved to Florida. T.A. initially lived with his Aunt Jennifer. On weekends, T.A. would often visit with his Aunt Carol and his Uncle Clarence. Aunt Carol was employed as a psychiatric nurse. She was also the pastor of her church. It was her habit to ask "all the children" if anyone had touched them inappropriately, or "in a private part." Aunt Carol focused particularly on T.A. because she felt he was "vulnerable." T.A. regularly denied that anyone had touched his private parts.

In July 1994, Aunt Jennifer told Aunt Carol that T.A. had been masturbating frequently and "hard," so that his bed "shook." Aunt Jennifer was concerned that her own children might hear him. Aunt Carol spoke with Uncle Clarence, who responded that "boys do masturbate and play with themselves, but not as aggressive[ly]" as Aunt Jennifer had described. Aunt Carol and Uncle Clarence confronted T.A. about the subject.

T.A. testified that Aunt Carol repeatedly asked him whether anyone had touched his private parts. T.A. claimed that although he initially denied any such activity, he ultimately identified defendant as the perpetrator. According to T.A., "she finally got [it] out of me after she asked me [the same question] a hundred times."

Aunt Carol steadfastly denied that she or Clarence had told T.A. that God would be angry at him for masturbating. She also denied that she or Clarence told T.A. someone must have taught him to masturbate. According to Aunt Carol, she made it clear that masturbation was normal behavior, but that T.A. should engage in that activity only in the privacy of his room or in the shower. Because T.A. appeared nervous with Clarence in the room, Clarence decided at some point to excuse himself. Aunt Carol testified that she asked T.A. whether anyone had taught him to masturbate. After being assured that he would not get into trouble, T.A. identified defendant as the perpetrator.

After that initial disclosure, T.A. initiated several conversations with Aunt Carol, basically repeating what he had told her earlier. According to Aunt Carol, T.A. "would start talking about it when [the two] were together." T.A. told her that the incidents had occurred in a room which he described. Although initially, Aunt Carol "assumed" that T.A. was referring to a school auditorium, T.A. subsequently corrected himself and told her that "Dr. Jim would take him into the office." When Aunt Carol questioned him about the subject, T.A. denied that "there was any oral sex."

As a result of T.A.'s disclosures, Aunt Carol contacted Florida authorities. Detective Debra Blesso-Chiota of the Orange County Sheriff's Office interviewed T.A. at Aunt Jennifer's house on August 10, 1994. The interview was audiotaped. However, the tape was subsequently lost. The transcript of the interview discloses that T.A. generally repeated the allegations he had previously made to Aunt Carol. T.A. told Blesso-Chiota that defendant would show him sexually explicit photographs. According to T.A., he and defendant would "open their pants" and touch each other's private parts. T.A. noted that he and defendant would ejaculate, and clean off their hands with tissues. T.A. added one detail that he had not told Aunt Carol earlier. Specifically, T.A. said that on at least one occasion, defendant had "put his mouth on" T.A.'s penis. T.A. noted that he had been "too scared to tell [his] aunt."

T.A. apparently repeated these allegations in subsequent interviews with Detective Lonnie Mason of the Monmouth County Prosecutor's office. We have underscored the word "apparently," because these interviews were neither taped nor stenographically recorded. We add that these discussions occurred in the presence of several family members and an assistant prosecutor. T.A. repeated these allegations when questioned by the State's expert, Dr. Philip Witt. The latter interviews also were neither taped nor stenographically recorded.

T.A.'s interview with the defense's expert, Dr. Ralph Underwager, was videotaped. We have observed the tape.

T.A. appears extremely reluctant to describe his relationship with defendant. He says only that defendant engaged in "gross" activities after showing him pictures, and that he was frightened during these episodes. After a short break, T.A. appears more forthcoming in his description of the incidents, noting that he and defendant would touch each other's private parts and ejaculate.

The State and defense experts agreed that M.B.'s mental disabilities were more severe than T.A.'s. M.B.'s IQ was from 49 to the low 50's, placing him in the moderately retarded range. M.B.'s cognitive impairments are manifestations of a genetic disorder known as "Fragile X Syndrome." This condition presents a distinctive set of symptoms, including mental retardation, echolalia (repeating words or phrases as spoken by others), delayed echolalia (repeating words or phrases as spoken by others long after hearing them), and perseveration (fixating on words or phrases for lengthy periods). Persons afflicted with this syndrome tend to be quiescent when facing "confrontational questioning" in order to alleviate stress and anxiety. Moreover, their anxiety thresholds are lower than most people.

M.B. began attending the Center in February 1991, when he was thirteen years old. His classroom was in the "old" building. M.B. was physically and verbally aggressive and very easily agitated. He often "acted out" in the classroom as the result of overstimulation. M.B.'s parents were actively involved in M.B.'s education at the Center. M.B.'s father often conducted his business using an office at the school. On occasion, he would enter the classroom in an attempt to calm M.B.'s anxiety. M.B.'s mother served as a classroom assistant.

While M.B.'s classroom was in the old building, defendant would conduct private sessions with him in his office. In September 1993, M.B.'s class was moved to the new building. M.B. continued to spend time with defendant in defendant's new office, but less than before.

M.B. claimed that defendant sexually assaulted him during these private sessions. According to M.B., defendant would lock the office door, remove his jacket or sweater and hang it on a hook, thus obscuring the view of those in the hallway. M.B. testified that defendant and he touched each other's private parts. After they would ejaculate, defendant would put the "mess" in a paper bag and discard it in a wastepaper basket. M.B. recounted that on one occasion, defendant placed a "paper baggie" over his penis, and attempted to put his penis in M.B.'s "heinie." Defendant warned M.B. not to tell anyone.

During this period, M.B. would "cut up" his underwear when he came home from school. M.B. would also take showers immediately after he arrived home. According to M.B., he was "really angry" at defendant and wanted to "get [him] in trouble," but nevertheless did not apprise his parents of defendant's sexual misconduct.

M.B. kept defendant's secret for a long time. On December 30, 1994, M.B.'s grandmother, [J.O.], was baby-sitting for M.B. and his siblings. At approximately 11:00 p.m., [J.O.] found M.B. sitting in the dark, yelling into a toy microphone. [J.O.] described M.B.'s demeanor as "upset, mad [and] anxious." M.B. told [J.O.] he wanted to tell her something but was afraid she would "get mad at him." At that point, M.B. told [J.O.] about defendant's sexual abuse.

The next morning, [J.O.] told M.B.'s mother. M.B. repeated his allegations to his mother, and then to his father. Because of the holidays, M.B.'s parents were unable to contact the Monmouth County Prosecutor's Office until January 3, 1995, when they, [J.O.] and M.B. met with Detective Mason. Mason interviewed M.B., his parents, and his grandmother together for approximately one hour. Apparently, an assistant prosecutor and a representative from the Division of Youth and Family Services were also present. M.B. repeated his allegations during this interview. However, the "question and answer" session was not videotaped, audiotaped or otherwise recorded.

Mason then took a seven-page statement from M.B. The statement was typed as it was being taken. M.B.'s parents were present, and on several occasions interpreted M.B.'s responses. Experts for the prosecution and the defense agreed that Mason's questions were "leading" and "suggestive." He began by telling M.B. that his inquiry concerned "incidents that have occurred at the [Center] where you were touched by an individual known to you as Dr. Jim." After several preliminary questions, Mason asked M.B. about "incidents where you were touched by Dr. Jim." M.B. responded by saying that defendant touched his "heinie" and "played with [his] pee-pee." According to M.B., on one occasion defendant "tried to put his pee-pee in [his] heinie." M.B. related that defendant would lock the door by pushing the button in the door knob and cover the door window with his coat.

Like T.A., M.B. repeated these allegations in subsequent interviews. Dr. Underwager evaluated M.B. in April and September 1996. The interview was videotaped, and we have had the opportunity to view it. At the very inception of the interview, M.B. volunteered that defendant would lock the door to his office, hang his coat over the rectangular door window, and touch his "body parts" and "heinie." M.B. told Underwager that defendant had committed the same acts on T.A. and was "going to be put in jail for the rest of his life." M.B. did not mention touching defendant's penis. Nor did he allege that defendant attempted to have anal intercourse with him.

M.B.'s unrecorded interview with the State's expert, Dr. Witt, produced largely similar results. Witt described M.B. as "eager" to tell him about defendant's sexual acts. According to Witt, "with very little prompting, [M.B.] recounted" what occurred during his private sessions with defendant. M.B.'s description of the incidents was consistent with his earlier accounts. Unlike his interview with Underwager, however, M.B. described in detail defendant's attempt at anal intercourse.

Defendant did not testify at trial. However, the defense presented several witnesses who testified that they had free access to defendant's office. Azar testified that on the occasions when she had to get T.A. from defendant's office, she would "just walk in," whether or not she knocked first. She noted, however, that sometimes there was a sweater or suit jacket hanging over the window of the door. M.B.'s teacher, Diane Campbell, testified that M.B. always had to be accompanied to and from defendant's office. According to Campbell, she never found the office door locked. She would knock and be granted access immediately.

Defendant also elicited testimony about an incident in February 1991, when M.B. complained at school that his "heinie" hurt because his nine-year old cousin, [J.O.], had put his penis in M.B.'s rectum. The truth or falsity of this allegation was never clearly established. [J.O.] described an incident in 1990 when she noticed that [J.O.] and M.B. were in a bedroom with the door shut. Because the bedroom was very quiet, [J.O.] decided to investigate. She found the boys alone with their penises exposed. [J.O.] dismissed the incident because the children had been alone for only a short period of time. [Krivacska, supra, 341 N.J. Super. at 11-20 (footnote omitted).]

Defendant appealed his judgment of conviction arguing, among other things: (1) the coercive and suggestive interview techniques rendered the testimony of T.A. and M.B. unreliable and inadmissible; (2) the trial judge erred by admitting, and relying upon, Dr. Hall's expert testimony concerning the question of taint because Hall's methodology and conclusions were incorrect and invalid; (3) the grand jury proceedings were tainted by Detective Mason's inaccurate statement; (4) the trial judge erred in finding T.A. and M.B. competent to testify; (5) defendant's right to confrontation was denied because his attorney was not allowed to cross-examine T.A. and M.B. in the hearing to determine whether they were competent; (6) the judge abused his discretion by joining the accusation and the indictment and by failing to give an appropriate limiting instruction on the jury's use of "other crime" evidence, and (7) the out-of-court statements of T.A. and M.B. were erroneously admitted. Id. at 20.

We affirmed, finding on the issue of taint that the trial judge "faithfully adhered to [the] analytical framework" set forth in State v. Michaels, 136 N.J. 299 (1994), and that his ultimate factual findings and conclusions as to both victim-witnesses' competency to testify and the reliability of their statements were reasonably supported by the evidence. Krivacska, supra, 341 N.J. Super. at 27. As to the latter, we rejected defendant's contention that it was error to admit Dr. Hall's expert conclusion that T.A. and M.B. were reliable, finding her testimony: "(1) concerned a subject beyond the ken of the average person, (2) pertained to a field of inquiry that was sufficiently reliable, and (3) fell within the purview of the witness's expertise." Id. at 30 (citing State v. Kelly, 97 N.J. 178, 208 (1984)).

So too, we held that the trial judge properly exercised his discretion in determining that Dr. Witt was qualified to testify as an expert on the witnesses' competency. Id. at 33. Moreover, we found no violation of defendant's right to confrontation in partially barring him from questioning the child-victims at the pre-trial competency hearing. Id. at 34.

We reasoned that defense counsel was granted wide latitude to pursue this subject in his subsequent cross-examination of the victims and fully availed himself of that opportunity, in that his cross-examination was extensive and all relevant circumstances were placed before the jury. Id. at 34-35. Nor did we discern such a constitutional violation in the trial court's denial of defendant's pre-trial motion to examine the victims' confidential school records in connection with the issue of their competency to testify. Id. at 35.

We also found no clear abuse of discretion in the joinder of the accusation charging defendant with sexually abusing T.A. with the indictment charging him with sexually abusing M.B. for the purpose of trial, and the denial of defendant's severance motion. Id. at 37, 39-41. In connection therewith, we found that evidence of other acts would have been admissible in separate trials since the offenses against both victims - of the same or similar character, Rule 3:7-6; Rule 3:15-1(a) - "were relevant to a material issue in dispute, i.e., defendant's opportunity to commit acts of sexual abuse in his office." Id. at 41. Related thereto, we further held that the judge's failure to specifically instruct on the limited use of such "other crime" proofs was not plain error because the court's charge otherwise "clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven . . . [and t]he jury faithfully complied with that instruction, acquitting the defendant of one of the charges." Id. at 43 (citations omitted).

Finally, we rejected defendant's contentions that the grand jury proceedings were tainted and that the victims' out-of-court statements were erroneously admitted. Id. at 44. As to the former, we held that any mistakes in presentation of testimony during the grand jury proceedings "were innocent ones, and clearly were not so serious as to warrant the draconian remedy of dismissal of the indictment." Ibid. (citations omitted).

As to the latter, we found:

Various witnesses testified with respect to the circumstances surrounding the alleged victims' reports of the incidents.

No details were elicited by the State.

Defendant's attorney delved into this subject to a much greater extent than the prosecutor in order to demonstrate that the accounts of T.A. and M.B. were unreliable. [Ibid.]

Defendant's subsequent petition for certification was denied by the Supreme Court. State v. Krivacska, 170 N.J. 206 (2001). His later petition for certiorari was denied by the United States Supreme Court. Krivacska v. New Jersey, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002).

Defendant then filed a timely PCR petition. Defendant's petition alleged various grounds of ineffective assistance of counsel, chief of which was his trial attorney's failure to call Maggie Bruck, Ph.D., whose work the State's expert (Hall) relied upon, and Terrence Campbell, Ph.D., as well as other unidentified experts, to challenge the State's expert proofs and to establish the suggestibility and contamination of M.B. and T.A.'s testimony at both the Michaels hearing and trial. Somewhat inconsistently, defendant also argued that Drs. Bruck's and Campbell's recent reports (dated February 16, 2005, and June 14, 2006, respectively) asserting that Hall misinterpreted Bruck's work and reached the wrong conclusion, constitute newly discovered evidence warranting a new trial. Other allegations of ineffectiveness of counsel included failure to impeach M.B., Dr. Levitas, and Detective Mason; failure to request a limiting instruction on "other crimes" evidence; and failure to argue effectively against consolidation.

Aside from alleged attorney lapses, defendant raised a number of trial court errors. Many of these claims we disposed of on direct appeal, including the court's denial of defendant's pre-trial motions for dismissal of the indictment, for severance, and for access to the child-victims' confidential school records, and the court's failure to give a limiting instruction on "other crimes" evidence. Challenges never previously raised included juror partiality; counsel's interference with defendant's right to testify; and prosecutorial misconduct in "coaching" M.B. prior to the pre-trial hearing.

Following argument, the PCR judge denied the petition without an evidentiary hearing. As a threshold matter, the court found several of the claims procedurally barred under Rule 3:22-5, having been previously raised and resolved on direct appeal. These included claims that the trial court had erred in denying access to the victims' school records and in failing to give a limiting instruction on the use of "other crimes" evidence.

Certain other issues, the court found, were procedurally barred under Rule 3:22-4 because they should have been raised on direct appeal. These included claims that the prosecutor's misconduct deprived defendant of a fair trial; the sentence imposed was improper; the indictment should have been dismissed because it did not allege sufficient facts regarding M.B., and Dr. Levitas' expert testimony should have been barred because the State failed to serve his expert report in accordance with Rule 3:13-3(c)(9).

While finding that some of the other issues framed now as ineffective assistance of counsel were either already adjudicated as differently phrased claims or could have been presented as such but were not, and therefore procedurally barred on PCR, the judge nevertheless proceeded to address them substantively, holding that either individually or collectively considered, defendant failed to establish a prima facie case to merit an evidentiary hearing. Specifically, the court rejected defendant's principal contention that trial counsel failed to present favorable evidence during the Michaels hearing and at trial, namely the testimony of Bruck and Campbell, whose recent reports (attached to defendant's PCR petition) challenged Dr. Hall's methodology, opined that she misinterpreted the "science," and concluded that the interviewing techniques were leading and suggestive. The PCR judge reasoned that trial counsel had presented the testimony of two expert witnesses at the Michaels hearing on this issue. Both defense experts, Dr. Underwager and Dr. Cooke, challenged the State's experts' methodology in reaching their opinions as well as their ultimate findings as to reliability. The court concluded that the presentation of additional experts on the same issue would have been "cumulative and repetitious" and therefore found this particular claim of ineffectiveness lacking in merit.

Defendant's other related claim was that trial counsel should have presented, at trial, expert testimony challenging the reliability of M.B.'s and T.A.'s statements, as this was crucial to a proper defense. Using similar reasoning, the PCR judge found:

[t]he jury was presented with ample evidence of the victims' mental limitations, establishing that their ability to testify was hindered. Their mental infirmities [were] thoroughly explained and discussed during the trial by both State and defense witnesses. Trial counsel vigorously cross-examined the State's witnesses during the trial concerning the victims' cognitive abilities, including the victims themselves.

As to counsel's failure to impeach M.B. with a prior inconsistent statement - to the effect that he only knew defendant because the prosecutor had told him where defendant would be sitting - the court found that the victim had been vigorously cross-examined and that, in any event, defendant "failed to show how the use of his prior inconsistent statement would have changed the result of the trial proceedings."

Regarding counsel's alleged failure to impeach Detective Mason with a statement from Azar indicating that the detective's interviews with other children at the Center were suggestive, the court noted "[p]petitioner has not submitted a certification or affidavit by Azar voicing her concerns about Mason's testimony." In any event, the court found Azar's lay opinion on this issue would not have altered the outcome of the trial.

The court further rejected defendant's claim that trial counsel had failed to impeach or rebut the testimony of Dr. Levitas, who testified to a medical condition suffered by M.B. (Fragile X Syndrome) and the manner in which that condition affected the way M.B. communicated, as lacking any factual basis. On this score, the judge noted defendant never alleged that the expert testimony on the syndrome was incorrect. Similarly bereft of support in the record were defendant's claims that trial counsel failed to present evidence to counter the suggestion that M.B.'s sexual knowledge was derived from defendant, and that trial counsel had failed to inform the jury of defendant's unique qualifications that would have explained the private sessions he had conducted with T.A. and M.B. As to the latter, the court found that defendant's qualifications were amply set forth in the record.

The PCR court further rejected the claim that trial counsel had failed to "offer an alternative defense to the State's proffered explanation that [defendant's] process notes were evidence of his guilty mind." At trial, the prosecutor had contended that defendant took thirty minutes to hand over the notes to Detective Mason, the implication being that defendant was hurriedly fabricating the notes. While defendant argued in his PCR petition that trial counsel had failed to properly cross-examine George Sheer, the school director, who would have testified that the notes were handed over to the detective within five minutes of Mason's request, he failed to provide a certification from Sheer attesting to these facts.

On the issue of consolidation, the court dismissed defendant's various claims as without merit. First, joinder had already been found proper on direct appeal. As to defendant's contention that counsel failed to warn him of the risk of joinder when he waived his right to an indictment, the court simply noted that defendant had waived this right before M.B. ever made his allegations, and thus counsel could not have reasonably anticipated the later discovered charges. And as to the claim that trial counsel should have presented evidence to challenge the joinder, including evidence that defendant had passed a polygraph examination, the court noted the results of the examination would have been inadmissible.

Nor did counsel interfere with his client's right to testify as claimed by defendant. According to defendant, he was unable to sleep the previous night because he worked with his attorney well into the early morning hours preparing for the trial. The PCR court rejected the claim, finding that these facts, if true, did not demonstrate that counsel improperly interfered with defendant's right to testify.

The claim of juror partiality was found similarly lacking in merit. The claim was based on the report of a defense investigator, who supposedly discovered a relationship between one of the jurors and members of M.B.'s family. The PCR court rejected this claim, noting that the juror had denied knowing or having a relationship with any of the parties. Further, the court noted, defendant had not presented any certification or affidavit attesting to any of the alleged relationships.

Defendant's claim that newly discovered evidence warranted a new trial was also flatly rejected by the court. As with the related claim of ineffectiveness of counsel, the PCR court found that Bruck's report, which was critical of Hall's methodology, was merely cumulative and would likely not have changed the jury's verdict. Moreover, defendant failed to show why this evidence could not have been discovered earlier.

Finding no meritorious trial issues, the court rejected the claims that cumulative errors warranted PCR relief and appellate counsel had been ineffective for not raising them. Finally, having found defendant failed to demonstrate a prima facie case of ineffectiveness of counsel, the PCR court held there was no need for an evidentiary hearing. Thus, the PCR application was denied in all respects.

This appeal follows in which defendant, through counsel, raises the following issues:


A) Trial counsel failed to investigate and failed to present essential witnesses in the Michaels hearing and at trial.

B) Trial counsel failed to effectively challenge unreliable testimony of the State's expert witnesses.

C) Trial counsel failed to impeach M.B.

D) Trial counsel failed to impeach Dr. Levitas. E) Trial counsel failed to investigate and present to the jury evidence of alternative sources of M.B.'s sexual knowledge.

F) Trial counsel failed to impeach Detective Mason.

G) Trial counsel failed to rebut the Prosecutor's assertion that Krivacska's process notes were evidence of a guilty mind.

H) Trial counsel failed to present evidence of defendant's unique qualifications and expertise to place defendant's interactions with T.A. and M.B. in context.

I) Trial counsel failed to request a jury instruction on other crime evidence.

J) Trial counsel failed to raise proper arguments in opposition to the State's motion to consolidate the Accusation and the Indictment.

K) Trial counsel improperly interfered with defendant's right to testify on his own behalf.

L) Trial counsel failed to preserve the appearance of impartiality with respect to defendant's expert witness, Dr. Underwager. II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.













In his pro se supplemental brief, defendant reiterates many of the issues presented by counsel and raises additional ones, including:



1. Failure to Rebut State Expert at Pre-Trial Hearing.

2. Failure to Present Evidence to Prove Defense Theory of Case.




1. PCR Counsel's Inadequate Investigation Constituted Ineffective Assistance of Counsel.

2. Counsel Failed to Present All Claims Put Forth by Defendant in His PCR Petition.





We have reviewed the entire record in this matter in light of the arguments of counsel and defendant pro se and conclude none of them, either singly or cumulatively considered, warrant reversal of the PCR court's determination. Accordingly, we affirm substantially for the reasons set forth by the PCR judge in his thorough and well-reasoned fifty-three page oral opinion of October 19, 2007. We add, however, the following comments.


We begin by restating some well-settled principles of law. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 683, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). "Bald assertions" of ineffective assistance will not suffice; rather defendant must allege specific acts or omissions that constitute deficient performance. State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007); State v. Pagan, 378 N.J. Super. 549, 557 (App. Div. 2005); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). To establish prejudice, "defendant must demonstrate 'how specific errors of counsel undermined the reliability' of the proceeding." State v. Howard, 383 N.J. Super. 538, 546 (App. Div.), certif. denied, 187 N.J. 80 (2006) (quoting United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984)). In other words, defendant "must provide a detailed exposition of how the trial lawyer fell short and . . . why the result would have been different had the lawyer's performance not been deficient." DYFS v. B.R., 192 N.J. 301, 311 (2007). "That will include the requirement of an evidentiary proffer in appropriate cases. For example, [if, as here,] the failure to produce expert or lay witnesses is claimed, [defendant] will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance." Ibid.

In support of his claim that trial counsel failed to present essential witnesses in the Michaels hearing and at trial, defendant has appended to his PCR petition Bruck's February 16, 2005 report and Campbell's June 14, 2006 report, which assert that Hall misinterpreted Bruck's research. The gravamen of defendant's claim is that such expert evidence, if produced, would have rendered Hall's testimony concerning the reliability of the child victims' accounts inadmissible as itself scientifically unreliable. There are a number of reasons why this claim must fail.

First, Hall's expert qualifications and the admissibility of her opinions - as beyond the ken of the average person, pertaining to a field of inquiry that was sufficiently reliable, and within the purview of her expertise - have already been resolved on direct appeal. Krivacska, supra, 341 N.J. Super. at 20. See R. 3:22-5. There, in support of his challenge to Hall's methodology and conclusions, defendant argued, as here, that Hall "'used an idiosyncratic clinical approach to conclude that T.A. and M.B. were reliable because they resisted the suggestions' contained in several of the questions propounded." Krivacska, supra, 341 N.J. Super. at 29 (footnote omitted). We rejected the claim of error in admitting Hall's expert opinion on the question of taint, fully satisfied that, based on the entire record, the "trial judge was not wide of the mark in his essential finding that T.A. and M.B. retained their ability to give a full and fair account of what happened to them in their private sessions with defendant." Id. at 30. As to the "scientific acceptability . . . of the . . . methodology or procedures" used, State v. Marcus, 294 N.J. Super. 267, 274 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998), we simply noted that Hall's "reliance upon the alleged victims' refusal to bend their answers to meet the suggestions advanced in their interviewers' inquiries would seem to comport with common sense and common experience." Krivacska, supra, 341 N.J. Super. at 29.

Second, defendant has not shown that either the information or the expert witnesses now proffered were available to trial counsel, or that the experts were willing to testify on defendant's behalf. State v. Arthur, 184 N.J. 307, 326 (2005). After all, the reports of Bruck and Campbell were issued well after the trial in this matter and were supposedly based on additional research conducted post-trial. Indeed, the very basis for defendant's alternate request for a new trial is so-called "newly discovered" evidence, presumably not in existence at the time of trial. Obviously, if the evidence was not then available, defense counsel could not be ineffective for having failed to produce it. Conversely, if such proofs were available, defendant would not be entitled to the new trial he now requests inasmuch as he has failed to establish how this evidence could not have been discovered before trial by the exercise of reasonable diligence. State v. Russo, 333 N.J. Super. 119, 136-37 (App. Div. 2000).

Third, even if the evidence was capable of being produced at the time of trial, defendant has simply failed to demonstrate how it would have changed the outcome, namely why the result would have been different were counsel's performance not deficient. On the contrary, we have already addressed this issue based on the trial record and determined that the validity and correctness of Hall's methodology and conclusions were fully aired before the jury. As we noted, "defense counsel was granted great latitude in cross-examining both Witt and Hall and in presenting evidence attacking the validity of their opinions." Krivacska, supra, 341 N.J. Super. at 29 n.4. We found similarly on the threshold issue of the child-witnesses' competency to testify:

[Trial Counsel] was granted wide latitude to pursue this subject in his subsequent cross-examination of T.A. and M.B. Moreover, defense counsel fully availed himself of that opportunity. The attorney's cross-examination was extensive, and all of the relevant circumstances were placed before the jury. We discern no constitutional violation. [Id. at 34-35.]

Indeed, at the Michaels hearing, counsel presented two defense experts (Drs. Underwager and Cooke), who challenged Hall's methodology, and therefore the additional proofs now proffered would be merely repetitious and cumulative. Furthermore, as the PCR judge found, "[t]he jury was presented with ample evidence of the victim's [sic] mental limitations, establishing that their ability to testify was hindered. . . . The limits of these children had to be apparent to the jury, based upon their testimony and based upon the thorough cross-examination that the witnesses were exposed to." And finally, to the extent defendant now attacks Hall's reading of Bruck's initial research, suffice it to say, Hall relied on other studies as well in formulating her opinion on "taint," so the additional information now proffered is not the sort that would likely change the verdict.


Several of defendant's contentions on PCR concern the joinder of sex offenses for trial. Yet the issue of consolidation was also fully considered and addressed on direct appeal. R. 3:22-5. A critical feature of defendant's claim on direct appeal was the alleged prejudice from the joined offense, evidence of which, according to defendant, would not have been admissible in a separate trial. Granted, the admissibility of such "other crime" evidence under N.J.R.E. 404(b) is a key factor in determining whether prejudice exists from joinder of multiple offenses. State v. Moore, 113 N.J. 239, 274 (1988). However, we have already determined that the alleged offenses against T.A. would be admissible in a trial involving the alleged offenses against M.B. and vice versa. Krivacska, supra, 341 N.J. Super. at 38-41. Citing State v. Oliver, 133 N.J. 141 (1993), where the Court held that "the other-crime evidence would be admissible to show the feasibility of the proposition that defendant could sexually assault women in his room without other household members hearing or seeing anything unusual[,]" id. at 153, we previously reasoned that:

The facts of this case are similar. The offenses were allegedly committed in defendant's office which was situated in a public area of the school. The defense presented numerous witnesses who testified with respect to the accessibility of that office and the ability of those traveling the hallway to have an unobscured view into the room. The feasibility of defendant committing the offenses was one of the critical factual issues. Moreover, the offenses committed were similar in kind and reasonably proximate in time. Plainly, the other-crime evidence had sufficient probative value not to be outweighed by its potential for undue prejudice. And surely, there was clear and convincing evidence offered to establish the "other crimes." We conclude that the foundational requisites for admission of the evidence were satisfied.

[Krivacska, supra, 341 N.J. Super. at 41.]

The other critical feature of defendant's appellate claim was the alleged prejudice from counsel's failure to request, and the court's failure to give, an instruction on the limited use of "other-crime" proofs actually presented. To be sure, the judge's instructions "did not meet the required standard." Id. at 42. Yet, when the issue was previously before us, we stressed not only the fact that no limiting instruction was requested, but more significant for present purposes, that the instruction actually given was not capable of producing an unjust result, Rule 2:10-2:

The charge given by the judge clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven. That was the thrust of the instruction to consider each charge separately. The jury faithfully complied with that instruction, acquitting the defendant of one of the charges. Thus, we discern little or no danger that the jury considered the other-crime evidence to find a general propensity on the part of defendant to commit sexual assaults. [Krivacska, supra, 341 N.J. Super. at 43 (internal citations omitted).]

As for the defense attorney's failure to make the request, we did "not deem it a palliative to explore the thoughts of trial counsel or his pertinent conversations with his now unhappy client." Ibid. Indeed, we noted that "defendant here had little to gain and much to lose by requesting a limiting instruction":

An appropriate instruction would have apprised the jury of its right to consider the other-crime evidence in determining the feasibility of the proposition that defendant could sexually assault students in his office without being detected. Even from the prism of afterthought, it is doubtful that such an instruction would have aided the defendant's case, particularly when considered in the light of the charge actually given which conveyed the message that other-crime evidence could not be used for any purpose. [Ibid.]

We discern no reason to revisit the issue now. We conclude, as we did on direct appeal, that counsel's failure to request a limiting instruction was but "a well reasoned strategic determination" and that, in any event, the omission did not prejudice defendant. Id. at 43-44.


Defendant's next series of ineffective assistance claims concern counsel's alleged failure to impeach certain State's witnesses, namely M.B., Dr. Levitas and Detective Mason. The PCR judge rejected each of these claims as unfounded, and so do we.

State's witness Levitas testified about Fragile X Syndrome, a medical condition from which M.B. suffers, and its effect on the afflicted's ability to communicate. Although not disagreeing with the expert's description of the condition, defendant nevertheless faults counsel for failing to present opposing expert testimony; failing to object to Levitas' vouching for M.B.'s credibility and for late discovery of his expert report; and failing to elicit the fact that Levitas had been hired by M.B.'s parents in a civil lawsuit. We discern no substance to these claims.

Contrary to defendant's assertion, Levitas did not suggest the jury believe only what M.B. said on direct and ignore any inconsistency elicited on cross-examination. Instead, Levitas simply described the symptoms of this medical condition and explained how it impacts on the affected's ability to communicate. He neither bolstered nor vouched for M.B.'s credibility. Moreover, defendant never demonstrated the need to neutralize such testimony nor the disadvantage accruing from the so-called discovery violation. R. 3:13-3(c)(9). As for the failure to elicit Levitas' potential bias, we agree with the PCR judge that "[t]his is not the type of credibility issue that would have ultimately affected the outcome of this trial." On the contrary, defense counsel vigorously cross-examined Levitas, eliciting the fact that one suffering from Fragile X Syndrome could display "delayed echolalia" and repeat lengthy, complicated passages of dialogue, further advancing the defense theory of suggestiveness.

We also discern no constitutional performance deficiency in counsel's cross-examination of M.B., which was vigorous in attempting to expose the witness' unreliability. See Krivacska, supra, 341 N.J. Super. at 44. Although counsel did not impeach M.B. with his prior inconsistent pre-trial statement to the effect he only knew defendant because the prosecutor had told him where defendant would be sitting and that he would be wearing glasses, such a statement was obviously erroneous.*fn1 In any event, counsel capably elicited the fact that various people had prepared M.B. for trial, and M.B. in turn heard other persons discussing defendant. Counsel also discredited M.B., who related a conversation he had with T.A. in the school hallway when, in fact, M.B. had already moved to Florida. And despite defendant's contention to the contrary, counsel presented to the jury on multiple occasions a possible alternate source for M.B.'s sexual knowledge, namely his nine-year old cousin, J.O., who, according to M.B., put his penis in M.B.'s "heinie." The fact that counsel failed to further elicit that M.B. had also viewed pornography seems of little consequence in light of substantial other testimony of M.B.'s claimed sexual encounters with J.O., and his own frequent masturbating habits.

We also disagree with defendant's next contention that it was constitutional error for counsel to fail to impeach Detective Mason with the testimony of Naomi Azar that the investigator's subsequent interviews of other school children were coercive. In the first place, defendant has failed to make a proffer via affidavit or certification supporting his account of Azar's proposed testimony. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002). Second, both prosecution and defense experts agreed that Mason's questions were indeed "leading" and "suggestive," Krivacska, supra, 341 N.J. Super. at 18, and therefore, Azar's lay opinion would have added little if anything to the inquiry, much less have changed the outcome. In any event, the fact that Mason's questioning may have been suggestive does not necessarily render the children's responses unreliable. Thus, the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques. [Michaels, supra, 136 N.J. at 321.]

Here, the State successfully demonstrated that the investigatory procedures employed, including Mason's interviewing technique, did not have the effect of tainting the victim's recollection of events, and consequently, Azar's proposed testimony would not have changed the result.*fn2


In addition to his remaining claims of ineffective assistance, all of which we find without merit not warranting further discussion, Rule 2:11-3(e)(2), defendant contended before the PCR court that he was denied a fair trial by an impartial jury because of an undisclosed relationship between members of a juror's (F.A.'s) family and members of M.B.'s family. In support of this claim, defendant proffered an investigator's (Charles Benoit's) report of a telephone interview with J.J., a retired Director of Special Services in the township's regional school district, who said that, on the one hand, M.B.'s mother was a member of the township Board of Education, his father was mayor, and one of his sisters was a student at the high school and, on the other hand, [F.A.'s] father was allegedly borough attorney and his sisters also attended the same high school. The PCR judge rejected this claim, noting:

It is unclear how this information would show that [F.A.] had a prior relationship with the victim's family. Further, petitioner has not provided any documentation which would verify those claims. . . .

[F.A.] was questioned whether he had any relationship or knew any of the parties involved in the case and he responded no . . . .

Finally, petitioner has not provided any certification or affidavit attesting to this alleged relationship. Therefore, he has failed to show that he was denied his right to an impartial jury trial or that the jury should be questioned about his alleged relationship.*fn3

On this PCR appeal, defendant contends two-fold that the PCR court erred in denying him a new trial on the ground of juror misconduct and that PCR counsel was ineffective for failing to obtain certifications attesting to the relationships between the juror's and the victim's families. In support of the latter claim, defendant offers for the first time a certification stating specifically that "M.B.'s father was a committeeman from 1993 through 2003, and was Mayor of the Township in 1996, and that during this period [F.A.] was Attorney for the Township Planning Board, a position to which he had been appointed by M.B.'s father and the other committeemen." We reject both contentions.

As to the former, it is clear that "'[c]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.'" State v. Harris, 181 N.J. 391, 503 (2004) (quoting State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed. 2d 674 (1966)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). "By allowing post-verdict interviews for good cause, a remedy is provided for extraordinary circumstances to prevent an injustice." Ibid.

Here, defendant made no showing, much less a strong showing, of juror bias or misconduct. Indeed, he failed to provide an affidavit from J.J. in support of the PCR petition. See N.J.R.E. 801; R. 1:6-6. Moreover, the report of J.J.'s telephone interview demonstrated nothing more than certain family members of the juror allegedly may have been acquainted with certain members of the victim's family. Even the supplemental certification submitted by defendant pro se on the reconsideration motion failed to evidence any relationship whatsoever between the juror and the victim's family, or call into question the juror's denial of that fact during jury voir dire. Having failed to carry his burden of establishing prejudice by juror misconduct, defendant was not entitled to PCR relief.

As for PCR counsel's alleged ineffectiveness for supplying the certification defendant now offers for the first time on appeal, suffice it to say, we do not consider matters not raised before the PCR court. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). But even if we were to accept the belated certification, defendant has not shown PCR counsel was deficient in not having produced it, or that its production would have changed the outcome of his petition. Simply stated, defendant's belated certification offers no valid basis upon which to attack the credibility of the juror, who expressly represented to the trial court during voir dire that he did not know any of the victims, witnesses or attorneys involved in the matter. See State v. Bianco, 391 N.J. Super. 509, 511-12 (App. Div.), certif. denied, 192 N.J. 74 (2007). Indeed, there is no competent proof whatsoever that the juror knew about any of the familial relationships alleged by J.J., or had any reason to believe the two families knew each other. And defendant has not identified any person other than J.J. willing to attest to relevant information supporting his bald allegations. See State v. Webster, 187 N.J. 254, 257 (2006). Thus, even if we accept defendant's most recent submission, there is still no competent proof of juror bias or misconduct. Accordingly, defendant has not shown that PCR counsel's performance was deficient or that the investigation into the familial relationships now at issue would have uncovered information that would have altered the outcome of the PCR hearing.*fn4


On the issue of access to the victims' school records, defendant argues the trial court's denial was error and that our court effectively denied him the right to appeal by failing "to conduct an independent review of the records to determine the question of their materiality or relevance[]"; by deciding only that the procedure employed by the trial judge was proper; and by never "reach[ing] the question of whether or not that decision was an abuse of discretion or a misapplication of the law in the context of the specific records in question because it never reviewed the records." As the PCR judge noted, defendant is barred from relitigating this issue under Rule 3:22-5 because it was already raised and addressed on appeal. See Krivacska, supra, 341 N.J. Super. at 35-36. We agree. Contrary to defendant's contention, we found no infringement on defendant's constitutional right of confrontation and hence no error in the trial court's denial.*fn5

Here again, we see no reason to revisit that decision. We simply add that defendant, in his capacity as school counselor and as obvious from the specificity of the information requested, was presumably aware of the contents of the records he sought and fully availed himself of the opportunity to have the victim-witnesses extensively evaluated for both competency and taint by two defense experts who subsequently testified on his behalf at the Michaels hearing. Simply put, defendant has not demonstrated any impediment to his ability to cross-examine the victims from non-disclosure of records which, after the trial court's careful review, were found to be irrelevant and devoid of the specific information sought in defendant's request. We are satisfied, therefore, that defendant's interests were adequately protected under the circumstances.


Defendant next complains of ineffective assistance of appellate counsel because counsel failed to raise the numerous issues raised in his PCR petition on direct appeal. The PCR court rejected this argument, noting "[a]s all of the issues the petitioner raises are without merit, appellate counsel's alleged failure to raise them on appeal does not rise to the level of ineffective assistance of counsel." We agree.

A defendant is entitled to effective assistance of counsel at all stages of the proceedings, including on a first appeal as of right. State v. Morrison, 215 N.J. Super. 540, 545 (App. Div.), certif. denied, 107 N.J. 642 (1987). The standard of review for ineffective assistance of appellate counsel claims is the two-pronged test set forth in Strickland, supra. See State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). "'[I]n applying the Strickland standard to assess a claim of ineffective assistance of appellate counsel, defendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different.'" Id. at 513 (quoting Morrison, supra, 215 N.J. Super. at 546).

Here, defendant offers nothing more than the assertion that appellate counsel "failed to raise meritorious issues on direct appeal, particularly those now raised in the PCR petition." However, we find the arguments raised herein to be either procedurally barred under Rule 3:22-5 as having been previously adjudicated or, as to those not heretofore presented, to be devoid of merit, Rule 2:11-3(e)(2), for lacking any explanation of how defendant was prejudiced by their omission or why the outcome of his appeal would have been different had they been included. Clearly, failure to pursue a meritless claim does not constitute ineffective assistance since appellate counsel does not have an obligation to raise spurious issues on appeal. Webster, supra, 187 N.J. at 256; State v. Worlock, 117 N.J. 596, 625 (1990).


We deem defendant's remaining issues, not specifically addressed above, to be without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the PCR judge in his comprehensive and thoughtful 53-page oral opinion of October 19, 2007.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.