On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-441.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Baxter and Coburn.
Defendant Joseph Iadipaoli appeals from a December 5, 2008 order that denied his first petition for post-conviction relief (PCR) without conducting an evidentiary hearing. We reject defendant's claims that trial counsel rendered ineffective assistance by: failing to introduce documents establishing that the charged conduct could not have occurred at the time alleged in the indictment; mishandling allegedly decisive medical issues; and failing to discredit the complaining witnesses with their prior inconsistent statements. We do, however, agree that defendant was entitled to an evidentiary hearing on his claim that trial counsel was ineffective because he failed to interview readily available fact witnesses whose exculpatory testimony could have "impugned the prosecutor's case." We reverse the denial of PCR and remand for an evidentiary hearing.
On June 29, 2007, defendant was convicted of four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). The judge sentenced him to an aggregate term of imprisonment of twenty-seven years subject to the eighty-five percent parole disqualifier required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
The State's proofs at trial consisted of the testimony of four brothers, S.M., age nine; D.M., age ten; L.M., age eleven; and J.S., age seven. Each child testified that he often slept overnight at defendant's home, after playing games and watching television there. Each boy claimed that he slept in defendant's bed with the bedroom door closed while three or four other adults were present in the house. Two of the boys testified that defendant performed anal intercourse upon them, a third maintained that defendant performed fellatio upon him, and the fourth child described defendant touching his penis. All four testified that such activity occurred in defendant's bed.
The State also presented the testimony of Alissa Vinci, an investigator with the Child Abuse Unit of the Essex County Prosecutor's Office, who described her interviews with the four children. On cross-examination, Vinci acknowledged that she had not visited the crime scene, and therefore had not collected evidence such as bodily fluids. She also conceded that the medical evaluations of the children yielded no finding to support their allegations. Her testimony included the playing of the taped interviews with the children. Defendant did not testify, nor did he present any witness testimony. Before the case went to the jury, defendant moved for a judgment of acquittal, which was denied.
On August 8, 2007, defendant filed a notice of appeal in which he asserted that trial errors denied him a fair trial. He also claimed he received ineffective assistance of trial counsel. On February 27, 2008, defendant's appeal was dismissed for failure to prosecute.
On April 29, 2008, defendant filed the PCR petition that is the subject of this appeal, in which he alleged that trial counsel provided ineffective assistance: 1) by failing to interview and present at trial witnesses whose exculpatory testimony would have raised a reasonable doubt about his guilt; 2) by failing to introduce documentary evidence establishing that the charged conduct could not have occurred at the time alleged in the indictment; and 3) by "grossly mishandl[ing] decisive medical issues in the case."
To support his claim that trial counsel was ineffective for failing to interview and present testimony of three witnesses who would have provided favorable testimony, defendant attached affidavits from each one. Sade Jennings was defendant's goddaughter and lived with defendant during the relevant time period. Had she been called as a witness, Jennings would have testified that the four boys did not visit defendant's home individually as they claimed, but only in groups. Moreover, she would have testified that they always slept on defendant's living room floor and never, as asserted, in his bedroom. She also stated in her affidavit that she never heard any of the boys complain of sexual abuse by defendant, and commented that all four were "always happy and excited about coming to [defendant's] house." Finally, she maintained that defendant's trial attorney never initiated any contact with her.
The second affidavit was submitted by Jennifer Bonjean, a member of the New York Bar, who participated in the telephone interview of S.J., a minor. S.J. was the goddaughter of defendant and lived with him, her mother and Jennings during the time of the alleged abuse. S.J. told Bonjean that the boys never told her of any inappropriate conduct by defendant, nor did she ever witness any such conduct. S.J. also asserted that the boys slept in the living room, ...