On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-01-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Payne and Waugh.
Defendant, Joseph Cooke, appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. On appeal, he makes the following arguments:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE THE TESTIMONY OF DEFENDANT, MS. UHLES, AND TRIAL COUNSEL ESTABLISHED THAT TRIAL COUNSEL WAS INEFFECTIVE UNDER STRICKLAND FOR FAILING TO INFORM THE TRIAL COURT OF POTENTIAL JUROR TAINT AND TO CALL MS. UHLES AS A FACT WITNESS IN SUPPORT OF DEFENDANT'S CONSENT DEFENSE.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPPORT HIS REQUEST FOR POST-CONVICTION RELIEF.*fn1
Following a careful review of the record on appeal, we affirm.
Defendant was arrested on August 3, 1997 after he entered a home in Rutherford and committed homosexual fellatio on one of the male residents who was sleeping on a couch in the living room. According to the resident, a similar occurrence had taken place on July 28, 1997, but the police had not been called. Following his arrest, defendant gave a statement to the police in which he claimed that, on the night of the August crime, he had gone to New York, drunk a bottle of vodka, stopped in at a gay club, and returned to New Jersey by means that he did not recall. Defendant stated that he remembered being in his kitchen and looking at the clock, which indicated it was 2:20 a.m. He then remembered leaving the house and being approached by a police officer. Thereafter, he remembered nothing until he found himself in a house being held down by "some guy" with a police officer screaming at him. Defendant initially stated in response to police questioning that he had seen the victim before at the house in which defendant was found, but he had not been introduced to the victim, and they had never conversed. Defendant admitted that he had committed fellatio on the victim. Defendant additionally admitted, in connection with the July incident, that he assumed that the victim was sleeping, that he had placed the victim's penis in his mouth without his consent, and that he did not know who the victim was.
Defendant was charged in connection with the July and August events with two counts of second-degree burglary, N.J.S.A. 2C:18-2, two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(2).*fn2 Defendant was tried before a jury and was convicted of one count of second-degree sexual assault, only. At trial, defense counsel called no witnesses, but argued that the encounter between defendant and the victim had been consensual.
Defendant was initially sentenced as a third-degree offender to three years of probation. However, the State appealed that sentence, and defendant cross-appealed his conviction. In a published opinion, we affirmed defendant's conviction but reversed his sentence. State v. Cooke, 345 N.J. Super. 480 (2001). Certification was denied. State v. Cooke, 171 N.J. 340 (2002). Upon resentencing, a four-year custodial term with three years of parole supervision was imposed, and defendant was ...