On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-06-641.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Payne and Waugh.
Defendant William Gray appeals the second denial of his petition for post-conviction relief (PCR). We affirm.
The following procedural and factual background informs our decision on this appeal.
In 1999, a jury convicted Gray of the following offenses: second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (count 1); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) (count 2); two counts of fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts 3 and 4); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(b) (count 5); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4) (count 6); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(3)(b) (count 7); and two counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (counts 8 and 9).
Following the jury verdict, Gray alleged that his trial counsel, Robert Seelenfreund, was ineffective. As a result, Michael Ignatoff was assigned to take over Gray's case. Gray's motion for a new trial was denied. The State's motion for imposition of an extended term as a persistent offender was granted. After merging some of the offenses, the trial judge sentenced Gray to an aggregate of fifty years in prison, with nineteen years of parole ineligibility, plus applicable penalties and fees. We affirmed the conviction and sentence on July 16, 2001. State v. Gray, No. A-2878-99T2 (App. Div. July 16, 2001). The Supreme Court denied certification. State v. Gray, 171 N.J. 445 (2002).
On June 23, 2002, Gray filed a verified petition for PCR. The trial judge heard oral argument, but decided that an evidentiary hearing was necessary. Following hearings on February 18 and 19, 2004, the judge denied Gray's PCR petition. Gray appealed and we remanded for a supplementary evidentiary hearing, pursuant to State v. Preciose, 129 N.J. 451 (1992), based on newly discovered evidence relating to an exculpatory witness. State v. Gray, No. A-4923-03T4 (App. Div. July 8, 2005) (Gray II).
In our opinion ordering the remand hearing, we outlined the strategy at Gray's trial as follows:
Defendant's prosecution was based upon evidence that he had sexually molested T.W., whom we will fictitiously call Tina, from 1991 when Tina was eleven years old until discovery of his conduct in January 1997. At trial, Tina claimed among other things that sexual penetration had occurred, commencing in 1994. Gray denied that fact, although admissions of kissing and fondling by him were presented. The focus of the defense at trial, as recognized by the PCR judge, was on gaining an acquittal on the first-degree sexual penetration charge. [Gray II, supra, slip op. at 3.]
The initial PCR hearing had focused on allegations that trial counsel had been ineffective for failing to investigate and call a witness named Martin, whose first name was referred to as either Bayshiel or Bashir, whom Gray contends would have testified that he had sexual relations with Tina. The PCR judge concluded that Seelenfreund was not ineffective and that, in any event, Martin's purported testimony would not have changed the result.
We explained the need for a remand hearing as follows:
We view the evidence in a somewhat different light. As the PCR judge recognized throughout his oral opinion, the primary focus of the defense was on the issue of whether defendant had penetrated Tina's vagina. Defendant stated that he had not, and no statement by him that was admitted at trial suggested otherwise. Tina disagreed. She testified additionally that she had not had intercourse with anyone else. Thus, evidence that her hymen was ruptured was strongly suggestive of defendant's guilt on the first-degree charge. If, however, Martin had testified to having had sexual intercourse with Tina, the probative value of evidence of a ruptured hymen would have substantially decreased. We thus do not regard Martin's testimony as relevant merely to Tina's credibility when she stated that she had sex only with defendant. It directly affected the value of Tina's ruptured hymen as evidence of defendant's guilt and the credibility of defendant's denial of acts of penetration -- a principal issue at trial.
We also find significant the fact that Martin remained alive for two years following defendant's trial, and an attempt could have been made to call him as a witness during this period, but was not. We find the judge to have been mistaken in his reliance on State v. Bunyan, 154 N.J. 261 (1998) when analyzing the post-trial admissibility of information conveyed by Martin. In Bunyan, the issue was not whether post-conviction relief should be granted, as it is here, but rather whether defendant should be afforded a new trial on the basis of new evidence in the form of an alleged exculpatory statement by a deceased witness. In the present case, the PCR judge's focus should have been on the status of Martin at the time the allegedly incompetent representation occurred, not Martin's present status. As the judge acknowledged, the testimony then would have been admissible.
We are also troubled by the lack of testimony at the PCR hearing from Ignatoff. If, as the judge found, Martin did not appear until trial testimony had been concluded, and if the investigator's subsequent report of his interview with Martin was in the file, then the reasons for Ignatoff's failure to include Martin's testimony as newly-discovered evidence in the new trial motion filed substantially after the investigation occurred require exploration. It may be that strategic considerations motivated Ignatoff, and it may be that Ignatoff's testimony will shed further light on when Martin appeared to testify and whether his proposed testimony could in the circumstances be regarded as newly discovered evidence. Answers to these questions may suggest a need to further examine any strategic choices made by Seelenfreund, his ability and obligation to locate Martin -- an identified witness -- during trial, his obligation to bring the investigator's report of his conversation with Martin to Ignatoff's attention and the competence of his representation, and the probable effect of any failings in that regard on the outcome of the proceedings.
In any event, we find a remand for a further hearing pursuant to State v. Preciose, 129 N.J. 451 (1992) to be warranted in this case, so that a sufficient factual foundation can be established for the court's consideration of the ineffective assistance of counsel argument presented on defendant's behalf under standards established in Strickland v. United States, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 659 (1984) and State v. Fritz, 105 N.J. 42 (1987). [Id. at 11-14 (footnotes omitted).]
We also remanded for consideration of whether PCR counsel had appropriately assisted Gray in presenting the points he sought to raise on PCR. ...