On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sabatino.
In this appeal of the denial of post-conviction relief ("PCR"), defendant Michael A. Cooper seeks to set aside his convictions of first-degree aggravated sexual assault, second-degree burglary, and third-degree endangering the welfare of a child, which followed a jury trial in 2001.
The State's proofs reflected that defendant had molested a five-year-old girl ("S.L.") in an apartment after her mother had left. The proofs indicated that, among other things, defendant had placed his fingers into or near the child's vagina. The trial judge, Judge John A. Conte, sentenced defendant to an aggregate prison term of twenty-two years, subject to a period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant's convictions were sustained on direct appeal, except that our unpublished opinion vacated his separate sentence for burglary, and remanded for resentencing. See State v. Cooper, No. A-4663-01 (App. Div. May 1, 2003) (slip op. at 16), certif. denied, 177 N.J. 496 (2003). In the course of our opinion, we noted that the State's case was "grounded in compelling and substantial evidence, including [defendant's] own damaging admissions" that he had touched or tickled the child victim while he was alone with her. Id. (slip op. at 14).
On remand, the trial court resentenced defendant and his sentence was reduced from a twenty-two-year aggregate term to seventeen years. Defendant appealed that ruling to a sentencing panel of this court, which remanded the sentence for further reconsideration in light of State v. Natale, 184 N.J. 458 (2005). The trial court reinstituted the same seventeen-year sentence, with an eighty-five percent parole ineligibility period.*fn1 Defendant then filed his PCR application, which Judge Eugene H. Austin denied without an evidentiary hearing.
Defendant raises a litany of criticisms about the effectiveness of his trial counsel, including allegations that trial counsel: (1) did not conduct sufficient cross-examination of S.L. on whether penetration occurred, thereby failing to raise reasonable doubt as to this required element of aggravated sexual assault; (2) did not explore whether the encounter between defendant and S.L. was an "innocuous, playful situation"; (3) conducted a short and ineffective cross-examination of S.L.; (4) focused on "inconsequential, if not immaterial, discrepancies" in witnesses' written statements; (5) spent too much time on whether S.L.'s mother saw defendant's hand on the doorknob to her apartment; (6) focused "needlessly" on the victim's mother's observations of her daughter after the incident; (7) "unproductively inquired" about whether the doorknob was dusted for fingerprints; (8) did not attack the absence of medical proofs of penetration; (9) failed to present affirmative defenses; and (10) interfered with defendant's right to testify and told him to reject a plea agreement.
The PCR judge found none of these arguments to be persuasive and neither do we. To establish a deprivation of the right to effective counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed. 2d 1075 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
As the PCR judge found, the claims of ineffectiveness presented here by defendant emanate from choices of trial tactics and strategy. The fact that the PCR judge, as he put it, "might not have necessarily agreed with some of the things [trial counsel] said or did does not make him ineffective." By way of example, the fact that trial counsel "chose to focus on certain inconsistencies in the testimony" of the State's witnesses, but not others, does not translate into a constitutional deprivation just because the strategy did not result in an acquittal.
The colloquy in the record shows that defendant had discussed with his trial attorney his right to testify, and that defendant voluntarily made the decision not to take the stand.
Lastly, we note that there is no documentation to support defendant's contention that his trial attorney had improvidently urged him to reject the State's alleged offer of a three-year sentence. We have no affidavit or certification from trial counsel corroborating that any such advice was ever provided. The transcripts do reflect that the State offered a flat seven-year term at the time of a pretrial hearing, which defendant rejected. Even if, as defendant argues, a more favorable plea ...