On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-10-1105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Messano and LeWinn
Defendant appeals from the November 29, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
Tried to a jury in 2003, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). He was sentenced to an aggregate term of fifteen years imprisonment.
The victim of these charges was defendant's biological daughter, L.N., who was fifteen years old at the time. L.N. testified that defendant engaged in sexual activity with her on three occasions, in November and December 2000 and February 2001. The November offense allegedly took place in the residence defendant shares with his wife, who is not L.N.'s biological mother.
Defendant appealed his convictions and sentence, and we affirmed. State v. L.A., No. A-5071-03 (App. Div. March 17, 2006). Among the issues raised in that appeal was defendant's claim that the trial judge erred in refusing to permit defendant's wife to testify in rebuttal to the testimony of L.N.'s mother that the child's behavior changed in April 2001, and when she confronted L.N. about this change in behavior, the child told her mother about defendant's sexual assaults. Id. at 4-6.
Defendant proffered that his wife would testify that "based upon the behavior she had observed, L.N.'s conduct had not drastically changed after the dates the alleged sexual assaults began." Id. at 4. Because counsel had "brought this witness to the court's attention after the jury had been selected and sworn[,]" ibid., however, we found no abuse of discretion in the judge's exclusion of her testimony. Id. at 5.
Defendant filed his PCR petition on August 22, 2006. Counsel was assigned and filed an amended petition with supporting certifications on March 16, 2007.
Plaintiff certified that his wife was at home in November 2000, when L.N. claimed that he sexually assaulted her at the residence. Defendant asserted that his wife "could have corroborated [his] description of the house as very small, so it would have been impossible for [him] to have sex with [L.N.]... without anyone noticing."
Defendant also submitted a certification from his wife, stating that she recalled "that day in November, 2000 because... [defendant] had picked up [L.N.] and taken her shopping for a coat." Defendant's wife was home when he and L.N. returned from shopping, and she certified that L.N. never went into her son's bedroom, which is where the child had asserted the sexual assault took place on that occasion. In fact, defendant's wife stated, her son was in his bedroom at the time and he "did not really like to have [L.N.] go into his bedroom" and had told L.N. "not to go into his bedroom or sit on his bed."
Defendant's wife further certified that when she spoke to defendant's trial attorney, she told him this information, but that counsel never told the court "the most important reason for [her] being a witness," namely that she was home on that day in November 2000 when ...