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State v. O'Leary

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM O'LEARY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-11-1332.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Fuentes and Gilroy.

Defendant William O'Leary appeals from the July 24, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). On December 17, 2001, the trial court sentenced defendant to a fifteen-year term of imprisonment on count one, and to a concurrent seven-year term of imprisonment on count two. The court also ordered defendant to comply with applicable Megan's Law*fn1 procedures and imposed all appropriate fines and penalties. Because the trial facts were discussed at length in our prior unpublished opinion, State v. W.R.O., No. A-0353-03 (App. Div. March 16, 2006), it is unnecessary for us to detail the evidence against defendant for these crimes. We affirmed the judgment of convictions and the sentences imposed. (slip op. at 29). On July 19, 2006, the Supreme Court denied defendant's petition for certification. 188 N.J. 220 (2006).

On October 3, 2006, defendant filed a pro se petition for PCR contending that he was denied effective assistance of trial counsel because his attorney failed to: properly prepare the case for trial, properly represent defendant during plea negotiations; challenge the State's use of the victim's mother's testimony; discuss trial procedures with defendant; call witnesses on defendant's behalf; and fully investigate defendant's case and all possible defenses. Assigned counsel filed a supplemental brief in support of defendant's petition for PCR incorporating the arguments presented by defendant in his pro se brief.

On April 29, 2008, the trial court conducted an evidentiary hearing on defendant's petition. Testifying on behalf of defendant were defendant's mother and defendant, and on behalf of the State was defendant's trial counsel. On July 24, 2008, Judge Manahan entered an order supported by a written decision of July 10, 2008, denying defendant's petition. On appeal, defendant argues:

POINT I.

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. LACK OF EFFECTIVE ASSISTANCE DURING PRETRIAL PREPARATION PROCESS AND THE PLEA PHASE.

B. NOT CHALLENGING THE USE OF CO-DEFENDANT'S PERJURED TESTIMONY.

C. FAILING TO DISCUSS PROCEDURE WITH THE DEFENDANT, INCLUDING WHICH PARTICULAR WITNESSES TO CALL.

D. FAILING TO DISCUSS DISCOVERY WITH DEFENDANT.

E. FAILING TO FULLY INVESTIGATE DEFENDANT'S CASE AND ALL POSSIBLE DEFENSES.

POINT II.

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn2 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in Point I of his brief in light of the record and applicable law. We are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Manahan in his written decision of July 10, 2009. We have also considered defendant's argument in Point II of his brief and find the argument meritless. Defendant contends that he was denied effective assistance of PCR counsel because his attorney failed to adequately consult with him on his petition. Defendant's bold assertion is not supported by an affidavit or certification. Nor does defendant specify what matters he failed to consult with PCR counsel about which, if brought to counsel's attention, would have resulted in a different outcome of the PCR petition.

Affirmed.


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