On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-01-0055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J.N. Harris.
Defendant C.W. appeals from an order dated February 6, 2009, denying his petition for post-conviction relief (PCR). We affirm.
In a five-count indictment, defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one and three); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two and four); and third- degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five). A jury acquitted defendant on counts one and two, which charged him with aggravated sexual assault and endangering the welfare of a child between June 18 and June 28, 2001, but found him guilty of aggravated sexual assault and endangering the welfare of a child on July 22, 2001. After the verdict, the trial court granted the State's motion to dismiss count five.
When defendant was sentenced on October 31, 2003, he was sixty-four years of age. The court merged count four with count three and sentenced defendant to a thirteen-year prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate penalties, assessments, and Megan's Law conditions were also imposed.
In an unpublished decision, this court affirmed defendant's convictions and his sentence. State v. C.W., No. A-2165-03 (App. Div. May 19, 2005), certif. denied, 185 N.J. 295 (2005). The facts underlying defendant's convictions were summarized in our prior opinion and need not be repeated here. As we noted, the evidence of defendant's guilt was "exceedingly strong":
The victim, D.C., was fourteen years old when he explained to the jury how defendant had "sucked and pumped" his penis in the basement of defendant's house until he ejaculated into the defendant's mouth. Defendant testified that this never happened, but the victim's testimony was corroborated, to some extent, by D.C.'s mother and his father, as well as an aunt and first cousin of defendant's wife. Proof of defendant's guilt was exceedingly strong, if not overwhelming.
Following the criminal trial, the victim's family filed a civil action against defendant and his wife. In April 2005, defendant's wife filed a motion in the civil case to compel the release of clothing (the victim's underwear, denim shorts, and a tee shirt) for forensic analysis. In support of her motion, defendant's wife argued that no "testing was done with respect to the clothing in the criminal case," and "if the act occurred as alleged, seminal fluid and/or saliva should have been present upon [the victim's] clothing." The motion was granted on May 25, 2007. In addition, the victim was deposed in the civil case on June 26, 2007.
The victim's clothing was tested for semen on July 23, 2007. According to the laboratory report dated July 25, 2007: "No stains consistent with semen were visually or chemically detected."
Based on the forensic testing of the clothes, and the deposition testimony of the victim, defendant filed a PCR petition in June 2008. In a supporting certification, defendant claimed he was entitled to a new trial "on the grounds that evidence discovered since the trial and not discoverable by reasonable diligence before the trial probably would have changed the outcome of the trial if it had been heard by the jury."
Following oral argument on January 22, 2009, Judge Edward M. Coleman, who had presided over defendant's criminal trial, denied the PCR application. Judge Coleman's ...