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State v. C.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
C.W., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-01-0055.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2009

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In an unpublished decision, this court affirmed defendant's convictions and his sentence.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 findings and conclusions included the following:

But as to the background and circumstances in the case, the events occurred in July of 2001, I believe. The [defendant's] family was entertaining family members at their residence and one of the people present was the 12 year old boy . . . [a] family relative of the defendant's wife.

The testimony revealed that at some point that afternoon the defendant, [C.W.], and this 12 year old boy went to the basement allegedly to obtain a BB gun for some shooting in the backyard. However, while in the basement, he was instructed . . . to take his pants down, sit on the table. He did. And "he did" was explained by the prior events and comments by [the victim] about his cultivation by [C.W.] to participate in these sexual activities. But he did. He pulled down his pants in the basement, and the defendant then performed oral sex on this 12 year old boy.

There's testimony about ejaculation by the 12 year old. At one point the testimony is that he ejaculated into the defendant's mouth which would account for semen not being located, and that there was some indication that he wiped his mouth with a paper towel or handkerchief that he retrieved from his pocket.

In preparation of the civil side of the case, the victim was deposed with regard to the incident. This is now years later. He's no longer 12. I think he's 18 at this point. And his testimony is different in some respects as pointed out by the defense.

For the first time he's indicating that he cleaned the ejaculate off himself by wiping himself with a paper towel. Said that the defendant handed him a paper towel; that after he used it to clean himself, he handed it back to the defendant. In deposition he testified that his shorts were around his ankles when he was discovered by his mother, whereas at trial he and his mother indicated that he was in the process of zipping up his shorts when she walked into the room.

No one can argue seriously that the jury didn't take a close critical look at the testimony in this case because the issues were hotly contested. . . . The fact that they took a serious hard look at the State's case . . . is highlighted by the fact they found the defendant not guilty on the earlier sexual assault, endangering welfare charges, because those charges were based only on the testimony of this 12 year old child. There were no other witnesses to those events. They certainly questioned, as they should, the evidence in the case. They evaluated the testimony that was presented. They took into consideration this child's testimony versus the defense side of the case. There was . . . a thorough review by counsel of every aspect of this case. There can be no question about it.

But really this was never a forensic testing case. As indicated by both attorneys, this is not the test. The forensic examination would not overcome the defendant's own admissions to his family that he did this. Would not have a probable effect of raising reasonable doubt as to his guilt, frankly. The crime doesn't require any ejaculation. And certainly the doctor has given his opinion, but obviously the jury is going to take into consideration this is a 12 year old boy, and what amount of ejaculation exists, how does the doctor know how much he is going to produce. That also would be evaluated and weighed against the admissions witnessed by several people that the defendant admitted that he had committed aggravated sexual assault on a 12 year old child.

As I indicated, the crime doesn't require any ejaculation or any semen, and it would not have undermined the State's key witnesses in this event. It would merely be impeaching which does not satisfy the Ways test.

On appeal, defendant presents the following arguments:

POINT I THE ABSENCE OF ANY SEMEN ON [D.C.'s] UNDERPANTS IS NEWLY-DISCOVERED EVIDENCE THAT SO UNDERMINES [D.C.'s] CLAIM THAT HE WAS SEXUALLY ASSAULTED THAT A NEW TRIAL MUST BE ORDERED. HENCE, THE DENIAL OF THE PETITION FOR POST[-]CONVICTION RELIEF MUST BE REVERSED.

A. MATERIALITY

B. DUE DILIGENCE

C. CONCLUSION

POINT II [D.C.'S] POST-TRIAL SWORN TESTIMONY ABOUT THE ALLEGED CRIME SO CONFLICTS WITH THE VERSION HE GAVE AT THE TRIAL AND WITH HIS MOTHER'S TRIAL TESTIMONY THAT A NEW TRIAL MUST BE ORDERED.

Based on our review of the record and the controlling legal principles, we conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Coleman in his comprehensive oral decision on January 22, 2009. We add only the following comments.

As Judge Coleman noted, to be entitled to a new trial based on newly discovered evidence, a defendant must establish "that the evidence is (1) material, and not 'merely' cumulative, impeaching, or contradictory; (2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and (3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 341 (1981). Judge Coleman concluded defendant failed to satisfy this test, and his findings and conclusions are fully supported by the record.

Affirmed.

20100826

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