On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-00336.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Espinosa.
Defendant appeals from his sentence and convictions for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); sexual assault, N.J.S.A. 2C:14-2(b) (count two); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). We affirm.
These convictions arise from the events of July 1, 2005, when defendant was baby-sitting for N.G., "Nancy,"*fn1 the six-year-old daughter of P.G., "Peggy," an acquaintance of his.
Defendant and Peggy met in February 2005 at a bar where Peggy worked as a go-go dancer. Defendant stated that they quickly developed a romantic relationship; that by April, Peggy planned to move into his home with Nancy and by June, he had proposed marriage and given her an engagement ring. Peggy denied such a relationship and said that they were just friends.
In June 2005, when Nancy's babysitter requested an increase in pay, defendant offered to baby-sit for less money and Peggy accepted his offer. Peggy testified that, on the evenings when she worked, defendant arrived at her apartment in the early evening and watched Nancy until Peggy arrived on the following morning between 3:00 and 4:00 a.m. Peggy stated that defendant slept on the couch or in Peggy's bed but that she did not sleep with him.
Defendant denied being a paid babysitter. He stated that he was living with Peggy, although he admitted on cross- examination that he lived at his house and kept no toiletries or personal belongings at Peggy's apartment.
In mid-July 2005, Peggy hired a new babysitter because she had learned that defendant was "on some kind of medication." During this time, Peggy also noticed a change in Nancy. She had become colder and did not watch television and talk with her as she had done in the past.
Approximately three months later, in October 2005, Peggy was loading minutes into Nancy's cell phone while she was at school. She saw two photographs of defendant on the phone. In one, he was sitting in a chair in her bedroom and in the other he was in the kitchen. She deleted the photographs and then came across a photo of Nancy's panties and photographs of Nancy that she described as: (1) Nancy "sitting at the toilet with the fingers on her private parts[,]" (2) Nancy's "private parts[,]" (3) a photo of Nancy's private parts covered with panties and with defendant's "fingers on the top of it[,]" (4) Nancy's "private parts [without underwear] and [defendant's] fingers opening them up[,]" (5) Nancy's "private parts" and the toilet, and (6) Nancy's "private parts [without underwear and] with [defendant's] fingers on top." The phone recorded the time the photos were taken as between 9:19 p.m. and 9:25 p.m. on July 1, 2005. Peggy testified that, at the time the photos were taken, she was working and defendant was at her apartment, baby-sitting for Nancy.
The records for defendant's cell phone reflected a call at 8:43 p.m. to his mother's phone from a location in Hillside. Peggy's apartment was located within the area covered by the tower that transmitted the call. The records for Peggy's cell phone corroborated her testimony that she was working that night.
After seeing the photos on the phone, Peggy picked up Nancy at school. In an effort to open a conversation, Peggy told her that she was going to ask defendant to watch her that evening. Nancy stated that she did not want him to watch her "because when he would kiss her on the face it would feel like glue, like his saliva." Peggy asked if there was any other reason why Nancy did not want defendant to watch her. She testified that Nancy looked frightened, as though she was hiding something, and repeated the comment about defendant's kiss feeling like glue. Peggy showed Nancy the phone and told her that she had seen the pictures on it. Peggy testified that Nancy "lowered her little face, embarrassed and said, 'Yes, Mommy.'" Peggy showed her the pictures. Nancy looked down, avoiding the images and then said that "Johnny" had taken the pictures. Peggy testified that defendant was the only "Johnny" that Nancy knew. Nancy also told her that defendant had touched her "periquita," the word she used for vagina, with his hand. When Peggy asked, Nancy said that she had not seen or touched any of defendant's body parts.
On the next day, Peggy took Nancy to school and then went to the Hillside Police Department. She reported the incident and gave the police the phone. After school, Peggy brought Nancy to the police department. An officer took them to the Union County Prosecutor's Office, where Detective Stephen McGuire videotaped an interview with Nancy.
During the interview, Nancy said that "Johnny" took some "really bad pictures" of her while she was in the bathroom and identified the photos on the cellphone. She said that she had been coloring in her bedroom when she needed to use the bathroom. Nancy was in the bathroom, on the toilet with the door closed, when "Johnny came in and do those stuff to me." At Detective McGuire's request, Nancy used a doll to demonstrate what defendant had done to her. She pointed to the doll's vaginal area and said that he had taken pictures of it. She said that he had touched her with his hands, fingers and his whole face. To demonstrate what he did with his fingers, Nancy placed her fingers opened in the shape of a "V" on the doll's vagina. Asked if he put his fingers inside, she answered, "He just um, inside and the part of the skin was out." As to how defendant had touched her with his whole face, Nancy answered, "He went down" and then she pulled the girl doll's underpants down and put the boy doll's face on the girl doll's vagina. Nancy said that she did not feel defendant lick her and that he had not put his fingers or anything inside her. Nancy also said that defendant told her to hide the phone from Peggy and that if she showed the pictures to her mother, he would "[h]it me and pull [my] ears all the way to the sky." Nancy's testimony at trial was consistent with the statements she made to Detective McGuire.
Defendant, who filed a notice of alibi, testified that he returned home from work at 6:30 to 7:00 p.m. He helped his brother move some belongings to his new house and then they returned to his house, where they cooked food on the grill. After they finished eating, defendant watched television. Earlier that evening, he had told Peggy that he could not watch Nancy that evening because he had other plans. Defendant testified that, at approximately 8:20 p.m., he decided to go to Peggy's house. He stated that he stopped en route to call his mother at 8:43 p.m. because he had second thoughts about going to Peggy's. Defendant's mother testified that in the conversation, she told him to go home. Defendant testified that, after their conversation, he went home without going to Peggy's apartment. He spent the rest of the evening at home with his brother, spoke to his mother again at approximately 9:15 and fell asleep between 9:30 and 9:45 p.m. Defendant's brother, Michael, gave a similar account of the evening. Defendant denied seeing Nancy that evening, ever doing anything inappropriate with Nancy and denied that the hands and fingers in the cell phone photos were his.
Defendant was convicted on all charges.*fn2 Prior to sentencing, his new counsel filed a motion for judgment of acquittal, or alternatively, for a new trial on the grounds that: (1) he was denied a fair trial because he was incompetent to stand trial; and (2) he had been denied the effective assistance of counsel because his trial attorney had failed to recognize his incompetence, investigate his mental illness and assert defenses of insanity and diminished capacity. Defense counsel also asked the court to hold a hearing to assess defendant's mental health. The court denied the motion and the request for a hearing.
At sentencing, the court merged count two into count one. On the first-degree aggravated sexual assault conviction, the court sentenced defendant to twelve years and, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, required that he serve 85% of that sentence before becoming eligible for parole. The court imposed a concurrent term of eight years on count three, endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was also sentenced to mandatory parole supervision and community supervision for life, to comply with Megan's Laws requirements and assessed appropriate fines and penalties.
Defendant raises the following issues on appeal:
THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE OR ASSERT AN INSANITY DEFENSE--A PRESUMPTION OF INEFFECTIVENESS EXISTS UNDER CRONIC AND FRITZ; ALTERNATIVELY, TRIAL COUNSEL'S PERFORMANCE WAS DEFICIENT AND THIS DEFICIENT PERFORMANCE MATERIALLY AFFECTED THE OUTCOME OF THE PROCEEDINGS; AT THE VERY LEAST, THE ...