On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-06-1663.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 15, 2010
Before Judges Axelrad and Lihotz.
Defendant, C.D., appeals from the December 10, 2007 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleged, in part, ineffective assistance of trial counsel in failing to secure expert testimony to support his defense to the sexual assault charges pertaining to one victim and failing to challenge the findings of the Avenel Diagnostic and Treatment Center (ADTC) report. We affirm.
The record reflects that a jury convicted defendant in May 1993 of a litany of aggravated sexual assault, criminal sexual contact, and related offenses, against his minor daughter and minor stepdaughter, R.D. and M.D., respectively. During trial, defendant sought to admit into evidence a physician's examination of R.D. that took place in September 1989, which indicated she was infected with the sexually-transmitted disease (STD) of gonorrhea. Defense counsel intended to use this evidence to prove that, because defendant himself was not infected with the STD as represented by him, he could not have had sex with R.D. during the time alleged by the victim. The trial court determined that the admission of the STD evidence would violate the Rape Shield Law, N.J.S.A. 2C:14-7, as the jury would not be able to make proper inferences connecting the positive test and evidence of defendant's lack of infection without proper expert testimony. Defense counsel did not have defendant tested for the STD, nor did counsel attempt to provide an expert witness to lay a foundation for the introduction of this evidence.
In October 1993, the trial court sentenced defendant to an aggregate sentence of forty-eight years, consisting primarily of three consecutive sixteen-year terms for three counts of first-degree aggravated sexual assault. At the sentencing hearing, the court relied on an evaluation prepared by the ADTC, which led the court to conclude defendant was a repetitive and compulsive sex offender. Consequently, defendant was required to serve his sentence at the ADTC.
Defendant appealed his conviction and sentence, challenging comments by the prosecutor, the jury instruction, the consecutive nature of his sentence, and also asserting ineffective assistance of trial counsel. We affirmed defendant's conviction but vacated his sentence and remanded for resentencing in light of the Yarbough*fn1 sentencing guidelines. State v. C.D., No. A-4486-93T4 (App. Div. April 4, 1996) (slip op. at 14-15). We noted that defendant's ineffective assistance of counsel claim should abide a PCR petition. Id. at 12. The Supreme Court denied certification. 146 N.J. 69 (1996).
In August 1996, defendant was resentenced to an aggregate forty-year term to be served at the ADTC, consisting primarily of two consecutive twenty-year terms. Defendant again successfully challenged his sentence, and pursuant to an order from an abbreviated sentencing calendar, we reduced the aggregate custodial term to thirty years, consisting primarily of two fifteen-year terms. No. A-5862-96T4 (App. Div. Nov. 18, 1997).
This PCR petition ensued and was denied by Judge Irvin Snyder by order of December 10, 2007. In a 2003 pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial counsel and a variety of trial errors that he alleged denied him a fair hearing. In a lengthy written opinion of November 26, 2007, the court addressed and rejected defendant's argument. Judge Snyder explained that defendant's position was time-barred under Rule 3:22-12 as filed, without excusable neglect, more than five years after the rendition of the judgment or sentence that he sought to attack. The judge further found that defendant was not entitled to a PCR evidentiary hearing because he failed to set forth a prima facie case of ineffective assistance of counsel.
Nevertheless, the judge addressed and rejected each of the allegations of trial error and ineffective assistance of trial counsel as without substantive merit and provided a detailed explanation as to why none of the issues raised were sufficient to warrant relief under the applicable law and two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.
Defendant essentially raises the same arguments on appeal, asserting:
POINT I THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ...