On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 96-10-1181.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: November 15, 2010 -
Before Judges Axelrad and J. N. Harris.
Defendant Melvin Batista appeals from the Law Division's March 22, 2010 order denying his post-conviction relief (PCR) petition following an evidentiary hearing. Defendant had contended his conviction should be vacated because the victim T.V. recanted her earlier statements to the police. We affirm.
In l996, defendant was indicted on charges of second-degree sexual assault and endangering the welfare of a minor for events occurring in l996 involving then-five-year-old T.V. According to an August 4, 1996 police report, officers spoke with T.V. at the emergency room that day where she had been brought by her biological father R.V. regarding a sexual assault. R.V. stated that, following a bath, T.V. had asked him whether boys were supposed to "touch her down there," and when he responded in the negative, she "started to shake and cry" and reported defendant kissed her on the lips and on her "privates." T.V. told a nurse and a Millville police officer that defendant had touched her on her "kitty."
T.V. made a similar statement to members of the Cumberland County Prosecutor's office on October l5, 1996, providing further detail about the incident and elaborating that defendant, her mother's live-in boyfriend,*fn1 had touched her vagina over the top of her clothing "on purpose," it was a "bad touch," and she did not tell her sisters or mother about it.
T.V.'s mother, who was present during the interview, stated that, about three weeks prior, T.V. said R.V. had "told her to tell this story." T.V.'s mother expressed the belief that "possibly [R.V.] was attempting to cause trouble for [defendant]," but could offer no substantiation. The investigator reported she questioned T.V. "regarding this area specifically" and the following colloquy ensued:
I asked [T.V.] if she made this story up, to which she replied "no." I asked if her father made up this story and she stated "no." I asked what her father said to her and she said that he told her she "had to tell the police" what happened.
Pursuant to a negotiated plea agreement, on July ll, 1997, defendant pled guilty to the amended charge of third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a. On August 22, 1997, he was sentenced in accordance with the agreement to a three-year term of probation subject to Megan's Law, N.J.S.A. 2C:43-6.4, and no contact with T.V. As noted in the PCR court's written opinion, the plea hearing revealed the plea was entered a week before the scheduled trial, counsel was ready to go to trial, and defendant knowingly and voluntarily chose to plead guilty.*fn2 Defendant had also stated he was pleading guilty and admitted he had "touched the victim's private area, below the belt, her vaginal area." Moreover, at the sentencing hearing, defendant stated, "I feel bad and I am sorry."
Defendant did not appeal his conviction or sentence. On August 31, 2009, defendant filed this PCR petition. Defendant claimed his conviction should be vacated because the victim, then-eighteen years old, had recanted. He relied, in large part, on 2008 transcribed statements of T.V., her mother and a friend, and an April l, 2008 video-recorded statement of T.V., all obtained by the defense investigator and favorable to defendant. Defendant also relied on the February 20, 2009 report of psychologist Phillip W. Esplin, Ed.D., who reviewed a series of documents but did not conduct a face-to-face evaluation of T.V. The expert opined that "[g]iven the totality of the information reviewed, there [wa]s a high probability that [defendant] may be innocent of sexual acts involving [T.V.]." Defendant also certified he pled guilty because he was "frightened" by his trial attorney's advice that he would likely face a state prison sentence if he rejected the State's offer. He further stated that "[s]ince [he] was sentenced, [he has] been haunted by accepting the plea and [he] was placed on life supervision under Megan's Law." Defendant requested an evidentiary hearing, at a minimum, "[b]ecause the alleged victim and the alleged victim's mother have confirmed that they wholly support [him] as is outlined in the exhibits[.]"
An evidentiary hearing was conducted on March l9, 2010, in which T.V., then-nineteen years old, was the only witness who testified. She stated on direct examination that R.V., not defendant, sexually assaulted her in l996. T.V. claimed that defendant, who was like a father to her, never assaulted her. She further stated that, after the assault, she confided in a school counselor following an assembly and the counselor took her to the police station where a statement was taken.
On cross-examination, however, when confronted with a recent statement she made to the defense investigator that her father had raped her when she was ten years old, T.V. acknowledged her father did not assault her when she was aged four or five but, rather, did so when she was aged ten or eleven (which would be around 2001-2002 rather than l996). T.V. also stated she was "scared to death" to make the allegation about her father to her school counselor and police until he moved to Michigan when she was in middle school. T.V. claimed she told those ...