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State of New Jersey v. E.M

December 20, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E.M., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-15-0491.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 1, 2010

Before Judges Reisner and Alvarez.

Defendant E.M. appeals from the December 15, 2008 denial of his post-conviction relief (PCR) petition. For the reasons that follow, we affirm.

After a trial by jury, defendant was sentenced to an aggregate eight years in prison on January 6, 2006. The trial judge imposed a five-year custodial term on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and two concurrent but consecutive three-year terms of imprisonment on two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) and N.J.S.A. 2C:2-6. Defendant's direct appeal was denied in an unpublished opinion dated May 29, 2007. State v. E.M., No. A-3665-05 (App. Div. May 29, 2007). The Supreme Court denied certification. State v. E.M., 195 N.J. 519 (2008).

On July 24, 2008, defendant filed a pro se petition for PCR. Counsel was thereafter assigned and filed a brief on defendant's behalf. On December 15, 2008, the PCR judge rendered an oral decision denying defendant's motion.

The facts will not be recounted at length as they are fully described in the direct appeal opinion. It is necessary to explain, however, that defendant's charges arose from an evening he and his co-defendant, M.G., both of whom were adults, spent in the company of a fifteen-year-old and her fourteen-year-old step-sister. Defendant and co-defendant consumed alcohol during the encounter, and supplied the teenagers with alcohol. Defendant and his co-defendant encouraged the girls to engage in sexual acts with each other, and then they engaged in sexual conduct with them.

The co-defendant entered into a favorable plea bargain and testified for the State at defendant's trial; the victims also testified. At defendant's request, the trial court gave the Model Jury Charge regarding voluntary intoxication despite the fact that the only proofs on the subject came from the State's witnesses. Defendant did not submit an expert's report.

Defendant raises the following points:

POINT I

COUNSEL'S FAILURE TO ADEQUATELY PREPARE A DEFENSE OF DIMINISHED CAPACITY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING ...


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