On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-03964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Fisher and Fasciale.
Defendant, Vincent Ferriole, appeals from a July 31, 2008 order denying his petition for post-conviction relief (PCR). Defendant argues that his trial counsel was ineffective because he failed to (1) subpoena medical records of the victim, and (2) cross-examine the State's witnesses properly. We affirm.
The facts giving rise to defendant's convictions are set forth in our earlier unreported opinion. State v. Ferriole, No. A-2566-05 (App. Div. Jan. 4, 2007). We now summarize the facts for this appeal.
A.A. moved into defendant's home when she was eleven years old and resided with him, his wife, and their two younger daughters. A.A. testified that defendant sexually abused her when she was between the ages of twelve and eighteen. Between ages fifteen and eighteen, defendant forced her to engage in sex nearly every day and would beat her if she failed to comply.
A.A. testified that defendant divorced his wife about seven years later, forced A.A. to move into an apartment with him, and continued to abuse her. A.A. reported the sexual abuse after she turned eighteen years old and underwent an abortion. She also obtained a restraining order against him.
Defendant testified at trial that he and A.A. had no sexual relationship until A.A. turned eighteen years old. He denied responsibility for A.A.'s pregnancy, stated that A.A. began the relationship by walking around the house naked after she showered, and that she fondled him while he was in bed asleep. Defendant indicated that A.A. filed the charges two weeks after he asked her to move out of the apartment, and suggested that she did so because she was jealous of his new relationship with another woman.
At the conclusion of a jury trial, defendant was convicted of various offenses, including first-degree aggravated sexual assault, second-degree endangering the welfare of a child, and several counts of second-degree sexual assault. The judge sentenced defendant to an aggregate fifteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in effect at the time. Ferriole, supra, (slip op. at 7). We remanded for re-sentencing on the aggravated sexual assault conviction because NERA was applied without a determination concerning whether the threat of force was used. Id. at 19-25. The Supreme Court denied defendant's petition for certification. State v. Ferriole, 190 N.J. 255 (2007). Defendant was then re-sentenced to fifteen years on the aggravated sexual assault conviction.
Following the re-sentence, defendant filed a PCR petition. Defendant argued that trial counsel was ineffective because he failed to (1) subpoena exculpatory evidence; (2) investigate potential witnesses; (3) cross-examine State's witnesses properly; (4) communicate with him; and (5) defend him aggressively. In a lengthy written decision dated July 31, 2008, the PCR judge denied the petition without conducting an evidentiary hearing. The judge explained that defendant failed to establish a prima facie case of ineffective assistance of trial counsel.
On appeal, defendant raises the following points:
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED FERRIOLE OF A FAIR TRIAL AND RENDERED THE JURY'S ...