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State of New Jersey v. Lou E. Johnson

February 24, 2011

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



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-09-2126.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010 - Decided

Before Judges Sabatino and Alvarez.

This is an appeal from the trial court's denial of defendant Lou E. Johnson's petition for post-conviction relief ("PCR"). We affirm.

Defendant was convicted, after a 2003 jury trial, of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b); second-degree sexual assault, N.J.S.A. 2C:14-2c(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; third-degree tampering with a witness, N.J.S.A. 2C:28-5a; third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, as a lesser-included offense; and fourth-degree sexual conduct, N.J.S.A. 2C:14-3(b), also as a lesser-included offense. After appropriate mergers, defendant received an aggregate custodial sentence of sixteen years.

The pertinent facts, which are described in our unpublished opinion of February 10, 2006*fn1 upholding defendant's conviction and which we incorporate by reference, involve sexual offenses that defendant, a mental health aide, inflicted upon a fifteen-year old emotionally-disturbed patient at a facility where defendant was employed. At trial, a psychiatric nurse testified for the State that she walked in on, and that she saw, the patient performing fellatio upon defendant in the facility's kitchen on March 16, 2002. The nurse observed the patient's head in defendant's groin area and saw him exposed. The patient later stated that she and defendant had previously engaged in inappropriate sexual contact on multiple occasions. Defendant did not testify at trial, although he admitted to the police during their investigation that his penis had been exposed when the nurse entered the kitchen.

On the direct appeal, we remanded to have the trial court reconsider defendant's sentence in light of the Supreme Court's opinion in State v. Natale, 184 N.J. 458 (2005). See Johnson, supra, slip op. at 13. The trial court then reimposed the same sentence. Defendant again appealed his sentence, and was heard on the Excessive Sentence Oral Argument Calendar on March 27, 2007. His sentence was affirmed by order of this court the next day. The Supreme Court denied certification. State v. Johnson, 192 N.J. 293 (2007).

Defendant filed his PCR petition in the trial court in June 2007, alleging that his trial counsel was ineffective in numerous respects. After considering defendant's arguments and the State's opposition, the Law Division denied the PCR application. This appeal ensued.

In his appellate brief, defendant raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...


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