On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Defendant R.L., who was convicted of sexual assault and endangering the welfare of his step-daughter H.S. when she was between the ages of ten and fourteen, appeals from a September 23, 2008 order denying his application for post-conviction relief (PCR). We affirm.
In 2002, defendant lived with his wife, I.L., their daughter J.L., and I.L.'s son and daughter from another marriage, J.S. and H.S., respectively. On July 4, 2002, a bag in which defendant kept his laptop and other work papers was left on the kitchen table. Out of curiosity, I.L. went into the bag because defendant was so "secretive." Inside, she discovered four photographs. These photographs showed H.S. in different locations and outfits. One of the photographs showed H.S. in a bikini. Another was of H.S. wearing a short-skirt and holding a stuffed animal, and another depicted defendant and H.S. posing with J.L.; none of the photographs included I.L. When I.L. confronted defendant about the photographs, he denied they were his and he could not explain how they ended up in his bag. Later, I.L. asked H.S. about the photographs, but H.S. did not want to speak to her about them. Eventually, I.L. spoke to H.S. and was told by H.S. that defendant had tried to kiss her. H.S. also told I.L. that defendant had touched her and tried to sexually violate her. I.L. took H.S. to the police station and then the prosecutor's office.
H.S. was then fourteen years old. She reported that when she was ten years old she and defendant had been play-wrestling and on two occasions, he touched her breasts and vagina. Defendant denied these allegations, but H.S. was steadfast in her claim that defendant placed his hand over her clothes and vagina. She said at first she thought it was an accident, but after they were finished play-wrestling, defendant tried to sit H.S. on his lap and he put his hand over her vagina and touched her breast underneath her shirt. H.S. testified that, while play-wrestling with defendant on a second occasion, he again put his hand over her vagina.
H.S. explained she delayed in reporting these incidents because she did not want her family to fall apart. She was worried about her brother having a difficult relationship with her mother similar to what she experienced during her mother's divorce from H.S.'s biological father.
H.S. also testified that defendant directed inappropriate comments toward her over several years. Once, while driving with defendant, defendant asked H.S. if she masturbated. She did not want to talk about that subject, but defendant insisted and continued to talk about it. Defendant denied the conversation ever occurred. H.S. also testified that on another occasion, she was playfully trying to keep the door to defendant's bedroom door closed while defendant tried to open it. After defendant stopped trying to open the door, she waited a short time and opened the door herself. When she did, she saw defendant naked, with an erection.
On April 16, 2004, a jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:24-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On July 16, 2004, defendant was sentenced to two concurrent seven-year custodial terms, community supervision for life and required to register as a sex offender in accordance with Megan's Law. Defendant appealed, and on August 21, 2006, we affirmed defendant's conviction and sentence. State v. R.L., No. A-7133-03 (App. Div. Aug. 21, 2006). On September 25, 2007, defendant filed his petition for PCR, and on September 23, 2008, oral arguments were heard and defendant's petition was denied. In her oral opinion denying the requested relief, the PCR judge noted that "[t]he defendant concedes that the issues in this petition are procedurally barred because they were previously raised and adjudicated on direct appeal. However, defendant contends that the bar should be relaxed because its enforcement would result in a fundamental injustice." Finding no fundamental injustice had been shown, the court denied the petition. This appeal followed.
In his brief on this appeal, defendant makes the following assertions of error:
POINT I: CONTRARY TO FACTS USED TO SUPPORT DEFENDANT'S AFFIRMED CONVICTION ON DIRECT APPEAL, THE CHALLENGED PHOTOGRAPHS WERE EXAMINED BY THE JURY AND INTRODUCED INTO EVIDENCE: THE TESTIMONIAL AND PHYSICAL EVIDENCE WERE NOT HARMLESS AND LIMITING JURY INSTRUCTIONS ON ERRONEOUS EVIDENCE WERE NEVER GIVEN.
POINT II: IT WAS PLAIN ERROR FOR THE COURT TO FAIL TO INSTRUCT THE JURY TO DISREGARD EVIDENCE IN THE ...