On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-04-0172.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010
Before Judges Fuentes and Gilroy.
Defendant Russell Breitweiser appeals from the August 27, 2008 order that denied his petition for post-conviction relief (PCR). We affirm and remand for the trial court to enter an amended judgment of conviction (JOC).
A jury found defendant guilty of second-degree-tender-years sexual assault, N.J.S.A. 2C:14-2b. On November 7, 2003, the trial court denied defendant's motion for a new trial and sentenced him to an extended fifteen-year term of imprisonment with a seven-and-one-half-year period of parole ineligibility, and to a five-year period of parole supervision upon release. The court ordered that the sentence run concurrent with sentences defendant was then serving on federal convictions of abusive sexual contact with a minor aboard an aircraft - repeat offenders, 18 U.S.C.A. §§ 2244(a)(3) and 2247(a), and assault within Maritime and Territorial Jurisdiction, 18 U.S.C.A. § 113(a)(5). The court also directed that defendant comply with applicable Megan's Law, N.J.S.A. 2C:7-1 to -11, including community supervision for life, and imposed all appropriate fines and penalties. On appeal, we affirmed. State v. Breitweiser, 373 N.J. Super. 271 (App. Div. 2004). Because the trial facts were discussed at length in our prior published opinion, id. at 278-82, it is unnecessary for us to detail the evidence against defendant for this crime. However, the following summary will place this appeal in context.
On March 6, 2001, defendant entered a grocery store wherein he observed an unsupervised eight-year-old girl (N.E.) in the store's greeting card aisle. While holding a rotisserie chicken, defendant un-tucked his shirt from his pants and grabbed himself. Defendant then entered the greeting card aisle, waited until no other customers were in the aisle, and approached N.E. from behind, stopping within one foot of the child. Defendant stared directly at N.E., grabbed his penis, and masturbated. N.E. briefly looked at defendant, but ostensibly, did not observe defendant's actions. When a woman entered the aisle, defendant immediately left that area of the store. Defendant's encounter with N.E. lasted less than one minute. Upon defendant paying for the chicken and approaching the exit door, the store's loss prevention officer, who had observed the incident from a catwalk that overlooked the entire store, stopped and detained defendant until the police arrived.
A store surveillance video captured the event. The video taken from behind defendant showed him walking in the aisle, approaching N.E., and standing within one foot of her. It did not, however, readily depict defendant's hand gestures.
On direct appeal, defendant raised several arguments, the primary of which presented the following legal question: whether a defendant could be convicted of second-degree-tender- years sexual assault without proof that the child actually viewed the defendant intentionally touching his or her intimate parts for self-arousal or sexual gratification. Id. at 276. Following the principle annunciated in State v. Zeidell, 154 N.J. 417, 428 (1998), we answered the question in the affirmative. We held that to convict a defendant of that crime, the State was required to prove that defendant engaged in an intentional touching of his or her intimate parts, for arousal or sexual gratification, in the view of an underage child, whom defendant knows to be present. To establish that the sexual contact occurred "in the view of" the underage victim, it is sufficient for the State to prove, beyond a reasonable doubt, that either (1) the underage child actually observed the act; or (2) there was an unreasonable risk that the underage child might view the act. [Breitweiser, supra, 373 N.J. Super. at 286-87.]
On January 31, 2005, the Supreme Court denied defendant's petition for certification. 182 N.J. 628 (2005).
In November 2005, defendant filed a petition seeking PCR. In the petition, defendant contended that he was: 1) denied effective assistance of trial counsel because his attorney: a) denied him his constitutional right to present any defense; b) denied him the right to testify on his own behalf; and c) failed to object to the prosecutor's improper comments during summation. Defendant also asserted that he was: 2) denied a fair trial by the cumulative effect of the aforementioned errors; 3) denied the effective assistance of appellate counsel; 4) entitled to an evidentiary hearing on the petition; and 5) not procedurally barred from presenting the arguments raised in the petition. On August 27, 2008, Judge Paul Armstrong entered an order supported by an oral decision denying the petition without an evidentiary hearing. Although the trial court found that many of defendant's arguments were procedurally barred pursuant to Rule 3:22-4 or -5, the court addressed defendant's arguments on the merits. In addressing defendant's primary argument that he was denied effective assistance of trial counsel because his attorney failed to call an expert witness to testify that one of the possible side effects of a certain medication defendant was taking at the time of the incident was itching, the court reasoned in part:
[D]efendant was not denied his right to present the defense. Defendant's trial counsel provided discovery concerning defendant's proposed expert Doctor Katz. Discovery motions were filed and contested regarding the proposed itching defense.
Ultimately, defendant's attorney chose not to offer Doctor Katz as an expert witness, even though he clearly contemplated at some point doing so. However, the fact that defense counsel elected not to present the itching defense at trial, does not mean that counsel was ineffective. The defendant fails to overcome the "strong presumption" that his counsel acted within the "wide range" of reasonable professional conduct.
Furthermore, the defendant has not demonstrated a reasonable probability that the proceedings would have been different had defense counsel presented such an argument.
The decision to forego unsuccessful legal arguments does not constitute ineffective assistance of counsel. In light of the trial testimony and the videotape evidence, this court is not convinced that the proffered testimony of Doctor Katz would have [affected] the jury's verdict.
[(internal citations omitted).]
In addressing defendant's second principal argument that he was denied his right to testify at trial because his attorney failed to communicate with him during trial and to properly advise him of his right to testify, the court rejected the argument determining that defendant had been "clearly afforded an opportunity to testify on his own behalf, but waived his right to do so." In support of that determination, the court cited to that portion of the trial transcript during which the court inquired of defendant whether he desired to testify or not:
The court: [Defendant], you understand that you have a right to testify in this case?
Defendant: Yes, [Y]our Honor.
The court: And it is a basic fundamental constitutional right.
The court: And you have an opportunity to speak with counsel ...