On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-06-230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011 - Decided
Before Judges Payne and Koblitz.
Defendant, Brandon Blehl, was accused in an eleven-count indictment of three counts of first-degree aggravated sexual assault on T.B., N.J.S.A. 2C:14-2(a) (Counts One, Two and Three), of three counts of second-degree sexual assault on T.B., N.J.S.A. 2C:14-2(c) (Counts Four, Five and Six); two counts of third-degree aggravated criminal sexual contact with T.B., N.J.S.A. 2C:14-3(a) (Counts Seven and Eight); two counts of fourth-degree criminal sexual contact with T.B., N.J.S.A. 2C:14-3(b) (Counts Nine and Ten), and one count of third-degree endangering the welfare of a minor, T.B., N.J.S.A. 2C:24-4 (Count Eleven). The crimes, consisting of sexual intercourse, cunnilingus, fellatio, and touching, were alleged to have occurred in the period between November 20, 1999 when defendant turned eighteen years of age, and June 26, 2002.
Defendant was tried initially and convicted only of endangering the welfare of a child, the jury having deadlocked on the remaining charges. Following a second trial, he was convicted on all remaining counts of the indictment. Defendant was sentenced to ten years in custody subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.
This appeal arises from the denial by the trial judge of defendant's motion for post-conviction relief (PCR) based on ineffective assistance of counsel and for a new trial based upon allegations of perjury by the victim, T.B., and the alleged discovery of new evidence, consisting of T.B.'s diary, which was alleged to contain exculpatory evidence, and a witness who was unavailable at the time of trial. On appeal, defendant makes the following arguments:
I. THE TRIAL COURT'S FAILURE TO ORDER AN ADJOURNMENT OR MISTRIAL SUA SPONTE AFTER DISCLOSURE THAT THE ALLEGED VICTIM'S POTENTIALLY EXCULPATORY DIARY MIGHT EXIST, CONSTITUTED PLAIN ERROR.
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING THAT IT WAS THE RESPONSIBILITY OF BRANDON BLEHL'S FAMILY TO LOCATE THE DAIRY OF THE ALLEGED VICTIM.
III. DEFENSE COUNSEL'S FAILURES (1) TO TIMELY PROVIDE THE COURT AND PROSECUTOR, BEFORE TRIAL BEGAN, WITH THE E-MAILS SHOWING THAT THE ALLEGED VICTIM HAD WRITTEN A POTENTIALLY EXCULPATORY DIARY; (2) TO TIMELY INVESTIGATE THE EXISTENCE OF A POTENTIALLY EXCULPATORY DIARY OF THE ALLEGED VICTIM, AND (3) TO REQUEST AN ADJOURNMENT TO ISSUE A SUBPOENA AND/OR TAKE OTHER ACTIVE STEPS TO LOCATE THE ALLEGED VICTIM'S DIARY, SINGLY AND COLLECTIVELY, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, DEPRIVING BRANDON BLEHL OF A FAIR TRIAL.
IV. THE TRIAL COURT'S REFUSAL TO HEAR THE POST-CONVICTION RELIEF MOTION PER R. 3:22-1 ET SEQ. FOR INEFFECTIVE ASSISTANCE OF COUNSEL ON THE GROUND THAT IT WAS "UNTIMELY," CONSTITUTES PLAIN ERROR, AS NO TIME LIMIT EXISTS IN THE RULE NOR IN ANY OTHER AUTHORITY.
V. THE TRIAL COURT IMPROPERLY SUBSTITUTED ITS JUDGMENT FOR THAT OF THE JURY BY FINDING THAT THE SUBSTANCE OF THE DIARY AND ITS WILLFUL ALTERATION WOULD HAVE HAD NO EFFECT ON THE JURY'S CONSIDERATION OF THE ALLEGATIONS AGAINST DEFENDANT.
I. Prior to defendant's second trial, on November 8, 2007, defendant's step-mother received an e-mail from Adina Lee, a family friend who was going to ...