On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1434.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Parrillo and Espinosa.
Defendant appeals from the denial, in part, of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury on all six counts of an indictment that charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The victims of the sexual offenses were defendant's daughters, A.M. and T.M. It was alleged that the offenses against A.M. occurred during the period from June 1997 to September 1997 and those against T.M. occurred from October 1998 through October 1999.
After the verdict, defendant filed a motion for a new trial. A certification from his trial counsel was submitted in support of the motion which stated in part:
Counsel has learned subsequent to this verdict that A.M. and possibly, T.M. had undergone psychiatric treatment after the events of November 23, 1999, the day the allegations were made against their father. Counsel had requested on numerous occasions the medical records of these two girls*fn1 and was supplied with medicals from Community hospital only dealing with the physical examination of the girls. Although it is recognized that records of this nature are not necessarily admissible, counsel for defendant is certainly entitled to review same or at the very least, these records should have been made available to the Court for it's [sic] own in camera inspection.
The State failed to disclose that any such records existed, notwithstanding their knowledge of same. Assuming arguendo and the State maintains that they did not have such knowledge, it is respectfully submitted that it was their duty to discover same and bring it to counsel's attention prior to the start of this trial, indeed, prior to the plea cut-off date.
The court denied defendant's motion and imposed an aggregate sentence of 44 years, plus appropriate fines and penalties, on February 21, 2003.
Defendant appealed and argued that the prosecutor committed misconduct in summation, that his right to remain silent was eroded by cross-examination regarding his failure to reveal exculpatory information prior to trial, that he was entitled to a jury charge on attempt, and that he was denied the effective assistance of counsel. He contended that his counsel was ineffective in failing to: object to the prosecutor's summation, request a charge conference, and file pre-trial motions. We affirmed his convictions and sentence in an unpublished opinion. State v. C.M., Sr., No. A-3362-02 (App. Div. Apr. 5, 2004). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated in detail here.
Defendant petitioned for PCR and was assigned PCR counsel by the Office of the Public Defender. With the assistance of counsel, defendant requested and was granted an order for the production of the his daughters' medical records for in camera review. On December 17, 2007, the court ruled the information was not discoverable because it was not "relevant, material or probative in any way" to defendant's PCR petition. The judge stated even "with the standpoint of a fairly good understanding of what happened at trial, . . . there was nothing contained, even with the view of Monday morning quarterback, . . . where [he] would ...