On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 96-09-0836.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Reisner and Hayden.
Defendant Eugene Lucente*fn1 appeals from a March 22, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
In 1997, a jury convicted defendant of committing repeated sexual assaults on a child who was twelve and thirteen years old when the assaults occurred. The trial evidence need not be described in detail here. To summarize, defendant exploited his position as a trusted adult to get the minor alone on numerous occasions, including taking the child to a motel, and forced the child to engage in various sexual acts. Defendant was sentenced to an aggregate term of thirty years in prison.
On his direct appeal, he argued that the trial judge should only have submitted one count of endangering the welfare of a child to the jury; that a detective should not have been permitted to testify as an expert in handwriting analysis pertaining to defendant's signature on a motel register; and that the court should not have imposed consecutive fifteen-year sentences.
In affirming the conviction, we found the first two arguments to be without sufficient merit to require discussion. State v. E.C.L., No. A-2376-97 (App. Div. Jan. 28, 1999) (slip op. at 18). After a lengthy discussion of the evidence, we upheld the sentence, reasoning that "defendant callously and cruelly orchestrated his sexual depravities on this young victim over many months" and this "persistent conduct over a two-year period was without excuse or mitigation." (slip op. at 17). The Supreme Court denied certification. State v. E.C.L., 160 N.J. 475 (1999).
Defendant filed his first PCR petition in 2002. His PCR counsel raised the following issues on defendant's behalf:
POINT I: DEFENDANT IS ENTITLED TO A NEW TRIAL UNDER RULE 3:22-1 BECAUSE HIS CONVICTION WAS OBTAINED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL POINT II: TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO DISMISS THE INDICTMENT BASED UPON GROSSLY FALSE AND MISLEADING TESTIMONY THAT WAS PRESENTED TO THE GRAND JURY DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: TRIAL COUNSEL'S FAILURE TO CONDUCT PROPER INVESTIGATION AND TO QUESTION VARIOUS HOTEL EMPLOYEES ABOUT WHETHER THEY COULD IDENTIFY DEFENDANT VIOLATED DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV: TRIAL COUNSEL'S FAILURE TO INVESTIGATE THE SIGNATURE ON THE REGISTRATION CARD FOR THE PINE BROOK HOTEL AND FAILURE TO CALL A HANDWRITING EXPERT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO A FAIR TRIAL, AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT V: IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT'S APPELLATE COUNSEL FAILED TO RAISE ON APPEAL NUMEROUS SUBSTANTIAL ISSUES THAT SERIOUSLY CALL INTO QUESTION THE VALIDITY OF DEFENDANT'S CONVICTION.
A. Defendant's Appellate Counsel['s] Failure To Raise On Appeal The Improper Admission Of Fresh Complaint Testimony And The Improper Instruction To The Jury Regarding Fresh Complaint Testimony Violated Defendant's Federal and State Constitutional Right To The Effective Assistance of Counsel.
B. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Denying Defendant's Request For A Mistrial After Detective Richard Warnett Testified Concerning A Positive Finding Of An Ultraviolet Light Test Violated Defendant's Federal And State Constitutional Right To The Effective Assistance of Counsel.
C. Appellate Counsel's Failure To Raise On Appeal The Trial Court's Error In Permitting The State To Reopen Its Case To Allow Another Witness To Offer Foundation Testimony Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.
D. Appellate Counsel's Failure To Raise On Appeal That The Jury's Guilty Verdict Was Against The Weight Of The Evidence Produced By The State At Trial Violated Defendant's Federal And State Constitutional Right To The Effective Assistance Of Counsel.
After an evidentiary hearing, Judge Langlois, who had also presided over defendant's trial, denied the petition. She explained her reasons in an eleven-page written opinion issued on May 15, 2003. In particular, she found that defendant's former trial attorney had credibly explained his investigative and trial strategy, which she concluded was sound, and she found no merit in defendant's claims that his appellate counsel was ineffective. Defendant appealed from the denial of his first PCR petition, raising the following appellate issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECUSAL WHERE COMMENTS MADE BY THE TRIAL COURT JUDGE MAKE CLEAR THAT SHE HAD FORMED AN OPINION AS TO DEFENDANT'S GUILT AND COULD NOT, THEREFORE, OBJECTIVELY EVALUATE THE TESTIMONY ADDUCED AT THE ...