On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-08-0774.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Cuff and Waugh.
Defendant Joseph Polizzi appeals from the Law Division's April 30, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm.
We discern the following facts and procedural history from the record on appeal.
On July 13, 2002, nine-year-old K.H. was attending a family party in Vineland. There were approximately seventy-five to one hundred guests at the party. During the party, K.H.'s uncle became ill and was taken to the hospital.
K.H. related the following facts during an interview with State Police Detective Kevin Milbourne. While K.H.'s uncle was being treated, a man later identified as Polizzi "grabbed her out of the pool, stuffed a red bandana in her mouth and threw her into a gray car, got into the car and drove away." Polizzi, who told K.H. he was "Uncle Dave," said he would take her to the hospital to see her uncle. Polizzi subsequently denied that he forced K.H. to go with him.
After they left the party, Polizzi drove to his house. He went inside to get a pack of cigarettes and beer, while K.H. remained in the car. He then drove K.H. to a wooded area. Polizzi pulled K.H. from the car, after which he "smoked a cigarette and drank the beer." Polizzi then took K.H.'s bathing suit off, put her on the ground, restrained her arms and legs, and poured baby oil on her body.
Polizzi rubbed the baby oil on K.H.'s "chest and vaginal area." K.H. was unable to pry herself away. When K.H. called for help, Polizzi told her "no one is going to hear you" and threatened to kill her if she told anyone. Because K.H. thought she was going to die, she stopped screaming. After K.H. was assaulted, she wiped herself off and put her clothes on. Polizzi then drove K.H. to a gas station and he left her there. The incident lasted approximately an hour.
Someone at the gas station contacted K.H.'s parents. He told the police that K.H. was "hysterical" and "crying" after she was left at the gas station. K.H.'s parents picked her up and took her to the Port Norris State Police Barracks.
Marks found on K.H.'s back were characterized as "consistent with someone who had been lying on sticks," and a piece of male pubic hair was "recovered from her groin area." DNA analysis linked Polizzi to the pubic hair. K.H. was subsequently examined at Newcomb Hospital. The examination revealed "abrasions on the outer lobe of her vagina resulting in a break in the skin."
K.H. told the police that she was driven in a car with a gray interior and exterior. The police took K.H. to the wooded area, but she became upset going down the path which led to the area and they turned back. K.H. then directed Milbourne to Polizzi's house. The next day, the police searched the woods and found a grassy area with signs that something had been resting on it. The police also found an empty bottle of baby oil, an empty beer can, and cigarette butts. A fingerprint, later identified as Polizzi's, was lifted from the beer can. DNA analysis also linked Polizzi to the cigarette butts.
K.H.'s family suspected that someone they knew as "Joe," a man from a local tavern who had been invited to the party by K.H.'s uncle, had committed the crime. The uncle identified Polizzi during a photo array as the person he had invited to the party. The police conducted interviews at the tavern, where patrons stated that "Joe" worked in Vineland at Asselta Mechanical.
When questioned, Asselta Mechanical's owner identified "Joe" as Joseph Jaglowski. The police went to Jaglowski's home, and determined that he owned a gray Buick Elantra. However, Jaglowski did not match K.H.'s description of her assailant, nor did he match the description of the man observed on a videotape of the party. After further investigation, the police determined that Polizzi, who was Jaglowski's roommate, was the assailant. K.H. subsequently identified Polizzi as the man on the videotape. She also positively identified Polizzi as her assailant during a photo array.
Jaglowski's car matched the description given by K.H. Jaglowski told the police that he had lent his car to Polizzi around 3:00 p.m. on the day of the crime. According to Jaglowski, at approximately 7:00 p.m., Polizzi came home, took a pack of cigarettes and a beer, and left. When Polizzi returned home, Jaglowski described him as "really frantic" and "out of his mind." Jaglowski also told the police that Polizzi said, "I'm in trouble, I have to get out of here." Polizzi then changed his clothes and left again. Jaglowski told police that Polizzi "had a problem with children and if he saw a young girl on television he would express interest in having sexual intercourse with her."
During a search of Jaglowski's car, police obtained three long, blonde hairs from the front passenger seat. After analysis, they were determined to be K.H.'s hairs. Police also found cigarette butts in the car and plant material stuck underneath the car.
The police spoke with Jaglowski four days later to determine whether he had been in contact with Polizzi. Jaglowski told them that he had spoken to Polizzi over the phone. He related that Polizzi told him that K.H. had asked him to drive her to the hospital on the day in question. Polizzi told Jaglowski that, although he had agreed to drive K.H. to the hospital, he dropped her off at the gas station instead when he realized it was inappropriate for him to be alone with her.
Polizzi turned himself into the police on July 18, 2002. On August 28, Polizzi was indicted on four counts of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1), (b)(2), (c)(2)(a), and (c)(2)(b); one count of first-degree aggravated-sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1); one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b); one count of third-degree endangering the welfare of the child, contrary to N.J.S.A. 2C:24-4; one count of criminal restraint, contrary to N.J.S.A. 2C:13-2(a); and one count of third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b).
Polizzi filed a motion to suppress the identification evidence. Following an evidentiary hearing in November 2003, the motion judge determined that the photo array in which K.H. identified Polizzi as her assailant was properly conducted and produced a valid identification.
On February 3, 2004, after the start of trial, Polizzi entered a plea to one count of second-degree sexual assault and one count of first-degree kidnapping. The plea agreement did not include any recommendation concerning the sentence. Although the plea subjected Polizzi to a maximum sentence of forty years with an eighty-five-percent period of parole ineligibility, the trial judge advised Polizzi that he was considering a twenty-year sentence with the same percentage of parole ineligibility. Defense counsel noted at the time of the plea that, by pleading to the two counts, Polizzi was avoiding exposure to a life sentence on the counts to be dismissed.
During the plea colloquy, Polizzi supplied the following factual basis for the plea.
Q. Mr. Polizzi, on July 13th, 2002 you were, in fact, in the City of Vineland; is that correct?
Q. You were actually at this barbeque at the . . . house; correct?
Q. And during the course of this barbeque [one] of the family members had some kind of heart attack or some kind of fit and needed medical attention; is that correct?
Q. And after that period of time you approached [K.H.] and asked her to come with you to go for a ride to see her uncle in the hospital; is that right?
A. Oh, yea, that's true, yes.
Q. Okay. And she went with . . . [you] under that pretense initially?
A. She went . . . with me on her own free will, yes.
Q. But . . . you weren't really going to see her uncle, you ended taking her out in the woods; right?
A. I stopped at my house. I picked up some cigarettes and some beer and we then --I then stopped on the side of ...