On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-08-0776.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 8, 2011 -
Before Judges Axelrad and R. B. Coleman.
Defendant V.C. appeals from the Law Division's October 20, 2008 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. He had alleged ineffective assistance of trial and appellate counsel. We affirm.
Defendant, a pastor, was convicted by a jury of two counts of second-degree sexual assault (against eleven-year-old girls Y.A. and J.L.) and two counts of third-degree endangering the welfare of a minor as to each of the girls. He was sentenced to two consecutive eight-year custodial terms, each subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction and sentence in an unreported opinion. State v. V.F., No. A-1170-04 (App. Div. July 27, 2006). The Supreme Court denied certification. State v. V.F., 188 N.J. 493 (2006).
Defendant thereafter filed a PCR petition by a pro se submission and through counsel. He argued ineffective assistance of trial counsel in failing to: (1) challenge the indictment as deficient for failing to list or make the material elements of the crimes charged, including the required mental culpability element of scienter in charging sexual assault and endangering the welfare of a child; (2) object to the jury instructions that included key elements of mental culpability that had not been charged in the indictment; (3) adequately discuss the advantages of testifying at trial versus remaining silent; and (4) properly investigate, review discovery with him, and meet with him on sufficient occasions to prepare a defense. Defendant further argued ineffective assistance of appellate counsel in failing to have sufficient contact with him to make use of his knowledge of the case and in failing to argue on appeal that the trial court erred in not granting a motion for a judgment of acquittal on the counts involving J.L. Defendant also claimed there were no procedural impediments to his PCR petition and he had asserted a prima facie claim of ineffective assistance of both counsel, warranting an evidentiary hearing.
Oral arguments and an evidentiary hearing were held on July 30, 2008, during which defendant testified, along with his trial and appellate counsel. In a written opinion of October 20, 2008, Judge Joseph A. Falcone rejected defendant's arguments in their entirety and denied defendant's petition, memorialized in an order of the same date. In a detailed and comprehensive eighty-page opinion, the court made express factual determinations based on the testimony adduced at the hearing and explained why defendant's claims were without merit. Specifically, Judge Falcone found, based on a "thorough review of the grand jury transcript and indictment," that a motion to dismiss the indictment would have been denied. He quoted the assistant prosecutor's initial presentation and concluded there was "no question that the crimes were properly explained to the grand jurors," and, although a portion of the statutory language for the endangering charge ("a child under the age of 16") was initially omitted from the definition, it was clear the age of each victim was later established by the testimony. The judge was further satisfied, based on specific reference to other grand jury testimony, that at least "some evidence" was presented as to the required elements for each crime, State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987), and thus the indictment was sufficient on its face.
As to defendant's generalized challenge to the jury instruction, again with reference to the specific instruction, Judge Falcone concluded that the trial court satisfactorily charged the jury on the elements of all the offenses, as well as "the proof beyond a reasonable doubt standard, the burden of this proof standard, and how the jury must find if the State fails to meet this burden." As the instructions were in conformity with the model charges, Judge Falcone found that any objection by defendant's trial counsel would have been unsuccessful and he thus could not be deemed ineffective on that point.
Defendant's trial counsel testified at the PCR hearing that defendant never told him he wanted to testify at trial and defendant agreed with counsel's recommendation not to testify. As Judge Falcone noted, those facts were consistent with what both defendant and his attorney represented to the trial judge in a lengthy colloquy during which defendant clearly stated his knowing and voluntary decision not to testify at trial. This record thus refutes defendant's claim of ineffective assistance on this ground.
After hearing extensive testimony from defendant and his trial counsel at the PCR hearing, Judge Falcone credited defense counsel's testimony with respect to his numerous conferences and discussions with defendant regarding discovery and the various proceedings. Based on his review of the pertinent parts of the trial transcript and direct appeal brief, referenced at length in his written opinion, Judge Falcone found that trial counsel had a high level of preparedness in all aspects of the trial, including cross-examination of the State's witnesses and, as a matter of trial strategy, decided not to interview any State's witnesses prior to trial. As the judge noted, the record also belied defendant's claim of pressure being put on him not to testify because of a deal whereby the State would then not introduce evidence of his prior conviction for a sexual offense. The court explained that defense counsel testified "there were no 'off the record' discussions, and no 'agreement' about whether, and under what conditions, [defendant] would testify if the incident relating to his prior conviction was permitted to be introduced." Judge Falcone concluded that defendant could not have been surprised by testimony regarding the prior incident since it had been ruled admissible in open court following an N.J.R.E. 404(b) hearing.
Interestingly, Judge Falcone noted that the first time defendant complained to appellate counsel about trial counsel was in a letter sent after we rendered our decision on direct appeal. Accordingly, there would have been no basis to have pursued that claim on appeal. Moreover, defendant provided no detail or support for seeking a motion for judgment of acquittal and there was no testimony regarding this claim ...