On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-00595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012 -
Before Judges Yannotti, Espinosa and Kennedy.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm, substantially for the reasons set forth in the written decision by Judge Scott J. Moynihan.
Defendant was charged in a thirty-four count indictment with three counts of first-degree sexual assault, N.J.S.A. 2C:14-2a(1) (counts one, nine, and seventeen); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) (counts two, ten, eighteen, and twenty-five); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(2)(c) (counts three, eleven, nineteen, and twenty-six); five counts of second-degre sexual assault, N.J.S.A. 2C:14-2b (counts five, thirteen, twenty-one, thirty-one, and thirty-three); four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts six, fourteen, twenty-two, and twenty-eight); four counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (counts seven, fifteen, twenty-three, and twenty-nine); and six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts eight, sixteen, twenty-four, thirty, thirty-two, and thirty-four). The charges arose from allegations that while working as a football coach for the Police Athletic League, defendant molested at least three boys on numerous occasions.
Defendant was tried before a jury over the course of twelve days. Prior to submitting the case to the jury, Judge Moynihan dismissed eight counts of the indictment (counts five, six, seven, twenty-two, twenty-three, twenty-four, thirty-three and thirty-four). Defendant was convicted of five counts of first-degree aggravated sexual assault (counts two, three, seventeen, twenty-five, and twenty-six), three counts of second-degree sexual assault (counts four, twenty-one, and twenty-seven), two counts of third-degree endangering the welfare of a child (the lesser-included offenses of counts eight and thirty), one count of fourth-degree criminal sexual contact (count twenty-nine), and one count of fourth-degree aggravated criminal sexual contact (count twenty-eight). Defendant was acquitted of counts one, nine through sixteen, eighteen through twenty, thirty-one, and thirty-two. On July 14, 2003, the court sentenced defendant to an aggregate term of fifty-nine years and imposed appropriate fines and penalties.
Defendant filed a direct appeal from his conviction in which he presented the following arguments:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON FACTORS RELEVANT TO DETERMINING WHETHER THE DEFENDANT HAD "SUPERVISORY OR DISCIPLINARY" POWER OVER THE VICTIMS AND WHETHER THE DEFENDANT STOOD "IN LOCO PARENTIS" TO THE VICTIMS DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE DEFENDANT FROM PRESENTING EXCULPATORY EVIDENCE PURSUANT TO N.J.R.E. 804(B)(1)(A).
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE [TERMS] VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE ...