On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-03-0425.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Alvarez and Waugh.
Defendant Anthony Massey appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Massey's conviction arises out of an incident that took place on July 22, 1998, in the victim's third-floor apartment in North Bergen. J.L., the victim, resided in the apartment with her two-year-old son, B.L. They went to sleep at approximately 11:30 p.m., with B.L. sleeping beside J.L. in her bed. At approximately 2:00 a.m., J.L. was awakened by "a yell." When she opened her eyes, a man, later identified by her as Massey, was next to her holding a metal spatula and telling her not to yell. Massey "started putting his hand under [J.L.'s] pajama, and . . . said he wanted money, $2,000." Massey assaulted her with the spatula. J.L. testified that Massey then "started rubbing [her] all over."
The incident awoke B.L., who started to yell. Massey shouted, "Fuck you, baby." He then slapped B.L., knocking him off the bed. At that point, J.L. told Massey, "Do whatever you want with me, but please don't do anything to my son." J.L. testified that she did not resist.
Massey "started inserting his finger into" her vagina and anus. After finishing his assault of J.L., Massey again demanded money. When J.L. turned on the light to look for money, she saw Massey's face. Massey was known to her because he had performed some work in her apartment when she first moved in.
Massey threw her against the wall, and pulled her back onto the bed. J.L. testified that he penetrated her three times, forced his penis into her mouth during the continued assault, and took thirty or forty dollars. Massey finally left her apartment at approximately 3:40 a.m.
Massey was charged in Hudson County with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); fourth-degree child abuse, N.J.S.A. 9:6-1(e) and 9:6-3 (count nine); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten); third-degree possession of a weapon, a knife with a sharpened edge, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); and first-degree armed robbery, N.J.S.A. 2C:15-1 (count twelve).
Following a pretrial hearing, the trial judge denied Massey's motion to suppress the statements he gave to the investigating police officers, in which he denied having any sexual contact with J.L. The case then went to trial before a jury.
Massey testified at trial. Although he had denied any involvement in the incident when arrested, his trial testimony was that he had consensual sexual relations with J.L., whom he had met when he was working in her apartment. He claimed that J.L. was concerned that her former husband, who sometimes lived with her, would find out about their sexual activity and rushed him out of the apartment. He claimed that he saw a Hispanic male in the area when he left the apartment building.
The trial judge dismissed the child abuse and endangering charges in counts nine and ten at the conclusion of the evidence. The jury found Massey not guilty of the aggravated assault charge contained in count eight, but convicted him on all other counts.
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact, and criminal sexual contact convictions from counts three, four, and five into the first-degree aggravated sexual assault conviction from count one, and sentenced Massey to a twenty-year term of imprisonment, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year period of imprisonment, with a NERA eighty-five percent parole disqualifier, on the second-degree armed burglary conviction from count two, and a concurrent five-year term, with a two and one-half year parole disqualifier, on the third-degree criminal restraint conviction from count seven.
The trial judge merged the terroristic threats and weapon convictions from counts six and eleven into the first-degree armed robbery conviction from count twelve, and sentenced Massey to a fifteen-year term of imprisonment, with a NERA eighty-five percent parole disqualifier, to run consecutive to the other sentences. Consequently, the aggregate term of imprisonment was thirty-five years with an eighty-five percent term of parole ineligibility. Applicable mandatory fines, penalties, and a period of parole supervision were also imposed.
Massey appealed his conviction and we affirmed. State v. Massey, No. A-5709-01 (App. Div. Oct. 15, 2003). The Supreme Court denied Massey's petition for certification. State v. Massey, 179 N.J. 310 (2004).
Massey filed a petition for post-conviction relief in March 2004. The PCR judge, who had presided at the trial, denied Massey's request for an evidentiary hearing and dismissed the petition for post-conviction relief in an oral decision.
Massey appealed, arguing that the PCR judge erred in refusing to hold an evidentiary hearing with respect to his allegations that his trial and appellate counsel had provided constitutionally ineffective assistance of counsel. We affirmed the decisions of the PCR judge on all issues except for Massey's argument that his trial counsel was ineffective in failing to call or interview Martin Laderman, the apartment manager, whom Massey contends would have testified that J.L.'s former husband sometimes lived at the apartment, and in failing to explore other potential witnesses. We remanded for an evidentiary hearing. ...