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State of New Jersey v. J.I

December 3, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
J.I., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0635.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 3, 2012

Before Judges Ashrafi and Hayden.

Defendant appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other errors in his trial for sexual abuse of his five-year-old daughter. We affirm.

In March 2003, defendant and his wife were living separately. On an occasion when their daughter was watching television with her grandmother and the grandmother chafed at something being shown with sexual content, the girl remarked: "My daddy does that to me." The grandmother questioned her about the remark, and later her mother asked her what she meant. The girl gave details about her father's allegedly sexual conduct with her, using references that indicated some of the incidents had occurred when the family lived in Georgia and others when they were in New Jersey.

The following day, the mother and grandmother took the girl to the police. The police videotaped their interview of the girl about the sexual abuse. In a second videotaped interview in June 2003, the police used pictures of the family's houses in Georgia and New Jersey to determine the location and the approximate time of the incidents.

In July 2003, defendant was indicted on one count each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.

The indictment alleged that the criminal acts occurred in New Jersey between June 3, 2002, and February 17, 2003.

Defendant was released on bail. Although the conditions of his release required that he have no contact with his daughter, the mother permitted defendant to move back into a new residence in New Jersey to which the family had moved. The mother told her children not to tell anyone that defendant was living with them, and she also concealed defendant's presence in the house from the grandmother.

While the family was thus reunited, defendant and the mother pressured the five-year-old girl to recant her allegations of sexual abuse. The mother repeatedly told the girl she had to say that defendant had not done anything to her "because then we're gonna lose daddy." Eventually, the mother took the girl to the prosecutor's office to give further statements. In another videotaped interview, the girl told detectives that her previous statements had been a lie, that defendant had not done anything to her, and that she had dreamed what she had previously alleged.

Meanwhile, the grandmother had become suspicious that defendant had returned to living with the family. She and an aunt obtained proof to demonstrate to the prosecutor's office that defendant was violating the conditions of his release on bail. They also learned that the mother and defendant were about to move the family back to Georgia. They took the children to the nearest office of the Division of Youth and Family Services (DYFS) and reported the circumstances. As a result of DYFS's involvement, the grandmother obtained custody of the five-year-old girl.

The mother and defendant moved to Georgia. During that time, they spoke to the girl on the telephone and allegedly continued their attempts to have her recant her accusations. After several months, however, the mother had second thoughts about her actions. She returned to New Jersey and told prosecutor's detectives she had lied about the girl recanting. She admitted the girl had consistently maintained defendant's sexually abusive conduct toward her.

During defendant's trial in 2005, the girl, then seven years old, testified about abuse at the hands of defendant. Her testimony covered incidents that had occurred in New Jersey and in Georgia. Defendant objected to testimony about the Georgia incidents as inadmissible under N.J.R.E. 404(b). The trial court admitted the evidence, referring to it as the res gestae of the criminal activity.

The jury found defendant guilty of all three charges. At sentencing, the court merged the sexual assault count with the charge of aggravated sexual assault and sentenced defendant on that count to fifteen years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court sentenced defendant to a consecutive term of seven years in prison for endangering the welfare of a child.

On direct appeal, we affirmed defendant's conviction and sentence.*fn1 State v. J.I., No. A-1297-05 (App. Div. Dec. 18, 2008). The Supreme Court denied his petition for certification. State v. J.I., 199 N.J. 516 (2009).

After exhausting his direct appeals, defendant filed a pro se PCR petition in December 2009. Counsel was appointed to represent him and filed an amended PCR petition. The trial court heard argument on August 27, 2010, and denied the petition the same day by oral decision and order.

On the current appeal before us, defendant has filed five briefs, not all of which are authorized under our Court Rules or by our order. See R. 2:6-11(d) ("No briefs other than those herein specified shall be filed or served without leave of court."). In a brief filed on September 21, ...


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