On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-02-0100.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
Before Judges Fisher and Waugh.
In 2005, defendant was tried and convicted by a jury of: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); and second-degree child endangerment, N.J.S.A. 2C:24-4(a). The victim of these crimes was defendant's stepson, J.S., who was fourteen years old at the time of the offenses.
On May 5, 2006, following an appropriate merger of the sexual assault convictions, defendant was sentenced to a twenty-year prison term, subject to an eighty-five percent period of parole ineligibility, on the first-degree conviction. The judge also imposed a concurrent ten-year term, with a five-year period of parole ineligibility, on the child endangerment conviction.
Defendant filed an appeal, arguing that he was denied a fair trial because: the prosecutor elicited testimony from a police officer regarding a warrant issued for defendant's arrest; because defendant's wife testified that defendant was incarcerated in the county jail shortly after his arrest; and the prosecutor questioned defendant about whether he thought the State's witnesses were lying. Defendant also asserted that the sentence was excessive. We rejected these arguments and affirmed. State v. W.H., No. A-6478-05 (App. Div. July 2, 2008). The Supreme Court denied defendant's petition for certification on January 16, 2009.
Defendant filed his petition for post-conviction relief (PCR) on August 20, 2008. Following the assignment of counsel and additional submissions, on March 7, 2011, the PCR judge denied defendant's PCR petition without conducting an evidentiary hearing.
Defendant appeals the denial of his PCR petition, arguing:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE PCR COURT ERRED IN RULING THAT EVIDENCE OF J.S.'S PRIOR AGGRESSIVE SEXUAL CONDUCT WOULD HAVE BEEN INADMISSIBLE AT TRIAL UNDER THE RAPE SHIELD LAW SINCE THE EVIDENCE WAS RELEVANT, NOT UNDULY PREJUDICIAL, AND WOULD NOT HAVE UNDERMINED THE PURPOSES OF THE RAPE SHIELD LAW AS THERE WAS NO OTHER EVIDENCE AVAILABLE TO SUPPORT THE DEFENSE ASSERTED.
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO OBTAIN, REVIEW, AND OFFER IN EVIDENCE DYFS RECORDS SHOWING PRIOR AGGRESSIVE SEXUAL CONDUCT BY J.S. IN SUPPORT OF THE DEFENSE ASSERTED AT TRIAL WAS INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND TEST,[*fn1 ] AND THE RESULTING PREJUDICE TO DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND TEST.
III. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE TRIAL COURT IMPROPERLY BOLSTERED THE CREDIBILITY OF J.S.; WHEN THE PROSECUTOR INSINUATED THAT THE DEFENDANT HAD TAILORED HIS TRIAL TESTIMONY; WHEN THE PROSECUTOR ELICITED TESTIMONY FROM THE DEFENDANT CHARACTERIZING THE TRUTHFULNESS OF THE STATE'S WITNESSES; AND WHEN THE ...