May 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAVID CORWIN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6004.
David Corwin, appellant pro se.
Theodore J. Mankowski, Union County Prosecutor, attorney for respondent (Meghan V. Tomlinson, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ashrafi and Espinosa.
Defendant David Corwin appeals from denial of his petition for post-conviction relief (PCR), by which he sought to set aside his conviction on a petty disorderly persons charge of harassment, N.J.S.A. 2C:33-4(b). We affirm.
Defendant is a psychiatrist. In the fall of 2005, a woman was referred to him by an insurance company for the purpose of an independent medical examination because she claimed psychological disability resulting from a motor vehicle accident. Defendant conducted the examination in his office in Elizabeth on September 27, 2005. A few weeks later, the woman went to the police and alleged that defendant had sexually assaulted her during the examination. An Elizabeth police detective investigated the matter and issued a report. The Union County Prosecutor's Office declined to bring charges against defendant in the Superior Court, and the matter was referred to the municipal court. In January 2006, the woman filed a harassment complaint against defendant.
The matter was tried in the Elizabeth Municipal Court on two dates, May 8, 2007, and January 9, 2008. Defendant was represented by counsel, and a municipal prosecutor was assigned to present the State's case. The witnesses were the accuser, defendant, and a representative of the insurance company. On March 3, 2008, the judge of the municipal court found defendant guilty of harassment by offensive touching, N.J.S.A. 2C:33-4(b). The municipal judge sentenced defendant to thirty days in jail, sixty days of community service, and a fine of $500.
Defendant appealed his conviction to the Superior Court, Law Division, pursuant to Rule 3:23. The Law Division conducted a trial de novo and also found defendant guilty of the harassment charge. On August 29, 2008, the Law Division imposed the same sentence of community service and fine but did not impose a jail sentence. On direct appeal, we affirmed defendant's conviction and sentence. State v. Corwin, Docket No. A-0206-08 (App. Div. January 6, 2010).
Defendant then filed a PCR petition in the Elizabeth Municipal Court alleging that the State had deprived him of a fair trial because it failed to provide discovery of certain reports and statements that would have aided his defense by calling into question the accuser's credibility. The municipal court denied the PCR petition on June 1, 2011. Defendant appealed again to the Law Division, and he raised for the first time a claim that his trial attorney had been ineffective in representing him at the municipal court trial. On de novo review, the same judge who had conducted his de novo trial in 2008 denied PCR by oral decision and order dated October 28, 2011. Defendant then filed the current appeal in this court.
In a lengthy pro se brief, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WHERE IT IS CLEAR THAT IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL BECAUSE THE STATE GAVE FALSE INFORMATION TO THE COURT STATING THAT THERE WAS NO MALPRACTICE SUIT AT THE TIME OF THE TRIAL AGAINST THE DEFENDANT AND STATING ERRONEOUSLY THAT THE PLAINTIFF COULD NOT BENEFIT FINANCIALLY FROM HER TESTIMONY AT THE TRIAL.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL WHERE IT IS CLEAR THAT IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL BECAUSE THE STATE WITHHELD FROM THE DEFENDANT DOCUMENTS IN THE ELIZABETH POLICE DEPARTMENT RECORDS WHICH SHOWED THAT THE PLAINTIFF HAD ATTESTED TO GIVING FALSE INFORMATION TO THE POLICE AT THE SAME TIME AS SHE MADE HER COMPLAINT AGAINST THE DEFENDANT.
A. THE STATE MAINTAINS INCORRECTLY THAT THE CONTENTS OF [THE ACCUSER'S] STATEMENT TO DETECTIVE AGARDY DID NOT EFFECT [sic] THE DEFENDANT'S CASE.
B. THE STATE MAINTAINS INCORRECTLY THAT [THE ACCUSER'S] STATEMENT WAS NOT USED BECAUSE OF A CHANGE IN DEFENSE STRATEGY BETWEEN DAY ONE AND DAY TWO OF THE TRIAL AS A RESULT OF NOT WANTING TO "BADGER A WITNESS WHO WAS CLEARLY SYMPATHETIC ..."
C. THE STATE MAINTAINS INCORRECTLY THAT [THE ACCUSER'S] STATEMENT IN ITS UNSIGNED, UNATTESTED AND UNDATED FORM WAS AVAILABLE TO DEFENSE, AND [THE ACCUSER] HAD TESTIFIED TO THE FACT THAT SHE SIGNED THE STATEMENT. IT IS FURTHER MAINTAINED INCORRECTLY THAT AS A RESULT THIS UNSIGNED, UNDATED, UNATTESTED STATEMENT COULD HAVE BEEN INCONTESTABLY USED IN THE CONTEXT OF A CROSS-EXAMINATION OF [THE ACCUSER] AS IF IT WERE IDENTICAL TO A SIGNED, DATED ATTESTED STATEMENT.
THE DEFENDANT WAS REPRESENTED BY INEFFECTIVE COUNSEL IN VIOLATION OF THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS A RESULT OF INEFFECTIVE COUNSEL IN THAT:
A. BASED ON COUNSEL'S STATED MISUNDERSTANDING OF LAW DEFENDANT'S TRIAL ATTORNEY FAILED TO CROSS-EXAMINE THE PLAINTIFF AND SHOW THAT SHE MADE FALSE STATEMENTS IN ORDER TO DISCREDIT THE PLAINTIFF'S SPECIFIC AND ONLY TESTIMONY WHICH WAS OF MATERIAL IMPORTANCE.
B. DEFENDANT'S TRIAL ATTORNEY DID NOT TAKE MEASURES TO OBTAIN DISCOVERY WITHELD BY THE PROSECUTION.
C. DEFENDANT'S TRIAL ATTORNEY FAILED TO OBTAIN TESTIMONY THAT A MALPRACTICE SUIT EXISTED AND THAT THE PLAINTIFF HAD FINANCIAL INTEREST IN FINDING THE DEFENDANT GUILTY.
IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE DEFENDANT HAS THE RIGHT TO POST-CONVICTION RELIEF BECAUSE THE PRESIDING JUDGE MONTES AS AN OFFICER OF THE COURT HAD THE OBLIGATION TO INFORM DEFENSE OF THE EXISTENCE OF THE SIGNED STATEMENT IN POLICE FILES.
We do not find these arguments to have sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
The judge of the municipal court heard from both the accuser and defendant regarding the events of September 27, 2005. The judge found the accuser's version credible and defendant's explanations not credible. The Law Division also considered the trial testimony de novo and accepted the credibility determination of the municipal court judge. See State v. Locurto, 157 N.J. 463, 474 (1999). Both judges were persuaded by the testimony that defendant had engaged in offensive touching of the complainant.
In his PCR petition, defendant argues that those credibility determinations were incorrect and should be disregarded because information withheld from him showed that the accuser was not credible. However, a convicted defendant may not raise matters by means of a PCR petition that were either decided in earlier proceedings, R. 3:22-5, or that could have been presented and decided in the prior proceedings, R. 3:22-4. A PCR petition is not an opportunity to make arguments that should have been made at the time of trial, or a substitute for a direct appeal. State v. Echols, 199 N.J. 344, 357 (2009); State v. McQuaid, 147 N.J. 464, 483 (1997). The credibility of the accuser and defendant were fully evaluated during the lengthy municipal court trial.
Defendant alleges that he was not given a signed statement of the accuser (although he had the identical unsigned statement during his trial), that he was not given a statement of a person to whom the accuser had reported the incident, and that he was not given a report and notes of the detective who investigated the accuser's complaint but died before the trial and was not available to testify. All of these contentions were either known or should have been known to defendant at the time of his trial and direct appeals, and the alleged violation of his rights should have been presented to the Law Division and to this court at that time. See State v. Murray, 315 N.J.Super. 535, 540 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000).
Furthermore, we agree with the Law Division's determination that none of the documents that defendant alleges were improperly withheld in discovery contained exculpatory evidence that might have affected the result of the municipal court or Law Division trials. There is no "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Parsons, 341 N.J.Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)) (internal quotation marks omitted).
Nor was the fact that the accuser filed a civil suit against defendant between the first and second trial dates, some eight months apart, of such significance that it was likely to have affected the trial judges' credibility decisions.
We also agree with the reasons stated in the Law Division's oral decision and affirm its conclusion that defendant was not denied the effective assistance of counsel at his trial. Defendant's attorney made a strategic decision not to cross-examine the accuser, apparently viewing her as a sympathetic witness but concluding that her accusations were not sufficient to prove the elements of harassment. The attorney was not successful in moving to dismiss the charge at the conclusion of the prosecution's case, and defendant's testimony was not persuasive in the defense case. The strategic decisions of an attorney that fail are not proof of ineffective assistance of counsel. State v. Arthur, 184 N.J. 307, 320-21 (2005).
Defendant has not shown that his constitutional rights were violated in the proceedings resulting in his conviction.