NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-12-1401.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Nugent.
Defendant, Joseph Bianco, appeals from a Law Division order denying his petition for post-conviction relief (PCR). He contends the attorney who filed his direct appeal was ineffective for not raising as appellate issues the trial court's denial of his Michaels and Brady motions. Having considered the record in light of defendant's arguments, we conclude that counsel was not ineffective. Accordingly, we affirm.
In our decision disposing of defendant's direct appeal, we summarized the trial proceedings:
The jury heard evidence in this matter that, at the time of the alleged offenses, nine-year old E.B. lived with her mother, stepfather and two half-brothers in a two-family home; E.B.'s grandmother . . . lived in the other half of the two-family home. Defendant had been dating [her] for more than ten years and, as a result of this long-standing relationship, E.B. viewed defendant as a grandfather-figure, and referred to him as "Pop-Pop."
Defendant often took E.B. and her siblings to the park or out to eat. The jury heard testimony that, on certain of those occasions, defendant inappropriately touched E.B. The last such touching was alleged to have occurred on July 24, 2002.
Defendant testified on his own behalf and denied any wrongdoing. At the conclusion of the trial, defendant was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
[State v. Bianco, 391 N.J.Super. 509, 511-512 (App. Div.), certif. denied, 192 N.J. 74 (2007).]
This appeal involves E.B.'s pre-trial statements. E.B. first disclosed defendant's offenses to her mother a day or two after defendant committed the last offense on July 24, 2002. E.B. and her mother were eating dinner when E.B., who seemed nervous, scared, and upset, told her mother that defendant touched "an area that he wasn't supposed to." E.B. pointed to the area of her vagina and showed her mother how defendant had touched her by moving her hand around "in a slight circle motion." E.B. said that the offenses took place in defendant's car while he was driving her either in or to a park.
The next day, E.B.'s mother notified law enforcement officers at the Rahway Police Department (R.P.D), who then notified the Union County Police Department (U.C.P.D.), the agency responsible for policing the county parks. Patrolman Wilfredo Torres responded, spoke with E.B., and later prepared a report. The report states, in pertinent part:
We arrived at HQ and the victim and family were escorted upstairs . . . . At that time Det. Debbie was notified and aware of situation. We sat the victim down along with the family and asked the victim to explain what happened in her own words. The victim stated on July 24, 2002 approx[imately] 10:45 AM she was picked up from her resident [sic] along with her [younger] brother . . . . They were taken to Rahway [Park] by . . . [defendant]. While they were riding in [defendant's] car the victim sat in the front passenger [seat] and her brother sat in the rear passenger seat. While driving [defendant] would touch her in her private part. When asked how, victim said he would reach over with his right hand while he drove the vehicle with his left hand. I asked if he penetrated her with hands or was it that he was touching her over her clothing. She said he did not penetrate[;] he was touching her over her clothing, victim said he would put his middle and ring finger against her private parts and wiggle his hand against her private part. She said she would tell him to stop and push his hands away and he would reply "Oh I didn't realize I was doing that." The victim was asked is this the first time this ever happened with [defendant]. She said no there's been other times he has touched her in her private parts.
On July 30, 2002, the U.C.P.D. referred the case to the Union County Prosecutor's Office. The next day, Detective Mary McKinlay, who was assigned to the Child Advocacy Center, interviewed E.B. Before interviewing E.B., Detective McKinlay read Patrolman Torres' report as well as statements other detectives had taken from E.B.'s mother and grandmother. Detective McKinlay videotaped E.B.'s statement.
Defendant was arrested and charged in a two-count indictment with second-degree sexual assault, N.J.S.A. 2C:14-2b (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). Following his indictment, defendant filed a motion seeking a pre-trial hearing to "[d]etermine the [r]eliability of the [t]estimony of E.B." In a supporting certification, defense counsel explained that he sought the hearing because "E.B.'s testimony is the linch-pin of the case, . . . and the initial interview has not been preserved on videotape, nor have the notes of same been provided[.]" In his supporting brief, defendant asserted that a Michaels hearing was necessary with respect to Patrolman Torres' interview of E.B. because "[w]e have no transcript of what occurred, and have no way of knowing for sure how the interview was conducted." Pointing out that Patrolman Torres conducted the interview of E.B. in the presence of her mother and grandmother, and used leading questions, defendant asked rhetorically, "who knows what occurred during the initial interrogation by Officer Torres."
Defendant suggested that the Torres interview "can be contrasted with the sanitized interview later conducted by Detective McKinl[ay], who at least ensured that [E.B.'s grandmother and mother] were not present." Although defendant asserted that "[t]he basic issue . . . to address at the taint hearing is whether the pretrial events were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts . . . [, ]" he did not assert any facts that suggested the statement E.B. made to her mother, or the statement made to Detective McKinlay, was unreliable.
The State opposed defendant's motion and the court denied it. The court acknowledged that in the absence of a videotape, defendant could not know by what method the police obtained the statement from E.B., and therefore, could not determine whether the interview was coercive or suggestive. The court ruled, however, that because defendant had the initial burden of showing "there is some basis to believe that the technique employed may have been suggestive or coercive, " the absence of any evidence suggesting that E.B. was somehow coerced by Torres' interviewing techniques "preclude[d] ordering a [Michaels] hearing[.]"
The court emphasized that by denying defendant's motion, it was "not concluding that the State has met whatever burden it needs to meet in order to introduce statements of either hearsay exceptions, excited utterance, . . . tender years . . . or as fresh complaint [evidence]." The State acknowledged its burden to establish at a separate hearing the admissibility of any hearsay statement it intended to use ...