June 14, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-285.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the brief).
Before Judges Fasciale and Maven.
Defendant appeals from a December 5, 2011 order denying his petition for post-conviction relief (PCR). Defendant argues primarily that his trial counsel was ineffective by failing to produce testimony at trial from his former trial counsel and a detective. We affirm.
In April 2006, a jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2b. In August 2006, the court sentenced defendant to a seven-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction in an unpublished opinion, State v. J.E.J., No. A-2478-06 (App. Div. May 12, 2010), and the Supreme Court denied certification, State v. J.E.J., 203 N.J. 438 (2010). We summarized the facts in our unpublished opinion:
Defendant married Charlotte in May 1996; her daughter Karen was six years old. Defendant and Karen had a close father-daughter relationship. Having known him since she was two years old, Karen thought he was her biological father and did not learn to the contrary until she was ten years old. Karen testified, however, that their relationship changed when she turned eleven years of age. At that time, defendant began to touch her in inappropriate places. Charlotte also discovered a letter written by defendant to Karen in which he professed his love for her. Charlotte called the police.
At trial, Karen testified that defendant began "touching [her] inner thigh, telling [her] stuff like, I love you, [and] hugs that just weren't like before." She said that he usually touched her inner thigh when the family was sitting in the bedroom watching television together and that such behavior occurred on more than fifteen occasions. A few times after defendant did this, he approached her and told her that "it was okay that was just the way he felt for [her] and things like that." He also told her that "he felt like [she] was telling him, it was okay, and that he could show his feelings for [her] and that there wasn't anything wrong with it."
Karen also testified that defendant's hugs became tighter and more aggressive as if he was trying to make her stay with him. She also recalled a particular instance when defendant tried to "french kiss" her and she "just closed [her] mouth and gritted [her] teeth to try to prevent his tongue from going inside [her] mouth." On another occasion, defendant, wearing only a towel and underwear, pulled Karen's sleeping bag off and her pants fell. She stated that defendant told her he was not trying to do anything, but he just wanted to touch her. This made her uncomfortable, so she kicked him away, arose and backed away from him. As a result of defendant's actions, Karen began to fear being around him, but she never told her mother. She was afraid it would affect her parents' relationship.
On July 21, 2002, while preparing to take Karen and the other two children to meet defendant at a soccer game in the park, Charlotte picked up a pair of defendant's pants and a letter fell out of his wallet. The letter was written in Spanish. She recognized defendant's handwriting and the paper he used. She had used the same paper a few days earlier. The contents of the letter, as translated by Detective Robert Meoqui, are as follows:
Nena forgive my conduct but this is not strange for you. Because  not speak to you, not say goodbye, not give you the good mornings, not play, not be by your side, not kiss you, we didn't last the years this is something stupid between a father and daughter. I do this thinking that it is the only path that I have in order not touch you, not to kiss you. But I am mistaken all this I need the only thing I achieve is to have my spirit without life without desire for anything. Without dreams as if I were dead, in life.
For the first time in my life I am afraid. A lot of fear. . . . Because each day I need you very much this sentiment I have for your mother and now with you. But with you it is different because you are my daughter. I cannot make love to you. I can't deceive your mother with another woman or with you.
What I feel is love and not evil. Never am I going to do something bad to you. The bad thing is what I am doing. No speaking to you, no greeting you, no kissing you, no touching you. Because the truth is that I want to want you. My little one, for me there are three paths. 1) that you call the police and put me in jail for sexual harassment. 2) that you tell your mother all of the truth so that she throws me out of the house. 3) Accept my love unconditionally until the law of God . . . decides what to do with our lives. You will grow up, become a beautiful woman, and get married. I will continue with your mother until the end of my life.
But for now accept that we need each other. Because despite that you do not like that I caress you. I know . . . In the bottom of you[r] heart you also need me.
Nena at times I ask myself why I fell in love with you, you being only a little girl and over all you being my daughter. And I find no answer. The only thing I know is that for love there are no limits, there is no age. Despite that you are hardly a little girl, you have awakened the sentiment of love. . . . Nena to leave. Always have I looked for the wrong path, and the truth is that I don't find it and don't go on and tell me that the path is God. Because God is love and he does not get involved in those things.
Charlotte said she knew from the letter that something was not right and was confused because she did not know what was happening in her house with her daughter and the man to whom she was married. Charlotte told the children about the letter and questioned Karen. At first, Karen denied that there was any misconduct, but then admitted that defendant had kissed her. When Charlotte asked Karen how defendant had kissed her, she responded, "the way he kisses you." With this disclosure,
Charlotte drove the children to the home of the family pastor. After the pastor read the letter and spoke to Karen, Charlotte and the pastor decided to call the police.
In September 2010, defendant filed a pro se PCR petition. He alleged "ineffective assistance of [trial] counsel, and any relevant issues that any assigned counsel may raise." In April 2011, PCR counsel filed a brief in support of the petition. PCR counsel incorporated arguments contained in the PCR petition and defendant's pro se supplemental brief.
In October 2011, Judge David H. Ironson conducted oral argument and reserved decision. On December 5, 2011, Judge Ironson determined that defendant failed to demonstrate a prima facie case of ineffective assistance of counsel, denied the PCR petition, and issued a comprehensive nine-page written decision. The judge concluded that defendant's trial counsel exercised a tactical decision not to produce testimony from the two witnesses and explained that the witnesses had credibility problems. Moreover, he concluded that even if trial counsel's representation was deficient, defendant failed to show that the outcome of the trial would be different because the evidence was overwhelming. Judge Ironson then addressed each of defendant's pro se contentions seriatim concluding that they were without merit. This appeal followed.
On appeal, defendant raises the following points:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R[ule] 3:22-4.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons that Judge Ironson stated in his thorough written decision dated December 5, 2011. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test and other applicable controlling case law.