NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0497.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Harris and Hayden.
Defendant Gerald Pohida appeals from the January 5, 2012 Law Division order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). Defendant contends that his trial and appellate counsel were ineffective in representing him, resulting in prejudice to his defense. Having considered defendant's arguments in light of the record and controlling law, we conclude that defendant has presented a prima facie case concerning the voluntariness of his confession after his counsel allegedly instructed the police not to interrogate him. Accordingly, we reverse and remand to the Law Division for an evidentiary hearing solely on the issue of ineffective assistance of counsel due to counsel's failure to raise this issue at the suppression hearing.
A grand jury returned an eight-count indictment against defendant for events occurring from June to October 2003. Specifically, defendant was charged with two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a).
The indictment was based on allegations of sexual activities between defendant, then forty-one years old, and a thirteen-year-old girl, L.M., whom he had met via the internet. Defendant requested to meet L.M.'s friends, which resulted in sexual activities between defendant and A.S., a twelve-year-old girl. Defendant also arranged a three-way sexual encounter with L.M., defendant, and another man.
After an eight-day trial, the jury found defendant guilty on all charges. The judge sentenced defendant to an aggregate thirty-year term with a twenty-five year period of parole ineligibility to be served consecutively to an unrelated sentence. Defendant filed a motion for a new trial, which the judge denied on June 14, 2006.
Defendant appealed and raised the following arguments:
POINT I: DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT SHOULD HAVE BEEN GRANTED, BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS REQUEST FOR COUNSEL.
A. If Defendant asserted his right to counsel as described by Kerri Pohida, his statement must be suppressed.
B. The trial court initially found Mrs. Pohida credible, a finding entitled to deference.
POINT II: THE TRIAL COURT ERRED IN FINDING, AFTER THE MICHAELS HEARING, THAT L.M.'S TESTIMONY WAS UNTAINTED BY THE POLICE INTERROGATION.
POINT III: THE STATE'S REPEATED IMPROPER COMMENTS ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION IN OPENING STATEMENT AND CROSS-EXAMINATION, IN THE FACE OF OBJECTIONS BY COUNSEL AND ADMONISHMENTS BY THE TRIAL COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL, AND WERE INCURABLE BY THE COURT'S INSTRUCTIONS.
POINT IV: THE STATE'S INFLAMMATORY ARGUMENTS IN SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT, AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. The Prosecutor unfairly maligned defense counsel.
B. The Prosecutor improperly vouched for witnesses.
C. The [P]rosecutor misstated the facts.
POINT V: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY DENYING HIM THE OPPORTUNITY TO PRESENT MEDICAL RECORDS CORROBORATING HIS DEFENSE, AFTER THE STATE OPENED THE DOOR ...