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State v. Harcher

Superior Court of New Jersey, Appellate Division

October 1, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,


Submitted September 17, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0585.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, 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).

Before Judges Sabatino and Hayden.


Defendant appeals the trial court's denial of his petition for post-conviction relief ("PCR"). The petition alleged ineffective assistance of defendant's former trial attorney in connection with his conviction, following a 2006 jury trial, for failing to verify his address as required under the Registration and Community Notification Law (commonly known as "Megan's Law"), N.J.S.A. 2C:7-2(e) (count one), and failing to register a change of address as required by Megan's Law, N.J.S.A. 2C:7-2(a) and N.J.S.A. 2C:7-2(d) (count two).

The operative facts are detailed in this court's October 5, 2010 unpublished opinion, which affirmed defendant's conviction on both counts of the indictment and his corresponding sentence to a fifteen-month custodial term. See State v. Harcher, No. A-4035-08 (App. Div. Oct. 5, 2010). In summary, as the result of his 1994 conviction for endangering the welfare of a child, defendant is a sex offender and is required under Megan's Law to register his address and notify authorities of any change in that address. Before being released from prison in 2003, defendant was told that he must provide the police with an address where he would be staying and verify it with them regularly. Id. at 2. He signed a verification form acknowledging that responsibility. Ibid.

Upon release in 2003, defendant registered his mother's address with the Edison Police Department. Ibid. However, his mother later advised the police that the address only served as a mail drop because defendant was in fact homeless and lived in the woods near her apartment. Ibid. At a later point, defendant failed to verify his address as required, which prompted the police to go to the mother's address, only to find that she no longer lived there. Id. at 2-3. Additionally, defendant had tried to give the police a Post Office Box, but he was told he had to provide a street address. Presented with the circumstances, the jury found defendant guilty of the registration and change of address charges. The trial court denied defendant's motion for a judgment of acquittal.

In the first appeal, we rejected defendant's argument that there was insufficient proof that he had intended to reside at an address different than the one he had provided to the police. Id. at 6. We noted that the address defendant gave the police, i.e., his mother's address, "was no longer viable for [the registration] purpose because his mother had moved." Ibid. Consequently, we agreed with the State and the trial court that the evidence sufficed for the jury to conclude that there had been a "change in address" triggering defendant's obligation to notify the police of his whereabouts. Ibid.; see also In re T.T., 188 N.J. 321, 327 (2006). We also rejected defendant's claims that the trial court admitted improper evidence without a limiting instruction, that the jury charge was flawed, that the prosecutor's summation was unfair, and that his sentence was excessive. State v. Harcher, supra, slip op. at 4.

In his ensuing PCR petition, defendant claimed that his former trial counsel should have conducted a more extensive investigation and, in particular, should have established that an Edison police officer allegedly told defendant that he did not need to update his address. Defendant further claimed that his trial lawyer improperly coerced him into not testifying at trial.

Judge Dennis V. Nieves, the PCR judge who also presided over the jury trial, conducted an evidentiary hearing on the petition. The judge considered at the PCR hearing testimony from defendant's former trial counsel and from defendant himself. After considering that testimony, Judge Nieves concluded that defendant had not been deprived of the effective assistance of counsel. The judge found that it was an appropriate strategy decision for defense counsel to recommend that defendant not ...

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