NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-10-1105.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano, Lihotz and Ostrer.
Defendant appeals from the trial court's denial, after remand and an evidentiary hearing, of his petition for post-conviction relief (PCR). See State v. L.A., No. A-4279-07 (App. Div. May 24, 2010) (L.A. II). The petition was based largely on his trial counsel's failure to interview defendant's wife, D.A., and to call her as an exculpatory witness. We remanded for an evidentiary hearing, at which D.A. would be able to testify, to enable the court to decide whether the failure to call her at defendant's trial constituted ineffective assistance of counsel. Id. at 7. On remand, the trial court found defendant did not meet his burden to prove he was prejudiced by his trial counsel's deficient performance. On appeal, defendant argues the court erred. Having considered the legal arguments in light of the record and applicable law, we agree and reverse.
A Middlesex County jury convicted defendant in 2003 of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a. The victim was his daughter L.N., who was fifteen years old at the time. The indictment charged that each offense occurred on "multiple and diverse dates" between November 1, 2000 and February 28, 2001. The trial evidence pertained to three separate incidents: one in November 2000 at defendant's home in Newark; another at a motel in December 2000 in Sayreville; and a third in defendant's car in February 2001 in Eatontown. However, the jury verdict did not specify which, if not all, of the incidents it found to have occurred. After merger, defendant received a fifteen-year sentence on the first-degree count, subject to Megan's Law registration and lifetime community supervision upon release. N.J.S.A. 2C:7-1 to -23. We affirmed the conviction on direct appeal. State v. L.A., No. A-4071-03 (App. Div. March 17, 2006) (L.A. I), certif. denied, 187 N.J. 81 (2007).
We begin with a review of the trial evidence. The jury heard testimony from a police officer, L.N., her mother B.N., and defendant. L.N. lived with B.N. in Monmouth County. Defendant lived with his wife, D.A., and a son, L.H., in Newark. During the relevant period, defendant exercised parenting time with L.N., often picking her up and taking her to his home.
L.N. testified that her visitation with defendant was one or two weekends a month before November 2000 and nearly every weekend thereafter. She also spent part of each summer and some of her school vacations with him at his residence in Newark. L.N. had a close relationship with L.H., but she did not get along with D.A.
L.N. was a freshman in her local high school, but before the end of 2000, transferred to an alternative school. L.N. testified the behavioral problems that precipitated the transfer resulted from her father's sexual assault.
L.N. testified that on a Sunday in November 2000, defendant picked her up from her home and took her to see a movie, and then to buy a coat. Defendant asked if she wanted to go to his residence to see D.A. and L.H. L.N. replied that she would go if they were home, so they went. The residence was unoccupied when they arrived, and defendant suggested waiting a few minutes before returning L.N. home. L.N. accordingly stayed in the living room for a while and then went into L.H.'s bedroom to sleep. She awakened to discover defendant unbuttoning her pants and pulling them down. He fondled her breasts and vagina and inserted his fingers. She cried and asked what he was doing, but he did not answer. After about twenty minutes, L.N. got dressed, and told defendant that she was "ready to go." He took her home and gave her $60 or $75 in cash.
On Sunday, December 17, 2000, defendant bought L.N. a pair of boots after visiting various shopping malls in Monmouth and Middlesex Counties. In evidence was a sales receipt with a time stamp of 2:39 p.m. They then ate fast food in the car. L.N. testified that she told defendant she was ready to go home, but defendant said he did not "feel like going that way[, ]" and also declined her suggestion to go to his house, adding he did not want to disturb D.A. or L.H. He decided instead to go to a motel in South Amboy, in order to watch the football game that he had mentioned to her earlier. The motel was just off the Garden State Parkway, which was the road that defendant usually traveled for his visitations with L.N. The registration form listed defendant's name, address, and license plate number, along with a check-in time of 3:15 p.m. on December 17, 2000, and a check-out time of 7:46 a.m. the following day.
L.N. testified that after they entered the room, she lay down and slept. She did not notice whether the football game had started. She awoke to find that defendant had pulled her pants partially down. He penetrated her vagina with his fingers and he touched her breasts. Despite her requests that he stop, he turned her face down on the bed and put his penis in her vagina. Her crying ultimately stopped the assault. He got dressed, she said she was "ready to go, " and he took her home sometime after nightfall. Defendant gave L.N. between $100 and $160.
L.N. did not want to continue the regular visitations, but B.N. encouraged her because she thought defendant was trying to be a good father. On another Sunday, in February 2001, defendant picked up L.N. to take her to the movies. While they were in the car, he fondled her breasts and her vagina through her clothes. They then saw the movie and he took her home. Defendant also bought L.N. sneakers that day.
At some point in April 2001, L.N. and B.N. were discussing L.N.'s behavior at school and at home. B.N. asked her why she was acting withdrawn and disagreeable. L.N. did not answer, but when B.N. said she would call defendant, L.N. told her that he was "part of the reason" for her behavior. L.N. then mentioned the sexual assaults. B.N. called defendant and then took L.N. to the Sayreville police station to give a statement.
L.N. further testified that, before the November 2000 incident, she always had to initiate a visitation with defendant and she had to "beg" for things that she needed, although her father carried significant amounts of cash and drove a Lincoln. Her visitations with defendant had become infrequent during the year or two preceding the November 2000 incident, but thereafter, he called her and saw her frequently and readily gave her money and other items.
Next, B.N. testified. She described her relationship with defendant. She stated it lasted ten years, and continued, on and off, until 1996. Thus, it existed for a time while defendant was married to D.A. As defense counsel probed the details of B.N.'s past relationship with defendant, B.N. disclosed that "somewhere in there he went to rehab and to jail."
B.N. testified that defendant's relationship with L.N. was not close before November 2000, and he did not support her materially or emotionally. However, in November 2000, defendant began calling L.N. "a little more, " with some calls initiated by him and some by her. That was when L.N. began returning from visitations with clothes, sneakers, or money that defendant provided. B.N. said that L.N. did not have problems with her or in school before November 2000 and ...