NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0518.
David A. Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs).
Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Alvarez.
Defendant Melvin Hester appeals from the February 8, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); third-degree child endangering, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count six). He was acquitted of a separate second-degree sexual assault charge involving the same incident, N.J.S.A. 2C:14-2(c)(1) (count one). Charges of third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (count four), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five), were dismissed.The trial court merged count three with count two, sentencing defendant to seven years, which sentence defendant has completed. A concurrent 365 days of imprisonment was imposed on count six.
Defendant did not file a direct appeal. However, the judge who decided the PCR application stated on the record that he had reviewed the sentencing transcript, which we have not been provided. The judge stated he is "very confident" that defendant was advised by the sentencing judge of his right to appeal. Included in defendant's appendix is an incomplete notice of appeal dated November 1, 2006. The signature is illegible. The form does not appear to have been filed. No certification or affidavit was submitted explaining the particulars on the notice of appeal. Trial counsel, who testified at the PCR hearing, was not asked any questions with regard to defendant's election to appeal.
After defendant filed his pro se PCR notice on March 26, 2007, it was discovered that significant portions of the trial record were missing. The delay between that filing and the eventual hearing was occasioned, presumably, by efforts to locate the recordings, as well as the participants, including the trial judge, who had retired. Eventually, the State submitted a certification from defense counsel that the missing portions of the record, which principally contained the testimony by investigating officers, tracked the police reports prepared as a result of the incident. Also absent from our record for review purposes was the transcript of the trial proceedings, if any, that took place in the days after the State rested, the defense case, if any, closing arguments, and jury instructions.
Briefly summarized, the convictions resulted from defendant's sexual assault of a thirteen-year-old victim, A.A., on May 8, 2003. At that time, defendant was employed as a carnival worker; A.A., her sister, and a friend, were at the fairgrounds during the evening in question when she became separated from her group. She testified at trial that defendant, whom she had seen earlier in the evening, grabbed her, placed his hand over her mouth, and took her inside the multi-unit trailer where he lived. While there, he proceeded to sexually assault her.
Patrolman Alan J. Belcher of the Wharton Police Department, who was in the area around the fairgrounds, stated in his report that when A.A.'s absence was reported by her companions, he was approached by another carnival employee. That individual told him that he had seen defendant walking with a girl into his room at the trailer. Belcher, along with a fairgrounds supervisor, approached the trailer, and the supervisor knocked on the door. After the supervisor instructed another employee to obtain a screwdriver so he could force the door open, the officer heard the sound of glass breaking and ran towards the rear of the unit. When he saw defendant fleeing from the area, Belcher gave chase, arresting defendant and placing him in his police vehicle. He then spoke with the victim, whose mother was contacted. A.A. and her companions were taken to the police station. Meanwhile, Belcher, along with another Wharton Police Department officer, entered the trailer. Belcher's police report says in relevant part:
Now knowing the relative ages of the two persons and the fact that [A.A.] was upset and "didn't want to be there", I briefly looked through the unit to check for weapons, ensure the scene was safe and there were no additional victims. On top of the night stand was an open box of "Trojan" brand condoms and an open wrapper of a condom. These two items were collected by this officer and later turned over to the Morris County ...