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State v. L.A.G.

Superior Court of New Jersey, Appellate Division

November 27, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
L.A.G., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2013

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-10-01356.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson and Maven.

PER CURIAM

Defendant L.A.G., who was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), appeals from the trial court order dismissing his petition for post-conviction relief ("PCR"). We affirm.

The record shows that over a period of several years, defendant sexually molested the daughter of his paramour, with whom he lived along with the victim. When the victim was twelve years old, she reported to her mother that defendant had been sexually molesting her for a number of years. The mother confronted defendant, who denied the allegations. When it became evident to the victim that her mother did not believe her allegations, she apologized to her mother and defendant, stating that she had lied. Three years later, then a high school student, the victim reported the sexual abuse to her gym teacher and to others. Defendant eventually gave a sworn statement admitting that he touched the victim under her panties on one occasion when the victim was nine or ten years old. He was arrested and charged with the sexual offenses.

Several months before trial, the victim recanted her allegations. At trial, the victim continued to recant her accusations, explaining that she wanted to punish her mother and defendant and was seeking attention. A number of witnesses to whom the victim also admitted that she had made up the allegations against defendant, also testified. In his testimony, defendant acknowledged the touching incident revealed in his sworn statement, but told the jury that he had done so with the palm of his hand and that it was a brief encounter "like a [flash of] lightning."

In addition to producing the victim's teacher as a witness, the State also called a clinical psychologist, James P. Cassidy, Ph.D., who was qualified, without objection, as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Cassidy explained that CSAAS is not a diagnostic aid but, rather, an educational tool that educates people about how children may react to sexual abuse.

Following his conviction, the court imposed an aggregate fifteen-year custodial term. On appeal, we affirmed defendant's conviction and sentence. State v. L.A.G., No. A-1063-07 (App. Div. May 8, 2009). The Supreme Court denied defendant's petition for certification. State v. L.A.G., 200 N.J. 369 (2009).

Defendant filed the instant petition for PCR in April 2010. In the petition, defendant alleged that his trial counsel had been ineffective in numerous ways. Defendant claimed that his counsel failed to conduct an adequate investigation, he was the victim of prosecutorial misconduct, and that his appellate counsel was ineffective for failing to argue that trial counsel was ineffective and that he had been the victim of prosecutorial misconduct.

In particular, defendant claimed that had trial counsel questioned the victim prior to trial, he would have discovered that she had Attention Deficit Disorder ("ADD") and was a virgin. Defendant also claimed the State was aware the victim was a virgin and hid this information from defendant. Additionally, defendant claimed the prosecutor engaged in ...


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