State of New Jersey v. A.R.G.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 23, 2024
• Docket: A-2493-22
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2493-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.R.G.,1

Defendant-Appellant. _______________________

Submitted December 11, 2024 – Decided December 23, 2024

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-04-0625.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent (Deepa S. Jacobs, Assistant Prosecutor, of counsel and on the brief).

1 We refer to defendant by his initials to protect the victims' privacy. R. 1:38- 3(c)(9). PER CURIAM

Defendant appeals from a December 8, 2022 order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We incorporate the facts leading to defendant's convictions set forth in

State v. A.R.G., No. A-3314-18 (App. Div. Mar. 23, 2021). On direct appeal,

we affirmed defendant's convictions for sexually assaulting his girlfriend's two

daughters over a ten-year period with their mother's knowledge and consent. 2

Id. (slip op. at 3). We also affirmed the sentence imposed, consisting of two

consecutive life terms followed by a consecutive forty-year period of

incarceration, subject to periods of parole ineligibility under the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. Ibid.3 The New Jersey Supreme

Court denied defendant's petition for certification. 247 N.J. 227 (2021).

Defendant filed a pro so PCR petition on December 2, 2021 asserting trial

counsel was ineffective on three grounds. After counsel was assigned,

defendant filed an amended petition and assigned counsel filed a supporting

2 The victims' mother testified at trial. She was separately charged based on her knowledge of, and complicity in, defendant's repeated sexual abuse of her daughters. 3 We remanded to the trial court limited to a technical correction to the judgment of conviction. A-2493-22 2 brief. On December 8, 2022, after hearing the arguments of counsel, the PCR

judge denied the petition without an evidentiary hearing. 4 The judge noted the

defendant claimed trial counsel was ineffective for failing to: (1) object to the

improper testimony by the forensic nurse examiner; (2) object to the mother's

testimony; (3) challenge the denial of the suppression motion; (4) adequately

cross-examine a witness based contradictory evidence; and (5) investigate the

victims' motives to fabricate the sexual assault allegations.

Regarding the testimony of the forensic nurse, the PCR judge found the

admission of the mother's trial testimony, and the trial judge's ruling on the

suppression motion were addressed on direct appeal. However, citing our

decision in State v. Allen, 398 N.J. Super. 247 (App. Div. 2008), the judge

addressed the merits of those arguments in denying the PCR petition implicitly

finding defendant's claims were not procedurally barred.

Regarding the mother's testimony, the PCR judge noted that even if

defense counsel objected, the testimony would not have been deemed

inadmissible. The PCR judge noted the mother's testimony was not akin to

impermissible expert witness testimony as to the ultimate trial issue.

4 The PCR judge was not the judge who presided at defendant's trial or sentencing. A-2493-22 3 With respect to the suppression motion, the PCR judge found the argument

"somewhat . . . frivolous" based on the suppression motion judge's credibility

findings after that judge viewed the videotape of defendant's interrogation by

the police. After considering the officer's suppression hearing testimony, the

transcript of the interrogation, and the videotape of the interrogation, the PCR

judge agreed with the suppression motion judge that "there was no indication

[defendant] did not understand" the Miranda5 rights waiver.

Regarding the testimony of the forensic nurse, the PCR judge noted that

"if" the witness strayed into an area reserved for expert opinion testimony, such

error was harmless based on the other overwhelming evidence against

defendant.

Additionally, the PCR judge rejected defendant's ineffective assistance of

counsel argument regarding trial counsel's failure to call a neighbor as a witness

and then "cross-examine" the neighbor. Defendant claimed the neighbor would

have provided testimony that the victims and their mother had a motive to

fabricate the sexual assault allegations. In rejecting this contention, the judge

concluded trial counsel could not cross-examine defendant's own witness.

Moreover, the PCR judge stated the allegation that the neighbor would have

5 Miranda v. Arizona, 384 U.S. 436 (1966). A-2493-22 4 testified favorably regarding the victims' motive to fabricate the allegations was

nothing more than a "conclusory" statement because there was no certification

or affidavit from the neighbor to support defendant's contention.

The PCR judge ultimately concluded defendant failed to make "a prima

facie showing that his trial lawyer committed errors that c[a]me close to having

denied him a fair trial. That . . . [d]efendant in hindsight may have employed a

different strategy is not indicative of ineffective counsel." The judge further

determined "[d]efendant's arguments [were] too vague, conclusory, or

speculative, and . . . [d]efendant ha[d] not demonstrated a reasonable likelihood

of success for the purpose of investigate[ing] additional claims for relief."

On appeal from denial of his PCR petition, defendant raises the following

arguments:

POINT I

AS . . . DEFENDANT HAD PRESENTED A PRIMA FACIE CASE THAT TRIAL COUNSEL WAS INEFFECTIVE AND THERE WAS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE, THE PCR COURT ERRED WHEN IT DENIED THE CLAIM WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING.

(a) TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT A WITNESS WHO WOULD HAVE CONTRADICTED THE STATE'S PROOFS.

A-2493-22 5 (b) [] DEFENDANT WAS DENIED THE RIGHT TO HAVE HIS ISSUES FULLY CONSIDERED ON THE MERITS THROUGH AN EVIDENTIARY HEARING.

Where an evidentiary hearing has not been held on a PCR petition, we

"conduct a de novo review of both the factual findings and legal conclusions of

the PCR court." State v. Harris, 181 N.J. 391, 421 (2004). We review a PCR

judge's decision denying a request for an evidentiary hearing under an abuse of

discretion standard. See State v. L.G.-M., 462 N.J. Super. 357, 365 (App. Div.

2020). A petitioner is not automatically entitled to an evidentiary hearing by

simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999).

To establish a prima facie ineffective assistance of counsel claim, a

defendant must satisfy the two-prong test articulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which the New Jersey Supreme Court

adopted in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must

show . . . counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 687). The defendant must then show counsel's "deficient

performance prejudiced the defense." Ibid. (quoting Strickland, 466 U.S. at

A-2493-22 6 687). If the defendant fails to sustain his burden under either prong, the

ineffective assistance of counsel claim fails. Strickland, 466 U.S. at 687.

When assessing the first prong, "[j]udicial scrutiny of counsel's

performance must be highly deferential." Strickland, 466 U.S. at 689. "Merely

because a trial strategy fails does not mean that counsel was ineffective." State

v. Bey, 161 N.J. 233, 251 (1999). Thus, a court "must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance," and "the defendant must overcome the presumption

that, under the circumstances, the challenged action [by counsel] 'might be

considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel

v. Louisiana, 350 U.S. 91, 101 (1955)).

"[T]o establish a prima facie claim, a petitioner must do more than make

bald assertions that he was denied the effective assistance of counsel." State v.

Porter, 216 N.J. 343, 355 (2013) (quoting Cummings, 321 N.J. Super. at 170).

A PCR petition must be "accompanied by an affidavit or certification by

defendant, or by others, setting forth with particularity," State v. Jones, 219 N.J.

298, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard

performance." Porter, 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at

170); see also R. 3:22-10(c). A PCR petitioner arguing his trial counsel

A-2493-22 7 inadequately investigated a potential witness "must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." Porter, 216 N.J. at 353.

Here, defendant alleges his trial counsel was ineffective in failing to call

a neighbor as a witness to testify on his behalf. According to defendant, the

neighbor's testimony would have demonstrated that the victims and their mother

had ample motive to fabricate the sexual assault allegations against him.

However, defendant failed to submit an affidavit or certification from the

neighbor supporting his contention. Similarly, defendant failed to explain how

the neighbor's testimony would have exculpated him.

Defendant was required to demonstrate "how specific errors of counsel

undermined the reliability of the finding of guilt." United States v. Cronic, 466

U.S. 648, 659 n.26 (1984). Absent information by way of a certification or

affidavit setting forth the neighbor's testimony, neither the PCR judge nor this

court is able to ascertain whether the neighbor's testimony could have impacted

the outcome of the trial.

On this record, nothing indicates the neighbor would have testified the

victims and their mother had reason to fabricate the sexual abuse allegations

A-2493-22 8 against defendant. Moreover, defense counsel extensively cross-examined the

victims' mother at trial, and had ample opportunity to explore why she and her

daughters may have fabricated the sexual assault allegations.

We also reject defendant's argument that the PCR judge erroneously found

his PCR claims were procedurally barred. Contrary to defendant's argument on

appeal, the judge addressed defendant's PCR arguments on the merits and

rejected them.

Regarding defendant's claim his trial counsel was ineffective in failing to

object to the nurse examiner's testimony, the judge explained there was strong

evidence against defendant even absent the nurse's testimony. The judge cited

the testimony of the victims and their mother, the expert testimony of the New

Jersey State Police forensic scientists, who reviewed the results from the swabs

of the victims taken by the nurse examiner, and defendant's inculpatory

statement to the police.

We also reject defendant's claim that his defense attorney failed to raise

certain arguments in support of the motion to suppress defendant's statement to

the police. Again, defendant failed to support this argument by submitting an

affidavit or certification indicating which additional arguments should have

been made and why the outcome of the trial would have been different had those

A-2493-22 9 arguments been presented to the motion judge. Defendant's bald assertions are

insufficient to support a claim for ineffective assistance of counsel. See

Cummings, 321 N.J. Super. at 170.

Having reviewed the record, we discern no basis to reverse the PCR

judge's determination that defendant failed to establish a prima facie claim of

ineffective assistance of counsel. Defendant failed to demonstrate by way of

supporting affidavits or certifications either of the Strickland prongs in support

of his ineffective assistance of counsel claims. Instead, defendant asserted

unsupported "vague, conclusory, or speculative" allegations regarding his trial

counsel. Thus, the PCR judge properly denied defendant's petition without an

evidentiary hearing.

Affirmed.

A-2493-22 10