State of New Jersey v. L.O.R.

• Court: New Jersey Superior Court Appellate Division
• Decided: March 19, 2025
• Docket: A-0534-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0534-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.O.R.,1

Defendant-Appellant. ________________________

Submitted March 4, 2025 – Decided March 19, 2025

Before Judges Gooden Brown and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-08-1179.

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

Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, on the brief).

1 We use initials to protect the privacy of the victim pursuant to Rule 1:38- 3(c)(12). PER CURIAM

Defendant appeals from a September 12, 2023 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing.2 We affirm.

Following a 2018 jury trial, defendant was convicted of one count of first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); three counts of

second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-

degree child endangerment, N.J.S.A. 2C:24-4(a)(1), in connection with his

sexual abuse of his preadolescent stepdaughter over a two-year period. He was

sentenced to an aggregate term of forty years in prison, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, and a special sentence of parole supervision

for life, N.J.S.A. 2C:43-6.4. He was also ordered to comply with Megan's Law,

N.J.S.A. 2C:7-1 to -23.

We affirmed the convictions in an unpublished opinion which we

incorporate by reference, State v. L.O.R., No. A-1237-18 (App. Div. Feb. 3,

2021) (slip op. at 23). We recounted the facts, noting that "[d]uring her direct

examination at trial, the victim testified to various instances of sexual assault

2 The notice of appeal mistakenly lists the order being appealed as dated September 19, 2023. A-0534-23 2 that occurred from 2015 to 2017 that involved defendant touching her 'on top'

of her vagina and defendant taking her hand, putting it inside his pants, and

forcing her to touch his penis." Id. at 6. We explained that, during a videotaped

pre-trial interview with a detective, that was admitted into evidence pursuant to

N.J.R.E. 803(c)(27), the victim described one incident during which defendant

"digitally penetrat[ed] her with two fingers." Id. at 4, 7. However, during her

trial testimony that occurred before the video interview was played for the jury,

in response to the prosecutor's repeated questioning, the victim "did not mention

any penetration." Id. at 6. The penetration described in the video statement

formed the evidential basis for the first-degree charge. Id. at 2.

Defense counsel repeatedly objected to the victim testifying before the

video statement was played for the jury and requested that the video be played

"while she was still on the witness stand" to afford "full and comprehensive

cross-examination in front of the jury." Id. at 5-6. Defense counsel also

reiterated her objection to the admissibility of the video. Id. at 5.

The trial court was not persuaded and ruled that, consistent with its Rule 104 hearing determination, the State would be permitted to play the video statement during its case-in-chief at a point in the State's discretion so long as the victim testified first. The court did not discern any prejudice to defendant and was satisfied that "defendant's right of confrontation [was] protected" "because the defendant has the statement,

A-0534-23 3 has the video of the statement and has the transcript of the statement."

[Id. at 5 (alteration in original).]

After the victim testified,

defense counsel cross-examined the victim for over an hour. The cross-examination did not address the inconsistency between the victim's testimony at trial and in the videotaped statement about digital penetration, but defense counsel used the transcript from the earlier statement to question the victim about other inconsistencies. . . . Afterward, . . . the court excused the victim from the courtroom. Defendant never asked to recall the victim as a witness.

[Id. at 6.]

In her summation,

defense counsel relied upon the inconsistencies in the victim's statement and testimony to undermine her credibility with the jury. She specifically compared the victim's allegation in her video statement that defendant had digitally penetrated her with her testimony at trial and argued that the victim had given "completely contradictory and irreconcilable statements regarding digital penetration."

[Id. at 8.]

On direct appeal, defendant argued "the trial court should have

reconsidered its earlier ruling admitting the videotaped interview into evidence

A-0534-23 4 after the victim testified in court inconsistently with what she said in the

interview." Id. at 9. In rejecting defendant's contention, we concluded

the trial court did not abuse its discretion in admitting the child victim's interview even though her trial testimony was not consistent with her earlier out-of- court statement. . . .

Discrepancies between an out-of-court statement and live testimony can be, as defense counsel did here, argued to the jury as bearing upon the victim's credibility. They do not control the analysis of the totality of the circumstances to be made by the judge in evaluating whether the out-of-court statement was sufficiently trustworthy. . . .

We also conclude that the trial court's decision to allow the videotaped interview to be played after the victim completed her testimony was not an abuse of discretion as it did not violate defendant's Confrontation Clause rights.

[Id. at 14-15.]

We noted that defendant "had an opportunity to conduct meaningful cross-

examination of the victim at trial but chose not to do so." Id. at 2. "Defendant,

for what was evidently strategic purposes, simply chose not to cross -examine

the victim while knowing that the videotape would be played after she testified."

Id. at 22. We explained that defendant could also have "recall[ed] the victim as

a witness after the tape was played" pursuant to N.J.R.E. 806. J.O.R., slip op.

at 22. We pointed out that "[w]hat occurred here was not a violation of

A-0534-23 5 defendant's Confrontation Clause rights, but rather a strategic decision made by

defendant to not address the victim's earlier statement." Id. at 23.

Defendant filed a timely PCR petition that was supplemented by assigned

counsel. Among other things, defendant asserted that his trial counsel was

ineffective by failing to recall and cross-examine the victim after she "gave an

inconsistent statement at trial," and failing "to investigate [the victim's] motive"

for making the allegations. On September 12, 2023, the PCR judge issued an

order and corresponding written opinion denying defendant's PCR petition

without an evidentiary hearing. In his decision, the judge reviewed the facts and

procedural history, applied the governing legal principles, and concluded

defendant failed to establish a prima facie claim of ineffective assistance of

counsel (IAC).

Specifically, the judge determined that "defense counsel successfully

cross-examined the victim." The judge found that

[t]he evidence ma[de] it clear that it was defense counsel's strategy not to call the victim back to the stand after the video of her statement was played for the jury.

Furthermore, . . . defendant's bald assertion that defense counsel's failure to cross-examine the victim was further detrimental to defendant[] and directly resulted in his conviction[] is contradicted by evidence that defendant was found guilty based on the jury's

A-0534-23 6 consideration of [the victim's] recorded statement . . . that he penetrated [her] vagina with his fingers.

Thus, the judge concluded "the strategic decisions made by defense counsel did

not amount to [IAC]" or prejudice the defense to warrant PCR or an evidentiary

hearing.

On appeal, defendant makes the following argument for our consideration:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S FAILURE TO PROPERLY CROSS- EXAMINE THE STATE'S KEY WITNESS.

....

(B) Counsel Was Ineffective For Procedurally Barring The Defendant From Being Able To Cross-Examine The State's Key Witness On Inconsistent Statements Pertaining To A Required Element Of His First-Degree Conviction.

We begin by setting out guideposts that inform our review. "We review

the legal conclusions of a PCR judge de novo," State v. Reevey, 417 N.J. Super.

134, 146 (App. Div. 2010), but "review under the abuse of discretion standard

the PCR court's determination to proceed without an evidentiary hearing," State

v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). "[W]here . . . no

evidentiary hearing was conducted," as here, "we may review the factual

inferences the [trial] court has drawn from the documentary record de novo."

A-0534-23 7 State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris,

181 N.J. 391, 420-21 (2004)).

An evidentiary hearing is only required when (1) a defendant establishes

"a prima facie case in support of [PCR]," (2) the court determines that there are

"material issues of disputed fact that cannot be resolved by reference to the

existing record," and (3) the court determines that "an evidentiary hearing is

necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354

(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)

(providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's

allegations are too vague, conclusory or speculative"). Indeed, "[i]f the court

perceives that holding an evidentiary hearing will not aid the court's analysis of

whether the defendant is entitled to [PCR], . . . then an evidentiary hearing need

not be granted." Brewster, 429 N.J. Super. at 401 (omission in original) (quoting

State v. Marshall, 148 N.J. 89, 158 (1997)).

"To establish a prima facie case, [a] defendant must demonstrate a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b). And, a defendant must make this showing "by a preponderance of the

credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). Rule 3:22-2

A-0534-23 8 provides five grounds for PCR. Applicable here is defendant's contention of a

"'substantial denial in the conviction proceedings'" of his "state or federal

constitutional rights"; namely, his constitutional right to the effective assistance

of counsel. State v. Preciose, 129 N.J. 451, 459 (1992) (quoting R. 3:22-2(a)).

To establish a prima facie claim of the denial of the effective assistance

of counsel as contemplated under Rule 3:22-2, a defendant must demonstrate

that the performance of counsel fell below the objective standard of

reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687-88

(1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the

outcome would have been different without the purported deficient

performance. Stated differently, a defendant must show that: (1) counsel's

performance was deficient; and (2) the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.

To satisfy the first prong, a defendant must "show[] that counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment" and "that counsel's representation fell

below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.

"[I]n making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

A-0534-23 9 assistance . . . ." Id. at 689. As such, a defendant "must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)).

"Merely because a trial strategy fails does not mean that counsel was

ineffective." State v. Bey, 161 N.J. 233, 251 (1999). "No particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89. For that reason,

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with [defense] counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial."

[State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (citations omitted) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).]

A-0534-23 10 To satisfy the second Strickland/Fritz prong, "[t]he error committed must

be so serious as to undermine the court's confidence in the jury's verdict or result

reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S.

at 694). This prong generally requires that a defendant establish a "reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694. Failure to

meet either prong of the two-pronged Strickland/Fritz test results in the denial

of a petition for PCR. State v. Parker, 212 N.J. 269, 280 (2012) (citing State v.

Echols, 199 N.J. 344, 358 (2009)). That said, "courts are permitted leeway to

choose to examine first whether a defendant has been prejudiced, and if not, to

dismiss the claim without determining whether counsel's performance was

constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation

omitted) (citing Strickland, 466 U.S. at 697).

Applying these principles, we reject defendant's contention that he

received IAC and affirm substantially for the reasons stated by the PCR judge

in his comprehensive written opinion. The record is clear that defense counsel

was aware that she could recall the victim to the stand or cross-examine her on

the inconsistency while she was still on the stand. Given that knowledge,

defense counsel's decision was clearly strategic. See People v. Foulkes, 117

A-0534-23 11 A.D.3d 1176, 1177 (N.Y. App. Div. 2014) (recognizing that vigorous cross-

examination of a child sexual assault victim can have the undesirable effect of

"alienating the jury"); see also John E.B. Myers, The Child Witness: Techniques

for Direct Examination, Cross-Examination, and Impeachment, 18 Pac. L.J. 801,

899 (1987) ("When the cross-examiner succeeds in eliciting a number of

inconsistencies from a child, the attorney must decide whether to let the loose

ends dangle until closing argument, or to ask the ultimate question: 'So Billy,

. . . it is possible that nothing happened at all, isn't it?'").

Although defendant asserts the burden should now be on his prior counsel

to justify her trial strategy, he is mistaken. The burden remains with him to

show that this strategy was more than just a "strategic miscalculation[]."

Castagna, 187 N.J. at 315. He has failed to do so.

Affirmed.

A-0534-23 12