STATE OF NEW JERSEY VS. J.M. (13-01-0091, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-4687-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.M.,
Defendant-Appellant.
_______________________
Argued September 21, 2020 – Decided March 8, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-01-0091.
Brian J. Neary argued the cause for appellant (Law
Offices of Brian J. Neary, attorneys; Brian J. Neary, of
counsel; Jane M. Personette, on the brief).
William P. Miller, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, of counsel and
on the brief; Catherine A. Foddai, Legal Assistant, on
the brief).
PER CURIAM
Defendant J.M. appeals the denial of his petition for post-conviction relief
(PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
I.
The facts adduced by the State at trial are recounted in our prior opinion
and need not be repeated at length in this opinion. See State v. J.M., No. A-
3690-13 (App. Div. Aug. 16, 2017) (slip op. at 2-7). It is sufficient to note the
State presented testimony that on two occasions when ten-year-old Kimberly 1
was visiting overnight with her aunt and uncle, she claimed defendant, her uncle,
touched her breasts and vagina. Id. at 2-3. She did not tell any family members
what occurred. Ibid. When Kimberly was seventeen, she told her boyfriend and
then her mother. Id. at 4. Her mother contacted the police. Id. at 3. Defendant
was arrested and indicted. Id. at 4.
Defendant waived his right to a jury trial. Id. at 2. In October 2013, he
was convicted in a bench trial of two counts of second-degree sexual assault,
N.J.S.A. 2C:14-2(b) (counts one and two), and second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a) (count three). Ibid. Defendant was
sentenced on counts one and two to two consecutive six-year terms of
1
This is a fictitious name used to maintain the confidentiality of the crime
victim.
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imprisonment with eighty-five percent to be served without parole under the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent six-year
term on count three. Ibid. He also was sentenced to parole supervision for life
and various financial penalties, and ordered to comply with Megan's Law 2 and
Nicole's Law 3. Id. at 3.
Defendant filed a direct appeal of his convictions and sentence. We
affirmed both in an unpublished opinion. Id. at 18.
Defendant filed a PCR petition on December 3, 2018, alleging ineffective
assistance of counsel. The PCR court denied defendant's petition by order dated
May 31, 2019. Its findings and conclusions are set forth in a comprehensive
written opinion.
On appeal, defendant presents the following issues for our consideration.
POINT I
THE COURT BELOW ERRED IN FAILING TO
EITHER GRANT DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF (PCR) OR,
ALTERNATIVELY, ORDER AN EVIDENTIARY
HEARING.
a. General Legal Principles.
2
N.J.S.A. 2C:7-1 to -23.
3
N.J.S.A. 2C:14-12.
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3
b. Trial counsel's failure to confront the alleged victim
with a material inconsistency between her trial
testimony and an earlier statement constituted
ineffective assistance of counsel.
c. Trial Counsel's failure to conduct a meaningful
cross-examination of the State's expert witness, Dr.
Anthony D'Urso, constitutes ineffective assistance of
counsel.
d. Trial counsel's failure to conduct a thorough cross-
examination of Det. Linda McNulty with respect to her
interrogation techniques and the impact upon
[d]efendant's demeanor during the police interrogation
constitute ineffective assistance of counsel.
e. Trial counsel's failure to adequately and
meaningfully consult with [d]efendant regarding the
significance of waiving his right to a jury trial
constitutes ineffective assistance of counsel.
f. Trial counsel's failure to adequately prepare
[d]efendant to testify at trial constitutes ineffective
assistance of counsel.
g. Trial counsel's failure to conduct a thorough direct
examination of [p]etitioner's wife, [L.M.], constitutes
ineffective assistance of counsel.
h. Trial counsel's failure to adequately prepare
[d]efendant's character witnesses to testify at trial
constitutes ineffective assistance of counsel.
i. Trial counsel's failure to move for a change of venue,
although aware that [Kimberly's] father is a Bergen
County Sheriff's officer, constitutes ineffective
assistance of counsel.
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POINT II
THE CUMULATIVE EFFECT OF MULTIPLE
INSTANCES OF INEFFECTIVE ASSISTANCE OF
COUNSEL WARRANTS THE GRANT OF PCR.
II.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-prong test of establishing
both that: (1) counsel's performance was deficient and he or she made er rors
that were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States Constitution; and (2)
the defect in performance prejudiced defendant's rights to a fair trial such that
there exists 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. The fact that a trial strategy fails to obtain the optimal outcome for
a defendant is insufficient to show that counsel was ineffective. State v.
DiFrisco, 174 N.J. 195, 219-20 (2002) (citing State v. Bey, 161 N.J. 233, 252
(1999)).
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Defendant contends his trial attorney provided ineffective assistance of
counsel because he should have confronted Kimberly with an inconsistency that
might have affected her credibility. She testified at trial that defendant touched
her over her clothing, but in her statement to the police, she said he touched her
stomach and breasts under her shirt, on her skin.
The PCR court concluded the decision not to question Kimberly about this
inconsistency "was strategic" and not a serious performance error by defense
counsel. We agree that defendant has failed to overcome the strong presumption
that "the challenged action 'might be considered sound trial strategy.'"
Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101
(1955)). Whether the victim was touched over or under her clothes, the actions
constituted a second-degree sexual assault. N.J.S.A. 2C:14-2(b). It might have
appeared worse for defendant if this inconsistency were highlighted. The record
shows Kimberly was thoroughly cross-examined about issues that could have
affected her credibility such as the text messages to her boyfriend, her lack of
disclosure to her family about the abuse, her sleepovers at defendant's house
after the assaults, her favorable comments about defendant at her sweet sixteen
party, and her acknowledgment that defendant did not threaten her or insist she
not disclose the abuse. We agree with the PCR court that counsel's cross-
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examination of Kimberly falls within the range of reasonable professional
assistance. Ibid.Defendant argues his counsel did not effectively cross-examine the State's
expert witness, Dr. Anthony D'Urso, a psychologist, who testified about Child
Sex Abuse Accommodation Syndrome (CSAAS). 4 Dr. D'Urso explained his
testimony was to "educate" and was not to be used "diagnostically, predictively
or as a proof that abuse occurs." He testified he was not familiar with this
specific case. "The way this works for us is I don't know what case we're trying
at this moment, so I have no — I have no history because I don't know the case."
Defense counsel asked one question on cross-examination:
Q: Doctor, is it true that often in these cases where
there's a delay disclosure there's been some attempt by
the perpetrator to discourage the child from coming
forward, a threat?
A. Well that's happened in cases, sure.
In summation, defense counsel argued the doctor acknowledged that "often in
these types of cases you would expect that there be some threat or some type of
4
CSAAS testimony now is generally inadmissible. State v. J.L.G., 234 N.J.
265 (2018). Recently, the Court determined J.L.G. had "pipeline retroactivity."
State v. G.E.P., 243 N.J. 362, 370 (2020). Defendant's appeal was concluded
before J.L.G. was decided on July 31, 2018.
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communication between the perpetrator and the victim. Something . . . to assure
that she wouldn’t say anything at all about it."
Defendant argues the cross-examination should have explored the
weakness of CSAAS theory and other reasons Kimberly might have delayed
disclosure. The PCR court concluded counsel's performance was not
constitutionally deficient.
Defense counsel tried, unsuccessfully, prior to trial to exclude Dr.
D'Urso's testimony. Defense counsel's question on cross-examination supported
his argument in closing that Kimberly's delayed disclosure could have been
explained for other reasons. The doctor lacked knowledge about any of the
specifics of this case. Defense counsel cross-examined Kimberly about the
delay in reporting. This case was a bench trial where the court understood the
testimony was not diagnostic or proof that the assaults occurred. On this record,
we agree with the PCR court that defense counsel's cross-examination came
within professional standards.
Defendant argues his trial counsel's cross-examination of Detective
McNulty was inadequate under Strickland and prejudicial because he did not
ask about the effect the detective's interrogation techniques had on defendant's
demeanor during the police interview. Defense counsel was not successful in
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suppressing the videotape of defendant's interview. J.M., slip op. at 5. At trial,
during cross-examination of Detective McNulty, she acknowledged her
interview technique was to tell defendant she believed Kimberly in order to
extract a confession from defendant. Defendant argues defense counsel should
have gone further in his questioning of Detective McNulty to ask about the effect
of this on defendant's demeanor.
The PCR court rejected this a basis for PCR relief. We agree. Defendant
cites no authority for the assertion that professional competence required his
attorney to ask further questions about demeanor when the trial court made its
own observations of the interview tape. The cross-examination by defense
counsel alerted the trial court about the detective's tactics. The trial court
disregarded the detective's opinion about Kimberly's credibility "understanding
that [the detective's] manner of questioning was strategically and tactically
driven to obtain an admission of guilt from defendant." Defendant did not show
that further questions would make a difference.
Defendant argues his trial counsel did not provide "meaningful"
consultation with him before defendant waived his right to a jury trial.
Defendant waived this right on the second day of jury selection after the State
exercised three of twelve preemptory challenges and the defense had exercised
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one. Defendant submitted a certification 5 to the trial court in support of his
waiver request. See R. 1:8-1(a) (providing that a defendant's waiver of a jury
trial must be in writing); see also State v. Dunne, 124 N.J. 303, 317 (1991)
(providing criteria to consider for judicial approval of waiver). The PCR court
noted that defendant "certified he had concerns about 'the jury's ability to deal
with this matter without some kind of preconceived ideas — or emotions.'"
Following voir dire, in which defendant answered he was making the decision
after consultation with his attorney, the trial court granted defendant's waiver
request. Based on the certification and voir dire, the trial court found "the
waiver [was] voluntarily, knowingly and competently given, and that on
balance, including the statement and reasons and all the relevant factors
involved, including the gravity of the crime, the nature, the fact that it is
emotionally charged, [the court found] that the defendant's request should be
granted . . . ."
We find no error by the PCR court in rejecting this claim under Strickland.
The charges involved a sexual assault against a child by her uncle. There was
concern prospective jurors would view that negatively. At defendant's request,
prospective jurors were asked in voir dire about their reaction to the charges and
5
Defendant's certification is not included in the appendix.
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some had "strong reactions." The record shows defendant discussed the issue
with his trial counsel and understood the court would decide all the is sues in a
bench trial. Even if defense counsel did raise the waiver issue, the record does
not demonstrate that counsel's performance here was below professional
standards.
Defendant claims his trial attorney did not adequately prepare his
character witnesses for their cross-examination because they did not know
defendant had other children from a prior relationship. Defendant argues his
attorney did not conduct a thorough direct examination of defendant's wife.
Defendant also argues his trial counsel provided ineffective assistance by not
preparing him for his own testimony. Even if we accepted defendant's
allegations in a light favorable to him, we agree with the PCR court the
"prejudice" portion of Strickland was not satisfied because of the trial court's
credibility determinations. Defendant failed to show the outcome would be
different as required by Strickland's second prong. The court accepted the
favorable testimony of the character witnesses, but it "[did] not place great
weight" on them because of the strength of Kimberly's testimony, which the
court found to be credible. The trial court concluded defendant's wife had an
"interest in the outcome of the case and is inherently biased." Defendant did not
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show that further preparation would have changed the outcome in light of his
statements to the police that he may have touched Kimberly or how he could
explain those statements and his reaction. The record, therefore, does not
support defendant's claims of ineffective assistance of counsel.
Defendant argues his trial counsel should have filed a motion to change
venue because Kimberly's father was a sheriff's officer in the same county. A
motion for a change of venue is addressed to the sound discretion of the trial
judge. State v. Wise, 19 N.J. 59, 73 (1973). The test is whether a fair and
impartial jury can be obtained from the residents of the county. See State v.
Timmendequas, 161 N.J. 515, 551-52 (1999).
Defendant does not argue the bench trial was unfair or that the trial judge
was biased but relies on State v. McCabe, 201 N.J. 34 (2010), to support his
claim there should have been a motion for change of venue. In McCabe, the
part-time municipal court judge and the defense attorney were adverse to each
other in an unrelated case that was not yet resolved. Id. at 38. Even though
there was "no evidence of bias or unfairness in the record," they "were still
adversaries in an open matter." Id. at 45. The Court concluded the situation
"invite[d] reasonable doubts about the judge's partiality." Id. at 46.
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McCabe is distinguishable from the present case. This case does not
involve a part-time municipal court judge or open litigation between the judge
and one of the parties or attorneys. This case is post-judgment where the issue
is ineffective assistance of counsel, and where there is no evidence or allegation
of bias or bad faith in the conduct of the trial.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of trial counsel within the
Strickland-Fritz test. Accordingly, the PCR court correctly denied the PCR
petition without an evidentiary hearing. See State v. Preciose, 129 N.J. 452,
462-63 (1992). There also was nothing about the cumulative effect of these
issues that would entitle defendant to post-judgment relief. See State v.
Orrechio, 16 N.J. 125, 129 (1954) (granting a new trial where the legal errors
"in their aggregate have rendered the trial unfair"). Finally, we conclude
defendant's further arguments are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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