                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1969-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

A.D.,

     Defendant-Appellant.
________________________

                   Argued March 16, 2020 – Decided May 5, 2020

                   Before Judges Sabatino, Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 10-06-1463.

                   Ed M. Weinstock argued the cause for appellant (Levin
                   Weinstock Levin, attorneys; Joseph A. Levin, on the
                   brief).

                   Melinda A. Harrigan, Assistant Atlantic County
                   Prosecutor, argued the cause for respondent (Damon G.
                   Tyner, Atlantic County Prosecutor, attorney; Melinda
                   A. Harrigan, on the brief).

PER CURIAM
      Defendant A.D.1 appeals an order denying his petition for post-conviction

relief (PCR) issued by Judge Bernard E. DeLury, Jr., who also presided over his

trial, following a limited evidentiary hearing. We affirm.

                                       I.

      Tried by a jury, defendant was convicted on October 22, 2010 for three

counts of second-degree endangering the welfare of a minor by engaging in

sexual conduct with her when she was less than sixteen-years-old, N.J.S.A.

2C:24-4, and one count of third-degree aggravated criminal sexual contact of a

minor when she was at least thirteen but less than sixteen years old, N.J.S.A.

2C:14-3(a). The victim was defendant's niece by marriage, Annette. Defendant

was also tried on charges of sexual contact with Annette's younger sister

Amanda, but the jury was unable to reach a verdict on those charges. He was

sentenced to an aggregate twelve-year prison term. We affirmed defendant's

conviction on direct appeal. State v. A.D., No. A-4343-10 (App. Div. March

10, 2014), certif. denied, 220 N.J. 573 (2015).

      In January 2016, defendant filed a PCR petition seeking a new trial

making the following ineffective assistance of counsel claims: (1) pre-trial


1
  We use initials and pseudonyms to protect the privacy of the child victim and
family members. R. 1:38-3(c)(9).


                                                                       A-1969-18T4
                                       2
counsel and trial counsel (also referred to as "counsel") failed to discover

exculpatory documents from the Division of Child Protection and Permanency

(DCPP),2 which defendant alleges are new evidence entitling him to a new trial;

(2) trial counsel failed to inform defendant about trial co-counsel's (also referred

to as "co-counsel") conflict of interest that became known during trial; (3) trial

counsel elicited testimony from the two alleged victims' mother during cross-

examination that was prejudicial to the defense, and appellate counsel failed to

argue the issue on direct appeal; (4) trial counsel failed to identify and have

testify the author of a medical report purporting the alleged victims had a

"mental condition" causing them to lie about the allegations; (5) trial counsel

failed to elicit testimony from defendant's son, who certified the pool at

defendant's house was closed when the alleged incidents happened in the pool;

and (6) trial counsel failed to procure an expert to testify the red marks on the

victim's neck may not have been a hickey caused by suction from lip pressure.

      On July 18, 2017, the judge issued a discovery order directing: (1) the

DCPP to provide for in camera review all mental health professional reports

regarding any allegations of illicit sexual acts perpetrated on the victims by



2
  The DCPP was known as the Division of Youth and Family Services when the
victims' allegation arose and were reported. L. 2012, c. 16, § 20.
                                                                            A-1969-18T4
                                         3
defendant which the court was not in possession of; (2) the DCPP to make

available to defendant's counsel and the State, without disclosure to any third

party unless ordered by the court, any mental health professional reports

contained in its records regarding the victims' allegations against defendant; and

(3) Martin Finkel, D.O. to advise the State whether he authored a report

regarding the victims' allegations against defendant, and the State to advise

defendant of Dr. Finkel's response. Two months later, the judge ordered a DCPP

report be delivered to Monica Weiner, M.D. for the limited purpose of her

review and to advise whether she authored the report and if its contents were

true and accurate. 3

      In October 2018, an evidentiary hearing was held on the limited issue of

whether co-trial counsel had a conflict of interest in representing defendant

because she had briefly coached a cheerleading squad which included Amanda,

who testified at trial. Defendant's other PCR claims were decided on the papers

without a hearing.



3
  Six months later in March 2018, the judge ordered PCR counsel to forward
his supplemental brief to defendant without disclosure of any of the DCPP
documents contained in the appendix but to provide defendant a summary of the
documents. In July 2018, the judge compelled the DCPP to disclose to
defendant any reports it had regarding defendant's alleged unlawful conduct with
the victims.
                                                                          A-1969-18T4
                                        4
      On December 12, 2018, the judge issued an order and a fifty-eight-page

written decision dismissing the petition without an evidentiary hearing. The

judge denied relief; finding defendant failed to establish a prima facie case of

ineffective assistance of counsel under the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687, 694 (1984) and State v. Fritz, 105 N.J. 42, 58

(1987), that the performances of trial counsel, trial co-counsel and appellate

counsel were deficient and that, but for the deficient performance, the result

would have been different at trial and on appeal.

                                       II.

      Before us, defendant contends:

            POINT I

            THE PCR[] COURT COMMITTED REVERSIBLE
            ERROR IN DENYING PETITIONER'S POST-
            CONVICTION RELIEF APPLICATION BASED
            UPON INEFFECTIVE ASSISTANCE OF COUNSEL
            DUE TO TRIAL COUNSEL'S PREJUDICIAL
            CONFLICT OF INTEREST UNDER RULE OF
            PROFESSIONAL CONDUCT 1.7.

            POINT II

            THE PCR[] COURT COMMITTED REVERSIBLE
            ERROR IN DENYING PETITIONER'S POST-
            CONVICTION RELIEF APPLICATION BASED
            UPON INEFFECTIVE ASSISTANCE OF COUNSEL
            DUE TO TRIAL COUNSEL'S FAILURE TO OBTAIN
            ALL OF THE [DCPP] RECORDS, TO HAVE THE

                                                                        A-1969-18T4
                                       5
JURY LEARN OF THE EXCULPATORY EVIDENCE
CONTAINED IN THE [DCPP] RECORDS, AND TO
DEEM THE [DCPP] MATERIALS NEWLY
DISCOVERED EXCULPATORY EVIDENCE.

POINT III

THE PCR[] COURT COMMITTED REVERSIBLE
ERROR IN DENYING PETITIONER'S POST-
CONVICTION RELIEF APPLICATION BASED
UPON INEFFECTIVE ASSISTANCE OF COUNSEL
DUE TO TRIAL COUNSEL'S FAILURE TO CALL A
MEDICAL EXPERT TO TESTIFY, RESULTING IN
HIS UNJUST CONVICTION.

POINT IV

THE PCR[] COURT COMMITTED REVERSIBLE
ERROR IN DENYING [DEFENDANT'S] POST-
CONVICTION RELIEF APPLICATION BASED
UPON INEFFECTIVE ASSISTANCE OF COUNSEL
DUE TO TRIAL COUNSEL'S FAILURE TO ELICIT
TESTIMONY THAT PETITIONER COULD NOT
HAVE PERPETRATED ANY OF THE ACTS THAT
ALLEGEDLY OCCURRED IN THE POOL.

POINT V

THE PCR[] COURT COMMITTED REVERSIBLE
ERROR IN DENYING [DEFENDANT'S] POST-
CONVICTION RELIEF APPLICATION BASED
UPON INEFFECTIVE ASSISTANCE OF COUNSEL
DUE TO TRIAL COUNSEL'S IMPROPER
ELICITATION OF TESTIMONY THAT THE
ACCUSERS' AUNT AND MOT[H]ER WERE
SUBJECT TO SEXUAL ABUSE.



                                           A-1969-18T4
                   6
             POINT VI

             DEFENDANT     WAS   DEPRIVED    OF   HIS
             CONSTITUTIONAL RIGHTS TO THE EFFECTIVE
             ASSISTANCE OF COUNSEL, DUE PROCESS OF
             THE LAW AND OF HIS RIGHT TO A FAIR TRIAL
             SINCE TRIAL COUNSEL FAILED TO OBTAIN[]AN
             EXPERT TO EXPLAIN THAT THE DEFENDANT
             DID NOT CAUSE THE MARK ON ANNETTE'S
             NECK.

      Considering these arguments in light of the record and applicable legal

standards, we affirm substantially for the reasons set forth by the judge in his

well-written decision. We limit our discussion of the factual record pertinent to

defendant's arguments and the reasoning applied by Judge DeLury.

      A. Conflict of Trial Co-Counsel

      Following trial counsel's cross examination of Amanda, whose testimony

included assertions that defendant inappropriately touched her, and that Annette

told her the hickey on her neck was given to her by defendant, there was a break

and the jurors retreated to the jury room. Trial co-counsel then advised the judge

she recognized Amanda from coaching her in cheerleading. Co-counsel stated,

"I don't know if she recognized me. Her testimony seemed genuine. . . . I don't

think it affected it, but I want the record clear." The prosecutor had no objection,

and trial counsel indicated he did not perceive any prejudice. The judge stated

"[t]o the extent that there's anything that needs to be waived, I take it the defense

                                                                             A-1969-18T4
                                         7
waives it," to which trial counsel replied "[y]es." Although defendant was

present during Amanda's testimony, the trial transcript does not indicate whether

he left the courtroom before or during the colloquy.

      At the PCR evidentiary hearing, defendant, counsel, and co-counsel all

testified regarding the claim that co-counsel had a conflict of interest because

she had coached Amanda. Defendant stated he was not present during the

judge's conflict of interest colloquy at trial with counsel and co-counsel.

      Counsel stated he did not remember whether defendant was in the

courtroom at the time when he waived a claim of conflict of interest but he

"would not have done something like that without a defendant being present."

Counsel admitted he did not seek defendant's informed consent to have co-

counsel remain on the defense team after her disclosure. As for co-counsel's

duties on the defense team, counsel stated co-counsel assisted him with the case,

but counsel "did all the cross, all the direct, the closing, [and] the opening." He

stressed co-counsel's recognition of Amanda did not "make a darn bit of

difference in the way [he] did [his] cross-examination and [his] preparation

because [he] didn't know the young lady[.]"

      Co-counsel testified when she realized she recognized Amanda, she

immediately alerted trial counsel, defendant, the prosecutor, and the judge. Co-


                                                                           A-1969-18T4
                                        8
counsel could not remember how she alerted defendant; she was uncertain

whether she discussed it with him, whether defendant gave her informed

consent, or whether defendant signed any document waiving a conflict of

interest. However, she was certain defendant was in the courtroom when she

informed the judge that she recognized Amanda.4 Co-counsel's recollection of

her duties representing defendant was consistent with counsel's testimony,

stating she attended arraignments, status conferences and pretrial conferences,

helped prepare for trial, and sat "second chair for most of [the trial.]" Regarding

her interaction with Amanda, co-counsel stated she was not Amanda's regular

coach but coached Amanda's cheerleading team – between fifteen to thirty girls

– for about four sessions lasting approximately one to two hours each, in

preparation for a local all-star football game.        The practices took place

throughout the trial. Co-counsel never had one-on-one personal contact or any

type of personal conversation with Amanda during the practices or the actual

game.

        Defendant argues co-counsel's relationship with Amanda, constituted a

per se conflict of interest under RPC 1.7(a)(2), which he did not waive through



4
  There is no reciprocal indication in the record that Amanda recognized co -
counsel.
                                                                           A-1969-18T4
                                        9
informed consent, thereby constituting ineffective assistance of counsel. RPC

1.7(a)(2) provides:

              a lawyer shall not represent a client if the representation
              involves a concurrent conflict of interest. A concurrent
              conflict of interest exists if . . . there is a significant risk
              that the representation of one or more clients will be
              materially limited by the lawyer's responsibilities to
              . . . a third person or by a personal interest of the lawyer.

Alternatively, defendant contends even if there was no per se conflict of interest,

the relationship was significant and prejudicial, and thus, constituted ineffective

assistance of counsel.

        In his written opinion, Judge DeLury found trial counsel and co-counsel

were not ineffective due to a conflict of interest. The judge noted that while he

did not have a specific recollection of how the persons in the courtroom were

positioned during Amanda's trial testimony, he rigorously applies Rule 3:16

regarding a defendant's presence during the trial proceedings.5                  The judge


5
    Rule 3:16 provides in pertinent part:

              (a) Pretrial. The defendant must be present for every
              scheduled event unless excused by the court for good
              cause shown.

              (b) At Trial or Post-conviction Proceedings. The
              defendant shall be present at every stage of the trial,
              including the impaneling of the jury and the return of


                                                                                   A-1969-18T4
                                           10
credited the testimony of counsel and co-counsel over defendant's PCR

testimony, explaining:

            [Defendant's] demeanor was guarded and he appeared
            rehearsed. He testified, in the [c]ourt's view, with less
            credibility, particularly with respect to his whereabouts
            in the restroom while the colloquy with the court was
            conducted during the trial. Perhaps the [defendant] was
            remembering a different instance that placed him
            outside the courtroom. However, his testimony and
            recollection of events are belied by both the record and
            the credible testimony of . . . [counsel] and [co-
            counsel].

      Furthermore, the judge reasoned:

            I would not have conducted such a colloquy concerning
            a potential conflict without the presence of the
            defendant on trial. In hindsight, I could have conducted
            a more robust and probing colloquy. However,
            whatever shortcomings the court displayed in no way
            reflects upon the effectiveness of trial counsel. In sum,
            [defendant's] lawyers brought a potential conflict to the
            attention of the court. The court made an inquiry and
            acted in the presence of the accused. There was nothing

            the verdict, and at the imposition of sentence, unless
            otherwise provided by Rule. Nothing in this Rule,
            however, shall prevent a defendant from waiving the
            right to be present at trial. A waiver may be found
            either from (a) the defendant's express written or oral
            waiver placed on the record, or (b) the defendant's
            conduct evidencing a knowing, voluntary, and
            unjustified absence after (1) the defendant has received
            actual notice in court or has signed a written
            acknowledgment of the trial date, or (2) trial has
            commenced in defendant's presence.
                                                                        A-1969-18T4
                                      11
            else for trial counsel to do. As such, trial counsel was
            not ineffective. But, even if they were ineffective in
            their handling of the potential conflict, that would not
            have altered the outcome of the case. The jury returned
            its verdict only on the claims related to [Annette] and
            not [Amanda]. The actions of counsel in handling the
            issue had no negative impact on the outcome of the
            trial.

            Finally, even if there was a conflict of interest, the
            outcome of the proceedings would not have changed.
            Because . . . [co-counsel] had such a limited role in the
            actual trial and both she and . . . [counsel] expressed to
            the [c]ourt that they could continue to do their job
            without any interference, there would not have been
            any difference in the proceedings having a bearing on
            the outcome.

      We have no issue with the judge's factual findings because they are

"substantially influenced by [his] opportunity to hear and see the witnesses and

to have the 'feel' of the case, which a reviewing court cannot enjoy[,]" and "are

supported by sufficient credible evidence in the record." State v. Rockford, 213

N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)).

      Moreover, we find no fault in the judge's reasoning. There is no per se

conflict of interest because the record does not indicate co-counsel was

representing Amanda at the time. State v. Norman, 151 N.J. 5, 24-25 (1997)

(holding a conflict of interest is either: (1) a per se conflict, where prejudice is

presumed, absent a valid waiver; or (2) a "potential or actual conflict of interest


                                                                            A-1969-18T4
                                        12
[which] must be evaluated and, if significant, a great likelihood of prejudice

must be shown in that particular case to establish constitutionally defective

representation of counsel"). In addition, the charges against defendant were

being prosecuted by the Atlantic County Prosecutor's Office, and co-counsel

was not being prosecuted by that office. State v. Cottle, 194 N.J. 449, 473

(2008) (finding a per se conflict arises when the same prosecutor's office is

simultaneously prosecuting counsel and his client in different matters).

      Given the absence of a conflict per se, defendant failed to establish he was

prejudiced by co-counsel's limited involvement with Amanda. It was counsel

who conducted all the witness examinations, performed the opening and closing,

and argued all the motions. Co-counsel served as "second chair" with no active

involvement during the proceedings except supporting counsel. There is no

indication counsel was in any way affected by co-counsel's limited involvement

with Amanda. Moreover, the lack of any significant relationship between co-

counsel and Amanda is borne out by the fact co-counsel only recognized

Amanda after she testified. Additionally, the transcript contains no indication

in the substance of her testimony that Amanda was altering her testimony

because of co-counsel's presence in the courtroom. In sum, there is no indication

that Amanda's testimony was affected due to co-counsel's coaching of Amanda's


                                                                           A-1969-18T4
                                      13
cheerleading squad. See Norman, 151 N.J. at 25 (ruling a potential conflict

"must be evaluated and . . . a great likelihood of prejudice must be shown . . . to

establish constitutionally defective representation of counsel").

      Defendant's reliance on State v. Lasane, 371 N.J. Super. 151 (App. Div.

2004) is distinguishable from the situation before us. In Lasane, this court found

the defendant could not rely on the advice of his counsel after his counsel had

engaged in a sexual relationship with the defendant's mother. 371 N.J. Super.

at 163. Aggravating the matter, at the time of the relationship the defendant had

not yet been sentenced and relied more on his counsel's advice regarding

withdrawal of his guilty plea – which he did. Ibid. In contrast, defendant here

has not shown how he was prejudiced because of the advice he received by

counsel or co-counsel, or that his legal representation was somehow influenced

by co-counsel's involvement with Amanda, which was improbable given co-

counsel did not recognize Amanda until she ended her testimony and counsel

only learned of the situation after he completed his questioning of Amanda.

      B. Discovery of Division Documents

      In advance of the trial, the pretrial judge ordered the DCPP to turn over

for in camera inspection all its records regarding abuse allegations by Annette

and Amanda against defendant and their mother to determine if the records could


                                                                           A-1969-18T4
                                       14
be released to defendant's trial counsel. Upon reviewing the documents, the

judge forwarded only the discoverable materials to the parties with the

requirement that a protective order be signed limiting their use of the documents.

Among the documents were Dr. Weiner's April 17, 2007 examination report of

Amanda,6 and Dr. Sapp's July 25, 2008 examination reports of Annette and

Amanda.

      None of the three medical examination reports included assertions the

girls were lying about their accusations against defendant. Nonetheless, after

his conviction and direct appeal, defendant executed a certification stating

during his representation by trial counsel, a report authored by a mental health

professional was shared with him "that indicated the allegations of the minor

accusers . . . were incredible." Defendant asserted counsel failed to explain why

he didn't call the mental health professional to testify on his behalf. Later,

despite a concerted effort, PCR counsel could not locate the purported report, as

pre-trial counsel, counsel, appellate counsel, and the trial prosecutor could not


6
  This report was initiated due to a concern of physical abuse, apparently at the
hands of the girls' mother, and was not related to the allegations against
defendant. However, the report, drafted after the sexual touching was alleged
to have begun but before it was disclosed, contains Amanda's denial of any
sexual abuse. We presume this report was released by mistake, as portions of
subsequent examination reports authored by Mark Sapp, M.D., FAAP,
referencing the prior incident of physical abuse, are redacted.
                                                                          A-1969-18T4
                                       15
recall seeing it. That said, the transcript of defendant's trial contains a reference

by the prosecutor to "the other doctor." In response to the PCR claim that this

report exists, the prosecutor certified "the other doctor" she referred to during

trial was Dr. Sapp because no other examinations of the girls directly related to

the criminal charges were conducted.

      At defendant's request during the PCR proceedings, Judge DeLury

ordered discovery to confirm the existence of any undisclosed mental health

professional's report in the possession of the DCPP, or whether Dr. Martin

Finkel, Dr. Sapp's supervisor, authored any report regarding the girls. The order

produced a variety of documents created after defendant's alleged sexual abuse

occurred, but before Annette's disclosure of the abuse, related to an incident of

physical abuse against Amanda by her mother. One such document, a DCPP

safety assessment dated July 11, 2008, was written a few days after Annette's

disclosure of sexual abuse and the author indicated a "no" answer to whether

"[c]hild sexual abuse/exploitation is suspected and circumstances suggest that

child safety may be an immediate concern." Nothing in the record indicates the

author of the safety assessment knew of the sexual abuse disclosure Annette

made against defendant a few days earlier.




                                                                             A-1969-18T4
                                        16
      Defendant contends the DCPP documents received after he filed for PCR

contain exculpatory information and trial counsel was ineffective for failing to

discover them before his trial. Defendant points to Dr. Wiener's April 17, 2007

report regarding Amanda's allegation of being physically abused by her mother,

in which Amanda denied she was sexually abused before disclosure of

defendant's sexual abuse against her and Annette, but after the sexual abuse

occurred. Defendant argues had trial counsel obtained this report, he would

have been aware that documents relating to the incident of the mother's physical

abuse of Amanda also contained exculpatory information.          Defendant also

argues Dr. Sapp's report contains Amanda's statement that was contradictory to

the one she gave to the police, and counsel failed to impeach her with it.

      The judge denied defendant's request for a new trial based on newly

discovered evidence because the DCPP documents: (1) did not include

inconsistent information from the evidence presented at trial; (2) were requested

by counsel but the pre-trial judge ruled they were undiscoverable; and (3) were

not exculpatory, and if presented at trial would not have altered the jury's

verdict. State v. Carter, 85 N.J. 300, 314 (1981) (providing for newly discovered

evidence to warrant a new trial, a defendant must show that: (1) the evidence is

material and not merely cumulative, impeaching, or contradictory; (2) the


                                                                         A-1969-18T4
                                      17
evidence was discovered after the trial and was not discoverable by reasonable

diligence beforehand; and (3) the evidence would probably change the jury 's

verdict if a new trial were granted).

      As the judge properly found, there is no basis for defendant's claim that

trial counsel was ineffective for not discovering the DCPP documents before

Judge DeLury ordered their release to PCR counsel. Counsel's access to the

documents was barred due to the pre-trial judge's ruling following his in camera

review. Counsel cannot be blamed for that ruling, and there is no contention

counsel did not make the proper argument to obtain release of the documents.

The judge also correctly applied Carter in finding the newly disclosed evidence

did not warrant a new trial.     Furthermore, we significantly doubt the new

documents detailing Annette did not disclose her alleged abuse to authorities

prior to disclosing her mother's abuse are material to her and Amanda's

allegations against defendant; thus, they would have been inadmissible. See

State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) ("The materiality

standard is satisfied [only] if defendant demonstrates that there is a reasonable

probability that had the evidence been disclosed to the defense, the result of the

proceeding would have been different.").




                                                                          A-1969-18T4
                                        18
       C. Failure to Call Witnesses

       Defendant asserts trial counsel was ineffective for failing to call the

mental health professional who wrote the report indicating the girls' accusations

were not credible and they had medical conditions keeping them from telling the

truth. According to defendant, a Clawans7 charge that an adverse inference be

drawn for failure to call the report's author, should have been made by counsel.

Had the author of the report testified, defendant maintains he would not have

been found guilty of sexually touching Annette.

       Judge DeLury explained that the potential witnesses would have either

been Drs. Sapp or Finkel, who would have testified to the general procedures

for examining sexual assault victims, and not to their credibility as witnesses.

Therefore, he found neither doctor would have presented any exculpatory

evidence. The judge further found counsel's failure to request a Clawans charge

was irrelevant because the doctors would not have produced any evidence that

would have been exculpatory, and their failure to testify was not unfavorable to

defendant.    In short, the decision was trial strategy and did not prejudice

defendant.




7
    State v. Clawans, 38 N.J. 162 (1962).
                                                                         A-1969-18T4
                                       19
      There is no merit to defendant's claim on appeal that a report exists

purporting the girls had a mental condition that prevented them from telling the

truth surrounding the allegations and trial counsel failed to produce it at trial.

Defendant's contention amounts to nothing more than a bald assertion as no such

report has been verified by anyone other than defendant.            See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) ("[I]n order to establish

a prima facie claim, a petitioner must do more than make bald assertions that he

was denied the effective assistance of counsel. He must allege facts sufficient

to demonstrate counsel's alleged substandard performance.").          The record

indicates, of the reports authored by Drs. Wiener and Sapp, none of them

reference the alleged victims' credibility as claimed by defendant.8 Defendant's

bald assertion negates the need for any discussion regarding his entitlement to

an evidentiary hearing on the issue or a Clawans charge. State v. Jones, 219

N.J. 298, 311-12 (2014).

      D. Failure to Elicit Testimony the Pool Was Closed

      Included among the various times defendant inappropriately touched her,

Annette testified the first time occurred when defendant touched her buttocks



8
   Each girl was subject to two examination reports, one taken before and one
after Annette's disclosure of the sexual abuse.
                                                                          A-1969-18T4
                                       20
and vagina two times while they were alone when he was teaching her to do

backstroke at his home swimming pool during the summer of 2006. During

defendant's testimony, he stated on cross-examination he was never in the pool

alone with Annette but made no claim the incident could not have occurred

because the pool was closed.

      Defendant's PCR petition contended trial counsel was ineffective for

failing to elicit testimony that the pool incident was not possible due to the pool's

closure. In support of PCR, defendant's son, executed a certification stating

             that back in 2006-2007 when [defendant] was trying to
             sell his house in question that the swimming pool was
             closed and no one had access to it as a result. I
             remember that from the time it was closed back then
             that it was never opened again unless the new owners
             decided to open it.

      The judge rejected the claim, reasoning:

             Although [defendant's] son did not testify for the
             defense, his wife, did. She shared the home with . . .
             [defendant] where the pool was located. Since she
             lived with . . . [defendant], and the record is unclear as
             to whether [his] son lived with them, she was in a better
             position to testify to the pool closure than . . .
             [defendant's] son would be. However, [his wife] did
             not mention that the alleged incident was impossible
             due to the pool closure. Moreover, . . . [defendant]
             himself testified at trial and did not mention the
             impossibility of the alleged incident due to the pool
             closure. Therefore, trial counsel was not ineffective for
             failing to call the son as a witness because he instead

                                                                             A-1969-18T4
                                        21
            called [his wife], who was in a better position to testify
            about the issue.

      There is no support in the record for defendant's argument that counsel

was ineffective for failing to elicit testimony regarding the alleged closure of his

pool. Defendant relies solely on his son's PCR certification alleging the pool

was closed. Given defendant and his wife both testified at trial, they surely

would have been in a position to inform the jury their pool was closed during

the summer of 2006. They both testified about the pool incident, and neither

stated the incident could not have occurred as Annette alleged because their pool

was closed. The son was not living with his parents at the time he claimed the

pool was closed and was not in a better position to attest to its closure. There

was no explanation why he recalled this, and they did not. More importantly,

there is no indication that counsel was made aware, or should have been aware,

of the son's claim the pool was closed in the summer of 2006.

      E. Trial Counsel's Examination of the Girls' Mother

      During cross-examination of the girls' mother, trial counsel elicited

testimony that because she and her sister were sexually abused as children, she

stressed to her daughters at a young age to tell her if someone touched them

inappropriately. Defendant contends counsel was ineffective for presenting this

evidence to the jury. Defendant argues the testimony should not have been

                                                                            A-1969-18T4
                                        22
admissible under N.J.R.E. 401, 402 and 403 as it was not relevant or probative

and its admission constituted prejudicial reversible error because it had no

bearing on whether defendant was innocent or guilty.

      Judge DeLury disagreed, finding:

               [T]his testimony was relevant. It is likely . . . this
               testimony was elicited to demonstrate how the victim's
               mother was sensitive to the issues of abuse and why she
               had told her daughters about the existence of sexual
               abuse. This testimony was relevant to question why the
               victims waited two . . . years to come forward with their
               accusations against . . . [defendant], despite the fact that
               their mother encouraged them to talk to her about this
               type of situation.

      We join the judge's reasoning. The elicitation of testimony regarding the

girls' mother's own experience with sexual abuse was beneficial to defendant to

cast doubt on the girls' credibility.          Trial counsel's pointed questioning

established the mother was sensitive to sexual abuse issues and she counseled

her girls when they were young that it was okay to tell her if someone touched

them inappropriately. Thus, trial counsel was able to argue that due to the girls

delay in reporting the defendant's alleged abuse it was less likely the girls were

pressured into not disclosing the abuse, and more likely they had fabricated the

allegations.




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      Defendant also argues appellate counsel was ineffective for not

contending on direct appeal the testimony regarding the sexual abuse history of

the girls' mother and aunt prejudiced his defense because the jury could have

rationally concluded that because their mother and aunt were sexually abused,

so were the girls. The judge rejected this claim based upon his finding the

testimony was relevant and was not prejudicial to defendant.

      To obtain a new trial based on ineffective assistance of appellate counsel,

it must be established that appellate counsel failed to raise an issue that would

have constituted reversible error on direct appeal. State v. Echols, 199 N.J. 344,

361 (2009). Appellate counsel will not be found ineffective if the failure to

appeal the issue could not have prejudiced the defendant because the appellate

court would have found, either, that no error had occurred or that it was

harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State v. Harris, 181

N.J. 391, 499 (2004). Since trial counsel's strategy to elicit the testimony was

sound, there was no reason why appellate counsel should have contended

prejudicial error occurred.

      F. Failure to Obtain an Expert Witness

      Three witnesses testified at trial about a hickey on Annette's neck.

Annette testified that on her birthday defendant put his mouth on her "private


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                                       24
area" and gave her a hickey on her neck. Amanda testified she saw a red mark

on Annette's neck while the girls were playing basketball, and when she asked

Annette about it, Annette told her defendant gave it to her. The girls' aunt,

defendant's wife, also testified that a few days before Annette told her defendant

abused her, she joked with Annette about what looked like a hickey on Annette's

neck. She also recalled seeing what looked like hickey marks on Annette earlier,

which Annette told her resulted from a wrestling incident with Annette's brother.

Defendant's wife further suspected the hickey was given to Annette by her male

cousin, who had spent a lot time alone with Annette in an empty room in their

home.

        In seeking PCR, defendant claimed trial counsel was ineffective for failing

to obtain an expert to explain that the marks on Annette's neck could be

something other than a hickey. PCR counsel had pictures of Annette's neck

reviewed by a medical expert, Dr. Stephen Schleicher. In a letter to PCR

counsel, the doctor wrote:

              Although suction from lip pressure is possible, I cannot
              state with medical certainty that this is the definitive
              cause of the redness. Pressure induced by a suction
              device or contact dermatitis cannot be excluded based
              on the provided photographs. Opinions given in this
              report are within a reasonable degree of medical
              certainty.


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                                        25
      In denying the ineffectiveness claim, Judge DeLury noted counsel

explored alternate theories that defendant was not responsible for the mark on

Annette's necks though testimony that: Annette's cousin or brother could have

done it; Amanda stated another mark on Annette's neck was different than the

mark Annette claimed was given to her by defendant; and that Annette and

Amanda initially denied any inappropriate touching occurred. The judge also

determined the decision not to present an alternate theory was trial strategy.

      We conclude, as did the judge, defendant's claim that trial counsel failed

to explore alternate theories on how the mark on Annette's neck was created is

belied by the record. There were ample explanations offered to the jury that the

marks on Annette's neck were not the result of defendant sucking on her neck.

Furthermore, Dr. Schleicher does not provide an opinion within a reasonable

degree of medical certainty that the mark was not a hickey because he admits it

could be a hickey. Thus, defendant has not set forth a prima facie case that

counsel was ineffective.

      Affirmed.




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                                      26
