                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1624-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN E. YOUNG,

     Defendant-Appellant.
_________________________

                    Submitted April 8, 2019 – Decided May 21, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 12-01-
                    0088.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Thomas G. Hand, Designated Counsel, on
                    the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Nicole Handy, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Steven Young appeals the trial court's denial of his post-

conviction relief ("PCR") petition without an evidentiary hearing. We affirm,

substantially for the sound reasons set forth in Judge Jeanne T. Covert's written

opinion.

        We derive the following facts from the record. On February 27, 2013, a

jury convicted defendant of first-degree aggravated sexual assault upon a

physically helpless, mentally defective or mentally incapacitated person,

N.J.S.A. 2C:14-2(a)(7) (counts one and three); two counts of third-degree

invasion of privacy, N.J.S.A. 2C:14-9(b) (counts two and four); and third-degree

aggravated criminal sexual contact with a physically helpless, mentally

defective or mentally incapacitated person, N.J.S.A. 2C:13-3(a) (count five).

After merger, the judge sentenced to an aggregate term of eighteen years, subject

to an eighty-five percent period of parole ineligibility under the No Early

Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

        Defendant, a licensed practicing nurse, was charged with caring for the

victim, B.Q.,1 who suffered catastrophic injuries when he was twelve years old

after being struck by an automobile while riding his bicycle. B.Q.'s injuries left

him quadriplegic, unable to speak and in need of twenty-four hour-skilled


1
    We use the victim's initials to protect his identity.
                                                                          A-1624-17T4
                                           2
nursing care to assist with all aspects of his daily life. Defendant admitted that

on two occasions, he performed fellatio on B.Q. and recorded it on his cell

phone,2 but asserted that B.Q. consented to the sexual acts. Consequently, a

main focus of the trial involved B.Q.'s ability to communicate.

        Trial testimony revealed that B.Q. has limited ability to communicate, by

blinking his eyes, moving his head, or making a noise. The owner and operator

of the health care agency, ACW health care (ACW), which employed defendant,

testified that she oversaw B.Q.'s care and was familiar with B.Q.'s needs. She

stated that B.Q. was unable to communicate and needed intensive medical care.

While he would moan to try to communicate, it was unclear whether he was

responding to a question.

        Similar testimony was presented by B.Q.'s father. He testified that it was

uncertain whether B.Q.'s blinking was directly responsive to questions as there

was usually a delay in B.Q.'s responses. B.Q.'s father expressed his frustration

in attempting to communicate with B.Q.

                     No, he can't speak. He can – when he's alert and
              in good form he can usually make some sort of noise
              like ahhhhh. But you can ask him a question, there is a
              delay between the time you ask him a question and if
              you're in a hurry for an answer you may ask him two or
              three questions before he --- that have a yes/no answer

2
    The jury viewed the videos, which are not a part of the record.
                                                                          A-1624-17T4
                                         3
             before he responds. And sometimes you're not really
             sure which question he answered.

                    And, if he can't – if after a while he can't make a
             verbal response then you ask him to try and turn his
             head. And sometimes he can and very often, you know,
             you'll have to wait half a minute or something to see a
             response. And then when he can't do any of that, then
             you'll ask him to blink his eyes

                   ....

                    And one of the biggest frustrations for his mom
             and I is to know what he's really thinking, what he's
             really answering to.

       As part of an unrelated investigation, Investigator Terry King of the

Camden County Prosecutor's Office Child Abuse Unit came across two videos

of defendant performing fellatio on an individual, later identified as B.Q. Prior

to trial in the instant matter, the court made an in limine ruling that there be no

reference to the Camden County investigation.          Counsel indicated that the

witnesses were instructed on the limitation as well.

       King testified at trial concerning how he obtained the videos. During his

testimony, King stated that during defendant's initial interview, defendant

admitted to committing the act because he was raped when he was thirteen years

old.   Trial counsel requested a sidebar and objected to this testimony,

specifically because the statement had "no basis in fact" and it was brought up


                                                                           A-1624-17T4
                                         4
in connection with the other matter with which defendant was charged. The

State argued it would have been impossible to separate the two incidents because

the police report to which King referred during his testimony had notes

regarding both incidents. The trial court sustained the objection and noted its

concern regarding Investigator King's testimony as follows: "And I do have

concerns, you know, he's already said a few things that make me feel a little

uneasy about the instruction and the limiting ruling of the Court. So if you f eel

that there is any - you know, jump in immediately, I really don't want ..."

      Shortly after, the court ordered a brief recess and repeated its concerns to

the State:

             But, you know, I hope that you can take the time to talk
             to your witness. I'm not sure what it is that he doesn't
             get about my instruction because, I don't know, I'll treat
             it to a lack of familiarity with his reports maybe or
             something like that. But maybe, you know, if you can
             reiterate the Court's instruction. Obviously he's already
             started testifying and we have a sequestration order and
             you can't discuss anything other than that. But I need
             to protect the record.

      The State blamed the witness for not understanding the instruction. The

trial court then noted that trial counsel

             certainly isn't going to object to this making it more
             emphatic with this witness that obviously should know
             better than, you know, within the first minute he's on
             the stand to mention DYFS and the Camden County jail

                                                                          A-1624-17T4
                                            5
               when I made a very specific limiting instruction. I'm
               not sure what he [Investigator King] doesn't get about
               that.

      At the conclusion of the State's case, defendant made a motion for

acquittal on the basis that the state did not prove that B.Q. did not consent to the

sexual acts in question. The State acknowledged that since B.Q. could not

communicate, he did not testify that he did not give defendant consent. The

judge denied the motion, finding that under the totality of the circumstances, a

reasonable jury could find that B.Q. did not consent or lacked the ability to

consent.

      No defense witnesses were called, and defendant exercised his right not

to testify. After deliberating for a few hours, the jury convicted defendant on

all charges.

      Defendant appealed the verdict, and raised the following issues:

               POINT I

               BECAUSE THE STATE FAILED TO PROVE LACK
               OF CONSENT OR THE ABSENCE OF ABILITY TO
               CONSENT, [DEFENDANT’S] MOTION FOR A
               JUDGMENT OF ACQUITTAL SHOULD HAVE
               BEEN GRANTED.

               POINT II

               THE COURT’S JURY INSTRUCTION ON THE
               DEFENSE  OF   CONSENT,  WHICH   WAS

                                                                            A-1624-17T4
                                         6
             INAPPLICABLE    TO     THE   DEFENDANT
             INTERPOSED   IN   THIS   MATTER,   BOTH
             DEPRIVED [DEFENDANT] OF HIS OWN DEFENSE
             AND DIRECTED VERDICTS OF GUILT AS TO
             EACH OF THE CRIMES CHARGED.

             POINT III

             THE COURT ERRED IN FAILING TO INSTRUCT
             THE JURY THAT CONSENT COULD BE A
             DEFENSE TO AGGRAVATED CRIMINAL SEXUAL
             CONTACT.

             POINT IV

             THE SENTENCE IMPOSED IS MANIFESTLY
             EXCESSIVE.

We rejected the foregoing arguments and affirmed defendant's conviction and

sentence. State v. Steven E. Young, A-5099-12 (App. Div. Dec. 7, 2015).

       Thereafter, defendant, pro se, filed the instant application seeking post-

conviction relief. Following a non-evidentiary hearing at which defendant was

represented by assigned counsel, Judge Covert denied the defendant's PCR

petition without an evidentiary hearing. Defendant now appeals the denial of

PCR.

       On this appeal, defendant raises the following points:

             POINT I:

             THE PCR COURT ERRED IN NOT HOLDING AN
             EVIDENTIARY HEARING WHEN IT ACCEPTED

                                                                         A-1624-17T4
                                        7
            THE ASSERTIONS MADE IN TRIAL COUSEL'S
            CERTIFICATION   AS   TRUE    WITHOUT
            SUBJECTING THESE ASSERTIONS TO BE
            TESTED IN THE CRUCIBLE OF CROSS-
            EXAMINATION

            POINT II:

            THE PCR COURT ERRED IN FINDING THAT TWO
            OF DEFENDANT'S CLAIMS WERE BARRED

      Having considered the record in light of the applicable legal principles,

we find no merit in defendant's arguments. The PCR judge's opinion is legally

sound and well supported by the record. We add the following comments.

      In cases where the PCR court does not conduct an evidentiary hearing, we

review the PCR judge's determinations de novo. State v. Jackson, 454 N.J.

Super. 284, 291 (App. Div. 2018). A PCR petitioner carries the burden to

establish the grounds for relief by a preponderance of the credible evidence.

State v. Goodwin, 173 N.J. 583, 593 (2002).

      First, we turn to PCR court's determination that certain of defendant's

contentions are procedurally barred under Rule 3:22-4. Specifically, defendant

contends that the trial court erred by failing to adequately charge the jury on the

issue of consent. In addition, defendant contends that the trial court erred in

failing to strike the testimony by the State's investigator Terry King that he

admitted he committed the act because he was raped at the age of thirteen.

                                                                           A-1624-17T4
                                        8
       Other than for enumerated exceptions, 3 Rule 3:22-4 bars a defendant from

employing post-conviction relief to assert a claim that could have been raised at

trial or on direct appeal. See State v. Nash, 212 N.J. 518, 546 (2013) ("A

petitioner is generally barred from presenting a claim on PCR that could have

been raised at trial or on direct appeal . . . ."). Moreover, "[a] prior adjudication

upon the merits of any ground for relief is conclusive whether made in the

proceedings resulting in the conviction or in any post-conviction proceeding

brought pursuant to this rule or prior to the adoption thereof, or in any appeal

taken from such proceedings." R. 3:22-5. Stated another way, "[a]n issue

decided in a direct appeal cannot thereafter be considered again on a PCR




3
    The three enumerated exceptions are:

             (1) that the ground for relief not previously asserted
             could not reasonably have been raised in any prior
             proceeding; or

             (2) that enforcement of the bar to preclude claims,
             including one for ineffective assistance of counsel,
             would result in fundamental injustice; or

             (3) that denial of relief would be contrary to a new rule
             of constitutional law under either the Constitution of
             the United States or the State of New Jersey.

             [R. 3:22-4(a).]
                                                                             A-1624-17T4
                                         9
application." State v. Jenkins, 221 N.J. Super. 286, 292-93 (App. Div. 1987)

(citing State v. Smith, 43 N.J. 67, 74 (1964)).

      In this case, as the PCR judge correctly concluded, the issue concerning

the adequacy of the jury instructions on consent was in fact raised by defendant

and rejected on direct appeal. In addition, we agree that defendant could have

argued on his direct appeal that the investigator's testimony should have been

stricken. We therefore agree with the PCR judge that these legal arguments are

procedurally barred by Rule 3:22-4(a).

      Nonetheless, Rule 3:22-4(a)(2) contains an express exception for claims

of ineffective assistance of counsel. Accordingly, as did the PCR court, we will

address the merits of defendant's claim of ineffective assistance of counsel. See

State v. Preciose, 129 N.J. 451, 460 (1992) ("Ineffective-assistance-of-counsel

claims are particularly suited for post-conviction review because they often

cannot reasonably be raised in a prior proceeding."). To establish an ineffective-

assistance-of-counsel claim, a convicted defendant must demonstrate:            (1)

counsel's performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

two-part test in New Jersey).


                                                                          A-1624-17T4
                                       10
      "[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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999),

certif. denied, 162 N.J. 199 (1999). "Any factual assertion that provides the

predicate for a claim of relief must be made by an affidavit or certification

pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant

before the court may grant an evidentiary hearing." R. 3:22-10.

      Defendant argues his prior counsel was deficient in failing to obtain and

review the video recordings depicting his performance of fellatio on B.Q.

Defendant argues that had he known what was depicted on the videos, he would

have pled guilty and potentially incurred a lesser sentence. As the PCR judge

found, defendant's claims that he was unaware of the contents of the videos were

"unsupported, baseless assertions, unaccompanied by certifications by the

defendant, trial counsel, or anyone else." Contrary to defendant's assertion, the

court found there was substantial evidence that the defendant was aware of the

content of the videos, including the fact that his face was visible in them and

they were filmed on his phone. Regardless, the PCR judge concluded that even

if trial counsel's performance was arguably deficient for not showing defendant


                                                                          A-1624-17T4
                                      11
the videos, the error did not cause him prejudice at trial, because the primary

contested issue at trial was whether the victim, B.Q., consented to the acts

performed by defendant, not if the acts themselves occurred.

      For these reasons, we conclude that defendant has failed to establish that

his counsel was constitutionally deficient. The PCR judge did not misapply his

discretion in denying an evidentiary hearing, as defendant failed to establish a

prima facie basis for relief. State v. Brewster, 429 N.J. Super. 387, 401 (App.

Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)) ("[W]e review

under the abuse of discretion standard the PCR court's determination to proceed

without an evidentiary hearing.").

      The remaining issues raised by defendant lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-1624-17T4
                                      12
