                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5485-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

J.P.G.,

     Defendant-Appellant.
______________________________

                   Submitted September 19, 2019 – Decided September 26, 2019

                   Before Judges Alvarez and Suter

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 10-11-2712.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Lee March Grayson, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Stephen Anthony
                   Pogany, Special Deputy Attorney General, Acting
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant J.P.G. appeals the denial of his petition for post-conviction

relief (PCR) without an evidentiary hearing. For reasons that follow, we affirm.

                                      I

      This case arises from the sexual assault by defendant of his twenty-one

year old niece, A.R., that occurred early in the morning of August 1, 2010. Our

unreported opinion described the assault. See State v. J.P.G., No. A-1978-12

(App. Div. June 2, 2015).

      Defendant was convicted in 2011 of second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1), and third-degree criminal sexual contact, N.J.S.A.

2C:14-3(b). He was sentenced to nine years and six months in prison on the

sexual assault charge. 1 Defendant appealed and we affirmed his conviction and

sentence. J.P.G., slip op. at 2. We rejected defendant's argument that the trial

court deprived him of his right to testify by not granting him additional time to

make this election. We also rejected his claim that his sentence was excessive

because the trial court did not find applicable mitigating factor four based on his




1
  Defendant was resentenced in 2013, to correct his sentence to reflect a period
of parole ineligibility under the No-Early Release Act, N.J.S.A. 2C:43-7.2. He
was sentenced to parole supervision, N.J.S.A. 2C:43-6.4 and was required to
register as a sex offender, N.J.S.A. 2C:7-2. Defendant was sentenced to three
years in prison on the sexual contact count to be served concurrently.
                                                                           A-5485-17T4
                                          2
alleged mental health issues. Id. at 9. The Supreme Court denied his petition

for certification. State v. J.P.G., 223 N.J. 283 (2015).

      Defendant filed his first PCR petition in December 2015, alleging

ineffective assistance of his trial counsel. His PCR counsel filed an additional

brief and certification from defendant in support of the petition.

      The PCR court denied defendant's petition in December 2016 without an

evidentiary hearing. It rejected his claims about a diminished capacity defense,

possible alibi witnesses and non-waiver of his right to testify. 2

      Defendant presents the following issues for our consideration in his

appeal:

            POINT I

            THE ORDER DENYING POST-CONVICTION
            RELIEF SHOULD BE REVERSED AND THE CASE
            REMANDED FOR A FULL EVIDENTIARY
            HEARING BECAUSE THE DEFENDANT MADE A
            PRIMA FACIE SHOWING OF INEFFECTIVE
            ASSISTANCE OF COUNSEL UNDER THE
            STRICKLAND/FRITZ TEST.

                   A.    TRIAL    COUNSEL     WAS
                   INEFFECTIVE BECAUSE HE DID NOT
                   CONDUCT AN INVESTIGATION OF
                   WITNESSES WHO WERE IN THE

2
  Defendant complained his trial attorney was not present at sentencing a lthough
he was represented by another attorney. The PCR court rejected his claim.
Defendant did not appeal this issue.
                                                                         A-5485-17T4
                                         3
                   RESIDENCE DURING THE TIME THAT
                   THE ALLEGED INCIDENT OCCURRED
                   OR HAVE THEM TESTIFY AT TRIAL.

                   B.    TRIAL    COUNSEL     WAS
                   INEFFECTIVE BECAUSE HE DID NOT
                   INVESTIGATE   OR   PURSUE    A
                   DIMINISHED CAPACITY DEFENSE.

                   C.    TRIAL    COUNSEL     WAS
                   INEFFECTIVE BECAUSE HE DID NOT
                   ALLOW    THE   DEFENDANT     TO
                   TESTIFY AND FAILED TO INFORM
                   HIM ABOUT HIS RIGHT OT TESTIFY.

                                        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 (l987). In order to prevail on an ineffective assistance of

counsel claim, defendant must meet a two-prong test by establishing that: (l)

counsel's performance was deficient and the errors made 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.

                                                                           A-5485-17T4
                                        4
        Defendant contends his trial attorney should have interviewed his wife

and son as potential alibi witnesses because they were in the residence on the

night of the assault. Based on a memorandum from an investigator to his PCR

counsel, defendant contends his wife said that he was asleep in bed on the night

in question when she went to bed. She did not hear anything during the night.

        "In asserting the defense of alibi a defendant is alleging he was elsewhere

at the time the crime was committed and therefore could not commit it." State

v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977). There was no evidence

that defendant's wife or son could provide an alibi for defendant at the time when

the victim says she was assaulted. Defendant's wife told the investigator that

she could not say defendant was in bed all night or whether defendant and A.R .

had an altercation downstairs. His son was at home, but also was asleep at the

time.    We agree with the PCR court that defense counsel may well have

concluded not to call either witness because neither could provide defendant

with an alibi at the time of the assault. Defendant presented no evidence that

the assault would have awakened anyone had it occurred.

        Defendant contends his attorney should have pursued a diminished

capacity defense by having him examined by a psychiatrist.            However, a

psychiatrist did examine him prior to sentencing. The doctor's report noted that


                                                                           A-5485-17T4
                                         5
his mental health symptoms—"depressed, hallucinating, and suicidal"—

resulted from the stress of his convictions.     There was no indication of a

psychosis prior to his conviction or of any mental health condition that would

affect his mental capacity. In sentencing defendant, the trial court did not find

that mitigating factor four 3 applied because no evidence supported it. We agree

with the PCR court that defendant did not demonstrate that a second evaluation

would prove diminished capacity existed prior to his conviction.

      Defendant contends his trial counsel did not explain that he could testify

at trial or permit him to testify. We agree with the PCR court that this claim

was procedurally barred under Rule 3:22-5 because it was addressed in

defendant's direct appeal where we found no constitutional violation. J.P.G.,

slip op. at 8. If fact, our review of the transcript of the trial showed that

defendant testified he discussed the issue with his attorney and then told the

court more than once that he did not want to testify.

      Thus, 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 concluded that an


3
  In sentencing a defendant, the court may consider if "[t]here were substantial
grounds tending to excuse or justify the defendant's conduct, though failing to
establish a defense." N.J.S.A. 2C:44-1(b)(4).
                                                                         A-5485-17T4
                                        6
evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-

63 (1992).

      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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