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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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     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-1364-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH COOKE,

     Defendant-Appellant.
_________________________

                    Argued October 31, 2018 – Decided January 10, 2019

                    Before Judges Accurso and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 98-01-0108.

                    Adam W. Toraya, Designated Counsel, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender, attorney; Adam W. Toraya, on the brief).

                    William P. Miller, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Dennis Calo, Acting Bergen County
                    Prosecutor, attorney; William P. Miller, of counsel and
                    on the brief; Catherine A. Foddai, Legal Assistant, on
                    the brief).
PER CURIAM

      Following a jury verdict acquitting defendant Joseph Cooke of all counts

except second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(c)(2), he was

sentenced on January 28, 2000 to a probationary term. 1 He now appeals from a

Law Division order denying his third petition2 for post-conviction relief (PCR),

claiming:

            POINT I

            THE PCR COURT'S ORDER SHOULD BE
            REVERSED     AND    THE    DEFENDANT'S
            CONVICTION VACATED BECAUSE TRIAL
            COUNSEL FAILED TO CALL ANITA HARRIS AS A
            WITNESS AT TRIAL.

            A. THE COURT ERRED IN FAILING TO FIND
            THAT TRIAL COUNSEL'S PERFORMANCE WAS
            DEFICIENT.

            B. THE COURT ERRED IN FAILING TO FIND
            PREJUDICE WHEN HARRIS NEVER TESTIFIED
            ABOUT THE PARTIES['] RELATIONSHIP.


1
  Pursuant to our remand on direct appeal, defendant was resentenced to a State
prison term in June 2002; considering that sentence as an appeal pursuant to
Rule 2:9-11, we affirmed subject to technical adjustments to the judgment of
conviction. State v. Cooke (Cooke II), A-6729-01 (App. Div. Feb. 10, 2003).
2
  The PCR judge considered this as defendant's fourth PCR, counting the pro se
petition which was amended by this one as defendant's third. The distinction is
of no moment because Rule 3:22-12(a)(2) pertains to a second or subsequent
petition.
                                                                        A-1364-16T2
                                       2
            POINT II

            THE COURT MISAPPLIED ITS DISCRETION IN
            APPLYING R. 3:22-12 AS A PROCEDURAL BAR
            AGAINST THE DEFENDANT'S FILING FOR POST-
            CONVICTION RELIEF IN THIS CASE.

      In support of defendant's argument that trial counsel was ineffective for

failing to call Anita Harris as a trial witness to buttress his consent defense,

defendant's PCR counsel for this third petition certified he found trial counsel's

request for an investigation and a concomitant investigation report in the

regional trial file. The investigation report, defendant contends, "shows that

Harris did tell the investigator that [d]efendant had discussed with her the

ongoing relationship [d]efendant had with" the victim prior to alleged crime.

      We affirm because defendant's petition was time-barred under Rule 3:22-

12(a)(2) and otherwise lacks merit.

      We set forth the facts underlying defendant's conviction in our decision

on defendant's direct appeal, State v. Cooke (Cooke I), 345 N.J. Super. 480

(App. Div. 2001), and will not repeat them here except as necessary. We briefly

review the apposite procedural history.

      Defendant's first PCR petition, filed in March 2001, was denied without

an evidentiary hearing, and defendant appealed. We reversed and remanded the

matter for an evidentiary hearing regarding the veracity of defendant's claims of

                                                                          A-1364-16T2
                                          3
juror taint. In considering his claim that his trial counsel was ineffective because

she failed to call "crucial witnesses," we noted our concern, in light of

defendant's consent defense, about "defendant's claim that he was precluded

from calling Anita Harris as a witness to testify to her alleged knowledge as to

defendant's prior relationship with the victim," and did "not foreclose

exploration of [that] topic at the evidentiary hearing." 3 State v. Cooke (Cooke

III), A-4265-04 (App. Div. June 27, 2006) (slip op. at 10).

      Following an evidentiary hearing, the remand-PCR court denied

defendant's petition in a November 27, 2006 order. In affirming the denial, we

considered defendant's argument that the remand-PCR court erred by denying

the petition even though Ms. Harris's 4 evidentiary-hearing testimony, together


3
  Defendant, in an undated "certification" notarized on May 21, 2004, in support
of his first PCR petition, maintained:

            Ms. Harris had probative and factual testimony
            regarding my prior relationship and background with
            [the victim] prior to the alleged incident. Incredibly,
            although my trial attorney asked me to have [Ms. Harris
            and other witnesses who could have testified as to his
            character] appear in [c]ourt so they could testify, my
            trial attorney did not call a single witness at trial on my
            behalf.
4
  Ms. Harris had remarried after defendant's trial and we honored her preference
to be called Uhles. State v. Cooke (Cooke IV), A-4614-06 (App. Div. Feb. 23,


                                                                            A-1364-16T2
                                         4
with that of defendant and his trial counsel, established ineffective assistance of

counsel grounded, in part, on counsel's failure to call Harris as a witness in

support of his consent defense. Cooke IV, (slip op. at 14). We noted the record

disclosed "defendant's allegation of the existence of a prior relationship with the

victim, known to [Harris], but unexplored at trial." Id. at 14. We declined to

disturb the remand-PCR court's finding that "defendant, and by inference

[Harris], were not credible" in light of evidence adduced during the hearing of

defendant's statement to police on the day of his arrest in which he denied any

relationship with the victim – "a statement that defendant sought to repudiate at

the PCR hearing." Ibid.      We concluded that "factual contradiction, together

with defendant's varying descriptions [of an incident regarding alleged juror

taint – another ground explored at the hearing –] provide[d] a solid foundation"

for the court's credibility findings. Ibid.

      Defendant filed a second PCR petition in May 2013 which was denied

under Rule 3:22-4(b) without an evidentiary hearing. No appeal was filed.

      Defendant filed the pro se petition that is the subject of this appeal on

March 13, 2015; appointed counsel filed an amended petition on May 31, 2016.




2010) (slip op. at 8 n.3). We refer to her as Harris only to avoid confusion; we
mean no disrespect.
                                                                           A-1364-16T2
                                         5
      We agree with the PCR judge that defendant's petition is time-barred

under Rule 3:22-12(a)(2) which provides that a second or subsequent PCR

petition is untimely when filed more than one year after the latest date of: (A)

a newly asserted constitutional right was recognized and made retroactive; (B)

a newly discovered factual predicate was discovered, if it "could not have been

discovered earlier through reasonable diligence"; or (C) a prior PCR petition

was denied because PCR counsel was allegedly ineffective. Rule 3:22-12(a)(2)

imposes strict time limitations on the filing of second or subsequent PCR

petitions.   "[E]nlargement of Rule 3:22-12's time limits 'is absolutely

prohibited.'" State v. Jackson, 454 N.J. Super. 284, 292 (App. Div. 2018)

(quoting Aujero v. Cirelli, 110 N.J. 566, 577 (1988)). Indeed, Rule 3:22-4(b)

requires the dismissal of a second PCR petition if untimely as defined under

Rule 3:22-12(a)(2).

      Defendant's present petition – his third – was filed over sixteen years after

he was originally sentenced, over twelve years after his certification in support

of his first petition asserted that his trial counsel was ineffective for failing to

call Harris because she knew of his prior relationship with the victim, and almost

ten years after Harris testified at the evidentiary hearing about that knowledge

and the court's denial of that PCR petition after remand. The evidence he now


                                                                            A-1364-16T2
                                         6
claims is newly discovered had been known to him, asserted as PCR grounds,

and rejected after the evidentiary hearing following our remand of his first

petition. As the PCR judge found in ruling on this third petition, "[t]his 'new

evidence' is really not new evidence." Defendant raised this issue regarding

Harris's testimony, not only as a character witness, but as a fact witness, before.

The PCR judge correctly dismissed the present petition as time-barred.

      We do not reach the merits of defendant's remaining arguments because

his third PCR petition was untimely under Rule 3:22-12(a)(2), and must be

dismissed pursuant to Rule 3:22-4(b)(1). We note the PCR judge concluded

defendant met neither prong of the Strickland-Fritz standard to establish trial

counsel's ineffectiveness. 5 The judge found that Harris had no knowledge of

defendant's relationship with the victim save for hearsay related to her by

defendant, and that she observed them together only on one occasion. In finding

defendant failed to show that counsel's ineffectiveness prejudiced his case, the

judge recognized, as did the remand-PCR court after the evidentiary hearing,

that Harris's potential testimony would have been undermined by, and would


5
  To prevail on a claim of ineffective assistance, a defendant must satisfy the
two-part test established by Strickland v. Washington, 466 U.S. 668 (1984) and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The
defendant must show that his attorney's performance was deficient and that the
"deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
                                                                           A-1364-16T2
                                        7
have contradicted, defendant's statement to the police that he did not know the

victim.

      Affirmed.




                                                                       A-1364-16T2
                                      8
