                                   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                             NOT FOR PUBLICATION WITHOUT THE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-0512-18T1

STATE OF NEW JERSEY IN THE
INTEREST OF J.T.
_____________________________

                 Submitted October 15, 2019 – Decided December 19, 2019

                 Before Judges Rothstadt and Moynihan.

                 On appeal from the Superior Court of New Jersey,
                 Chancery Division, Family Part, Hudson County,
                 Docket No. FJ-09-0585-13.

                 Weiner Law Group LLP, attorneys for appellant (Jay V.
                 Surgent, on the brief).

                 Esther Suarez, Hudson County Prosecutor, attorney for
                 respondent (Stephanie Davis Elson, Assistant
                 Prosecutor, on the brief).

PER CURIAM

       Defendant J.T., adjudicated delinquent as a seventeen-year-old of what, if

charged as an adult, would have been first-degree aggravated sexual assault of
a seven-year-old girl,1 V.M. (Victoria), appeals the denial of his petition for

post-conviction relief (PCR) following an evidentiary hearing.2 On appeal, he

argues:

            POINT I

            THE COURT BELOW ERRED IN DENYING THE
            PETITION FOR POST-CONVICTION RELIEF AS
            DEFENDANT WAS DENIED HIS STATE AND
            FEDERAL CONSTITUTIONAL RIGHT TO THE
            EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
            AS GUARANTEED BY THE SIXTH AMENDMENT
            TO THE UNITED STATES CONSTITUTION AND
            BY ARTICLE I, PARAGRAPH 10 OF THE NEW
            JERSEY CONSTITUTION DUE TO THE LACK OF
            INVESTIGATION AS TO [VICTORIA'S] MOTIVE
            TO   BRING   FALSE  CHARGES     AGAINST
            DEFENDANT BEING THAT SHE HAD HEARD
            FROM NEIGHBORS THAT DEFENDANT HAD
            SEXUALLY ABUSED THREE OTHER GIRLS.

            POINT II

            DEFENDANT WAS DENIED HIS RIGHT TO
            EFFECTIVE TRIAL COUNSEL DUE TO THE LACK
            OF INVESTIGATION AS TO DEFENDANT'S
            COUSIN [JOHN] AND HIS CONVINCING

1
  Although the juvenile delinquency complaint asserts Victoria was seven years
old, she testified she was six at the time the assaults occurred. The discrepancy
has no impact on our decision.
2
  We use pseudonyms throughout this memo to protect the privacy of the parties
and preserve the confidentiality of these proceedings. R. 1:38-3(d)(10), (11).
Our use intends no disrespect or familiarity.


                                                                         A-0512-18T1
                                       2
[VICTORIA] TO TESTIFY FALSELY AGAINST
DEFENDANT AND ALLEGED COCAINE USE BY
DEFENDANT'S COUSIN [JOHN].

POINT III

DEFENDANT WAS DENIED HIS RIGHT TO
EFFECTIVE TRIAL COUNSEL DUE TO THE LACK
OF   INVESTIGATION     OF    [VICTORIA'S]
FATHER['S] . . . ALLEGED COCAINE USE,
ALLEGED INDEBTEDNESS TO DEFENDANT,
AND ALLEGED FIST FIGHT WITH DEFENDANT.

POINT IV

DEFENDANT WAS DENIED HIS RIGHT TO
EFFECTIVE TRIAL COUNSEL DUE TO THE
FAILURE TO INVESTIGATE THE LACK OF AN
ATTIC TO UNDERMINE THE CREDIBILITY OF
[VICTORIA].

POINT V

DEFENDANT WAS DENIED HIS RIGHT TO
EFFECTIVE TRIAL COUNSEL DUE TO THE
FAILURE TO INVESTIGATE AND INTERVIEW
[D.P. (DANIEL)].

POINT VI

DEFENDANT WAS DENIED HIS RIGHT TO
EFFECTIVE TRIAL COUNSEL DUE TO THE
FAILURE TO INVESTIGATE [J.B.R. (JENNIFER)]
OR [M.P. (MELISSA)].

POINT VII



                                             A-0512-18T1
                    3
            DEFENDANT WAS DENIED HIS RIGHT TO
            EFFECTIVE TRIAL COUNSEL DUE TO THE
            FAILURE TO INVESTIGATE [VICTORIA'S]
            MOTHER.

            POINT VIII

            DEFENDANT WAS DENIED HIS RIGHT TO
            EFFECTIVE TRIAL COUNSEL DUE TO THE
            FAILURE     TO   INVESTIGATE/QUESTION
            [VICTORIA] AS TO HER MENTAL HEALTH
            HISTORY.

            POINT IX

            THE COURT BELOW ERRED IN DENYING THE
            PETITION FOR POST-CONVICTION RELIEF AS
            DEFENDANT WAS DENIED HIS STATE AND
            FEDERAL CONSTITUTIONAL RIGHT TO THE
            EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
            AS GUARANTEED BY THE SIXTH AMENDMENT
            TO THE UNITED STATES CONSTITUTION AND
            BY ARTICLE I, PARAGRAPH 10 OF THE NEW
            JERSEY CONSTITUTION AND DENIED OF HIS
            FOURTEENTH AMENDMENT RIGHT TO DUE
            PROCESS DUE TO THE FAILURE TO PROPERLY
            CROSS-EXAMINE THE ALLEGED VICTIM
            [VICTORIA] IN VIOLATION OF HIS SIXTH
            AMENDMENT       CONFRONTATION   CLAUSE
            RIGHTS AND ARTICLE I, PARAGRAPH 10
            RIGHTS    UNDER     THE   NEW   JERSEY
                          3
            CONSTITUTION.



3
  The evidentiary hearing addressed trial counsel's failure to investigate claims
as set forth in Points I through VIII in his merits brief. It did not encompass
defendant's claims regarding the cross-examination of Victoria.
                                                                         A-0512-18T1
                                       4
We are unpersuaded by any of these claims and affirm.

      When she was thirteen years old, Victoria told her friend D.P. (Daniel)

that she had been "raped." It was not until she was seventeen years old, however,

that she reported to police that defendant assaulted her on four occasions in late

2001 or early 2002, 4 after he was hired as her tutor. During the bench trial,

Victoria testified that she waited ten years after the sexual assault occurred to

come forward to the police because she "was trying to see why [she] was so

depressed and why a lot of things in [her] life wasn't working out." She further

testified that she "had anxiety . . . was depressed all the time [and] had

[obsessive-compulsive disorder]."     Victoria also told Detective Son at the

Hudson County Prosecutor's Unit that she decided to disclose the sexual assault

"because a year ago, she had heard from her neighbor [J.B.R. (Jennifer)] that

[defendant] had sexually abused [three] other girls and she did not want

[defendant] to do this to anyone else." During Detective Son's trial testimony,

he said he relied on the allegations made by Victoria and "the former downstairs

neighbor" to conduct an interview of defendant.




4
   The trial court found that the incidents occurred "late in . . . 2001 but mo re
likely than not . . . in early January . . . 2002[.]"
                                                                          A-0512-18T1
                                        5
      Victoria testified to four assaultive incidents that took place in the

building where defendant's apartment was located across the hall from the

apartment in which Victoria lived with her parents. At trial, she informed that

one of the incidents took place "all the way upstairs" in an attic area.

      Most of defendant's failure-to-investigate claims center on Victoria's

motive and impetus to accuse him. As with his other PCR claims, to establish

that his counsel was ineffective, defendant must satisfy the test formul ated in

Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). He must first show

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed       . . . by the Sixth Amendment." Fritz, 105 N.J. at 52

(quoting Strickland, 466 U.S. at 687). He must also prove that he suffered

prejudice due to counsel's deficient performance. Strickland, 466 U.S. at 691-

92.   Defendant must show by a "reasonable probability" that the deficient

performance affected the outcome. Fritz, 105 N.J. at 58.

      In the certification supporting his PCR petition, defendant averred counsel

failed to investigate Victoria's statement to police that she belatedly disclosed

the assaults "because a year ago, she had heard from her neighbor[, Jennifer,]

that [defendant] had sexually abused [three] other girls and she did not want


                                                                           A-0512-18T1
                                        6
[defendant] to do this to anyone else." After hearing the testimony of defendant

and his trial counsel at the evidentiary hearing, the PCR judge determined that

trial counsel's reasoning in "not want[ing] to open Pandora's box and . . . expose

his client to additional charges that the State had not yet sought or give these

three individuals the opportunity or idea that they should proceed against his

client with other charges" was "well within . . . the appropriate standard of

representation by the attorney[.]"

      We agree with the PCR judge's determination that counsel's choice not to

investigate the allegations by the three women did not amount to ineffective

assistance of counsel. We review defense counsel's actions under the familiar

standards synopsized by the Court in State v. Arthur, 184 N.J. 307, 318-19

(2005) (alterations in original):

            In     determining     whether     defense     counsel's
            representation was deficient, "'[j]udicial scrutiny . . .
            must be highly deferential,' and must avoid viewing the
            performance under the 'distorting effects of hindsight.'"
            State v. Norman, 151 N.J. 5, 37 (1997) (quoting
            Strickland, 466 U.S. at 689). Because of the inherent
            difficulties in evaluating a defense counsel's tactical
            decisions from his or her perspective during trial, "a
            court must indulge a strong presumption that counsel's
            conduct falls within the wide range of reasonable
            professional assistance; that is, the defendant must
            overcome the presumption that, under the
            circumstances, the challenged action 'might be
            considered sound trial strategy.'" Strickland, 466 U.S.

                                                                          A-0512-18T1
                                        7
            at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
            (1955)).

            In determining whether defense counsel's alleged
            deficient performance prejudiced the defense, "[i]t is
            not enough for the defendant to show that the errors had
            some conceivable effect on the outcome of the
            proceedings." Id. at 693. Rather, defendant bears the
            burden of showing that "there is a reasonable
            probability that, but for counsel's unprofessional errors,
            the result of the proceeding would have been different.
            A reasonable probability is a probability sufficient to
            undermine confidence in the outcome." Id. at 694; see
            also State v. Harris, 181 N.J. 391, 432 (2004).

      Viewing defendant's trial counsel's conduct under that lens, defendant

fails to satisfy the first Strickland-Fritz prong. An attorney is not obliged to

conduct an investigation where "a defendant has given counsel reason to believe

. . . [it] would be fruitless or even harmful[.]" Strickland, 466 U.S. at 691.

Whether Victoria's motive to disclose defendant's assaults was based on

allegations by the three women—whether truthful or false—the trial judge based

his adjudication largely on the detailed testimony Victoria gave about the four

attacks, not on her motive to come forward. Counsel's decision not to inject

those allegations into the trial did not render him ineffective.

      Defendant also contended counsel failed to investigate or question

Jennifer or M.P. (Melissa) about a conversation they had wherein Jennifer

encouraged Melissa to report that defendant "had raped [Melissa] at a family

                                                                         A-0512-18T1
                                         8
barbeque in the summer of 2012"; charges were never brought in connection

with that alleged incident. The PCR judge did "not find [defendant's] testimony

credible with regards to the fact that he asked his attorney to investigate any of

these things."

      While we do "not defer to a PCR court's interpretation of the law; a legal

conclusion is reviewed de novo," State v. Nash, 212 N.J. 518, 540-41 (2013),

"[o]ur standard of review is necessarily deferential" to the factual findings of a

PCR court so long as the findings "are supported by sufficient credible evidence

in the record," id. at 540. "Those findings warrant particular deference when

they are 'substantially influenced by [the judge's] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original)

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

      The PCR judge did not find credible defendant's testimony that he asked

his counsel to investigate the communications between Jennifer and Melissa.

Given our deference to that finding, defendant fails to establish the first

Strickland-Fritz prong.

       We similarly defer to the PCR judge's finding:         "I do not find the

testimony . . . of [defendant] credible. There was nothing ever mentioned to the


                                                                           A-0512-18T1
                                        9
[defense] attorney . . . that [John] convinced them to falsely accuse [defendant]."

The judge also found that defendant was not credible in alleging his cousin John

convinced Victoria to falsely accuse defendant. The judge based her findings

on defendant's statement to police during the investigation denying "[a]ny

problems with [defendant's] cousins or any complaints about [his] family or [his]

cousin's family."

      Likewise, the judge did not find credible defendant's contentions that

Victoria's father's animosity against defendant was fueled by the father's:

cocaine use, indebtedness to defendant; fistfight with defendant; or termination

from his job because of defendant's actions. The judge did "not find . . . the

testimony of [defendant] credible that there was anything that happened between

[Victoria's father and defendant] or that he ever shared any information [with]

his [defense] attorney . . . with regard to that." The judge discerned that

defendant, in his statement to police, did not mention a fight with Victoria's

father even though the alleged timing of the fight would have caused it to be

"fresh in his mind at the time he spoke with [police]." Instead, when speaking

of Victoria's household family, defendant told police that

            they've always been friends with me and even though
            they haven't spoke[n] to my family. Her dad, like every
            single time I friggin' find him drunk downstairs . . . I


                                                                           A-0512-18T1
                                       10
             put him upstairs and stuff. It's not like – I mean why
             would they say something against me? I have no idea.

The judge also noted defendant did not mention the fight during his trial

testimony. Moreover, the judge did not find credible defendant's testimony that

he informed his attorney "that there was an altercation between" defendant and

Victoria's father.

      Based on the PCR judge's credibility findings, to which we defer because

they are supported by the record, we determine defendant failed to meet the first

Strickland-Fritz prong regarding his contentions that counsel failed to

investigate John or Victoria's father.

       The judge also rejected defendant's argument that his trial counsel was

ineffective by failing to investigate whether there was an attic or access to a roof

area where one of the assaults allegedly occurred, finding defendant's

allegations incredible. Once again, the judge turned to defendant's statement to

police, played during the trial, during which he admitted that there was "an

upstairs portion in the building that sometimes people hang out in" an d where

homeless people sleep. Defendant admitted he had been to that area and, in fact,

kept a bicycle there; and that, when he "was a kid," he had gone to the roof

through a door which pushed up and threw "water balloons at cars and people

crossing the park[.]"

                                                                            A-0512-18T1
                                         11
        Given defendant's acknowledgment that there existed an area where the

assault, as described by Victoria, could have taken place, we conclude trial

counsel was not ineffective for failing to visit or photograph that area. Trial

counsel was constrained by defendant's statement admitting there was such an

area.

        Although we have focused on the first Strickland-Fritz prong, it is clear

from the record that defendant has failed to establish the second prong of that

test with regard to all his arguments; that is, he has not demonstrated a

"reasonable probability" that counsel's purported deficient performance affected

the outcome. See Fritz, 105 N.J. at 58.

        When, as in this case, a defendant claims that his or her trial attorney

"inadequately investigated his case, he must assert the facts that an investigation

would have revealed, supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification." State

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing R. 1:6-6).

"[B]ald assertions" of deficient performance are insufficient to support a PCR

application.    Ibid.; see also State v. Porter, 216 N.J. 343, 356-57 (2013)

(reaffirming these principles in evaluating which of a defendant's various PCR

claims warranted an evidentiary hearing). In other words, a defendant must


                                                                           A-0512-18T1
                                       12
identify what the investigation would have revealed and demonstrate the way

the evidence probably would have changed the result. Fritz, 105 N.J. at 64-65

(citing United States v. Rodgers, 755 5.2d 533, 541 (7th Cir. 1985)).

      Defendant has made nothing more than bald assertions as to what the

investigations would have revealed. Indeed, he has not performed any of the

investigations which he complains his counsel neglected.

      Defendant argues that interviewing the three women he allegedly abused

"might have corroborate[d] defendant's theory (and defense) that [Victoria] had

made up the story about defendant. If the interviews of these three witnesses

were negative to . . . defendant, trial counsel did not have to present such

evidence[.]" (Emphasis added). But he has not proffered a statement from John,

Victoria's father, Jennifer or Melissa. Nor has he offered any pictures of the

"upstairs area" of the crime scene, or any other results of an investigation to

establish that he was prejudiced by trial counsel's failure to so do. The repeated

mantra in his merits brief that "there was no downside" to performing the

investigations is insufficient to establish his claim that he was prejudiced by

counsel's failure to investigate.

      So too, defendant has failed to establish any resultant prejudice from trial

counsel's failure to investigate Daniel, Victoria's mother or Victoria's mental


                                                                          A-0512-18T1
                                       13
health history. When questioned during the evidentiary hearing, defendant

acknowledged that Victoria told Daniel that he sexually assaulted her and "that's

all [Daniel] could have testified to." The PCR judge noted Victoria testified that

she told Daniel she was "raped" by defendant but did not "go[] into anything

past that because [she] was embarrassed."         In his merits brief, defendant

contends, "[a]gain, as with the other potential witnesses, trial counsel should

have at least had an investigator interview [Daniel] to determine whether he

would be a helpful witness for . . . defendant." But without a proffer of some

specific information that Daniel could have supplied, defendant falls short of his

burden of proof. We note trial counsel testified at the PCR hearing that Daniel

"indicated that he didn't believe that there was any truth behind the allegation of

three young ladies having been molested" by defendant.             Even if those

allegations were introduced and deemed relevant, Daniel's opinion would have

been inadmissible. State v. Tung, 460 N.J. Super. 75, 101-02 (App. Div. 2019)

(recognizing a witness may not offer an opinion on another witness's

credibility).

      Defendant does not offer any reason why Victoria's mother should have

been interviewed. As the PCR judge found, there is no evidence Victoria's

mother had any evidence helpful to defendant.


                                                                           A-0512-18T1
                                       14
     Defendant also faults his trial counsel for failing to move "for release and

in camera review" of Victoria's therapy records. (Emphasis omitted). He makes

no argument, however, that such a motion would be successful. State v. Van

Dyke, 361 N.J. Super. 403, 412 (App. Div. 2003).

     Any communications between Victoria and her psychologist were

privileged. N.J.S.A. 45:14B-28 and N.J.R.E. 505 both provide, in part:

           The confidential relations and communications
           between and among a licensed practicing psychologist
           and individuals . . . in the course of the practice of
           psychology are placed on the same basis as those
           provided between attorney and client, and nothing in
           this act shall be construed to require any such
           privileged communications to be disclosed by any such
           person.

As we recognized in State v. L.J.P., however,

           "Like other privileges, it must in some circumstances
           yield to the higher demands of order." Matter of
           Nackson, 114 N.J. 527, 537 (1989) (referring to the
           attorney-client privilege). Such demands may include
           a defendant's right to a fair trial. Id. However, the
           requisite foundation for piercing the privilege involves
           a showing of legitimate need for the shielded evidence,
           its materiality to a trial issue, and its unavailability from
           less intrusive sources. Id.; (quoting In re Kozlov, 79
           N.J. 232, 243-44 (1979)).

           [270 N.J. Super. 429, 439 (App. Div. 1994).]




                                                                           A-0512-18T1
                                       15
      An in camera review is appropriate if: "1) there is a legitimate need to

disclose the protected information; 2) the information is relevant and material

to the issue before the court; and, 3) the party seeking to pierce the privilege

shows by a 'preponderance of the evidence' that 'no less intrusive source' for that

information exists." Id. at 440 (quoting United Jersey Bank v. Wolosoff, 196

N.J. Super. 553, 564 (App. Div. 1984)).

      Absent a prima facie showing that defendant has met the three prongs of

the Kozlov test, disclosure of therapy records should not be ordered. Kinsella

v. Kinsella, 150 N.J. 276, 306-07 (1997). The Kinsella court clearly cautioned

against the disclosure of a patient's psychological records, noting:

            Courts should be mindful that, although New Jersey's
            psychologist-patient privilege is modeled on the
            attorney-client privilege, the public policy behind the
            psychologist-patient privilege is in some respects even
            more compelling. Like the attorney-client privilege,
            the psychologist-patient privilege serves the functional
            purpose of enabling a relationship that ultimately
            redounds to the good of all parties and the public. The
            psychologist-patient privilege further serves to protect
            an individual's privacy interest in communications that
            will frequently be even more personal, potentially
            embarrassing, and more often readily misconstrued
            than those between attorney and client. Made public
            and taken out of context, the disclosure of notes from
            therapy sessions could have devastating personal
            consequences for the patient and his or her family, and
            the threat of such disclosure could be wielded to
            unfairly influence settlement negotiations or the course

                                                                           A-0512-18T1
                                       16
            of litigation. Especially in the context of matrimonial
            litigation, the value of the therapist-patient relationship
            and of the patient's privacy is intertwined with one of
            the most important concerns of the courts—the safety
            and well-being of children and families. Therefore,
            only in the most compelling circumstances should the
            courts permit the privilege to be pierced.

            [Id. at 329-30.]

      Defendant has not offered any evidence to meet Kozlov's tripartite

requirements. As such, he has not established his entitlement to the records or

any prejudice from his trial counsel's failure to move for a review of same.

      We determine defendant's argument that counsel was ineffective for

failing to properly cross-examine Victoria, during which "he violated two

fundamental tenets of cross-examination: 1) do not ask questions unless you

know the answer; and 2) control the witness's answers with your questions ," to

be without sufficient merit to warrant discussion in this opinion. R. 2:11-

3(e)(2). Cross-examination was competently performed. Even if it was not,

which we do not determine, a defendant's "complaints 'merely of matters of trial

strategy' will not serve to ground a constitutional claim of inadequacy of

representation by counsel." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39

N.J. 471, 489 (1963)). "Mere improvident strategy, bad tactics or mistake do

not amount to ineffective assistance of counsel unless, taken as a whole, the trial


                                                                           A-0512-18T1
                                       17
was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div.

1975). The simple fact that a trial strategy fails does not necessarily mean that

counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v.

Davis, 116 N.J. 341, 357 (1989)).

      Affirmed.




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