                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1331-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH A. RANDONE,

     Defendant-Appellant.
_________________________

                    Submitted November 4, 2019 – Decided February 4, 2020

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 10-04-0646.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David A. Gies, Designated Counsel, on the
                    briefs).

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (Nicole Paton, Assistant Prosecutor, of
                    counsel and on the brief).

PER CURIAM
      Defendant Joseph A. Randone was convicted of first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a) (counts two, four and seven);1 second-

degree sexual assault, N.J.S.A. 2C:14-2(a) (count three);2 and first-degree

kidnapping, N.J.S.A. 2C:13-1(b) (count six); all counts involved the victim,

D.C., who was twelve and thirteen years old at the time of the crimes.3

Defendant appeals the denial of his petition for post-conviction relief (PCR),

arguing:

            POINT I

            THE PCR COURT ERRED WHERE IT DID NOT
            ANALYZE THE CREDIBILITY OF THE ABSENT
            WITNESS[, A DIVISION OF YOUTH AND FAMILY
            SERVICES (DYFS)4 CASEWORKER,] OR HOW

1
   Defendant was also indicted for third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a) (counts eight, nine and ten), in connection with other
victims. He was found guilty on counts eight and nine. The trial judge
dismissed count ten. He does not raise any issue with regard to those counts in
his merits brief.
2
   Count three of the indictment originally charged first-degree sexual assault.
It was later amended to second-degree sexual assault.
3
  Defendant was found not guilty of second-degree burglary, N.J.S.A. 2C:18-2
(a)(1) (count five).
4
   Effective June 29, 2012, the Department of Children and Families was
reorganized and the Division of Youth and Family Services was rebranded as


                                                                         A-1331-18T2
                                       2
            HER TESTIMONY REGARDING THE DYFS
            INVESTIGATION WOULD HAVE IMPACTED THE
            STATE'S CASE.

            POINT II

            THE   PCR   COURT   ERRED     WHERE  IT
            DETERMINED THAT DEFENDANT'S CLAIM OF
            INEFFECTIVENESS REGARDING THE FAILURE
            TO FURNISH TO THE STATE D.C.'S DIARY
            ENTRIES AS RECIPROCAL DISCOVERY WAS
            BARRED    BECAUSE    THE    ISSUE   WAS
            ADJUDICATED ON HIS DIRECT APPEAL.

            POINT III

            THE   PCR   COURT     ERRED  WHERE    IT
            DETERMINED     THAT    AN   EVIDENTIARY
            HEARING WAS NOT NECESSARY TO RESOLVE
            DEFENDANT'S     INEFFECTIVENESS   CLAIM
            REGARDING HIS DECISION TO WAIVE HIS
            RIGHT TO TESTIFY.

We are unpersuaded by these arguments and affirm.

      The PCR court granted an evidentiary hearing on defendant's trial

counsel’s failure to call the DYFS caseworker to testify at trial but denied a

hearing on defendant’s other two claims. As to the findings made by the judge

after the evidentiary hearing, "[o]ur standard of review is necessarily




the Division of Child Protection and Permanency. L. 2012, c. 16. We use the
appellation in effect at the time of defendant's trial and sentencing, the latter of
which occurred on June 15, 2012.
                                                                            A-1331-18T2
                                         3
deferential" so long as the findings are supported by "sufficient credible

evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). "Those

findings warrant particular deference when they are 'substantially influenced by

[the PCR court'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) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Absent an

evidentiary hearing, however, our review of the factual inferences drawn by the

PCR court from the record is de novo, as is our review of the judge's legal

conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).

      Turning first to the matters decided without an evidentiary hearing, the

PCR court concluded defendant's claim that his trial counsel was ineffective for

failing to provide the State with D.C.'s diary entries during pretrial discovery,

thereby resulting in the trial judge's preclusion of that evidence, with which trial

counsel attempted to impeach D.C., was barred because the issue was decided

on direct appeal. See R. 3:22-5. "Under Rule 3:22-5, prior adjudication of an

issue, including a decision on direct appeal, will ordinarily bar a subsequent

post-conviction hearing on the same basis." State v. Afanador, 151 N.J. 41, 51

(1997). An issue is only barred under the Rule, however, if the issue sought to

be precluded "'is identical or substantially equivalent' to the issue already


                                                                            A-1331-18T2
                                         4
adjudicated on the merits." Ibid. (quoting State v. McQuaid, 147 N.J. 464, 484

(1997)).

      We previously considered defendant's claims on direct appeal that his trial

counsel did not violate pretrial discovery Rules, and even if he did, preclusion

of the evidence was too extreme a remedy. State v. Randone, No. A-6300-11

(App. Div. June 17, 2014) (slip op. at 6-7). There we set forth the facts of this

case, and we will not repeat them here except as required to address the present

issues. Although we determined the trial judge failed to "read the documents 5

to determine how material the statements reflected therein were to defendant's

right to confront" D.C., and should have considered a lesser sanction than

preclusion, applying the harmful error standard,6 we "declin[ed] to reverse . . .




5
    On direct appeal, we identified the documents with which trial counsel
attempted to impeach D.C. as letters. Defendant's trial counsel, in arguing a
motion for new trial just prior to sentencing, referenced entries in D.C.'s diary—
or journal—as the documents he sought to use during his cross-examination of
D.C. as well as the diary—or journal, as we named it in our prior decision.
Defendant does not raise any issue with regard to the letters in his merits brief,
only the diary entries.
6
   We stated: "Because defendant objected to the preclusion of the writings, the
harmful error standard applies. We must disregard any error unless it was
'clearly capable of producing an unjust result.'" Randone, slip op. at 10 (quoting
R. 2:10-2).


                                                                          A-1331-18T2
                                        5
because [those] errors did not have the capacity of depriving defendant of his

constitutional right to a fair trial." Id. at 12.

      Defendant argues that "the appellate panel's finding that the trial judge's

pretrial ruling with respect to the use of the diary entries was not harmful error

is not the same as determining whether a right to relief is present under the

Strickland/Fritz test."7 In support of his argument that the issues are different,

he points to the different standards of proof: an error must be sufficient to raise

a reasonable doubt in the outcome of a jury trial in order to be considered

harmful, whereas the second prong of Strickland/Fritz is satisfied if defendant

can demonstrate by a preponderance of the evidence that he was prejudiced by

counsel’s unprofessional mistakes.

      We agree with defendant that the analysis of a PCR claim is different from

that required under Rule 2:10-2. We also recognize that the issue on appeal was



7
  To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the test formulated 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), first by showing "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); then by proving he suffered
prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687,
691-92. Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.


                                                                           A-1331-18T2
                                          6
the averred error by the trial judge in precluding the evidence. Here, defen dant

claims his trial counsel was ineffective for failing to turn over that evidence in

pretrial discovery. Although the arguments have some common facts, they are

discrete. We will, therefore, especially in light of our conclusion on direct

appeal that "defense counsel violated the reciprocal discovery [Rule]," Randone,

slip op. at 11, consider the substantive merits of his argument which was not

procedurally barred.

      Our review of the diary entries and trial testimony leads us to conclude

defendant was not prejudiced by the preclusion of those entries. As we noted

on direct appeal,

            [d]efense counsel was able to elicit testimony from
            D.C. similar to that contained in the writings, including
            that: D.C.'s mother hit her frequently; D.C. was
            sometimes afraid of her mother; defendant treated D.C.
            well and was "more like a father than [the boyfriend]";
            D.C. told her mother that she liked defendant and
            wanted to go to his apartment; D.C.'s mother told her to
            lie to the police and DYFS about the mother's drinking;
            and D.C. told DYFS staff that her mother drank and hit
            D.C.

            [Id. at 12-13 (second alteration in original).]

      We also determined the lead detective in the case

            testified about the content of the writings, stating that
            "[s]ome of them were cards, some of them were letters
            stating [D.C.'s] love for [defendant]." He characterized

                                                                          A-1331-18T2
                                        7
            the letters as "odd," but stated that there was nothing
            negative about defendant in the letters that would lead
            him to believe that defendant was sexually assaulting
            D.C.

            [Id. at 13 (alterations in original).]

      And, as defendant's trial counsel noted during his summation, in

discrediting D.C.'s contention that she went to defendant's apartment only

because her mother sent her there against her will, D.C.'s sister testified D.C.

went to defendant's apartment "all the time" and that she wanted to go there.

"[H]er sister testified that she went over there frequently and she went over there

willingly, [and] that she liked [defendant]."

      Trial counsel continued:

            And . . . you heard the circumstances[,] . . . the overall
            . . . picture here of what was going on. And [defendant]
            was nice not only to [D.C.] but to all of the children,
            that he did things for them, that he was kind to them,
            and he treated them better . . . in a lot of ways than . . .
            their mother did.

      Because defendant was able to elicit testimony that was almost identical

to the contents of the diary entries, he cannot establish he was prejudiced by

counsel's failure to provide the writings in discovery. As such, the PCR court

correctly denied his claim without granting an evidentiary hearing.




                                                                           A-1331-18T2
                                         8
      We also determine the PCR court properly denied defendant's claim,

without an evidentiary hearing, that his "trial attorney [was ineffective because

he] did not prepare him to testify . . . or consult with him at any time prior to

trial as to the benefits and consequences that may result. Defendant was unable

to make an informed decision" before he waived his right to testify.

      The trial judge addressed defendant during trial, telling him:

                  You have a right to testify. If you do, you could
            be cross-examined by [the State]. I already made a
            ruling as to certain prior convictions of yours that might
            be used by her. A jury could hear the fact that you were
            convicted of certain things in terms of the crime and the
            degree because it's not the same as what you're charged
            with here. I made that ruling so you would be subjected
            to cross-examination and also those items would come
            out and the jury would hear them.

                  You also have the right to remain silent. You
            have the right not to say a thing and I could give a jury
            charge and the charge would be that the jury is not to
            consider for any purpose or any manner, way, shape or
            form, in arriving at your verdict, the fact that
            [defendant] did not testify nor should that fact enter into
            your deliberations or discussions in any manner in any
            way, shape or form.

The judge continued, referring to a jury instruction:

                   [Defendant] is entitled to have you, the jury,
            consider all the evidence but he's entitled to the
            presumption of innocence even if he doesn't testify
            because it is his constitutional right to remain silent and
            that should not be held against him.

                                                                          A-1331-18T2
                                        9
The trial judge then asked defendant if it was his desire to testify or remain

silent; defendant responded, "[s]ilent."

      The judge followed up with questions regarding the basis for defendant's

choice:

            [THE COURT]: And you did that after discussing that
            with [defense counsel]?

            [DEFENDANT]: Yes.

            [THE COURT]: You had enough time to speak to him?

            [DEFENDANT]: Yes.

            [THE COURT]: Satisfied with his services?

            [DEFENDANT]: Yeah.

            [THE COURT]: Is that a voluntary decision on your
            part?

            [DEFENDANT]: Yeah.

            [THE COURT]: Anybody pressure you one way or the
            other?

            [DEFENDANT]: No.

The record belies defendant's assertion that he made an uninformed,

uncounseled decision not to testify. "Defendant may not create a genuine issue




                                                                       A-1331-18T2
                                       10
of fact, warranting an evidentiary hearing, by contradicting his prior statements

without explanation." Blake, 444 N.J. Super. at 299.

      Further, defendant did not divulge what he would have offered if he

testified at trial, proffering "specific facts and evidence supporting his

allegations." State v. Porter, 216 N.J. 343, 355 (2013). Nor did he explain how

his testimony would have impacted the outcome of the trial, satisfying the

second Strickland/Fritz prong. "[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." State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999).     Defendant failed to meet that threshold.       See State v.

Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-10(b).            Furthermore, an

evidentiary hearing cannot be used to explore PCR claims.            See State v.

Marshall, 148 N.J. 89, 157-58 (1997). As such, an evidentiary hearing was

properly denied.

      Finally, defendant claims his trial counsel was ineffective because he

failed to call a DYFS caseworker to testify at trial regarding a 2008 investigation

into D.C.'s allegations which DYFS determined were "unfounded." Defendant

averred at the evidentiary hearing he told his counsel of a letter stating as much,

and that counsel's decision not to call the caseworker was "non-sensical,"


                                                                           A-1331-18T2
                                       11
because the caseworker would have "explain[ed] why [DYFS] concluded the

sexual assault allegations were 'unfounded,'" and could have altered the jury’s

verdict because she was "an objective state agen[t]" who contradicted the State's

chief witness, D.C.

      Trial counsel testified at the evidentiary hearing that he did not call the

caseworker to discuss the DYFS investigation or the confirmatory letter because

he was able to elicit from D.C. that she did not report that she was sexually

assaulted to DYFS, the Prosecutor's Office or an examining doctor in 2008, and

that she previously lied in denying allegations of an assault. As such, counsel

determined that the caseworker's testimony would be repetitive.

      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). 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

                                                                         A-1331-18T2
                                       12
            considered sound trial strategy.'" Strickland, 466 U.S.
            at 689.


            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.

      We agree with defendant that the PCR court did not consider "(1) the

credibility of all witnesses, including the likely impeachment of the uncalled

defense witnesses; (2) the interplay of the uncalled witnesses with the actual

defense witnesses called; and (3) the strength of the evidence actually presented

by the prosecution." State v. L.A., 433 N.J. Super. 1, 16-17 (App. Div. 2013)

(quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996)). Of

course, the PCR court was not presented the opportunity to assess the

caseworker's credibility because she was not called to testify at the evidentiary

hearing.

      Defendant argues in his merits brief that, during cross-examination of

D.C. at trial, defendant's counsel was able to portray D.C. as a liar because she

did not inform authorities in 2008 she was being sexually assaulted. In making

                                                                         A-1331-18T2
                                       13
that point, defendant highlights that portion of the cross-examination in which

D.C. admitted a caseworker inquired if she was sexually assaulted, suggesting

the reason the allegations of sexual assault were unfounded is because D.C. lied.

Even accepting that argument, the caseworker still would not have been allowed

to give her opinion about D.C.'s credibility, State v. McLean, 205 N.J. 438, 453

(2011), or whether the charges based on D.C.'s allegations against defendant had

any merit because that determination was to be made by the jury, see State v.

Odom, 116 N.J. 65, 77 (1989) ("[w]e have repeatedly and consistently

recognized that a jury's determination of criminal guilt or innocence is its

exclusive responsibility"); see also State v. Frisby, 174 N.J. 583, 593-94 (2002)

(finding a police officer testifying as a fact witness was not allowed to opine

regarding whether the defendant committed the crime).

      To rebut the State's evidence, including D.C.'s explicitly-detailed account

regarding defendant's first sexual assault, defendant's trial counsel emphasized

in summation that D.C.'s multiple lies to authorities, and that "there was an

investigation conducted [in 2008] and there were no charges brought against"

defendant. Counsel argued to the jury:

                 It tells you that she lied at some point in this case,
            that she lied to the authorities, and that she's
            comfortable with lying to the authorities, I would
            submit, ladies and gentlemen. As a result of the

                                                                          A-1331-18T2
                                       14
            influence of her mother, I would suggest to you where
            she had been – where that type of behavior was
            condoned in the household, she was able to lie to the
            authorities and I would submit to you, ladies and
            gentlemen, she's able to lie to you in court[.]

      The defense strategy was to paint D.C. as a liar about: her relationship

with defendant; the reasons she went to defendant's residence; and her

allegations of sexual assault. As defendant's counsel told the jury, "[a]ll of the

proof regarding the aggravated sexual assault and sexual assault is riding on

[D.C.'s] credibility. There's no other evidence. There's no medical evidence, no

scientific evidence, nothing at all. No one heard anything. She didn't say

anything to anyone to corroborate anything she says regarding that."

      According the presumption that counsel's conduct fell within the range of

reasonable professional assistance, Arthur, 184 N.J. at 318-19, and adhering to

the tenet that "an otherwise valid conviction will not be overturned merely

because the defendant is dissatisfied with his or her counsel's exercise of

judgment during the trial," State v. Castagna, 187 N.J. 293, 314 (2006), we

determine defendant has not established his counsel's performance was

deficient. Nor, in light of the fact that counsel was able to argue that the prior

investigation did not result in any charges against defendant, do we conclude




                                                                          A-1331-18T2
                                       15
there is a reasonable probability, but for the failure to call the caseworker, the

result of the trial would have been different.

      Affirmed.




                                                                          A-1331-18T2
                                       16
