                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3140-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

V.E.A.,

     Defendant-Appellant.
_____________________________

                    Submitted March 25, 2019 – Decided April 5, 2019

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 11-02-
                    0138.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Dana R. Anton, Senior
                    Assistant Prosecutor, and Monica A. Bullock, on the
                    brief).

PER CURIAM
      Defendant V.E.A. appeals from the January 26, 2018 Law Division order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing. We affirm.

      After a jury trial on a two-count indictment, defendant was convicted of

second-degree sexual assault of his twelve-year-old daughter, N.J.S.A. 2C:14-

2(b) (count one), and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (count two). The trial court sentenced defendant to seven years in

prison on count one, subject to an 85% period of parole ineligibility pursuant to

the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent seven-year

term on count two.

      We affirmed defendant's convictions on his direct appeal, but remanded

the matter for resentencing, and our Supreme Court denied certification. State

v. V.E.A., No. A-5313-12 (App. Div. Sept. 22, 2014), certif. denied, 221 N.J.

219 (2015). On remand, the trial court again imposed a seven-year aggregate

term, and we affirmed this determination after hearing defendant's appeal on our

Excessive Oral Argument calendar pursuant to Rule 2:9-1.

      Defendant then filed his petition for PCR, contending that his trial counsel

provided him with ineffective legal assistance. Among other things, defendant

asserted that the attorney failed to (1) communicate with him; (2) conduct an


                                                                          A-3140-17T4
                                        2
adequate investigation; (3) object to certain evidence; and (4) discuss his

decision not to testify on his own behalf or seek a jury instruction on this issue.

      Judge M. Christine Allen-Jackson determined that defendant was entitled

to an evidentiary hearing on his petition. At its conclusion, the judge rendered

a comprehensive written decision denying defendant's petition.

      At the hearing, defendant testified that his attorney never told him what

the "game plan" would be for the defense. However, the judge credited the

attorney's testimony that he met with defendant approximately ten times to

prepare for the trial, and "thoroughly explained what the trial was going to be

like." The judge also found that defense counsel always kept defendant in the

loop as to the strategy he would employ at the trial.

      Judge Allen-Jackson also rejected defendant's claim that his attorney did

not adequately investigate the case in preparation for trial. Defendant's primary

claim at trial, as expressed in a statement he gave to the police, was that he

assaulted his daughter "by accident" after they both fell asleep watching a movie

in defendant's bed. Defendant testified at the evidentiary hearing that he told

his attorney "that he had sleeping issues and had been prescribed sleeping

medications such as Ambien." He also alleged he told the attorney that the

Veterans Affairs (VA) Hospital had records that would support these claims.


                                                                           A-3140-17T4
                                        3
      However, the judge again credited defense counsel's testimony that

defendant never spoke about his sleep issues and the VA Hospital with him, and

instead claimed that he had been drinking on the night of the assault. The judge

found that the attorney questioned the victim about defendant's drinking habits

on cross-examination. In addition, the judge noted that defendant had not

presented any records from a VA Hospital, or any other medical records, in

support of his petition.

      Defendant next testified that his attorney was ineffective because he

agreed with the prosecutor that certain parts of defendant's video-recorded

statement to the police should be redacted, while others should not. However,

Judge Allen-Jackson found that defense counsel adequately explained that

"[p]ortions of the statement were redacted as part of trial strategy."

      Finally, the judge found that defendant's claim that his attorney did not

adequately explain his right to testify on his own behalf also lacked merit.

Defendant's recorded statement to the police was played for the jury. In this

statement, defendant claimed that he had been drinking, fell asleep with his

daughter in the bed, and had "a sexual dream" about an adult female. When he

woke up, he stated he realized that he had been inappropriately touching the

child. Because this statement fully detailed defendant's explanation for the


                                                                         A-3140-17T4
                                        4
incident, and was already before the jury, defense counsel made a tactical

decision that defendant should not be called as a witness to merely repeat this

account, while being subjected to cross-examination which might undermine his

defense.

      Defense counsel also confirmed that in addition to the judge explaining

defendant's right to testify to him several times at trial, the attorney also

discussed this issue with defendant, who thereafter never asked to take the stand.

The judge also found that defendant's attorney made an appropriate tactical

decision not to ask for a jury charge on defendant's decision because that would

"draw further attention to him exercising his right to remain silent." This appeal

followed.

      On appeal, defendant raises the following contentions:

            POINT I

            BECAUSE DEFENDANT WAS DENIED THE
            EFFECTIVE ASSISTANCE O[F] TRIAL COUNSEL,
            THE DENIAL OF HIS PETITION FOR [PCR] WAS
            ERROR.

            A.    FAILURE TO            COMMUNICATE            WITH
                  DEFENDANT.

            B.    FAILURE TO CONDUCT AN ADEQUATE
                  INVESTIGATION     AND   OBTAIN
                  NECESSARY RECORDS.


                                                                          A-3140-17T4
                                        5
            C.     FAILURE TO          OBJECT       TO     CERTAIN
                   EVIDENCE.

            D.     FAILURE OF TRIAL COUNSEL TO
                   THOROUGHLY       DISCUSS       WITH
                   DEFENDANT       ALL        RELEVANT
                   RAMIFICATIONS    CONCERNING      HIS
                   DECISION WHETHER TO TESTIFY ON HIS
                   OWN BEHALF AND TO REQUEST A JURY
                   INSTRUCTION ON THIS ISSUE.

            E.     PREJUDICE.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant must

demonstrate that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

                                                                           A-3140-17T4
                                        6
Strickland, 466 U.S. at 687. Under the second prong, the defendant must show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Ibid. That is, "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694.

       There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Id. at 690. Because prejudice is not presumed, Fritz, 105 N.J. at 52,

a defendant must demonstrate with "reasonable probability" that the result

would have been different had he received proper advice from his trial attorney.

Strickland, 466 U.S. at 694. Moreover, the acts or omissions of counsel of which

a defendant complains must amount to more than mere tactical strategy. Id. at

689.

       Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440

(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the


                                                                            A-3140-17T4
                                         7
case, which a reviewing court cannot enjoy." Ibid. (alteration in original)

(quoting Robinson, 200 N.J. at 15).

      We have considered defendant's contentions in light of the record and

applicable legal principles and conclude that they are without sufficient merit to

warrant discussion in a written opinion.         R. 2:11-3(e)(2).     We affirm

substantially for the reasons expressed by Judge Allen-Jackson in her well-

reasoned written opinion.

      Affirmed.




                                                                          A-3140-17T4
                                        8
