                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1220-17T1


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

J.C.,

     Defendant-Appellant.
_________________________

                    Submitted November 14, 2018 - Decided December 5, 2018

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 04-11-2370.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John J. Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant J.C. appeals from the denial of his petition for post-conviction

relief without an evidentiary hearing. We affirm.

        Defendant was charged with first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a), two counts of second-degree sexual assault, N.J.S.A.

2C:14-2(b); and two counts of third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a), involving two victims who were under the age of thirteen.

Defendant was the victims' neighbor and served as godparent to the younger

victim.

        The victims gave recorded statements regarding the assaults and defense

counsel stipulated to the use of the victims' statements at trial. Despite the

stipulation, the trial judge conducted a hearing and granted the State's motion to

admit the victims' statements.

        Defendant failed to appear for his trial. Defendant was tried in absentia

from June 22 to June 29, 2006, and found guilty on all charges.           He was

sentenced to thirty-three years in prison with a twenty-eight year period of

parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.

        Defendant filed a direct appeal, and we affirmed. The New Jersey

Supreme Court denied defendant's petition for certification on February 17,

2016.


                                                                           A-1220-17T1
                                         2
      Defendant filed his PCR petition on June 15, 2016. The PCR judge heard

oral argument on the PCR application and denied the petition.

      In his August 7, 2017 written decision denying the PCR petition, Judge

Bernard E. DeLury, Jr. summarized the testimony leading to defendant's

conviction. The judge found defense counsel's stipulation to the admission of

the victims' recorded statements did not constitute ineffective assistance of

counsel. To the contrary, the judge concluded counsel's decision was a strategic

determination "reserved to the judgment and discretion of trial counsel." Even

if counsel's stipulation was flawed, the judge determined defendant "was not

prejudiced because the trial court, on its own, chose to conduct a hearing as to

whether the videotaped statements could be admissible under the tender years

exception to the hearsay rule," and concluded the statements made by the two

minor victims regarding the sexual assaults were admissible.         Therefore,

defendant was not prejudiced by the stipulation. Because the trial judge held a

hearing and found the videotaped statements were admissible, the PCR judge

found defendant was not prejudiced by defense counsel stipulating to the

admission of the statements.

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

was ineffective based on his failure to cross-examine the victims. The judge


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                                       3
concluded defense counsel's decision was "a strategic choice to forego an attack

of the credibility and reliability of very young children who are alleged victims

of sexual assault during cross-examination." The judge found defense counsel

effectively attacked the inconsistencies between the children's recorded

statements and their in-court testimony during closing argument.

      The judge made the same determination regarding trial counsel's failure

to cross-examine the State's expert witness. Because the State's expert witness

was not permitted to testify regarding information specific to these victims, "the

defense ha[d] little to gain by allowing a trained and experienced witness to

remain on the stand" and defendant's trial counsel made an appropriate tactical

decision.

      In addition, the PCR judge rejected defendant's argument that his trial

counsel failed to undertake an active defense on his behalf during the trial. The

judge wrote:

            [Defendant] took it upon himself to not appear at his
            own trial. If [defendant] wished to participate more in
            his defense at trial, and guide his attorney's strategic
            decisions, he should have attended his own trial. By
            [defendant's] willful and culpable failure to attend trial,
            the [d]efendant placed his trial counsel in a nearly
            untenable position. Trial counsel, mindful of the eyes
            of the jurors upon an empty chair, likely strategized that
            frequent objections throughout trial would only draw
            attention to the fact that [defendant] did not attend his

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                                        4
     own trial. The [c]ourt's instructions to the jury to
     decide the case fairly despite [defendant's] absence
     notwithstanding, experienced trial counsel know[] that
     jurors are human. Dealing with the absence of his
     client, trial counsel had little choice but to minimize the
     fact of the [d]efendant's absence. Trial counsel was not
     ineffective as he made proper strategic choices upon
     having to represent his absent client, against charges of
     sexual assault on two children.

Defendant raises the following arguments:

     POINT I

     THE PCR COURT ERRED IN RULING THAT J.C.
     RECEIVED   EFFECTIVE   ASSISTANCE   OF
     COMPETENT TRIAL COUNSEL.

     A.    The Strickland-Cronic-Fritz Standard.

     POINT II

     TRIAL COUNSEL'S CUMULATIVE ERRORS
     MANDATE THAT J.C.'S CONVICTIONS BE
     REVERSED OR, IN THE ALTERNATIVE, THAT
     J.C. BE AFFORDED AN EVIDENTIARY HEARING.




                                                                   A-1220-17T1
                                 5
             POINT III

             THE PCR COURT SHOULD HAVE CONDUCTED
             AN EVIDENTIARY HEARING TO ADDRESS THE
             CLAIMS RAISED BY DEFENDANT.


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

convicted defendant must satisfy the two-part test by demonstrating that: (1)

counsel's performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 682

(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).

      In reviewing ineffective assistance claims, courts apply a strong presumption

that a defendant's trial counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will

not serve to ground a constitutional claim of inadequacy[.]" Fritz, 105 N.J. at 54

(citation omitted). "To establish a prima facie claim of ineffective assistance of

counsel, a defendant must demonstrate a reasonable likelihood of succeeding under"

the Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 463 (1992). To

demonstrate the likelihood of succeeding under the Strickland/Fritz test, a defendant

"must do more than make bald assertions[,] . . . [and] must allege facts sufficient to



                                                                              A-1220-17T1
                                          6
demonstrate counsel's alleged substandard performance." State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999).

      Based on our review of the record, we are satisfied that defendant's claim of

ineffective assistance of counsel is without merit for the reasons set forth in Judge

DeLury's comprehensive and convincing written decision. The strategy advanced

by defendant's trial counsel was a proper exercise of judgment given the age of the

victims and allegations of sexual assault. Under these circumstances, the judgments

and decisions made by trial counsel were an exercise of sound and reasonable trial

strategy. See State v. Arthur, 184 N.J. 307, 332-33 (2005). The mere fact that a trial

strategy failed does not establish a constitutional claim of inadequacy. Fritz, 105

N.J. at 54.

      We are satisfied defense counsel's actions did not fall below the requisite

standard under either prong of the Strickland/Fritz test. Without presenting a

prima facie case of ineffective assistance of counsel, defendant was not entitled

to an evidentiary hearing on those issues. See Preciose, 129 N.J. at 462-63.

      Affirmed.




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