Filed: Oct. 01, 2015
Latest Update: Oct. 01, 2015
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Carlos Mendoza appeals from the January 27, 2014 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing. Defendant was tried to a jury and found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was sentenced to concurrent six-year terms on each count with parol
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Carlos Mendoza appeals from the January 27, 2014 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing. Defendant was tried to a jury and found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was sentenced to concurrent six-year terms on each count with parole..
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Carlos Mendoza appeals from the January 27, 2014 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing.
Defendant was tried to a jury and found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was sentenced to concurrent six-year terms on each count with parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed his convictions and sentence on appeal. State v. Mendoza, No. A-2575-08 (App. Div. Mar. 2, 2011).
Defendant filed a pro se petition for PCR alleging unspecified ineffective assistance of his trial and appellate counsel. After the appointment of PCR counsel, an amended petition and a supplemental certification were filed alleging that defendant's trial counsel failed to provide adequate representation during a hearing on defendant's motion to exclude a videotape of the victim, N.P.
The PCR judge denied the motion without holding a hearing. On appeal, defendant raises the following points:
I.
THE PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S INADEQUATE REPRESENTATION AT THE MICHAELS HEARING.
II.
THE TRIAL COURT ERRED IN DENYING THE PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING AND IN NOT ALLOWING ORAL ARGUMENT ON THE PETITION.
A. THE TRIAL COURT ERRED IN DENYING PETITIONER AN EVIDENTIARY HEARING.
B. THE TRIAL COURT ERRED IN DENYING PETITIONER ORAL ARGUMENT ON HIS POST CONVICTION
RELIEF APPLICATION. We present the salient facts of this case, drawn from our prior opinion:
At the trial of this matter, the State presented evidence that defendant and M.S. had been in a relationship for about fourteen years. N.P. and S.P. are M.S.'s granddaughters. L.P. is the children's father and C.P. is their mother. M.S. is C.P.'s mother. At the time of the alleged incidents, N.P. and S.P. were five- and eight-years old, respectively. On December 10, 2005, N.P. and S.P. were left in defendant's care at the girls' home in Union, New Jersey.
N.P. subsequently reported to L.P. that, while she and defendant were watching television, defendant touched her vagina. C.P. told her mother and then reported the incident to the police. The matter was investigated by the Union County Prosecutor's Office. N.P. gave a videotaped statement to Detective Mary McKinlay (McKinlay). Thereafter, McKinlay obtained a warrant for defendant's arrest.
Defendant was arrested at his residence in Union City, and transported to the prosecutor's office, where he waived his rights under Miranda and gave McKinlay a videotaped statement. Defendant said that N.P. had complained of redness and irritation of her vagina, and he assisted her in applying baby powder to the affected area. Defendant stated that he might have rubbed his hand against N.P.'s vagina while he was helping her apply the powder.
Prior to defendant's arrest, S.P. told her mother that defendant had touched her vaginal area "a lot of times." C.P. informed L.P. and then reported the matter to the police. The case was referred to the Monmouth County Prosecutor's Office, because the incidents were said to have taken place in Keansburg, New Jersey. S.P. was brought to the prosecutor's office, and she gave a videotaped statement to Detective Patrick J. O'Connell (O'Connell).
N.P. and S.P. testified at trial, along with C.P., L.P., M.S., McKinlay, O'Connell, and Dr. Linda Jane Shaw, a physician who had examined the girls. N.P.'s and S.P.'s videotaped statements were played for the jury. Defendant testified on his own behalf. Defendant stated that N.P. had complained of a rash and he assisted her in applying powder to the affected area, but he did not touch her vagina. He also denied ever touching N.P. and S.P. or having any sexual contact with them.
[Id. at slip op. 1-3.]
Prior to trial, defendant's counsel moved to exclude the videotaped evidence of N.P.'s interview on the basis that it fell outside of the "tender years" exception, N.J.R.E. 803(c)(27). Counsel also argued that the evidence was "tainted" because the investigators, in attempting to comply with the standard announced in State v. Michaels, 136 N.J. 299 (1994), failed to fully investigate the allegations and ask follow-up questions of the child.
In Michaels, the Court outlined factors to consider in determining whether an interview technique has the requisite indicia of reliability, including "lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements[.]" Id. at 309.
Trial counsel argued that Detective McKinlay's failure to ask follow-up questions of the child rendered the interview unreliable. When the judge noted that this type of follow-up investigation was not required under Michaels, counsel conceded that the Michaels protocol was not violated here but suggested that the court should expand the Michaels standard. The judge declined, and ultimately admitted N.P.'s statement into evidence.
In defendant's direct appeal of his conviction, he argued that Detective McKinlay was obligated to ask follow-up questions. We rejected this argument noting that
the trial court found that N.P. was a "very bright five year old" who was "well spoken." McKinlay did not repeatedly ask N.P. the same questions. N.P.'s statements during the interview were spontaneous. In addition, during the interview, N.P. used expressions that were appropriate for a young child. There is no evidence that McKinlay coached N.P., nor is there any indication that N.P. had a motive to fabricate her allegations. Moreover, N.P.'s statement remained consistent throughout.
[Mendoza, supra, slip op. at 15.]
Defendant now urges that his trial counsel's innovative and resourceful arguments made in an attempt to exclude a damaging, inculpatory videotape, should be viewed as ineffective assistance.
The PCR court rejected this argument and found that trial counsel's conduct did not amount to ineffective assistance of counsel, that there was no prejudice shown, and that there was ample evidence that the statement of N.P. was trustworthy and admissible. The PCR court noted that "it is not ineffective for counsel to argue for an expansion of the law" and that "[l]egal history is replete with examples of attorneys arguing for an expansion of the law to try to make proceedings more fair and just."
We agree. Trial counsel faced a daunting task in attempting to exclude the videotape. He made a reasonable determination that the only way to accomplish that task was to convince the trial court to expand the Michaels standard. While his strategy was not successful, it did not constitute ineffective assistance.
The seminal case for determining ineffective assistance of counsel, Strickland v. Washington, cautions against viewing trial counsel's performance under the "distorting effects of hindsight." 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984). Rather, we 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.'" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L. Ed. 2d 83, 93 (1955)).
We agree with the PCR judge that trial counsel's representation of defendant was not constitutionally deficient and that defendant has failed to prove the first prong of the Strickland test. Accordingly, his claim for ineffective assistance of counsel fails.
The remaining arguments raised by defendant lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).
Affirmed.
