State v. J.V.P.

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.V.P., JR.,^[1] Defendant-Appellant.

No. A-3077-20

Superior Court of New Jersey, Appellate Division

August 29, 2023

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.

Argued April 18, 2023

On appeal from the Superior Court of New Jersey, Law Division Burlington County, Indictment No. 13-02-0208.

Steven E. Braun argued the cause for appellant.

Nicole Handy, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Nicole Handy, of counsel and on the brief).

Before Judges Messano and Perez Friscia.

PER CURIAM

A jury convicted defendant J.V.P., Jr. "of eight counts of third-degree aggravated criminal sexual contact, N.J.S.A 2C:14-3(a); seven counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and one count of fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and 2C:14-3(b)." State v J.V.P., No. A-4862-14 (App. Div. Jan. 9, 2017) (slip op. at 1-2). The trial judge imposed a ten-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 2. We affirmed defendant's conviction on direct appeal, ibid., and the Court denied his petition for certification. 230 N.J. 500 (2017).

Defendant filed a timely petition for post-conviction relief (PCR) alleging fourteen claims of ineffective assistance by trial and appellate counsel (IAC) and, in an amended petition, defendant asserted another IAC claim against trial counsel. Although the appellate record does not include a transcript of the first argument held on the petition, apparently the PCR judge, who was not the trial judge, ordered an evidentiary hearing, which took place on March 1, 2021. Trial counsel, defendant's appellate counsel, and defendant testified at the hearing.

The PCR judge filed a written opinion in which he addressed defendant's myriad claims. He found the testimony of both trial and appellate counsel to be credible and concluded defendant "failed to present competent facts sufficient to demonstrate his trial or appellate counsel's alleged . . . failure to meet the required standard of professional conduct, or prejudice suffered [by defendant] as a result." The PCR judge denied the petition, and this appeal followed.

I. Trial Evidence

We briefly summarize salient evidence the State adduced at trial, relying both on our prior unpublished opinion and trial transcripts.

When defendant's conduct was first brought to the attention of law enforcement in July 2012, S.K. was fifteen-years old and A.K. was seventeen-years old. J.V.P., slip op. at 2. S.K. told her mother, defendant's daughter J.S., that defendant had sexually touched her on the balcony of the family church during Sunday services on July 8, and, when J.S. confronted defendant, he admitted this had occurred. Id. at 3. Defendant told his daughter that he intended to speak with his pastor, who was also chaplain for the local police department. Ibid.

J.S. took her daughter to the Burlington County Prosecutor's Office on July 12, where K.S. provided a detailed statement including allegations of defendant's prior abuse in September and November 2011. Ibid. Further investigation revealed defendant had abused A.K. prior to 2011. Ibid. Both S.K. and A.K. testified at trial.

Before trial, the judge conducted a N.J.R.E. 104(c) hearing "to determine two issues: whether defendant's statements to his pastor were privileged; and whether defendant was properly advised of his Miranda^[2] rights and knowingly and voluntarily waived those rights prior to providing his statement to investigators." Ibid. The trial judge heard from: Pastor Guy Glass; Welton Chase, a member of defendant's church; defendant; and his wife. The State produced J.S.; Detective Brian Miller; and Jeremy Vrablic, another church member.

Trial counsel, who had successfully moved to permit defendant to withdraw a previously entered guilty plea, explained to the judge that defendant's prior counsel had also moved to dismiss the indictment based on the State's use of "tainted evidence" flowing from the breach of privileged information defendant shared with Pastor Glass. Counsel's motion brief specifically argued that a subsequent statement defendant gave to police was "tainted" by violation of the privilege. As we summarized,

The evidence at the hearing revealed that on July 11, 2012, after being confronted by his daughter about S.K.'s allegations and admitting they were true, defendant went to church and told his pastor that he had inappropriately touched S.K. during Sunday services. The pastor then spoke with defendant and his wife, who had no prior knowledge of the incident. The pastor contacted the local police chief and told him of defendant's admissions.

The following day, J.S. brought S.K. to the Prosecutor's Office, where she agreed to participate in a consensual intercept of text messages between herself and defendant in which defendant admitted touching S.K.'s breasts and vagina. Later, during the evening of July 12, police arrived at defendant's home and asked to speak to him at the police station. He agreed and was driven to the station by his wife. Defendant also called his pastor and asked him to come to the station for support, and he did. Defendant and his wife testified the pastor told defendant to cooperate fully. However, the pastor testified that defendant was already being interrogated when he arrived at the station.

Detectives administered Miranda rights to defendant and he indicated his understanding. They then asked if he was "comfortable speaking with [them] . . . ?" Although he immediately answered in the affirmative, defendant then said he was "not comfortable, but [he had] to." The following exchange occurred:

A: It's uncomfortable because of what's goin [sic] on, but I, it's comfortable. I have to.

Q: Okay. Well, keeping your [r]ights in mind, you don't[] . . [.]

A: I'm not talking about my [r]ights. I'm just talking about, I, it's the uncomfortability [sic] of knowing what's gotta [sic] happen.

Q: Okay. Well, like I said, you're free to go. You don't have to stay here and all that at this moment . . .

A: No sir. I know I . . .

Q: keeping your [r]ights, you know.

A: I have to stay here.

Q: Okay. Well, that's under your own will and volition. You can[] . . [.]

A: Yes.

Q: go.

Defendant subsequently executed a waiver of rights form and provided a statement that comprise[d] more than [100] transcribed pages in which he admitted sexually abusing both granddaughters.

[Id. at 4-5 (all except the fifth, tenth and twelfth alterations in original).]

The trial judge concluded defendant's statements to his pastor were privileged under N.J.R.E. 511 but also determined his statement to law enforcement was admissible. Id. at 5-6.

J.S. testified at trial regarding her daughter's disclosure and her confrontation with defendant. S.K.'s friend Tristen Strunk also testified. He had learned of defendant's sexual conduct from a text message S.K. sent to him. Vrablic learned about defendant's conduct from Strunk's mother, who was Vrablic's sister, and he spoke directly with S.K. about it. Thereafter, Vrablic spoke with J.S. who, by this time, was preparing to go to the Prosecutor's Office. Vrablic also spoke with defendant who made certain admissions to him.

After Detective Miller took S.K.'s formal statement and while she was still at the Prosecutor's Offices with her parents, J.S. engaged in a text message conversation with defendant that was consensually intercepted by investigators. In that exchange, defendant admitted sexually touching S.K. but denied that he had penetrated her vagina.

At that point, detectives went to defendant's home and indicated they wished to speak with him. Defendant agreed to drive to the Pemberton Township Police Department headquarters, where he arrived with his wife and Pastor Glass. The recorded statement, containing defendant's admissions of sexual offenses involving both of his granddaughters, was played for the jury. Dr. Stephanie Lanese, a board-certified child abuse pediatrician, was the State's final witness and testified about her August 2012 examination of S.K. Dr. Lanese found no physical evidence of sexual abuse.

Defendant elected not to testify, but his wife did. She rebutted certain details of S.K.'s testimony. A pastor from another church testified to defendant's good character and truthfulness.

The PCR Judge's Opinion Following the Evidentiary Hearing

We briefly summarize the testimony of trial and appellate counsel at the evidentiary hearing. Trial counsel was a certified criminal trial attorney who had practiced for thirty years and agreed to represent defendant after reviewing a transcript of his guilty plea allocution. Defendant had pled guilty to first-degree aggravated sexual assault but was adamant that he had not sexually penetrated either S.K. or A.K. Counsel's review of the transcript led him to conclude defendant had not "fully allocuted to the elements of the crime." The motion to withdraw defendant's guilty plea was successful.

Counsel specifically testified that he discussed a strategy with defendant that sought to avoid a first-degree conviction. He testified that "we weren't offering a defense" to the sexual contact charges, given defendant's multiple admissions. Counsel contemplated making a motion to strike certain counts of the indictment because they lacked "specificities as to date and location" but concluded...