RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0119-18T4

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

D.D.,

Defendant-Appellant.

____________________________

Submitted January 27, 2020 – Decided May 1, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. 10-02-0218.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, of 

counsel and on the brief; Catherine A. Foddai, Assistant 

Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0119-18T4

Defendant D.D. was charged in a three-count indictment with crimes 

relating to multiple sexual assaults of his daughter, N.D., including digitalvaginal penetration and digital-anal penetration that occurred between 

September 1, 2004 and January 14, 2008 when N.D.—born October 19, 2001 —

was between the ages of two and seven years-old.1 Defendant was convicted by 

jury of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1) (counts one and two), and second-degree endangering the welfare of a 

child, N.J.S.A. 2C:24-4(a) (count three).2 

Defendant appeals from the denial of his post-conviction relief (PCR) 

petition following an evidentiary hearing that addressed only defendant's claim 

of jury impropriety, arguing:

[POINT I]

DEFENDANT'S CONVICTIONS MUST BE 

REVERSED BECAUSE TRIAL COUNSEL WAS 

INEFFECTIVE FOR NOT INFORMING THE COURT 

REGARDING JURORS' IMPROPRIETY.

[POINT II]

 

1

 We use initials to protect the privacy of N.D. See N.J.S.A. 2A:82-46; R. 1:38-

3(9), (12).

2 We affirmed his conviction, State v. D.D., No. A-4236-12 (App. Div. Dec. 14, 

2015), remanding only for consideration of defendant's ability to pay a penalty. 

The Supreme Court denied defendant's petition for certification. State v. D.D., 

225 N.J. 339 (2016).
3

A-0119-18T4

BECAUSE DEFENDANT ESTABLISHED A PRIMA 

FACIE CASE OF TRIAL COUNSEL'S 

INEFFECTIVENESS, THIS MATTER MUST BE 

REMANDED FOR AN EVIDENTIARY HEARING 

REGARDING TRIAL COUNSEL'S FAILURE TO 

HAVE DEFENDANT'S BROTHER TESTIFY AS A 

WITNESS AND COUNSEL'S FAILURE TO 

PREPARE DEFENDANT TO TESTIFY.

A. Trial Counsel Failed To Have Defendant's 

 Brother Testify.

B. Trial Counsel Failed To Prepare Defendant 

 To Testify.

[POINT III]

THIS MATTER MUST BE REMANDED FOR 

FINDINGS OF FACT AND CONCLUSIONS OF 

LAW REGARDING DEFENDANT'S CLAIMS OF 

INEFFECTIVE ASSISTANCE OF APPELLATE 

COUNSEL PERTAINING TO THE DENIAL OF 

MISTRIAL MOTIONS, AND INEFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL'S FAILURE TO 

PROFFER EVIDENCE THAT DEFENDANT'S 

PREVIOUS INVOLVEMENT WITH THE DIVISION 

OF YOUTH AND FAMILY SERVICES 

PERTAINING TO THE ABUSE OF N.D. WAS 

DETERMINED TO BE "UNFOUNDED."

To establish a PCR claim of ineffective assistance of counsel, a defendant 

must satisfy the two-pronged 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 
4

A-0119-18T4

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. Under those standards, we find no merit in defendant's arguments and 

affirm.

I.

Defendant claims his trial counsel was ineffective because he failed to 

inform the trial court of a conversation among three jurors on the second day of 

trial. The PCR court heard testimony from defendant's brother, T.M., and trial 

counsel at an evidentiary hearing. 

T.M. testified that during a break in the trial, he overheard one juror tell 

two others, "you know, this guy is guilty," and that all three agreed. He also 

said one of the three referred to defendant as a "drunk." T.M. claimed he told 

defense counsel of the incident, and that counsel responded that "it had no 

bearing[] on what was going on."

T.M. described the three male jurors as white. He testified: "Two of them 

were very young[,] . . . in their mid[-twenties], I would say. The other gentleman
5

A-0119-18T4

was, I would say, in his early[-forties]." The two younger men were the same 

height and "a little thinner" than T.M. The older man "was about maybe fivenine, salt and pepper hair, glasses." He also recalled that all three had been 

seated in the front row of the jury box.

Although he admitted having "general discussions" with T.M. about 

defendant's background, trial counsel denied that T.M. told him of the three 

jurors' conversation. He testified if he had been told of that conversation, he 

would have notified the trial judge just as he did when defendant advised him 

that a juror had seen defendant being transported from the county jail to the 

courthouse.

Defendant argues the PCR court erred in rejecting his assertion that trial 

counsel's credibility was impugned by his inability to recall details about the 

trial and that T.M.'s detailed recollection was "very, very credible." "Our 

standard of review is necessarily deferential" to the factual findings of a PCR 

court 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 court's] 

opportunity to hear and see the witnesses and to have the "feel" of the case, 
6

A-0119-18T4

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)).

The PCR court recounted both witnesses' testimony and found trial 

counsel to be credible, highlighting his action in bringing the juror issue that 

defendant disclosed to him to the trial court's attention. He found T.M.'s 

testimony "less credible," noting the State's observation that "defendant's 

drinking habits" were not mentioned during the first two days of trial. Given 

our deference to those credibility findings which are supported by the 

evidentiary-hearing record, defendant failed to establish the first StricklandFritz prong.

II.

Defendant argues the PCR court erred by denying an evidentiary hearing 

because he established a prima facie case that trial counsel was ineffective by 

failing to call T.M. as a trial witness and by failing to prepare defendant to testify 

at trial. As the PCR court's evidentiary hearing did not address this issue, we 

review both the factual inferences drawn by the PCR court from the record and 

the court's legal conclusions de novo. State v. Blake, 444 N.J. Super. 285, 294 

(App. Div. 2016).
7

A-0119-18T4

Defendant first avers T.M. asked trial counsel if he could testify at trial 

on defendant's behalf because he "had information impugning the credibility of 

N.D.'s mother and N.D.'s babysitter . . . both of whom implicated defendant in 

the sexual abuse of N.D." He claims trial counsel's declination of that offer was 

ineffective.

In his merits brief, defendant cites to portions of his certification as 

supporting his argument, claiming T.M. "would have been able to bolster 

[defendant's] contention, and insistence, that [he is] innocent. [T.M.] would 

have also undermined the credibility of [defendant's] accuser(s)," and that he 

told trial counsel he wanted T.M. to testify "because [he] believed that [T.M.] 

would have been able to establish [his] innocence. . . . [and] could have also 

been a good character witness." 

 The PCR court considered an "investigation report" that T.M. signed3and 

concluded trial counsel's "strategy is not an argument for ineffective assistance 

of counsel"; and that it would "not . . . rule on trial counsel's trial strategy as to 

 

3 The PCR court referred to the document as a "certification." Although the 

proper language for a certification in lieu of oath, in compliance with Rule 1:4-

4(b), appeared above T.M.'s signature, the investigator's report was not T.M.'s 

statement.
8

A-0119-18T4

its effectiveness." The PCR court determined the information in T.M's 

certification was "obtain[ed] through . . . defendant himself and [about] which 

. . . defendant could have testified to at trial."

Our de novo review of the "certification" leads us to conclude that 

defendant did not establish a prima facie case of ineffective assistance of trial 

counsel. T.M.'s "evidence" that allegedly impugned N.D.'s mother's credibility 

consisted of hearsay information from "a friend named George" about an affair 

N.D.'s mother was having and T.M.'s single observation of N.D.'s mother going 

into the home of the man with whom she was having the alleged affair. The 

report continues: "[T.M.] thinks that [N.D.'s mother] set up [defendant] when 

she began the affair and that she wanted his pension." It also reads: "[T.M.] 

thinks she is a scam artist and was using [defendant] because he made $60,000 

a year. She wanted to become a legal citizen and after she did she was trying to 

get [defendant] out of the picture."

The report does not establish the basis for any of T.M.'s "thoughts." 

Moreover, N.D.'s mother did not testify at trial. The information T.M. had, even 

if it was first-hand, was of no use to impeach someone who did not testify.

The report also provides that T.M. told the investigator "the babysitter, 

who twice accused [defendant] of molesting [N.D.,] was illegal and had tried to 
9

A-0119-18T4

extort $10,000 from [defendant] before reporting to police that she believed he 

was molesting [N.D. Defendant] refused to pay her." As the PCR court noted, 

unless T.M. witnessed the alleged extortion—and the record is barren of 

evidence that he did—the information was hearsay known to defendant alone. 

And, as the investigation report concedes, the "babysitter was found to be lying 

[three] or [four] times under" trial counsel's cross-examination. 

We also see little merit to defendant's contention that T.M., as a character 

witness, could have testified that defendant "had been around his children and 

other children and never had a problem." Defendant does not establish that those 

specific instances of conduct were admissible character evidence. See State v. 

Mondrosch, 108 N.J. Super. 1, 4-5 (App. Div. 1969); N.J.R.E. 405(a); N.J.R.E. 

608(a).

In similar circumstances, when a defendant avers his trial counsel should 

have called witnesses, we would normally expect a PCR court to 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)). Here, 
10 A-0119-18T4

however, defendant's proffered evidence does not establish a prima facie claim 

that trial counsel was ineffective if he did decline to call T.M. as a witness. As 

such, the PCR court did not err in denying an evidentiary hearing. R. 3:22-

10(b); State v. Preciose, 129 N.J. 451, 462-63 (1992).

Likewise, defendant failed to establish a prima facie claim that trial 

counsel failed to prepare him to testify at trial, which he did against trial 

counsel's advice. His claims that trial counsel failed to "discuss the State's 

witnesses or what evidence would be brought out on direct examination during 

the State's case," or how the State's witnesses would be cross-examined, even if 

true, had no bearing on his testimony. The State's witnesses had been presented 

before defendant testified and he well knew what they said. He also knew that 

N.D.'s mother was not going to testify. Moreover, his claims of ineffective 

preparation are devoid of any details as to what trial counsel failed to review; 

he makes only bald assertions. See State v. Cummings, 321 N.J. Super. 154, 

170 (App. Div. 1999) ("[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.").

We further note defendant's claims are belied by the record. The trial 

court had a frank discussion with defendant about testifying. Defendant made 
11 A-0119-18T4

clear that he had long planned to testify and he was doing so voluntarily. The 

court fully explained that defendant would be subject to cross-examination by 

the assistant prosecutor. The trial court asked defendant if he was going to 

testify "even after you spoke to [trial counsel], your attorney, you still want to 

do that[?]" Defendant answered affirmatively. He was sufficiently comfortable 

telling the trial court that he was not ready to testify that day because he heard 

for the first time that N.D.'s mother was not testifying; but at no time did 

defendant indicate that counsel had failed to communicate with him or prepare 

him for trial testimony. Defendant did not have to testify that day; other 

testimony was taken and counsel argued several matters. 

We also note defendant acquitted himself adequately on the stand. He 

explained why he previously admitted to police that he may have touched N.D. 

inappropriately, stating that he "was pretty buzzed, stoned" during the police 

interview, and that he never touched N.D. sexually. He testified that he touched 

N.D. during play and further countered the State's allegations by recounting 

instances when he had to tend to N.D.'s private parts when changing or cleaning 

her. He also offered reasons why false allegations were made. A review of 

defendant's testimony does not support his contention that he was "frightened 
12 A-0119-18T4

and nervous and . . . did not know what to expect." The evidentiary hearing was 

properly denied.

III.

We agree with defendant's contention that the PCR court made no findings 

of fact or conclusions of law regarding his argument that trial counsel failed to 

utilize records of the Division of Youth and Family Services (DYFS) showing 

that previous incidents of N.D.'s abuse were unfounded "to cross-examine the 

victim and the victim's mother." The court was required to address all 

arguments, and its failure to do so contravened Rule 3:22-11 which provides: 

"In making [a] final determination upon a [PCR] petition, the court shall state 

separately its findings of fact and conclusions of law[.]"

We decline to remand this matter because the DYFS records concerned 

allegations of neglect and physical abuse in 2007 that predated the sexual abuse 

alleged in the indictment. We see no basis for the admission of those records 

which document DYFS's findings that the allegations were unfounded because 

N.D., who DYFS noted was "delayed," was not able to tell the DYFS worker on 

either occasion how she received the marks on her body that precipitated the 

investigations. Given the standard used by DYFS for its findings, see N.J.A.C. 

3A:10-7.3; N.J. Div. of Child Prot. & Permanency v. V.E., 448 N.J. Super. 374, 
13 A-0119-18T4

388-89 (App. Div. 2017) (noting that an allegation of physical abuse is only 

considered "substantiated" or "established" if a preponderance of the evidence 

demonstrates that the child was subjected to death, serious bodily injury or other 

repeated instances of abuse as defined in N.J.S.A. 9:6-8.21) and the reason for 

those findings, the report—a hearsay document—was not relevant to N.D.'s 

credibility. Nor was it relevant to her mother's credibility; and, as noted, her 

mother did not testify.

IV.

The PCR court also made no findings of fact and conclusions of law 

regarding defendant's argument that appellate counsel was ineffective for failing 

to raise on appeal the assistant prosecutor's improper cross-examination of 

defendant about N.D.'s credibility. Despite the PCR court's lapse, we decline to 

remand this issue because the trial court sustained trial counsel's objections and 

explicitly instructed the jury, effectively curing any prejudice that stemmed 

from the improper cross-examination.

The assistant prosecutor asked defendant if it was correct that N.D. would 

have no reason to make up the allegations. The trial court sustained trial 

counsel's immediate objection, prior to defendant's answer. Following a sidebar 

conference, the trial court instructed the jury:
14 A-0119-18T4

The last question by the [p]rosecutor, folks, is to be 

completely discounted by you. One witness cannot 

vouch for the credibility of somebody else nor can the 

[p]rosecutor, very frankly, and it's up to you to decide

what the credibility is in this case of any witnesses that 

have testified. So bear that in mid. The last question 

posed by the [p]rosecutor is objected to. The objection

is sustained, and you're to discount it. Okay? 

Understand that? Good. 

The assistant prosecutor subsequently asked defendant if he wanted the jury "to 

believe that from a slight touch of your finger, your daughter told the police that 

you digitally penetrated her. Isn't that correct?" Again, the judge sustained trial 

counsel's immediate objection before defendant answered. And, when the 

assistant prosecutor asked defendant if it was correct that during her trial 

testimony, N.D. "said, you stuck your finger in her anus," the judge again 

sustained trial counsel's objection before defendant answered.

As trial counsel argued at sidebar, the assistant prosecutor was not 

permitted to ask one witness to assess another witness's credibility. State v. 

Bunch, 180 N.J. 534, 549 (2004); State v. Frisby, 174 N.J. 583, 594 (2002). 

Inasmuch as defendant did not answer the first set of questions,4and the trial 

court gave a curative instruction, which was repeated during defendant's cross-

 

4

 Defendant answered, "[n]o," when the assistant prosecutor asked defendant if 

he saw N.D. on video and on the witness stand indicate that he inserted his finger 

in her vagina. The judge's second instruction followed those questions.
15 A-0119-18T4

examination and the final jury charge—instructions the jury is presumed to have 

followed, State v. Burns, 192 N.J. 312, 335 (2007)—we do not determine the 

improper questioning led "to a verdict that could not otherwise be justly 

reached," see State v. Winter, 96 N.J. 640, 647 (1984). We thus see no merit in 

defendant's argument that appellate counsel was ineffective for failing to raise 

it.

V.

We determine defendant's remaining arguments are without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only 

that, although not addressed by the PCR court, his claim that appellate counsel 

was ineffective for failing to argue that the assistant prosecutor "was erroneously 

permitted to elicit from [a medical doctor inadmissible hearsay] that N.D. told 

her defendant had touched her genitalia and her anus with his finger," is 

meritless. We addressed the hearsay claim on direct appeal. We agreed with 

defendant's argument that the statement was inadmissible as a hearsay exception 

under N.J.R.E. 803(c)(4) as a statement made for purposes of medical diagnosis 

or treatment, but concluded its admission was harmless error because it "did not 

provide the jury with new information it would have otherwise not been able to 

consider."
16 A-0119-18T4

Affirmed.