RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1475-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.F.,

Defendant-Appellant.

________________________

Argued February 3, 2022 – Decided February 16, 2022

Before Judges Haas and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 10-03-0312.

Allan Marain argued the cause for appellant.

Michele C. Buckley, Assistant Prosecutor, argued the 

cause for respondent (William A. Daniel, Union County 

Prosecutor, attorney; Albert Cernadas, Jr., Assistant 

Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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-1475-20

Defendant G.F.1 appeals from the December 22, 2020 Law Division order 

denying his petition for post-conviction relief (PCR) without an evidentiary 

hearing. We affirm. 

A Union County grand jury charged defendant in an eight-count 

indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2) 

(count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3) (count two); 

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); seconddegree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count four); third-degree 

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count five); two counts 

of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts six and 

seven); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a) (count eight). State v. G.F., No. A-2198-12 (App. Div. June 2, 2014) (slip 

op. at 1-2). "The charges resulted from allegations that defendant engaged in 

repeated instances of sexual conduct with his daughter[, S.F.]." Id. at 2.

S.F. testified that defendant sexually assaulted her numerous times while 

she "was between ages thirteen and sixteen." Ibid. S.F. stated "defendant 

initially touched her breasts and vaginal area three to four times, and that the 

1

 We use initials to identify defendant and the victim pursuant to Rule 1:38-

3(c)(9).
3 A-1475-20

abuse then progressed to sexual intercourse on approximately thirty occasions." 

Ibid.

After S.F. disclosed the assaults to her family, she "agreed to participate 

in [several] consensual intercept telephone call[s] with defendant, that the police 

simultaneously recorded." Id. at 4-6. The State played these calls to the jury at 

the trial. Ibid.

The State also presented the testimony of a psychologist, Susan Cohen 

Esquilin. Esquilin testified as an expert in the areas of child sexual abuse and 

Child Sexual Abuse Accommodation Syndrome (CSAAS), which "describe[s] 

traits found in victims of such abuse to aid jurors in evaluating specific 

defenses." State v. G.E.P., 243 N.J. 362, 369 (2020) (quoting State v. J. Q., 130 

N.J. 554, 556 (1993)).

The jury convicted defendant of all eight counts of the indictment. G.F., 

(slip op. at 1-2). The trial court sentenced defendant to an aggregate twentythree-year prison term, subject to an eighty-five percent period of parole 

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

June 2, 2014, we affirmed defendant's conviction and sentence. Id. at 7.

Defendant filed a PCR petition and raised two contentions. First, 

defendant argued his trial attorney provided him with ineffective assistance 
4 A-1475-20

because he did not make a motion to suppress the recorded telephone calls the 

State obtained through the consensual intercepts. According to defendant, there 

was no evidence in the record that the intercepts were authorized by the Attorney

General, the county prosecutor, or their designees as required by N.J.S.A. 

2A:156A-4(c).2

 

In response, the State submitted a copy of a November 23, 2009 

Consensual Interception Authorization form signed by the Union County First 

Assistant Prosecutor, who advised the court at oral argument on defendant's PCR 

petition that he was the prosecutor's designee for such matters and had 

authorized the intercepts involved in this case. Defendant presented no evidence 

or certifications disputing the accuracy of the form and, therefore, the trial court 

2

 Under the New Jersey Wiretapping and Electronic Surveillance Control Act, 

N.J.S.A. 2A:156A-1 to -37, it is not unlawful for 

"[a]ny person acting at the direction of an investigative 

or law enforcement officer to intercept a[n] . . . oral 

communication, where such person is a party to the 

communication . . . provided, however, that no such 

interception shall be made without the prior approval of 

the Attorney General or his designee or a county 

prosecutor or his designee[.]" 

[N.J.S.A. 2A:156A-4(c).]
5 A-1475-20

rejected defendant's contention that his trial attorney should have challenged the 

admissibility of the recorded calls.

Defendant's second contention concerned the admission of the CSAAS 

testimony at trial. On July 31, 2018, our Supreme Court held that CSAAS 

evidence "no longer . . . has a sufficiently reliable basis in science to be the 

subject of expert testimony[,]" and limited such testimony to "only one aspect 

of the theory -- delayed disclosure -- because scientists generally accept that a 

significant percentage of children delay reporting sexual abuse." State v. J.L.G., 

234 N.J. 265, 272 (2018). The Court applied this new rule to the defendant in 

the J.L.G. case and found that the admission of the CSAAS evidence was 

harmless error "in light of overwhelming proof of [the] defendant's guilt." Id.

at 308. However, the Court did not determine whether its decision should apply 

retroactively to any other defendants. G.E.P., 243 N.J. at 385-86.

In his January 27, 2020 PCR petition, defendant argued that based upon 

the new rule the Supreme Court established in J.L.G., the admission of Esquilin's 

CSAAS testimony deprived him of his constitutional right to a fair trial. 

However, on August 5, 2020, our Supreme Court rendered its decision in G.E.P., 

which held that its July 31, 2018 ruling in J.L.G. would only have "'pipeline 

retroactivity,' rendering it applicable in all future cases, the case in which the 
6 A-1475-20

rule [was] announced, and any cases still on direct appeal" on the date of its 

decision. G.E.P., 243 N.J. at 386, 388-89.

In its oral decision, the trial court found that Esquilin's testimony 

comported with the rules governing CSAAS testimony at the time of defendant's 

trial in 2012. Because defendant exhausted his direct appeal rights in this case 

on June 2, 2014, G.F., (slip op. at 1), the court concluded that the new J.L.G.

rule barring this testimony did not retroactively apply to defendant. 

Accordingly, the court denied defendant's PCR petition.

On appeal, defendant raises the same contentions he unsuccessfully 

presented to the trial court. Defendant argues:

POINT ONE

THE STATE RELIED UPON INADMISSIBLE 

CONSENSUAL OVERHEAR EVIDENCE THAT 

TRIAL COUNSEL FAILED TO CHALLENGE.

A. CONSENSUAL OVERHEAR EVIDENCE IS 

ADMISSIBLE ONLY WHEN PARTICULAR 

CONDITIONS ARE MET.

B. THE PROOFS FAIL TO ESTABLISH 

SATISFACTION OF THE REQUIRED 

CONDITIONS.
7 A-1475-20

POINT TWO

THE STATE'S RELIANCE UPON UNRELIABLE 

CSAAS EVIDENCE CONSTITUTED A DENIAL OF 

DUE PROCESS.

A. THE CSAAS EVIDENCE SHOULD HAVE 

BEEN EXCLUDED UNDER STATE LAW.

B. THE CSAAS EVIDENCE DENIED 

[DEFENDANT] DUE PROCESS UNDER THE 

UNITED STATES CONSTITUTION.

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).

The mere raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing and the defendant "must do more than make bald assertions 

that he was denied the effective assistance of counsel." State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant 

evidentiary hearings and make a determination on the merits only if the 

defendant has presented a prima facie claim of ineffective assistance, material 

issues of disputed facts lie outside the record, and resolution of the issues 
8 A-1475-20

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). 

We review a judge's decision to deny a PCR petition without an evidentiary 

hearing for abuse of discretion. Preciose, 129 N.J. at 462.

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

defendant must 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). There is a strong presumption that counsel "rendered 

adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment." Strickland, 466 U.S. at 690. Further, 

because prejudice is not presumed, Fritz, 105 N.J. at 52, the defendant must 

demonstrate "how specific errors of counsel undermined the reliability" of the 

proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

Where, as here, a defendant asserts his attorney was ineffective by failing 

to file a motion, he must establish that the motion would have been successful. 

"It is not ineffective assistance of counsel for defense counsel not to file a 

meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007).

Applying these standards, we affirm the denial of defendant's PCR 

petition substantially for the reasons detailed at length in the trial judge's oral 
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opinion. We discern no abuse of discretion in the court's consideration of the

issues, or in its decision to deny the petition without an evidentiary hearing.

The court correctly rejected defendant's claim that his trial attorney should 

have filed a motion to suppress the recorded telephone conversations because 

the State did not obtain the required authorization for the consensual intercepts. 

The State submitted the November 23, 2009 Consensual Interception 

Authorization form signed by the Union County prosecutor's designee. 

Therefore, a motion to suppress the recordings would not have succeeded. Ibid. 

Defendant speculates it was possible the prosecutor may have "intend[ed] 

to designate" his first assistant for this role but "then neglect[ed] to consummate 

the designation[,]" or that the designation may have expired sometime before 

the date the first assistant authorized the intercepts. However, a defendant must 

establish the right to PCR by a preponderance of the evidence, Preciose, 129 

N.J. at 459, and must present facts "supported by affidavits or certifications 

based upon the personal knowledge of the affiant or the person making the 

certification." Cummings, 321 N.J. Super. at 170. Here, defendant presented 

no first-hand certifications concerning his allegation that the intercepts were not 

properly authorized. Thus, defendant's unsupported contentions were classic 

"bald assertions" that did not warrant an evidentiary hearing or PCR relief. Ibid. 
10 A-1475-20

Finally, defendant exhausted his rights on direct appeal on June 2, 2014, 

over four years before the Supreme Court's July 31, 2018 decision in J.L.G. 

Therefore, the new rule the Court established in that case, which barred CSAAS 

testimony in specified circumstances, plainly did not apply to defendant. Under 

these circumstances, the trial court properly determined that the admission of 

the CSAAS testimony at defendant's trial in 2012 did not deprive him of his 

constitutional right to a fair trial.

Affirmed.