RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0725-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.T.K.,

Defendant-Appellant.

_______________________

Submitted January 20, 2021 – Decided March 15, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Salem County, Indictment No. 13-08-0451.

Joseph E. Krakora, Public Defender, attorney for 

appellant (John J. Bannan, Designated Counsel, on the 

brief).

John T. Lenahan, Salem County Prosecutor, attorney 

for respondent (David Galemba, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant appeals from a June 6, 2019 order denying his petition for postconviction relief (PCR) after oral argument but without an evidentiary hearing. 

He contends that his trial counsel was ineffective and that, at a minimum, he 

was entitled to an evidentiary hearing. We disagree and affirm.

I.

Defendant was charged with repeatedly sexually assaulting his daughter 

over a four-year period when the daughter was between the ages of seven and 

eleven. A jury convicted defendant of two counts of first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a); 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). 

At trial, the State presented evidence from numerous witnesses, including 

the victim and a detective who had interviewed the victim. The detective also

collected carpet samples from the location where the victim claimed that 

defendant had forced her to perform oral sex and then spit his semen. The State 

had also presented expert testimony concerning the Child Sexual Abuse

Accommodation Syndrome (CSAAS). Defendant elected not to testify and 

called no witnesses. 
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Following the jury verdict, defendant was sentenced to an aggregate 

prison term of twenty-two years, with over fourteen years of parole ineligibility 

as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was 

also sentenced to parole supervision for life, required to comply with registration 

and reporting restrictions as prescribed by Megan's Law, N.J.S.A. 2C:7-1 to -11,

and prohibited from having contact with the victim as prescribed by Nicole's 

Law, N.J.S.A. 2C:44-8. 

On direct appeal, we affirmed defendant's convictions but remanded for

resentencing so the trial court could explain the reasons for the consecutive 

sentence. State v. R.K., No. A-3540-14 (App. Div. Dec. 1, 2017) (slip op. at 

15). Thereafter, the trial court resentenced defendant and imposed the same 

aggregate prison term. In May 2018, the Supreme Court denied defendant's 

petition for certification. State v. R.K., 235 N.J. 402 (2018).

In January 2019, defendant filed a petition for PCR. He was assigned 

counsel, and the PCR court heard oral argument. On July 6, 2019, the PCR court 

denied defendant's petition and issued a written opinion explaining the reasons 

for the denial. In that opinion, the court reviewed all the arguments presented 

by PCR counsel, as well as defendant, analyzed those arguments, and 

determined that defendant had failed to establish a prima facie showing of 
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ineffective assistance of counsel. Accordingly, the PCR court also denied 

defendant's request for an evidentiary hearing.

II.

On this appeal, defendant contends that the PCR court erred in denying 

his petition and denying him an evidentiary hearing. He contends that his trial 

counsel was ineffective for four different reasons, which also had a cumulative 

effect of denying him his right to effective counsel. Specifically, defendant 

articulates his arguments as follows:

POINT I – BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR PCR.

(A) Legal Standards Governing Applications For PostConviction Relief.

(B) Trial Counsel Failed to Object to the CSAAS 

Expert Witness Testimony and Failed to Object to the 

Reliability of the Social Science Supporting Her 

Explanation.

(C) Trial Counsel Failed to Conduct Investigation and 

Prepare for Trial, Including Plea Negotiations.

(D) Trial Counsel Failed to Appropriately CrossExamine K.K. and Retain an Expert on the Issue of 

Discolored Semen.

(E) Trial Counsel Failed to Object to Detective Hill's 

Hearsay Regarding DNA in the Marital Bedroom.
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(F) The Cumulative Errors by Trial Counsel Results in 

Violation of Petitioner's Sixth Amendment Right to 

Effective Counsel.

POINT II – BECAUSE THERE ARE GENUINE 

ISSUES OF MATERIAL FACT IN DISPUTE, THE 

PCR COURT ERRED IN DENYING AN 

EVIDENTIARY HEARING.

(A) Legal Standards Governing Post-Conviction Relief 

Evidentiary Hearings.

(B) Petitioner is Entitled to an Evidentiary Hearing.

Where, as here, the PCR court has not conducted an evidentiary hearing, 

legal and factual determinations are reviewed de novo. State v. Harris, 181 N.J. 

391, 419 (2004). The decision to proceed without an evidentiary hearing is 

reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013). 

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

satisfy the two-part Strickland test: (1) "counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment[,]" and (2) "the deficient performance prejudiced the 

defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. 

Fritz, 105 N.J. 42, 57-58 (1987). On petitions brought by a defendant who has 

entered a guilty plea, a defendant satisfies the first Strickland prong if he or she 
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can show that counsel's representation fell short of the prevailing norms of the

legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010). Defendant 

proves the second component of Strickland by establishing "a reasonable 

probability that" defendant "would not have pled guilty," but for counsel's 

errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. NunezValdez, 200 N.J. 129, 139 (2009)).

1. The CSAAS Expert

Defendant contends that his trial counsel was ineffective for failing to 

object to the State's CSAAS expert and the testimony concerning CSAAS. We 

reject this argument because defendant cannot establish either prong of the 

Strickland test.

Defendant was tried in 2014. At that time, "[t]he use of [CSAAS] expert

testimony [was] well settled." State v. W.B., 205 N.J. 588, 609 (2011). Our 

Supreme Court had first accepted and authorized the use of CSAAS experts 

almost twenty years earlier. See State v. J.Q., 130 N.J. 554, 579 (1993). In J.Q., 

the Court held that CSAAS testimony was sufficiently reliable to permit the 

State to present expert testimony to "explain why many sexually abused children

delay reporting their abuse, and why many children recant allegations of abuse 
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and deny that anything occurred." Ibid. (quoting John E. B. Myers et al., Expert 

Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 67-68 (1989)). 

In July 2018, however, the Court changed the law and concluded "it is no 

longer possible to conclude that CSAAS has a sufficiently reliable basis in

science to be the subject of expert testimony." State v. J.L.G., 234 N.J. 265, 272 

(2018). Consequently, the Court ruled that expert testimony about CSAAS and 

four of its component behaviors could no longer be admitted at criminal trials. 

Id. at 303. Two years later, the Court clarified that its holding in J.L.G. would 

be afforded only pipeline retroactively and, consequently, only applied to cases 

that were pending appeal in July 2018, when the J.L.G. decision was issued. 

State v. G.E.P., 243 N.J. 362, 370, 389 (2020). 

The new rule of law announced in J.L.G. is not applicable to defendant 

because he had exhausted his direct appeal when the Supreme Court denied his 

petition for certification in May 2018, more than two months before the J.L.G.

decision was issued in July 2018. Consequently, his trial counsel was not 

ineffective in failing to challenge the CSAAS expert. "[T]here cannot be a 

cognizable ineffective assistance claim when there is not yet a recognizable legal 

basis for the motion that defendant says should have been made." Harris, 181 

N.J. at 436. Trial counsel's performance is measured by "the law as it stood at 
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the time of counsel's actions, not as it subsequently developed." State v. 

Goodwin, 173 N.J. 583, 597 (2002) (citing State v. Fisher, 156 N.J. 494, 501 

(1998)).

Moreover, defendant can establish no prejudice. Had his trial counsel 

filed a motion to preclude the CSAAS expert, the trial court would have been 

compelled to deny that motion because the governing law at that time permitted 

CSAAS expert testimony as prescribed by our Supreme Court.

2. Trial Counsel's Alleged Failure to Conduct Investigations and 

Prepare for Trial

Defendant also contends that his trial counsel was ineffective in his 

investigation, preparation for trial, and plea negotiations. We reject these

arguments for two reasons.

Defendant did not raise the arguments concerning plea negotiations before 

the PCR court. Accordingly, we decline to consider this new argument on 

appeal. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012)

(recognizing the well-settled principle that appellate courts will generally 

decline to consider questions raised for the first time on appeal unless the 

questions involve the trial court's jurisdiction or matters of great public interest).

Defendant's additional arguments concerning failure to prepare for trial 

and conduct investigations are conclusory and lack any evidential support. 
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Those unsupported allegations are insufficient to establish a prima facie

showing of ineffective assistance of counsel. See State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999) (to raise a successful claim, a defendant must 

make more than mere "bald assertions" of ineffective assistance).

3. Trial Counsel's Alleged Failure to Appropriately Cross-Examine the 

Victim and Retain an Expert on the Issue of the Color of Defendant's 

Semen

At trial, the victim testified that "greenish clear yellowish stuff" would 

come out of defendant's penis. Defendant now contends that his trial counsel 

was ineffective for not appropriately cross-examining the victim on that 

testimony and for failing to retain an expert to testify that discolored semen is 

attributable to various physical conditions that defendant did not have.

Defendant's argument about cross-examining the victim depends on the 

related argument of having an expert who could testify concerning the color of 

defendant's semen. Without expert testimony, cross-examining the victim 

would not have been a strategically wise tactic. Defendant's argument, 

therefore, fails because he presented no evidence of what an expert would have 

testified or whether such an expert could have testified. Defendant must do 

more than make an unsupported assertion if he claims that there needed to be 

expert testimony. He must present either a proposed expert report or evidence 
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of what a report would have reflected. See State v. Petrozelli, 351 N.J. Super. 

14, 23 (App. Div. 2002) (citing Cummings, 321 N.J. Super. at 170) (defendant 

must provide facts that could have been revealed by exculpatory witness, 

supported by affidavits or certifications based on personal knowledge). 

Defendant failed to provide any support for his arguments and, therefore, he has 

not established a prima facie showing of ineffective assistance of counsel.

4. Trial Counsel's Failure to Object to the Testimony by the Detective

Defendant claims that trial counsel was ineffective in failing to object to 

testimony by the detective who testified about what the victim told him. We 

discern no error or prejudice. 

Even if counsel had made an objection, it is not clear that the testimony

was hearsay because it was not necessarily offered for the truth of the matter. 

N.J.R.E. 801(c). Without an objection, that issue was not properly developed at 

trial and we are left to speculate as to what may have happened. In addition, 

defendant has made no showing that without the detective's testimony, the 

State's case would have been weakened. The State presented strong and 

compelling evidence of defendant's crimes, including testimony from the victim 

and corroborating DNA evidence. Therefore, defendant cannot establish the 

second prong of the Strickland test.
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5. Alleged Cumulative Errors

The cumulative effect of trial errors can merit reversal when they "cast[] 

doubt on the fairness of defendant's trial and on the propriety of the jury verdict 

that was the product of that trial." State v. Jenewicz, 193 N.J. 440, 447 (2008). 

Accordingly, reversal can be justified when the cumulative effect of a series of 

errors is harmful, even if each error by itself is harmless. Ibid. Having found 

no ineffective assistance of counsel, we discern no cumulative error. 

6. The Denial of an Evidentiary Hearing

Finally, we reject defendant's contention that he was entitled to an 

evidentiary hearing. A petitioner is not automatically entitled to an evidentiary 

hearing. State v. Porter, 216 N.J. 343, 355 (2013). The PCR judge should grant 

an evidentiary hearing only "if a defendant has presented a prima facie claim in 

support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). 

Here, defendant failed to make that showing and he was not entitled to an 

evidentiary hearing.

Affirmed.