RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3412-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.J.M.-G.,1

Defendant-Appellant.

Submitted October 13, 2020 - Decided

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 13-02-

0305.

J.Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief). 

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (David M. Liston, Assistant 

Prosecutor, of counsel and on the brief).

1 We use the parties' initials to protect victim's privacy. R. 1:38-3(d)(10).

NOT FOR PUBLICATION WITHOUT THE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.

December 16, 2020
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PER CURIAM

Defendant C.J.M.-G. appeals from a February 19, 2019 order denying his 

petition for post-conviction relief (PCR). We affirm. 

A jury convicted defendant 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). The trial court sentenced defendant to a term of ten years in prison 

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second-degree 

sexual assault, and a concurrent term of five years on the second-degree 

endangering the welfare of a child. 

We affirmed defendant's conviction and sentence on direct appeal. State 

v. C.J.M.-G, No. A-0820-15 (App. Div. July 6, 2017). The facts and evidence

were discussed in detail in our opinion and need not be repeated here. In 

summary, defendant was accused of sexually assaulting his seven-year-old 

stepdaughter, L.L., which she reported to a relative in 2012. 

At trial, L.L. testified regarding the sexual assault. The State also 

presented testimony from four witnesses who recounted what L.L. told them 

about defendant's conduct. All four statements were deemed admissible under 

the tender years hearsay exception, N.J.R.E. 803(c)(27). Three of the witnesses 

testified to the abuse that occurred in 2012, while L.L.'s mother, T.L., testified 
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to an incident of sexual assault that allegedly occurred in Maryland in 2009. The 

State also introduced into evidence L.L.'s taped police interview in which she 

described the sexual assault and defendant's taped interrogation and subsequent 

confession. 

On direct appeal, defendant raised the following issues:

POINT I: THE PREJUDICIAL EFFECT OF 

CUMULATIVE, REPETITIOUS TESTIMONY 

ADMITTED PURSUANT TO N.J.R.E. 803(c)(27) 

DENIED DEFENDANT A FAIR TRIAL AND 

REQUIRES REVERSAL OF THE CONVICTIONS

POINT II: THE MAXIMUM 10-YEAR NERA 

SENTENCE FOR A SECOND-DEGREE OFFENSE IS 

MANIFESTLY EXCESSIVE AND SHOULD BE 

REDUCED

We addressed and rejected both arguments. We concluded that the trial 

judge properly exercised her discretion in admitting the corroborative statements 

under Rule 803(c)(27). In addition, we upheld defendant's sentence because it 

was supported by adequate evidence in the record. 

Defendant filed a subsequent PCR petition, asserting trial counsel failed 

to adequately investigate and interview witnesses and that both trial and 

appellate counsel failed to raise the proper objection to T.L.'s testimony. In an 

oral opinion issued on February 19, 2019, the PCR judge rejected defendant's

arguments. The judge noted that even if defendant received deficient 
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representation, he failed to show how it would have altered the outcome of the 

trial and appeal. In addition, the judge noted that defendant failed to support his 

inadequate investigation claim with the proper certifications or affidavits. 

Before this court, defendant presents the following issues:

POINT I: THIS MATTER MUST BE REMANDED 

FOR AN EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF COUNSELS' INEFFECTIVENESS

A. Trial and Appellate Counsel Failed 

to Challenge The 2009 Maryland Incident 

as Other-Crimes Evidence 

B. Trial Counsel Failed to Conduct an 

Adequate Investigation

A. 

The standard for determining whether trial counsel's performance was 

ineffective for purposes of the Sixth Amendment was 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). To prevail on a claim of ineffective 

assistance of counsel, defendant must meet the two-pronged test establishing 

that: (1) counsel's performance was deficient and he or she made errors that were 

so egregious that counsel was not functioning effectively as guaranteed by the 

Sixth Amendment to the United States Constitution; and (2) the defect in 
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performance prejudiced defendant's right to a fair trial such that there exists a 

"reasonable probability that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different." Strickland, 466 U.S. 687, 694. 

We begin by addressing defendant's argument that he received ineffective 

assistance of counsel because trial and appellate counsel did not challenge T.L.'s 

testimony under N.J.R.E. 404(b). 

In 2009, defendant, T.L., and L.L. resided in a rooming house in 

Maryland. L.L. told a fellow tenant named Guadalupe that defendant was 

sexually abusing her. After Guadalupe relayed this information to T.L., she

confronted her daughter about the abuse. L.L. said she did not tell T.L. about 

the incidents because defendant threatened to cut out her tongue. T.L. stated 

she did not report the abuse to the police because she was financially dependent 

on defendant. 

When the State sought to introduce T.L.'s testimony at trial under Rule 

803(c)(27), defense counsel objected, arguing it was unreliable and highly 

prejudicial. After a hearing, as stated, the trial court permitted T.L.'s testimony

under the tender years exception. 

In considering defendant's PCR petition, the PCR court noted trial counsel 

only objected to T.L.'s testimony as inadmissible under Rule 803(c)(27).
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However, even if counsel had raised Rule 404(b) as an additional ground for 

excluding the testimony, the PCR judge determined it would not have changed 

the outcome. He stated: 

Even if these statements were excluded under 404(b), 

the State presented other evidence sufficient to support 

the charges for which the defendant was convicted. 

Defendant was not charged with the assault alleged to 

have occurred in 2009. The more relevant testimony 

related to the 2012 assaults. L.L.'s statements to her 

doctor and her family, as well as her recorded statement 

to police, supported those charges. She also testified at 

trial. The statements that potentially implicate 404(b) 

were used to establish context in a timeline of events. 

There is no indication that the outcome of the finished 

trial would have changed if these particular statements 

were excluded. 

We recognize an analysis under Rule 404(b) is more stringent than the 

Rule 403 balancing factors considered by the trial judge in determining the 

availability of the tender years exception following a Rule 104 hearing. Under 

Rule 403, a trial court has the discretion to exclude evidence if it finds the 

prejudicial value of the evidence substantially outweighs its probative value. 

State v. D.G., 157 N.J. 112, 128 (1999). However, under Rule 404(b), "[t]he 

probative value of the evidence must not be outweighed by its apparent 

prejudice." State v. Cofield, 127 N.J. 328, 338 (1992). 
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Here, trial counsel might have been successful in excluding the evidence 

under Rule 404(b) and a Cofield analysis had the trial court found the probative 

value of the proffered testimony was outweighed by its prejudice. However, 

defendant did not establish the second Strickland prong – how the result of the 

trial and direct appeal would have been different. If the evidence had been 

excluded, as the PCR court correctly noted, there was ample other evidence to 

support the jury's finding of guilt.

B. 

An ineffective assistance of counsel claim may occur when counsel fails 

to conduct an adequate pre-trial investigation. State v. Porter, 216 N.J. 343, 

352-53 (2013). Our Supreme Court has stated: 

[i]f counsel thoroughly investigates law and facts, 

considering all possible options, his or her trial strategy 

is virtually unchallengeable. But strategy decisions 

made after less than complete investigation are subject 

to closer scrutiny. Indeed, counsel has a duty to make 

reasonable investigations or to make a reasonable 

decision that makes particular investigations 

unnecessary. A failure to do so will render the lawyer's 

performance deficient.

[State v. Savage, 120 N.J. 594, 617-18 (1990) (internal 

quotations omitted).]

To establish a prima facie claim, defendant must do more than make bald 

assertions that he was denied the effective assistance of counsel. State v. 
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Cummings, 321 N.J. Super. 154, 170 (1999). Defendant must allege facts 

sufficient to demonstrate counsel's alleged substandard performance. Ibid. 

When a defendant claims his trial attorney inadequately investigated the case, 

he must assert the facts that an investigation would have revealed, supported by 

affidavits or certifications based upon the personal knowledge of the affiant or 

the person making the certification. Ibid. 

In support of his application, defendant certified the following:

On November 20, 2012, my day off, I went to Trenton 

to visit my child and my former girlfriend. I left New 

Brunswick at around 6:30 a.m. When I left the 

apartment, [T.L] was there. I told my lawyer the name 

of my former girlfriend, Christina, but she was not 

called to testify.

During the rest of Thanksgiving week, several people 

were staying in the apartment with us. The apartment 

was very crowded. I gave the names of the people who 

were staying with us that week to my lawyer as well. 

In addition, defendant produced an investigator's report that included 

interviews with Christina Pelaez. The report states:

Ms. Christina Pelaez stated that she was never 

contacted by defense counsel, or law enforcement with 

questions about this case. Ms. Pelaez learned about the 

case by corresponding with the client, [C.J.M.-G.]. Ms. 

Pelaez stated that she would not have been against 

being interviewed had she been contacted. 

. . . . 
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Ms. Christina Pelaez recalls that [C.J.M.-G.] visited her 

during the week of Thanksgiving in 2012. Ms. Pelaez 

stated that it was either the Monday or Tuesday of 

Thanksgiving week of 2012. Ms. Pelaez cannot 

remember the exact time of arrival but stated that 

[C.J.M.-G.] arrived at her house in the morning. Ms. 

Pelaez remembers the visit because she gave [C.J.M.-

G.] a picture of their son during that particular visit. 

Further investigation reports submitted in support of defendant's PCR

petition stated that three prospective defense witnesses tendered by defendant 

could not be located. 

In rejecting defendant's inadequate investigation claim, the PCR judge 

stated: 

The defendant filed a certification from one potential 

. . . witness. . . . She certifies that the defendant visited 

her in Trenton on the Monday or Tuesday of the week 

of Thanksgiving in 2012. [The victim] accused the

defendant of committing the assaults during that week 

as well. This witness's version of facts does not provide 

an alibi for the defendant. Even if he were in Trenton 

at some point during the week, he would also have spent 

time in New Brunswick with [the victim]. It is not 

unreasonable for defense counsel to conclude that this 

witness would not have benefited [at] trial, and chosen 

not to pursue that line of investigation.

The defendant does not present affidavits or 

certification from the other witnesses he argues should 

have been interviewed in preparation for trial. The 

remaining witnesses allegedly include his downstairs

neighbor, and several house guests. The defendant's 
10 A-3412-18T1

investigator reported he could not make contact with 

the other potential witnesses. It is unclear how these 

witnesses could account for every moment of the 

defendant's every day during the time period in 

question. Defendant's own assertion that the witnesses

would have told his attorney and the jury that defendant 

had never been alone with the victim is insufficient to 

support his claim of failure to investigate. The 

defendant therefore has not shown that his trial 

counsel's decision not to interview and present these 

witnesses at trial constituted deficient representation.

Even if the [c]ourt[] accept[s] that these witnesses 

would have testified to those facts, there is no 

indication that this proposed testimony would have 

benefited the defendant at trial. 

We discern no error in the court's determination.

Because defendant did not present a prima facie case of ineffective 

assistance of counsel, he was not entitled to an evidentiary hearing. 

Affirmed.