State of New Jersey v. D.C.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1050-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.C.W.,

Defendant-Appellant.

________________________

Submitted June 3, 2025 – Decided July 1, 2025

Before Judges Gilson and Augostini.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Indictment No. 12-08-

1141.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Steven E. Braun, Designated Counsel, on the

brief).

Yolanda Ciccone, Middlesex County Prosecutor,

attorney for respondent (Anthony J. Robinson,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an October 23, 2023 order denying his petition

requesting a new trial and for post-conviction relief (PCR). 1 He asserts that the

State committed a Brady2 violation by withholding notes from a detective. He

also argues that counsel on his direct appeal was ineffective in not raising the

alleged Brady violation. Because there is no evidence that the notes existed or

that the State withheld any relevant information, we reject defendant's argument

for a new trial. We also reject defendant's second argument because prior

appellate counsel did not provide ineffective assistance in failing to raise an

argument about a non-existent Brady violation. We, therefore, affirm the

October 23, 2023 order.

I.

A jury found defendant guilty of sexually assaulting two of his daughters

and his step-niece. All three victims testified at trial and detailed the sexual

assaults defendant perpetrated against them when they were minors.

The jury convicted defendant of nine crimes, including first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a); two counts of second-degree

1

We use initials to identify defendant and others to protect the identities of the

victims. See R. 1:38-3(c)(9), (12).

2

Brady v. Maryland, 373 U.S. 83 (1963).

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sexual assault of victims who were under the age of thirteen, N.J.S.A. 2C:14-

2(b); two counts of second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a); and third-degree endangering the welfare of a child by having sexual

contact with the child, N.J.S.A. 2C:24-4(a)(1).

Defendant was sentenced to an aggregate term of thirty years in prison,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. He was also ordered

to register and report as required by Megan's Law, N.J.S.A. 2C:7-1 to -23. In

addition, he was ordered to pay $25,000 in restitution.

Defendant filed a direct appeal challenging his convictions, sentence, and

restitution. We affirmed his convictions and sentence. State v. D.C.W., No. A-

5701-16 (App. Div. May 28, 2019) (slip op. at 32). We vacated the restitution

award and remanded for an ability-to-pay hearing. Ibid.

On remand, the trial court entered a modified judgment of conviction

imposing the same sentence but reducing the restitution from $25,000 to $4,800.

Thereafter, the New Jersey Supreme Court denied defendant's petition for

certification. State v. D.C.W., 240 N.J. 157 (2019).

In May 2023, defendant, represented by counsel, filed a PCR petition. In

his supporting brief, defendant alleged the State had withheld evidence in

violation of Brady. Defendant contended that a statement made by B.W., one

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of the victims, suggested that there might have been a Brady violation. During

an interview with an investigative detective, B.W. had stated that she "talk[ed]

. . . about [the sexual assaults] with Detective Jones." Defendant pointed out

that Detective Jones had denied interviewing B.W. about the sexual assaults.

Instead, Detective Jones had testified "I didn't speak to [B.W.] regarding the

allegations." Based on those inconsistent statements, defendant asserts that

Detective Jones may have questioned B.W. about the sexual assaults. Defendant

then assumes that Detective Jones created notes or that there may be a recording

of the alleged interview of B.W. Finally, defendant contends the State failed to

produce those notes or the recording in violation of his rights under Brady.

On October 23, 2023, the PCR judge heard oral arguments and then denied

defendant's petition without an evidentiary hearing. That same day, the PCR

court issued an order memorializing its ruling.

The PCR judge explained the reasons for his denial of the request for a

new trial and the PCR petition on the record. The judge found that there was no

evidence that the State had committed a Brady violation because there was no

evidence that Detective Jones had interviewed B.W. regarding the sexual

assaults or that the detective had prepared notes regarding the alleged interview.

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The PCR judge also found that defendant had not alleged specific facts

that would support granting him a new trial. In that regard, the judge evaluated

defendant's arguments under State v. Ways, 180 N.J. 171, 187 (2004). The judge

reasoned that defendant did not establish that Detective Jones had interviewed

B.W. The judge also found that defendant had not established how the interview

would have "rais[ed] a reasonable doubt as to the defendant's guilt."

Accordingly, the PCR judge concluded that defendant was "theorizing that . . .

exculpatory evidence . . . exist[ed]" and was "speculat[ing]" regarding the

probable impact of that assumed evidence. Additionally, the PCR judge

concluded that the inconsistent statements by B.W. and Detective Jones were

not "newly discovered" because those statements could have been discovered

before defendant's trial.

Defendant now appeals from the denial of his petition for a new trial and

for PCR without an evidentiary hearing.

II.

On this appeal, defendant makes two arguments, which he articulates as

follows:

POINT I – DEFENDANT IS ENTITLED TO A NEW

TRIAL BECAUSE OF THE FAILURE OF THE

STATE TO PRODUCE ALL DISCOVERY; THUS,

THE STATE COMMITTED A BRADY VIOLATION.

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IN ADDITION, THE PCR COURT ERRED BY

APPLYING THE ERRONEOUS NEWLY

DISCOVERED EVIDENCE TEST RATHER THAN

THE APPROPRIATE TEST FOR A BRADY

VIOLATION.

POINT II – APPELLATE DEFENSE COUNSEL WAS

INEFFECTIVE BY FAILING TO RAISE THE

BRADY ISSUE ON DIRECT APPEAL.

When a PCR court does not conduct an evidentiary hearing, appellate

courts review the denial of a PCR petition de novo. State v. Harris, 181 N.J.

391, 420-21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div.

2020). The PCR court's decision to proceed without an evidentiary hearing is

reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623

(App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.

2013)).

A. The Alleged Brady Violation.

The State has an affirmative obligation to disclose all evidence potentially

favorable to a defendant. See Kyles v. Whitley, 514 U.S. 419, 432 (1995); State

v. Hyppolite, 236 N.J. 154, 165 (2018). In Brady v. Maryland, the United States

Supreme Court held that the prosecution's "suppression . . . of evidence

favorable to an accused . . . violates due process where the evidence is material

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either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution." 373 U.S. at 87; accord State v. Carter, 91 N.J. 86, 110 (1982).

The New Jersey Supreme Court has explained that three elements must be

established to prove a Brady violation: "(1) the evidence at issue must be

favorable to the accused, either as exculpatory or impeachment evidence; (2) the

State must have suppressed the evidence, either purposely or inadvertently; and

(3) the evidence must be material to the defendant's case." State v. Brown, 236

N.J. 497, 518 (2019) (citing State v. Nelson, 155 N.J. 487, 497 (1998)).

In contending that the State committed a Brady violation, defendant

assumes that Detective Jones questioned B.W. about the sexual assaults and that

Detective Jones memorialized what she learned either in notes or that there was

a recording of the interview. Defendant then alleges that the State failed to

produce the notes or the recording in violation of Brady. The flaw in defendant's

argument is that there is no evidence that Detective Jones created notes or that

there was a recording.

Based on a vague statement by B.W., defendant first speculates that

Detective Jones had questioned B.W. about the sexual assaults. More critically,

defendant then speculates that Detective Jones created notes or that there was a

recording of that interview and that the notes and recording were not produced

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by the State. Defendant did not produce any evidence or make any showing that

Detective Jones created notes or that there was a recording. In response to

defendant's allegations, the State represented notes or recordings of an interview

do not exist. Defendant did not respond with any evidence that the notes or

recording actually existed. Indeed, when asked by the PCR court why defendant

believed Detective Jones had notes, defendant could only speculate that there

"should be" notes, given that B.W. stated she had spoken to Jones about the

assaults.

At trial, when asked whether she had questioned B.W. about the sexual

assaults, Detective Jones testified: "I didn't speak to [B.W.] regarding the

allegations." Defendant did not submit any proofs to rebut that testimony.

Instead, defendant speculates that Detective Jones did question B.W. about the

sexual assaults and prepared notes or that there was a recording of the interview.

Defendant's speculation does not establish a Brady violation and does not

constitute grounds for granting him a new trial. See Brown, 236 N.J. at 528

(explaining that under Brady, a new trial is required "if suppression of evidence

prejudice[ed] the defense and 'could . . . in any reasonable likelihood have

affected the judgment of the jury'" (quoting Giglio v. United States, 405 U.S.

150, 154 (1972) (omission in original))).

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Before us, defendant argues that the PCR court used the wrong standard

in evaluating his Brady contention. In that regard, he contends that the PCR

court used the standard for evaluating whether evidence was newly discovered.

See Ways, 180 N.J. at 187. That argument has no relevance given that the record

establishes that defendant did not make a showing of a Brady violation.

B. The Alleged Ineffective Assistance of Appellate Counsel.

Given our determination that there is no evidence supporting a Brady

violation, defendant's arguments concerning the ineffective assistance of his

appellate counsel fail. Prior appellate counsel was not ineffective in failing to

raise a meritless argument about a non-existent Brady violation. See Strickland

v. Washington, 466 U.S. 668, 687 (1984) (setting forth a two-prong test

requiring showings that (1) counsel made errors so serious that counsel is not

functioning as the counsel guaranteed by the Sixth Amendment and (2) the

deficient performance prejudiced the defense). See also State v. Fritz, 105 N.J.

42, 58 (1987) (adopting the Strickland two-prong test in New Jersey).

Affirmed.

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