STATE OF NEW JERSEY v. GARY J. BATTAGLIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0233-05T20233-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY J. BATTAGLIA,

Defendant-Appellant.

_________________________________________________

 

Submitted October 4, 2006 - Decided November 28, 2006

Before Judges Kestin and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Sussex County,

Indictment No. 00-04-00128.

Gary J. Battaglia, appellant, filed a

pro se brief.

David J. Weaver, Sussex County Prosecutor,

attorney (Gregory R. Mueller, Assistant

Sussex County Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Gary Battaglia appeals pro se from the denial of his petition for post-conviction relief (PCR) without an evidential hearing. On appeal, he argues that the PCR judge erred in denying his motions to proceed pro se and to disqualify PCR counsel and the assistant prosecutor as the result of alleged conflicts of interest, that PCR counsel failed to effectively argue the "four corners" of his pro se supplemental brief, that the assistant prosecutor engaged in misconduct at oral argument of the PCR motion, and that newly discovered evidence should be considered in connection with this case. We affirm.

Defendant was charged in a ten-count indictment with five counts of third-degree distribution of heroin on two separate dates, N.J.S.A. 2C:35-5a(1), and five counts of third-degree distribution of heroin within 1000 feet of Board of Education offices, N.J.S.A. 2C:35-5a(1) and -7. Defendant was convicted on the five counts of distribution, but acquitted on the school zone charges. At sentencing, defendant was given five concurrent sentences of five years each on the distribution convictions and a consecutive five-year sentence for violation of probation. We affirmed defendant's convictions on appeal in an unreported opinion. State v. Battaglia, No. A-6263-00T4 (App. Div. Oct. 7, 2003). Certification was denied. State v. Battaglia, 178 N.J. 453 (2004).

The charges against defendant arose from the sale of heroin to an undercover police officer who used an intermediary to gain introduction and access to defendant. At trial, defendant claimed entrapment, a defense that was rejected by the jury.

Prior to trial, defendant moved for leave to proceed to trial pro se. Following a competency hearing, occasioned by defendant's inundation of the court and other persons and agencies with correspondence despite requests that the behavior cease, and extensive argument on defendant's motion, the trial judge found defendant competent to stand trial under the criteria of N.J.S.A. 2C:4-4, but the judge denied defendant's motion to represent himself. After a review of defendant's pre-trial conduct, the judge observed that she "was not in any way satisfied or persuaded that this defendant is willing to comply with the requirements of pro se representation," and she found that defendant was "unwilling to comply with the court's procedures or with the court's rules." When the issue of pro se representation was then raised on appeal, we stated:

[The trial judge] was well-warranted to deny defendant's motion for leave to proceed to trial pro se. We are in substantial agreement with the judge's stated reasons for ruling as she did. See State v. White, 86 N.J. Super. 410, 418-19 (App. Div. 1965).

[Slip op. at 6.]

Although initially requesting counsel in connection with his PCR application, defendant then, again, moved for leave to represent himself in that proceeding, arguing that as the result of his legal research in connection with his multiple State and Federal civil actions, he was now much better prepared to follow the rules of court. Defendant's motion was again denied on the ground that the State's legitimate interest in the fair and efficient administration of justice outweighed defendant's desire to proceed on his own behalf. We find no misapplication of discretion in that determination. Martinez v. Ct. of App. of Cal., Fourth App. Dist., 528 U.S. 152, 162-63, 120 S. Ct. 684, 691-92, 145 L. Ed. 2d 597, 607-08 (2000). Contrary to defendant's argument, we do not interpret R. 3:22-6(a) as requiring that a request to proceed pro se be granted. Instead, that rule merely guarantees the right to legal representation in connection with a first PCR petition. State v. Rue, 175 N.J. 1, 13 (2002).

Although defendant was denied the right to appear pro se in connection with his PCR petition, he drafted his own brief, which was then forcefully argued by assigned counsel. Nonetheless, defendant objected at the hearing and further objects on appeal to counsel's representation on the ground that she had a conflict of interest arising from (1) her attendance at law school with the assistant prosecutor handling the matter; (2) her work with that assistant prosecutor more than fifteen years earlier in the defense of a death penalty case; and (3) her service with the assistant prosecutor as a colleague, during that period, while he was a public defender. According to defendant:

I pointed out to [PCR counsel] the seriousness of my claims. I explained that I was alleging deliberate ineffectiveness on [the] part of my former Trial Attorney and criminal misconduct on [the] part of Assistant Prosecutor Thomas Reed. I also explained to PCR counsel that I had attorney grievances pending with the Office of Attorney Ethics as well as two federal civil actions pending against my former Trial Attorney and Assistant Prosecutor Reed. This obviously created a substantial conflict of interest for [PCR counsel] who had worked closely with my former Trial Attorney and the Assistant Prosecutor. Clearly it would have made it extremely hard for her to fairly and impartially represent my serious claims against these individuals with whom she had past and present working relationships.

We find no support in the Rules of Professional Conduct for defendant's claim that the long-ago contacts between PCR counsel and the assistant prosecutor provide a legal basis for a valid assertion of conflict of interest, and nothing in the record that would otherwise establish such a conflict to exist. Defendant has not demonstrated any recent professional or personal relationship between PCR counsel and the assistant prosecutor, any connection between the matter upon which the two jointly worked and defendant's case, or any disclosure of confidences other than those broadcast by defendant himself in his own missives. Thus, we find that disqualification of PCR counsel as the result of a conflict of interest was not warranted. We find further that counsel's performance at the PCR hearing, untainted by conflict, fully complied with and indeed may have exceeded the requirements of Rue, supra, 175 N.J. at 18-19. In a brief of over one hundred pages, defendant had fashioned a ten-point pro se argument in support of his claim of entitlement to post-conviction relief. PCR counsel painstakingly and effectively presented each of defendant's arguments to the court for its consideration. That those arguments were not accepted was the result of lack of evidence, not advocacy.

There is no support in the record for defendant's claim that the assistant prosecutor was a participant in defendant's entrapment or its cover-up and, as a result, we find no conflict of interest on the part of the assistant prosecutor arising as the result of his potential status as a witness in the PCR proceedings regarding that alleged misconduct. In order for the prohibition of R.P.C. 3.7 against advocacy by a lawyer in a case in which he may be a witness to apply, it must be demonstrated that it is "likely" that he will be called, and that his testimony is "necessary." Because a competent evidential foundation for calling the assistant prosecutor is lacking, the rule is inapplicable. Compare, State v. Arthur, 184 N.J. 307, 347-48 (2005) (dissenting opinion of Albin, J.). In any event, as defendant concedes, on November 16, 2005, the assistant prosecutor voluntarily recused himself from further action in this matter.

Defendant asserts additionally that the assistant prosecutor engaged in misconduct when he denied that more than one informant participated in the events that led to defendant's arrest, and defendant seeks leave to supplement the record with a newspaper article that he claims to support his position. Defendant argues, as well, that the assistant prosecutor engaged in misconduct in continuing to deny that a third party, Gregory Whitehead, had been placed in the jury box with defendant during a December 2, 1999 bail hearing in an unsuccessful effort to induce defendant to incriminate himself. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

As a final matter, we affirm the PCR court's determination not to hold an evidentiary hearing on defendant's PCR petition as within its discretion. State v. Preciose, 129 N.J. 451, 462-64 (1992). Although defendant's conspiracy and misconduct theories abound, he has failed to present any competent evidence to support them or to otherwise demonstrate why the conduct of the various counsel who represented him fell below the standard established by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).

We therefore affirm the denial of defendant's PCR petition.

 

Defendant presently claims that charges were brought against him as a means to avoid exposure of present-day official corruption inadvertently discovered by defendant, a self-styled author and publisher, while investigating the disappearance of three children in Newton in 1909. Defendant has declined to identify witnesses to substantiate his claim of corruption, stating that he has agreed to keep their names confidential and invoking the "New Jersey Shield Act."

Defendant is presently proceeding pro se. Citing deficiencies in his appellate papers, the State has argued that defendant's appeal should be dismissed or his brief suppressed pursuant to R. 2:6-9 as the result of its non-conformity with court rules. See also Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984). In the interest of justice, we decline to take either step.

Defendant claims on appeal that he requested that PCR counsel draft a brief to support his argument that the trial judge had engaged in misconduct by permitting witnesses to give fraudulent testimony and by conspiring with the assistant prosecutor to cause defendant to utter incriminating statements to a third party during a bail proceeding - arguments that he had himself raised in his pro se brief. However, in a later letter, he demanded that counsel "argue [his] claims exactly like I have them in my pro se brief."

Defendant also claims that PCR counsel failed to interview proposed witnesses. Eleven of the twelve of the witnesses that defendant asked to be interviewed, including the assistant prosecutor, refused to cooperate, and the twelfth, defendant's trial attorney, offered no evidence that was helpful to defendant. We find no basis for a claim of ineffective assistance of counsel arising out of counsel's failure to locate and investigate jurors to determine, five years after the fact, whether their deliberations were prejudicially affected by a juror who may have expressed a bias toward law enforcement during juror selection.

Additionally, defendant complains that PCR counsel did not submit a brief to us in support of his motion for an interlocutory appeal from the PCR court's decision to deny him the right to proceed pro se. However, given the issue, such a brief would not have been appropriate. Nonetheless, we note that following our denial of defendant's motion, PCR counsel appropriately persisted in seeking a reconsideration by the PCR judge of his decision in this regard.

(continued)

(continued)

9

A-0233-05T2

November 28, 2006