STATE OF NEW JERSEY v. PATRICK PANTUSCO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0294-03T50294-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK PANTUSCO,

Defendant-Appellant.

_________________________________________________

 

Argued March 8, 2006 - Decided June 8, 2006

Before Judges Stern, Parker and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. S-997-96.

Anthony J. Cariddi argued the cause for appellant

(Cariddi & Garcia, attorneys; Carol J. Garcia,

on the brief).

John J. Scaliti, Assistant Bergen County Prosecutor,

argued the cause for respondent (John L. Molinelli,

Bergen County Prosecutor, attorney; Mr. Scaliti,

of counsel and on the brief).

PER CURIAM

Defendant, Patrick Pantusco, appeals from the denial of post conviction relief (PCR) challenging his felony murder conviction.

Defendant argues that the PCR court's decision "is in contravention of this court's published opinion which requires that where the fatal accident can be seen as occurring during a police chase as part of the flight from the predicate felony, manslaughter while eluding should be charged as a lesser included offense to felony murder," and that the PCR ruling "limiting the PCR application to the issue of trial counsel's certification violated . . . due process and the law of [PCR] . . . and rendered PCR counsel ineffective." In essence, defendant asserts that the trial court should have granted PCR based on the trial judge's failure to charge manslaughter while eluding, and also should have permitted other claims to be developed at the PCR hearing.

The background giving rise to the petition is detailed in our opinion affirming the conviction. State v. Pantusco, 330 N.J. Super. 424 (App. Div.), certif. denied, 165 N.J. 527 (2000). In support of the petition, one of defendant's trial co-counsel, Joseph Rem, certified that the failure to request a manslaughter while eluding charge was not a strategic decision and that he was unaware of that offense at the time of trial. According to Rem's certification:

4. Judge Sullivan entertained requests from counsel for the inclusion of lesser included charges. On behalf of the defendant, I requested charges for Aggravated Manslaughter, Manslaughter, and Vehicular Manslaughter. I did not request a charge on Eluding. This failure to request this charge was not a strategic decision, but rather an oversight.

5. Has this offense been considered by me, I would have requested its inclusion as a lesser included offense. Although there may exist strategic reasons for defense counsel to deliberately decline to request a charge on this offense, I do not believe that the offense was inconsistent with the primary defense, and believe that the fact that it gave the jury the opportunity to return a verdict on an offense which was less serious than the felony-murder count and/or the top manslaughter counts would have outweighed any tactical disadvantages.

The PCR judge limited the evidentiary hearing to the issue raised in Rem's certification, and denied defendant's application to amend or supplement the petition and to consider other issues. The judge felt there was "no foundation" for the other claims, and that they were "without merit."

At the hearing, Rem testified that he did not request a charge on manslaughter by eluding because he "did not know of the existence of that criminal charge . . . I just didn't know it existed." According to Rem, as a result, "[t]here were no strategy decisions with respect to not requesting that [it] be charged."

Defendant now asserts that, in our opinion on the direct appeal, we suggested that such negligent omission would give rise to PCR. However, another co-counsel at trial, John Weichsel, testified at the PCR hearing that the defense considered and rejected a defense based on employment of that lesser included offense. According to Weichsel's testimony:

Q Was it -- what was the defense strategy, sir?

A The defense strategy as -- as it developed over time was to argue that the death was not caused by Patrick fleeing or eluding the police, but it was caused by the police chase and we also argued that -- that there ought not to be felony murder because there was a gap between the end of the last robbery and when the police started chasing Mr. Pantusco.

Q Was it the defense strategy, sir, to minimize the defendant's responsibility and conduct?

A Absolutely.

. . . .

Q Sir, did you and Mr. Rem have numerous strategy sessions?

A Yes.

Q Now, sir, did you think of eluding manslaughter when you [were] discussing this case -- when you were thinking about this case?

A Very early on I remember looking at the statute, I remember discussing with Mr. Rem and ultimately I think very early on we rejected it. I know that Mr. Rem does not remember this discussion, but -- but I do.

Q Why, sir, did you reject it?

A Because I think if -- if we went with that strategy we would have to admit Mr. Pantusco's culpability and that was something that we didn't want to do.

Q With respect to the issue of causation?

A Correct.

[Emphasis added.]

The PCR judge found both counsel "to be credible," and did "not put a great circumstance on Mr. Rem's failure to remember that conversation" about the manslaughter by eluding charge because of the PCR testimony as a whole "and by virtue of what occurred at the trial level." In his comprehensive opinion, the PCR judge concluded:

A review of what was testified at the plenary hearing, and a review of the trial transcripts indicates a methodical, careful, and delineated position taken by counsel to insulate Mr. Pantusco from the felony murder charge; and, instead, try to present to the jury, as was testified to by Mr. Rem at the plenary hearing, a circumstance of having Mr. Pantusco be convicted of the aggravated manslaughter charge; or, at its best light, a vehicular homicide charge, as opposed to the felony murder charge.

Even despite the best efforts of the State to preclude the admission of the State Police guidelines, Judge Sullivan allowed those guidelines into evidence, to allow the defendant to attack the causation argument, which underscored their entire argument that the accident itself was not the happenstance of the actions of the defendant, but, in fact, were in large part caused by the actions of the police in their pursuit of Mr. Pantusco, in not following the State Police guidelines. This underscores, in this Court's opinion, the careful and specific way in which the defense was prepared in this case.

. . . .

I do take into consideration the fact, to present this charge to that jury, in my opinion would have watered down the main thrust of the defense's argument, in attempting to have the jury stay away from the felony murder charge, in the sense that the elements of causation of felony murder and manslaughter while eluding are identical.

It's a strict liability statute. It would have been illogical for me to consider that Mr. Rem, in light of his very precise and definitive testimony as to his means of presenting a defense to this jury, to then argue, even though he had indicated it would have been asked for if, in fact, it was presented to him and had he known about it, that the lesser-included manslaughter -- charge of manslaughter while eluding should be given, since it was contrary to his causation argument to the jury, in trying to dissuade them from every way, shape, and form from a decision on felony murder.

This Court agrees that the failure to request manslaughter while eluding, despite Mr. Rem's position that it would have been requested had he known about [it], does not at all render his or Mr. Weichsel's representation of Mr. Pantusco ineffective in accordance with the applicable law delineating what is, in fact, ineffective counsel.

This is without regard to the fact that Mr. Weichsel remembers having a conversation with Mr. Rem, wherein both counsel considered the lesser-included charge of manslaughter while eluding and rejected it. As indicated previously, whether that conversation took place or not is of really no merit to this Court's decision.

In conclusion, the judge noted that the manslaughter by eluding charge "would not have had an effect on the overall defense proffered by Mr. Rem and Mr. Weichsel at the trial level; which in fact . . . may have torpedoed that defense, to some degree."

Given the findings of the PCR judge, the application for PCR, premised on a claim of ineffective assistance of counsel, must be rejected, substantially for the reasons stated by the judge. Presentation of a lesser offense with a strict liability component would have cut against the defense endeavor to obtain a conviction for second degree death by auto. See Pantusco, supra, 330 N.J. Super. at 448-49. As we said in our opinion on the direct appeal:

The questions concerning whether defendant would be convicted of one or more robberies, whether the police dispatch would be sufficiently related to a robbery, and whether the jury could find that the chase and accident were sufficiently related to a "flight" therefrom, raised a real question of whether defendant would be convicted of felony murder. In that context, the possibility of acquittal of felony murder was not remote given the fact the judge charged death by auto as a lesser-included offense to aggravated manslaughter with defendant's consent, if not at his request, and the jury could have returned a homicide conviction without finding defendant guilty of either felony murder (with thirty years to be served before parole eligibility) or aggravated manslaughter (with a range of ten to thirty years).

[Id. at 448 (footnotes omitted).]

We add that at the time of these offenses, manslaughter by eluding had a higher maximum term, fifteen years, than death by auto (vehicular homicide). See N.J.S.A. 2C:11-4, -5.

In any event, our review of the record does not permit us to conclude that a manslaughter by eluding charge would have led the jury to find defendant guilty of a lesser offense and not guilty of felony murder, see State v. Brent, 137 N.J. 107, 115-17 (1994), and we agree with the PCR judge that counsel's failure to request an instruction on manslaughter by eluding was not so deficient or "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Fritz, 105 N.J. 42, 52, 58 (1987).

As already noted, defendant sought to amend his PCR petition in the trial court, to include assertions related to the discovery provided and its relation to his mental state, but the trial judge limited the hearing to consideration of counsel's failure to seek an instruction on manslaughter by eluding. The State argued that the endeavor to amend the petition and develop other issues came too late, but candidly acknowledged at oral argument before us that it could not, and would not, assert a time bar defense under R. 3:22-12 if defendant raised the issues in a new PCR petition. Given that position, we remand to permit defendant to amend his first petition and present additional claims. By doing so, we also avoid the need for a showing of "good cause" to obtain counsel on a new petition if he can no longer afford counsel and must apply for the assistance of an attorney. See R. 3:22-6(a),(b). See also R. 3:22-9; State v. Rue, 175 N.J. 1 (2002).

Accordingly, we reject defendant's attack on his felony murder conviction based on defense counsel's failure to pursue the lesser offense of manslaughter by eluding, affirm the denial of PCR on that basis, and remand for further PCR proceedings consistent herewith. We do not retain jurisdiction.

 

Defendant was also convicted of three counts of robbery, which we merged into the felony murder, and of other crimes. State v. Pantusco, 330 N.J. Super. 424, 429, 444-45, 449-51 (App. Div.), certif. denied, 165 N.J. 527 (2000). Recently, the Supreme Court held that the merger of all three felonies was inappropriate. See State v. Hill, 182 N.J. 532, 548-51 (2005). In light of our disposition, we need not consider the impact of PCR on the other convictions which are not challenged before us. But see State v. Young, 340 N.J. Super. 379, 498, 505-09 (App. Div. 2005), permitting restructing of a sentence subject to the original aggregate upon reversal of one of the convictions. In this case the grant of PCR and possible vacation of the felony murder conviction would require re-sentencing on three robbery convictions.

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A-0294-03T5

June 8, 2006