STATE OF NEW JERSEY v. LAWRENCE ROMANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5815-03T45815-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE ROMANO,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 10, 2005 - Decided March 27, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County,

Indictment No. 94-02-0208.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jane E. Hendry, Senior

Assistant Prosecutor, of counsel and on the brief).

Appellant filed two pro se supplemental briefs.

PER CURIAM

Defendant Lawrence Romano appeals from an order entered on May 25, 2004 denying his motion for relief pursuant to State v. Sheika, 337 N.J. Super. 228 (App. Div.), certif. denied, 169 N.J. 609 (2001). The motion was based upon the fact that defendant's trial counsel's daughter was an Assistant Prosecutor in Passaic County, where defendant was tried.

Tried to a jury, defendant was convicted of first degree robbery, N.J.S.A. 2C:15-1, and second degree burglary, N.J.S.A. 2C:18-2. He was sentenced on September 1, 1995 to an aggregate term of thirty years subject to fifteen years parole ineligibility.

On June 2, 1997, we affirmed defendant's conviction and sentence on direct appeal, and on September 8, 1997, the Supreme Court denied defendant's petition for certification. State v. Romano, No. A-2691-95 (App. Div.), certif. denied, 151 N.J. 466 (1997). On April 13, 1999, defendant's petition for a writ of habeas corpus was denied. Romano v. Pinchak, Civ. No. 98-4142 (D.N.J.1999). On January 19, 2000, defendant filed a pro se petition for post-conviction relief (PCR). On August 31, 2000, after counsel was assigned, the PCR petition was amended.

On December 15, 2000, the PCR petition was denied in its entirety. We affirmed the denial, except for the issue of whether defense counsel had a conflict of interest and remanded the issue for a hearing in accordance with Sheika. State v. Romano, No. A-2913-00 (App. Div. October 23, 2002). The Supreme Court denied certification on the PCR appeal on April 28, 2003. State v. Romano, 176 N.J. 279 (2003).

An evidentiary hearing was conducted on our remand, during which trial counsel and his daughter testified. After hearing the testimony, the trial court found that the daughter, who served as an Assistant Prosecutor in the Passaic County Prosecutor's Office since May 1989, had been initially assigned to the juvenile section and later transferred to the child abuse unit. The judge found further that she was completely independent of her father, that she had no control over cases prosecuted in the office, other than those assigned to her, and no knowledge of or influence over defendant's case.

Defendant testified at the hearing that he learned that trial counsel's daughter was in the prosecutor's office years after his case had been tried. He claimed that trial counsel neither advised him of the potential conflict nor that he may be subject to an extended term if he were convicted after trial. He claimed that he would have pled guilty to the charges if he had been aware of the conflict and his potential exposure. The judge discounted defendant's testimony, stating that defendant "would have stood up in my court, would have lied to me, that he committed an offense when he didn't commit an offense according to him."

In the brief filed by counsel on defendant's behalf in this appeal, he argues:

POINT ONE

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE DEFENDANT THAT HE WAS SUBJECT TO AN EXTENDED TERM OF IMPRISONMENT

POINT TWO

THE LOWER COURT ORDER DENYING THE PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED SINCE THE TRIAL ATTORNEY WAS INEFFECTIVE IN FAILING TO ADVISE THE CLIENT OF A CONFLICT OF INTEREST

POINT THREE

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT SHOULD HAVE RECUSED ITSELF SUA SPONTE (Not Presented Below)

POINT FOUR

THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN SUPPORT OF THE PETITION. (Not Presented Below)

POINT FIVE

THE COURT SHOULD GRANT DEFENDANT'S MOTION TO EXPAND THE RECORD (Not Presented Below)

Defendant also filed two supplemental pro se briefs. In the brief filed on February 28, 2005, defendant argues:

POINT ONE

DEFENDANTS SENTENCE IS ILLEGAL BY VIOLATING THE UNITED STATES SUPREME COURT HOLDINGS IN APPRENDI, RING, AND BLAKELY

POINT TWO

THE DEFENDANT WAS NEVER ADVISED BY HIS ATTORNEY OR THE COURT OF HIS FULL EXPOSURE TO AN EXTENDED TERM OF LIFE IMPRISONMENT.

R. 3:9-1(e)(2)

In the brief filed on September 6, 2005, he argues:

POINT ONE

DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS NOT MERITLESS AND IS NOT PROCEDURALLY BARED [ADDRESSING STATE'S POINT II]

POINT TWO

DEFENSE COUNSEL AT THE REMAND HEARING DID RENDER CONSTITUTIONALLY DEFICIENT REPRESENTATION [ADDRESSING STATE'S POINT IV]

We have carefully considered the extensive record before us on this appeal and the arguments presented in counsel's brief and defendant's two pro se supplemental briefs. We are satisfied that none of defendant's arguments have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

We previously remanded the matter for a Sheika hearing because the record was devoid of any facts upon which we could make a decision. The hearing on remand was thorough and, in his decision, the trial judge gave a detailed finding of facts and conclusion of law.

In Sheika, we articulated the three factors to be considered "in determining whether a conflict per se exists or whether the conflict is merely a potential one." 337 N.J. Super. at 245. In Sheika, we determined that the type of relationship involved in this case does not "compel an ironclad, per se rule of constitutional ineffectiveness." Id. at 246.

The first factor pertains to the extent to which there is ready access to confidential information among the attorneys. The second factor relates to whether, and to what extent, the attorneys share an economic interest. The third factor concerns whether, and to what extent, public confidence in the integrity of the law profession might be compromised or eroded by permitting the case to proceed notwithstanding the potential for mischief.

[Id. at 245-46 (citations omitted).]

We are satisfied that the trial judge considered all three factors and correctly determined that there was no conflict in this case. We affirm essentially for the reasons set forth in Judge Subryan's oral decision rendered on April 23, 2004.

Affirmed.

 

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A-5815-03T4

March 27, 2006