STATE OF NEW JERSEY v. JOHN MONTELLA, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6167-04T56167-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN MONTELLA, JR.,

Defendant-Appellant.

_________________________________________________

 

Submitted September 19, 2006 - Decided October 27, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SGJ-95-3-3.

De Meo & Lavista attorneys for appellant

(Alfonse A. De Meo on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Deborah Sandlaufer,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

This appeal from a denial of post-conviction relief (PCR) raises the issue of whether evidence of alleged actual and perceived conflicts of interest arising from the simultaneous representation by a single law firm of defendant John Montella, Jr., a former Newark police detective, two fellow officers that he allegedly sought to call as witnesses at his criminal trial, and the Policeman's Benevolent Association (PBA), an organization of which Montella and the witnesses were members, mandated reversal of Montella's criminal conviction and a new trial as the result of ineffective assistance of counsel. Montella, indicted by a State Grand Jury along with two others and tried separately, was convicted following a bench trial before Judge R. Benjamin Cohen of the following crimes: second-degree conspiracy, five counts of second-degree official misconduct, three counts of third-degree theft by unlawful taking, one count of third-degree theft by failure to make required disposition, one count of fourth-degree theft by unlawful taking, one count of third-degree witness tampering, one count of fourth-degree tampering with or fabricating physical evidence, and two counts of third-degree tampering with public records. Montella was represented at trial by Anthony Pope, a member of a law firm then known as Pope, Bergrin and Toscano. The charges against Montella arose out of conduct occurring while Montella was assigned to the Newark Police's Auto Squad and consisted of participation in the theft of three new Nissan motor vehicles from the Port Newark docks, theft of a Corvette transmission, and theft by failure to require disposition of a 1980 Porsche to which Montella eventually acquired title. He was sentenced to seven years in prison and has served that sentence.

On appeal, Montella conceded that the evidence "overwhelmingly" supported his conviction, but he nonetheless argued reversal on the ground, raised for the first time, that he had received inadequate assistance of counsel from Pope as the result of conflicts of interest arising from the simultaneous representation by Pope's law firm of the PBA and the representation by Pope's partners of separately-indicted Auto Squad members that were "likely" witnesses at Montella's trial. In an unreported opinion, we determined that Montella's arguments, which did not address the merits of the charges against him, but instead relied on evidence outside of the record, were cognizable only in a PCR application pursuant to R. 3:22. We thus declined to consider those arguments on appeal and affirmed the conviction. State v. Montella, No. A-1510-96T5 (App. Div. November 21, 1997).

Montella filed his PCR petition raising issues of conflict of interest on December 18, 1997, and a testimonial hearing was held on the petition on April 21, 2005. Montella claimed that, following his indictment, he had requested that the PBA provide him with representation, and in accordance with a retainer agreement between the PBA and the law firm of Pope, Bergrin and Toscano, he had been referred to that firm and had agreed to representation by Pope. At approximately the same time, Paul Bergrin was retained to represent Montella's supervisor, Detective Sergeant Joseph Pollaro, and Richard Toscano was retained to represent the Auto Squad's "lot man," Officer Joseph Grosso. Both had been indicted, although in indictments separate from Montella's. Pollaro was accused in a two-count indictment of second-degree official misconduct and third-degree theft of a 1990 Honda Prelude. The record does not reflect the nature of the charges against Grosso. Both were awaiting trial when Montella's bench trial took place.

At the PCR hearing, Montella's counsel took the position that although Pollaro's and Grosso's names did not appear on a handwritten witness list prepared by Montella or an additional list supplied to the court, Montella had sought to utilize both men as witnesses on his behalf, but that they were not called by Pope as the result of actual conflicts of interest arising from his firm's simultaneous representation of the two men and also from the perception of conflict arising from his firm's representation of the PBA as an entity. Montella called as witnesses on his behalf the then-president, treasurer and sergeant-at-arms of the PBA to provide evidence concerning the extent of the PBA's involvement with Pope's firm. Pope testified at the PCR hearing for the State, and in that connection confirmed the existence of a retainer agreement between the PBA and his firm that provided for the legal representation of PBA members in disciplinary and criminal matters by the firm and further provided:

This Agreement reflects the full understanding of the law firm's representation and the law firm does not represent the PBA as an entity. More particularly, all labor related matters, union matters, delegate matters, or matters involving the Union whatsoever, will be handled by outside counsel.

Regarding his representation of Montella, Pope testified that he was unsure whether he could have called either Pollaro or Grosso as witnesses because of the criminal charges pending against them, but that in any case he did not "believe they would have been helpful" to Montella's position, and he denied that they possessed exculpatory evidence favorable to Montella. Pope testified additionally that although he was aware that other members of his firm were representing Pollaro and Grosso, he did not recall the issue of conflict of interest coming up, and he did not perceive a conflict to exist because the men, although members of the same squad, were the subjects of separate indictments involving different criminal acts.

At the conclusion of the hearing, the motion judge found that Pope, in addition to representing individual PBA members, had offered advice at PBA meetings on certain matters such as writing police reports and that Toscano had represented the police's Records Department, whose members constituted a non-uniformed segment of the PBA. The judge observed that this conduct "may" have given rise to an ethical violation under the reasoning of the Supreme Court's decision in State v. Galati, 64 N.J. 572 (1974). However, the judge ruled that Montella had failed to demonstrate as a matter of law that the ethical violation provided per se evidence of ineffective assistance of counsel by Pope or to demonstrate ineffectiveness as a matter of fact under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). With respect to the latter ruling, the judge found that even if Pope's conduct were found to be deficient, it did not affect the result of trial, observing that it was "inconceivable" that either Pollaro or Grosso would have testified on Montella's behalf, rather than asserting his Fifth Amendment right against self-incrimination, and additionally concluding that the evidence against Montella was overwhelming.

Montella did not testify at the PCR hearing, and the precise nature of the testimony he claimed to have sought from Pollaro and Grosso was not specified in that proceeding. In a certification submitted in support of a motion for reconsideration, Montella sought to provide the missing information by stating:

6. Officer Grosso was assigned to the impound yard at C&I Towing in Newark at the time of my alleged offenses. One set of allegations in this matter concerns my alleged theft of and installation of a transmission in a Corvette in the impound yard. Officer Grosso's duties included supervising the yard and all activity in the yard, as well as cataloguing the inventory in the yard and monitoring who came and went in the yard. He could have testified as to the feasibility of the State's allegations regarding the Corvette and the transmission.

7. Sergeant Pollaro was my direct supervisory officer. In addition to reviewing my work and the files I was handling, he was responsible for monthly reports regarding the cars we recovered in the auto squad and their disposition. Each month he had to keep a ledger of the inventory and what the status was of each vehicle. One set of allegations centers around a Porsche 911 that I am accused of concealing in the impound yard for an undue period of time so that I could obtain possession of the vehicle. Sergeant Pollaro could have testified as to what had transpired with that vehicle, as well as the ultimate disposition of the vehicle, the basis for same, and why the investigation took so long to conclude.

8. Sergeant Pollaro could also have refuted certain testimony by the State's witnesses regarding alleged errors or changes to my reports and filings.

9. Both individuals could have given testimony as to the standard operating procedures of the unit, the impound yard, and investigations conducted by the squad during the period in question.

10. Finally, Pollaro could have given testimony regarding his first hand knowledge of the investigation regarding Russell Moye [the facilitator of the Nissan thefts] and the cars obtained for the DAS investigation.

(Emphasis supplied.)

Significantly, Montella did not offer certifications from either Pollaro or Grosso, and as the emphasized portions of Montella's statement disclose, he did not attest to the witnesses' willingness to testify as he proposed. The motion for reconsideration was denied.

On appeal, Montella makes the following arguments:

I. THE JUDGMENT OF CONVICTION BY THE TRIAL COURT WAS INAPPROPRIATE IN LIGHT OF TRIAL COUNSEL'S REAL AND PERCEIVED CONFLICTS OF INTEREST.

A. The Representation of Detective Sergeant Joseph Pollaro and Detective Joseph Gross[o] was a Conflict of Interest Under Rule 1.7 et seq.

B. The Defendant could not waive the conflict of interest as he could not give informed consent as required under Rule 1.7(b).

C. Trial counsel had multiple conflicts of interest under State v. Galati and New Jersey Advisory Committee on Professional Ethics Opinion 320.

II. TRIAL COUNSEL'S CONFLICTS OF INTEREST, BOTH REAL AND PERCEIVED, DENIED THE DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL.

III. THE CONFLICTS OF INTEREST OF TRIAL COUNSEL COULD NOT BE WAIVED BY THE DEFENDANT.

IV. THE COURT ERRED IN APPLYING THE STRICKLAND TEST IN THE INSTANT MATTER.

We affirm.

I.

In Galati, the Supreme Court held, in a decision depending upon the doctrine of the "appearance of impropriety," that an attorney who represented the PBA could not simultaneously represent a member of that entity in a criminal proceeding in which a fellow PBA member was to be called as a witness by the defense or the State, because "there is bound to occur a public suspicion that the PBA witness will be inclined to palliate or vivify his testimony in order to accommodate the lawyer who, outside the courtroom, is en rapport with and supportive of the private and organizational interest of the PBA witness." 64 N.J. at 576. Additionally, the Court noted that any failure of the public's confidence in the PBA, an entity with "quasi-official" status as the spokesperson for the interests of all police, would diminish confidence in the police themselves and in the administration of justice as a whole. Id. at 577. It found this concern to be exacerbated in circumstances of "internally exposed" police corruption, since the PBA would be perceived as lending its lawyer to the defense of an allegedly corrupt member at a point when its "larger role" was to seek out and expose the wrongdoing. Ibid.

Galati spawned Ethics Opinion 320, which, in supplemented form, provided:

[A]n attorney who is known as a PBA attorney, whether regularly retained or on a case by case basis, may not represent a member of the PBA in any criminal, quasi-criminal or disciplinary matter in which another member of the PBA may be called upon to testify. The impropriety exists only where the attorney is so associated with the PBA in the public's mind as to arouse suspicion when he represents an individual member of the PBA in such matters so closely concerned with the public interest.

[Advisory Comm. on Prof. Ethics Op. No. 320 (Supp.), 100 N.J.L.J. 1126 (1977).]

Montella claims on appeal that violation by Pope and his firm of the principles of Galati and the ethics opinion that followed it requires a new trial without any demonstration that the violation rendered Pope ineffective as Montella's counsel. We find Montella's reliance on Galati and Opinion 320 to be misplaced.

We note that, by order effective January 1, 2004, the Supreme Court eliminated the appearance of impropriety doctrine as expressed in RPC 1.7(c)(2) and 1.9(b). The scope of that order is presently under consideration by the Court in connection with an appeal from Advisory Committee on Professional Ethics Opinion No. 697, which precluded a law firm from simultaneously representing the governing body of a municipal entity and a client before one of the municipality's boards or agencies. However, the Advisory Committee's opinion in that matter depended upon the status of the one client as a municipality and the conflict arising from the representation of a private client before or against any of the municipality's subordinate agencies. Such a relationship does not exist in this case. Nor is RPC 1.9(k) applicable in the present circumstances, since that rule applies to lawyers employed by a "public entity" and the PBA is at most a "quasi-official" body. We find no other provision of the Rules of Professional Conduct that offers a basis for a conclusion that the appearance of impropriety standard as articulated in Galati has survived.

If Galati retains precedential value, we conclude that neither it nor Opinion 320 as supplemented can be read to apply to circumstances in which the appearance of impropriety has arisen from the effectuation of a retainer agreement between the PBA and a law firm that is limited to the provision of a defense to PBA members in criminal and disciplinary matters, regardless of whether, as a result of the frequency and high-profile nature of the representation, members of the firm become associated in the public's mind with the PBA as its attorneys, as Montella claims occurred in this case. A decision to the contrary effectively would preclude the use of such otherwise legal retainer agreements by PBAs and similar organizations as a means of obtaining representation for their members in criminal and disciplinary matters, since resolution of charges against one police officer regularly depend on the testimony of fellow officers and PBA members. Although one could take the position in an internal corruption case such as this that the PBA should not be funding the defense of its allegedly corrupt members, we do not read Galati as precluding such funding or as holding that a disabling conflict arises on those frequent occasions when an attorney, retained through the PBA to defend one of its members, calls upon or is faced with another PBA member as a witness. Following the PCR hearing, the motion judge found that the activities of Pope's firm in addition to its representation of PBA members "may" have given rise to a perceived conflict of interest. It is not clear to us, however, that the judge also found that it was those activities that led to any perception by the public that Pope was "so associated with the PBA . . . as to arouse suspicion when he represents an individual member of the PBA." Ethics Opinion 320 (Supplement). Nonetheless, we are unwilling to find that such a perception, if it existed, was sufficient to render Pope's representation of Montella per se ineffective. A per se finding of ineffective assistance requires more than the mere "appearance" of impropriety, since as the Court's determination to permit Galati's continued representation by his PBA's counsel reflects, that appearance may have no relationship to the merits of the representation.

II.

Montella claims as well that an actual conflict of interest, per se in nature, existed pursuant to RPC 1.7(a) and 1.10(a) as the result of his representation by Pope and the concurrent representation of proposed witnesses Pollaro and Grosso by members of Pope's firm. Again, we disagree.

In State v. Bellucci, 81 N.J. 531 (1980), the Supreme Court found, in the absence of an effective waiver, that a conflict existed in an attorney's representation of defendant at trial while his partner represented a co-defendant in the same proceeding, and that the joint representation by the law partners raised a presumption of prejudice such that actual prejudice from the concurrent representation need not be shown in order to establish a claim of ineffective assistance of counsel. Id. at 541-45. In other circumstances, "the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." State v. Norman, 151 N.J. 5, 25 (1997); State v. Bell, 90 N.J. 163, 171 (1982) (holding that "should the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice, the presumption of both an actual conflict of interest and actual prejudice will arise, without the necessity of proving such prejudice."); State v. Drisco, 355 N.J. Super. 283, 292-93 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).

In the present case, Montella suggested a potential conflict of interest arising from his representation by Pope and the concurrent representation by members of Pope's firm of the two proposed witnesses, and he alleged further that, as a result of that conflict, Pope failed to call the witnesses. However, Montella failed to demonstrate at his PCR hearing that a significant likelihood of prejudice to him arose as the result of the decision by Pope not to call either Grosso or Pollaro as witnesses on his behalf - a decision that Pope testified without substantial contradiction was based on a determination that they possessed no information that would exculpate or otherwise aid Montella in his defense. Neither the record of the hearing nor Montella's certification in support of his motion for reconsideration provides competent evidence that either witness would have consented to testify for Montella or summarizes the testimony either would have been willing to offer. Moreover, nothing suggests that testimony by the proposed witnesses would have been sufficient to overcome the substantial evidence of Montella's guilt, which both Judge Cohen found and Montella himself conceded to have been overwhelming. In the absence of evidence that the representation provided to Montella by Pope was adversely affected by the potential conflict arising from his partners' representation of Pollaro and Grosso in separately-charged criminal matters, Montella's claim of ineffective assistance of counsel lacks merit.

The denial of the petition for post-conviction relief is affirmed.

 

The record does not disclose the reason for the delay.

That representation was assumed by the firm of Zazalli, Zazalli and Fagella.

Strickland requires a defendant to show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that "the deficient performance prejudiced the defense." In United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 667 (1984), decided with Strickland, the Court recognized that in some instances of ineffective assistance, prejudice to the defendant could be presumed. The holdings of Strickland and Cronic were adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).

Distribution Auto Services (DAS) was a contractor for Nissan Motor Corporation USA that off-loaded new Nissan cars and stored them at the facility in Port Newark from which they were taken.

Montella's indictment followed a State investigation.

The Norman Court determined that its rulings in this regard provided "broader protection against conflicts under the State Constitution than are provided by the Federal Constitution." 151 N.J. at 25 (citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333, 346-47 (1980)("in order to establish a violation of the Sixth Amendment a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.")).

(continued)

(continued)

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A-6167-04T5

 

October 27, 2006