STATE OF NEW JERSEY v. PETER PAPASAVVAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6302-03T46302-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER PAPASAVVAS,

Defendant-Appellant.

____________________________

 

Submitted February 15, 2006 - Decided March 21, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 96-06-0823-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Patricia Drozd, Designated

Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) and from the denial of an evidentiary hearing. We affirm.

Tried to a jury, defendant was convicted of capital murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree burglary, N.J.S.A. 2C:18-2; second-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3; fourth-degree unlawful theft or receipt of a credit card, N.J.S.A. 2C:21-6(c); and the lesser-included offense of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(b). At the penalty phase, the jury unanimously found that the felony aggravating factor of N.J.S.A. 2C:11-3(c)(4)(f) outweighed the mitigating factors raised by defendant and considered by the jury. Therefore, defendant received the death sentence for capital murder. On May 20, 2000, the New Jersey Supreme Court affirmed defendant's conviction and death sentence. State v. Papasavvas I, 163 N.J. 565 (2000). However, in a subsequent appeal the Supreme Court vacated defendant's death sentence on grounds of disproportionality. State v. Papasavvas II, 170 N.J. 462 (2002). Accordingly, defendant was re-sentenced to life imprisonment, thirty years without parole for murder; a consecutive, extended term of twenty years with a ten-year period of parole ineligibility on the burglary conviction; and concurrent sentences on the remaining convictions.

Defendant submitted his pro se petition for PCR on January 30, 2003, and counsel subsequently was appointed to represent him. On May 21, 2004, Judge Jane B. Cantor denied defendant's PCR petition without conducting an evidentiary hearing.

On appeal defendant makes the following arguments for our consideration:

POINT I - THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II - DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

After careful consideration of the record on appeal, we find that defendant's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2).

We will not reiterate the facts set forth at length in Papasavvas I, supra, 163 N.J. at 578-83. The proof of defendant's guilt was overwhelming as was his "bizarre and repulsive conduct" in committing the crimes. Id. at 578. In the face of the State's mountain of incriminating evidence, the defense was based on the theory that defendant lacked the intent or purpose to kill. Id. at 579.

Defendant's claim of ineffective assistance of trial counsel is based upon the following: (1) trial counsel misstated in opening statement that defendant tied a belt around the victim's mouth; (2) trial counsel failed to produce the results of a polygraph test; (3) trial counsel did not establish that the police planted evidence of his semen on the victim's body by getting it from a condom they found in the trash can in his apartment; and (4) trial counsel failed to interview the victim's neighbor to prove that the body was not found in the condition described by the police.

It is clear from our review of the record that trial counsel's opening comment that defendant placed a belt around the victim's mouth was part of the defense strategy to show that defendant was trying to keep the victim quiet and not trying to strangle her. The record is barren as to a polygraph examination, and, in any event, the results were not admissible in the absence of a stipulation by the State and defense. State v. McDavitt, 62 N.J. 36, 46 (1972). Furthermore, there is no evidential support for defendant's bare assertions that the police planted evidence or that the testimony of the neighbor who discovered the body would be dramatically different than the police testimony.

In short, defendant has not made out a prima facie case of ineffective assistance of trial counsel, and he is therefore not entitled to an evidentiary hearing on the merits of his claims. State v. Preciose, 129 N.J. 451, 459-64 (1992). A claim of ineffective assistance of counsel must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show that his attorney's performance was deficient and that this ineffectiveness prejudiced the defense to the extent that but for the unprofessional errors of counsel, there was a reasonable probability the outcome would have been different. Fritz, supra, 105 N.J. at 52. Defendant fails to meet either prong of the test. His trial attorney was faced with overwhelming evidence not only that the defendant murdered the victim, but also that he did so in a particularly heinous and cruel manner. By focusing upon the issues of purpose or intent and producing psychiatric testimony, trial counsel's objective obviously was to avoid a conviction for capital murder. While these efforts were not successful at trial, counsel hardly can be faulted for this strategy.

 
Affirmed.

(continued)

(continued)

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A-6302-03T4

March 21, 2006