STATE OF NEW JERSEY v. DON JUSTINIANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2765-07T42765-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DON JUSTINIANO,

Defendant-Appellant.

 
________________________________________________________________

Submitted December 8, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-12-2465.

Yvonne Smith Segars, Public Defender, attorney for appellant (Terry S. Bogorad, Designated Counsel, on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

Appellate filed a pro se supplemental brief.

PER CURIAM

Following an indictment by an Atlantic County Grand Jury for first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree conspiracy, N.J.S.A. 2C:5-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, defendant on April 30, 2004, entered into a plea agreement resulting in the entry of a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, with a recommended sentence of incarceration not to exceed twenty years. Thereafter, on June 4, 2004, Judge Garofolo sentenced defendant to a jail term of twenty years together with a concurrent term of four years on unrelated drug offenses. The other counts of the indictment were dismissed, and the judge imposed the statutorily mandated fines, fees and costs. Defendant did not appeal the sentence.

In May 2005, defendant filed a pro se motion to withdraw his plea of guilty asserting that he received ineffective assistance of counsel. The judge dismissed the motion advising defendant that the "appropriate vehicle for the relief you seek is a Petition for Post Conviction Relief." On February 6, 2006, defendant filed a pro se petition for Post-Conviction Relief (PCR). That application was denied, and defendant appeals. We now affirm.

The underlying offense arose out of the shooting of Mikell Manuel on March 23, 2000, in Atlantic City. On that date, defendant was observed in an argument with the victim. Defendant had a handgun in his possession, and according to defendant's statement at the time of the plea, "[w]e had an argument [and] I shot him in the butt." According to various reports in the record, other witnesses corroborated defendant's version of the events at the scene. In support of his petition, defendant also referred to a statement taken three years after the murder from a fellow prisoner, Loquon Allen, who indicated that he was a witness, and after the victim fired two shots, he removed a handgun from the victim's hand and disposed of it in the bay near Atlantic City or Pleasantville.

In his PCR petition, defendant alleged:

Point One:

Atlantic County Assistant Prosecutor

created prosecutorial misconduct by willfully, deliberately and maliciously withholding exculpatory evidence violat[ing] [TH]E defendant's constitutional rights state and federally.

Point Two:

Defense attorney, Joseph Corbi was ineffective in his representation of defendant creating a six (6) Amendment United States Constitutional violation and in violating rules of professional conduct 1.1 and 8.4 (a), (b), (c) and (d) permitting THE defendant to enter a plea of guilty TO a crime not supported by for[e]nsic evidence as facts thereon were intentionally witheld [sic] by the state with defense attorney's knowledge.

Point Three:

The sentence of twenty (20) years with an eighty five (85%) provision imposed as a direct result of the terms of the plea agreement in constitutionally violative and illegal and "must be vacated" as it is complete tr[a]vesty of justice.

After considering the submissions, the judge rendered a comprehensive oral opinion rejecting defendant's arguments and denied relief. On appeal, defendant argues through counsel:

Point One

The Court Improperly Dismissed

The PCR Petition (not raised below).

Point Two

The Court Improperly Found The

Plea to be Constitutionally Valid

(raised below).

Point Three

The Defendant Received Ineffective

Assistance of Counsel During the

Post Conviction Relief Proceeding

(not raised below).

To refine defendant's claims as to ineffective assistance of counsel, Judge Garofolo summarized defendant's arguments consistent with defendant's assertions:

trial counsel failed to review the autopsy

report;

2) trial counsel failed to move for testing upon

the bullet found in the victim;

3) trial counsel failed to seek a Wade hearing;

4) trial counsel failed to file a motion to

dismiss for the State's failure to present exculpatory evidence to the Grand Jury;

5) trial counsel failed to provide the defendant

with discovery materials; and

6) counsel's cumulative error constitutes ineffective

assistance of counsel.

In addition to the brief filed by counsel, defendant filed a pro se supplemental brief. In his brief, he raises the following issues:

POINT I

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY STATE CONSTITUTION.

POINT II

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY STATE CONSTITUTION, AND HIS RIGHT TO TRIAL BY JURY BASED ON PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL BY WILLFULLY, DELIBERATELY AND MALICIOUSLY WITHHOLDING EXCULPATORY EVIDENCE.

Before considering defendant's arguments, we restate the standards that inform our analysis. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Cottle, 194 N.J. 449, 466 (2008). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Johnson, 193 N.J. 528, 534 (2008); State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). We have held that these principles apply to both a trial and the entry of a plea as well. State v. Taccetta, 351 N.J. Super. 196, 200-01 (App. Div.), certif. denied, 174 N.J. 544 (2002)(citations omitted).

In assessing the first prong, a court must determine whether counsel's conduct fell "'outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Defendant must demonstrate that counsel's action "did not amount to sound trial strategy." Ibid. As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367(quoting Castagna, supra, 187 N.J. at 314-15) (citations omitted).]

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). In order to meet his burden under this prong, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Further, in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) the Court pointed out "that when there are 'circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified' a presumption of ineffectiveness is warranted." Fritz, supra, 105 N.J. at 53 (quoting Cronic, supra, 466 U.S. at 658, 104 S. Ct. at 2046, 80 L. Ed. 2d at 667). These circumstances however involve cases where defendant suffers a "complete denial of the right to counsel altogether, actual or constructive." Id. at 53. As the Court recently noted, this standard is an "exacting" one. Allegro, supra, 193 N.J. at 367.

In sum, under the New Jersey Supreme Court's interpretation of Strickland and the New Jersey Constitution, "a criminal defendant is entitled to the assistance of reasonably competent counsel, and if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Fritz, supra, 105 N.J. at 58.

Applying these standards, we have carefully reviewed defendant's arguments and we conclude that they are without merit. R. 2:11-3(d)(2). We add the following brief comments.

Addressing defendant's specific claims that counsel failed to review the autopsy report and the FBI analysis of the bullet lead report, Judge Garofolo concluded that not only were they, in some cases, not relevant, but ultimately defendant did not meet the Strickland test.

Particularly noteworthy is the absence of any supporting documentation regarding the absence of discovery; specifically the statement of Laquan Allen. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Even assuming the various derelictions in defense counsel's conduct of the defense, we fail to see how such conduct would impact on the ultimate result. As we have noted, the ballistics were not an issue to be presented by the State, the autopsy would not reveal anything not previously known, the identifications were not seriously in issue as defendant was well known to the witnesses, and there is no showing of exculpatory evidence. In fact, the evidence of defendant's guilt was overwhelming.

We affirm substantially for the reasons set forth in Judge Garofolo's thorough oral opinion of July 6, 2007.

Affirmed.

(continued)

(continued)

5

10

A-2765-07T4

April 8, 2009