STATE OF NEW JERSEY v. MICHAEL G. SPERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3293-07T43293-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL G. SPERO,

Defendant-Appellant.

________________________________

 

Argued April 27, 2009 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-07-781.

Nicholas C. Caliendo argued the cause for appellant (Manning, Caliendo & Thomson, P.A., attorneys; Mr. Caliendo, of counsel; Stephen M. Bacigalupo, II, on the briefs).

Dennis J. Hernon, Cumberland County Assistant Prosecutor, argued the cause for respondent (Ronald J. Casella, Cumberland County Prosecutor, attorney; Mr. Hernon, of counsel and on the brief).

PER CURIAM

Defendant Michael G. Spero appeals the Law Division's order of January 29, 2008, denying his petition for post-conviction relief ("PCR"). We affirm.

The record contains the following facts pertinent to our analysis of the issues raised on appeal.

On February 3, 2003, Deana Boswell of Upper Deerfield Township telephoned the New Jersey State Police to report a suspicious vehicle she had seen at an intersection in her neighborhood. Boswell described the vehicle as a blue Acura Integra, with a Massachusetts license plate number. Boswell stated that a white male, who was dressed in all black clothing and carrying a backpack, exited the Acura and walked past her house.

Responding to Boswell's report, State Trooper Christopher MacNeil arrived on the location at 4:44 p.m. He observed the Acura parked on a corner of the intersection described by Boswell. Another neighbor advised MacNeil that a man wearing black clothing had been walking northbound on one of the intersecting streets. While speaking with this neighbor, MacNeil observed defendant walking through the rear portion of the yard at one of the nearby residences.

Trooper MacNeil asked defendant why he was walking through the yard. Defendant replied that he was looking for a friend who lived in the neighborhood; however, he could not provide the trooper with a name or address for the supposed friend. Defendant further claimed that he was an amateur photographer, and that he was in the neighborhood photographing the scenery.

Trooper MacNeil noticed that defendant seemed very nervous, taking note that defendant stuttered, folded his arms, had rapid eye movement, and would take several seconds to answer simple questions. When MacNeil requested identification, defendant was hesitant, and he asked the trooper why he was being questioned. At this point, Trooper Rodney Yamasaki arrived. Trooper MacNeil and Trooper Yamasaki then escorted defendant back to his car, which turned out to be the Acura.

Upon arriving at defendant's car, Trooper MacNeil and Yamasaki noticed a yellow notepad on the front passenger's seat. The notepad had what appeared to be a telephone number and driving directions written on it. MacNeil and Yamasaki were unable to read the specific contents of the writing from outside the car. The troopers asked defendant about the notepad, and he became aggressive. He picked the notepad up off of the seat and refused to allow the troopers to see it. At that point, Trooper MacNeil arrested defendant.

The troopers searched defendant incident to his arrest, and retrieved the pad from his person. They discovered that the pad contained driving directions to the residence in question, a male first name, and a telephone number. The pad was then temporarily placed on a rear seat of the Acura. A search of defendant's backpack uncovered petroleum jelly, a disposable camera and chocolate syrup. Following the search, Trooper MacNeil returned the pad to the front passenger seat location where it had been initially spotted.

At approximately 5:35 p.m., Trooper Ronald Roberts arrived and aided in the investigation. While defendant sat in the rear of Trooper McNeil's patrol car, Trooper Roberts questioned him. Roberts asked defendant why he had parked his car at this intersection and why he was in the yard of the subject residence. Defendant responded that he was supposed to meet a woman named "Betty Scott," who he claimed to have met on the Internet, for a sexual encounter, but he could not find her house. After speaking further with defendant, Roberts went to the Acura and noticed the notepad, which at that point was temporarily on the rear seat on the driver's side. Roberts was able to read the information on the pad from his position outside of the car.

Trooper Yamasaki then proceeded to the subject residence and spoke with a fifteen-year-old minor, S.B., who resided there. S.B. was alone at the time. He initially stated that he did not know defendant, or why defendant was in his backyard. By the time Trooper Roberts arrived at the subject residence, S.K., the homeowner and S.B.'s mother, had arrived. S.K. told Roberts that she did not know defendant, and that she had never seen him before. Based upon his conversation with S.K., Roberts learned that S.B.'s first name matched the name written on defendant's notepad; that the phone number on the notepad was S.B.'s cell phone number; and that S.B. had exchanged e-mails with someone during the fall of 2002 that were homosexual in nature.

Trooper Roberts then spoke with S.B. Their conversation revealed that S.B. had become acquainted with defendant in a "chat room" in December 2002, and had exchanged e-mails with him every day since then. S.B. stated that all of these e-mails were sexual in nature, that he invited defendant to his home on February 3, 2003, and that he had provided defendant with his cell phone number. S.B. further stated that when defendant arrived at the residence that afternoon, they immediately went to S.B.'s bedroom, where they engaged in anal and oral sex. Soon thereafter, a next-door neighbor knocked on the front door. The neighbor alerted S.B. that police were with the vehicle parked at the intersection, and that they were looking for a suspicious white male. S.B. alerted defendant that the State Police were in the area. He let defendant out of the house through the back door.

Following his interview with S.B., Trooper Roberts had S.B. examined by the Cumberland County Sexual Assault Response Team. Christina Swain, R.N., conducted the examination. Her examination revealed evidence of recent anal sex.

Based upon these circumstances, a Cumberland County Grand Jury subsequently returned an indictment charging defendant with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five).

On July 30, 2004, defendant pled guilty to count two. The remaining counts of the indictment were dismissed. The State agreed to recommend a five-year sentence with certain mandatory penalties, including undergoing a sexual offender evaluation at Avenel and Megan's Law registration. The State agreed to waive application of the parole ineligibility terms of the No Early Release Act, N.J.S.A. 2C:43-7.2.

On February 4, 2005, the trial court sentenced defendant, consistent with the plea agreement, to a prison term of five years. The state sentence was to run concurrently with a significantly longer federal sentence that defendant was serving at the time. The court also imposed appropriate fines and penalties.

More than two years after his sentencing, defendant, who did not file a direct appeal of his sentence, filed a PCR application in the Law Division. The petition was filed by a defense attorney other than the one who had represented defendant at his plea hearing and sentencing. The PCR application was heard by the same judge who had presided over the earlier proceedings in this case.

In his PCR application, defendant made several related arguments. Defendant asserted that his former counsel was constitutionally ineffective in failing to move to suppress the incriminating items that the police had obtained in their search after arresting him. Defendant argued that the police lacked probable cause to perform those searches, or to arrest him while he was on S.B.'s premises. He further contended that the arrest and search were not justified under any recognized exception to the constitutional requirements for a warrant. The State opposed these arguments, contending that defendant's former counsel was not ineffective and that defendant demonstrated no actual prejudice, having received a rather favorable disposition under the negotiated plea agreement. The State further maintained that the police had ample justification to arrest defendant and to search his person and his vehicle without a warrant. The State further argued that the fruits of the search would have been admissible at trial under the "inevitable discovery" doctrine.

After hearing oral argument, the Law Division judge dismissed the PCR application. The dismissal order was accompanied by a detailed written opinion. In his opinion, the judge concluded that the police had probable cause to arrest defendant, that it was proper to search his person incident to that arrest, and that the seizure of the notepad and the contraband found in defendant's backpack was proper.

As part of his analysis of the arrest and search issues, the judge made the following observations:

The action of the police in this matter can perhaps best be described as astute and thorough. By promptly following up on information from a concerned citizen they were able to quickly find the suspect walking in the rear yard of a residence, a place that he did not appear to have a right to be. Viewed from the perspective of the police, the defendant was an apparent stranger with out-of-state license plates. The police properly conducted a field inquiry when they initially stopped the defendant. Upon questioning[,] the defendant gave answers that did not satisfactorily explain his presence on the property. Instead, his answers caused the police to have heightened suspicions. The defendant's body language and manner of speaking further heightened their suspicions. The police rapidly surmised that something was amiss, that the defendant was engaged in some type of criminal behavior, and that his presence on the property was improper. At this point the police had a well grounded suspicion that a crime had been or was in the process of being committed. See State v. Daniels, 393 N.J. Super. 476, 485-87 (App. Div. 2007). The cumulative facts and circumstances within the officers' collective knowledge warranted a conclusion that defendant was trespassing on the property, although the police may not yet have known the purpose of that trespass.

Turning to the claim of defense counsel's alleged ineffectiveness, the judge applied the well-established, two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of the constitutional right to effective assistance of counsel, a convicted defendant must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

With respect to the first prong of ineffectiveness, i.e., deficient performance by counsel, the trial judge found:

The record in this matter demonstrates that the actions of defense counsel did not fall outside the range of competence demanded of attorneys in criminal cases. His attorney['s] performance did not fall below an objective standard of reasonableness. To the contrary, his defense counsel adopted a successful strategy of negotiating a very favorable five-year concurrent sentence on a second-degree sexual assault charge. Defendant has not satisfied the first prong of the Strickland/Fritz test.

[(Emphasis added; footnote omitted).]

As to the second prong of Strickland/Fritz, i.e., actual prejudice, the judge was equally convinced that defendant had not sustained his burden. In particular, the judge discerned no actual prejudice flowing out of the defense counsel's failure to file a suppression motion:

Given these circumstances, defendant is utterly unable to demonstrate that there was a reasonable likelihood that a motion to suppress the evidence resulting from the arrest and search would have been successful. Indeed, it is more likely that a motion to suppress evidence would have failed. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . [.]" [State v.] O'Neal, [ 190 N.J. 601, 619 (2007).]

[(Emphasis added).]

Defendant now appeals the dismissal of his PCR petition. He raises the following points in his appellate brief and reply brief:

POINT I

THE TRIAL COURT WAS INCORRECT IN FINDING THAT PROBABLE CAUSE EXISTED TO SEARCH BOTH DEFENDANT'S PERSON AND VEHICLE.

POINT II

THE TRIAL COURT WAS INCORRECT IN FINDING THAT DEFENDANT'S TRIAL COUNSEL WERE [SIC] NOT INEFFECTIVE DESPITE (a) THEIR [SIC] FAILURE TO MOVE TO SUPPRESS EVIDENCE WHICH WAS ILLEGALLY OBTAINED BY THE NEW JERSEY STATE POLICE; AND (b) THEIR [SIC] FAILURE TO SEEK 4TH AMENDMENT RELIEF WHICH, WHEN GRANTED, WOULD HAVE WARRANTED DISMISSAL OR THE SUBJECT INDICTMENT.

REPLY POINT I

THE STATE IS UNABLE TO SATISFY, BY CLEAR AND CONVINCING EVIDENCE, THE REQUIRED CRITERIA FOR INVOCATION OF THE "INEVITABLE DISCOVERY" DOCTRINE.

Having fully considered these points, as amplified before us at oral argument, we affirm the denial of defendant's PCR petition. We do so substantially for the reasons articulated in Judge Richard Geiger's letter opinion of January 29, 2008. We add only a few comments.

Defendant maintains that the police lacked probable cause to arrest him outside of the victim's residence because the arresting officers did not know at the time that defendant had been inside of the victim's residence a predicate element required under the criminal trespass statute, N.J.S.A. 2C:18-3(a). We are mindful that one of the elements of the statute is that the offender, without license or privilege to do so, "enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof." N.J.S.A. 2C:18-3(a). We recognize that when Trooper MacNeil arrested defendant, the trooper did not yet know that defendant had, in fact, recently been with S.B. inside of the "structure." Even so, the police had strong reasons to believe that defendant, who was evasive, defiant, and inconsistent, and who tried to hide his notepad when he was being questioned by the troopers, was on S.B.'s premises for an illegal purpose rather than a benign one.

Considering the totality of circumstances here, the State has a formidable claim that the troopers had a "'well-grounded' suspicion that a crime has been or is being committed," thereby meeting the threshold of probable cause. State v. Waltz, 61 N.J. 83, 87 (1972) (emphasis added, citation omitted); see also State v. Moore, 181 N.J. 40, 45 (2004). Probable cause may constitute something "less than legal evidence necessary to convict." Waltz, supra, 61 N.J. at 87; see also State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985). Although defendant ultimately was not charged with criminal trespass, it is very likely that had a motion to suppress been filed, a court justifiably would found that Trooper MacNeil had probable cause to infer, from the facts available to him, that defendant was on the premises for the purpose of criminal activity. We concur with the trial judge that the troopers' response to the situation here bespeaks "astute and thorough" police work, and that, had a suppression motion been advanced, the court would have most likely determined that it was justifiable to detain defendant and to search him, to examine the notepad, and the contents of his backpack.

Even if probable cause were found lacking here, we agree with the State that the fruits of the police search here would likely have been deemed admissible at trial under the doctrine of inevitable discovery. The inevitable discovery doctrine is an exception to the exclusionary rule. State v. Sugar, 100 N.J. 214, 236-37 (1985) ("Sugar II"). As the Supreme Court noted in Sugar II, "the deterrent purposes of the exclusionary rule are not served by excluding evidence that, but for the [alleged police] misconduct, the police inevitably would have discovered." Id. at 237. Excluding such evidence "would put the prosecution in a worse position than if no illegality had transpired." Ibid.

The inevitable discovery doctrine requires clear and convincing proof that (1) "proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case"; (2) "under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence"; and (3) "the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means." Id. at 238. See also State v. Holland, 176 N.J. 344, 361-62 (2003) (reaffirming the facets of the "inevitable discovery" doctrine).

We recognize that the trial judge found it unnecessary to reach the State's inevitable discovery argument in his opinion rejecting defendant's PCR application. Nonetheless, in examining the same record facts that were presented in the Law Division, we perceive a strong basis for applying that doctrine here. It is extremely likely that the troopers would have questioned the minor, S.B., and his mother, S.K., in detail about defendant's unexplained presence on their property, particularly given his furtive and uncooperative behavior when the troopers encountered him. Although S.B. initially denied knowing defendant when he spoke with Trooper Yamasaki, he eventually acknowledged their e-mail exchanges and liaison when questioned further by Trooper MacNeil. In addition, the police probably would have secured a warrant to obtain the notepad, which had been first observed in plain view on the car seat by Trooper MacNeil and which defendant suspiciously clutched when police began their legitimate field inquiries of him.

In the context of an ineffective-assistance claim, we need not be satisfied to a certainty that the inevitable discovery doctrine would have been established if the issue had been litigated. Rather, our task simply is to assess whether defense counsel's performance was deficient in foregoing such motion practice and instead negotiating a plea agreement that the trial judge found to be "very favorable." 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. In retrospect, it is entirely conceivable that, had defense counsel moved to suppress the evidence and failed in that endeavor, the State's position in any plea negotiations would have been harsher, and that the five-year sentence that his attorney obtained would have been "off the table." The plea form states that defendant was facing at least a ten-year exposure on the second-degree sexual assault crime, plus additional exposure on the counts of the indictment that were dismissed pursuant to the agreement. Defendant is evidently well-educated man with a medical degree, and there is nothing before us to indicate that he was not aware of the relative advantages and disadvantages of his plea agreement

In sum, we are satisfied that defendant was not unconstitutionally deprived of the effective assistance of counsel, and that his PCR application was justifiably dismissed.

Affirmed.

 

In consideration of the minor victim's privacy, we find it unnecessary to identify the precise residential addresses or street locations involved.

We do not specify the first name, again out of consideration of the victim.

(continued)

(continued)

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A-3293-07T4

RECORD IMPOUNDED

July 16, 2009