STATE OF NEW JERSEY v. JOHN TATE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4676-06T44676-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN TATE,

Defendant-Appellant.

_________________________________________________

 

Submitted January 14, 2009 - Decided

Before Judges Payne and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No. 00-06-0848.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor,

attorney for respondent (Joseph J. D'Onofrio, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

On May 14, 2001, defendant, John Tate, pled guilty to two counts of second-degree sexual assault on a minor, N.J.S.A. 2C:14-2c(4), reduced to third-degree crimes for purposes of the plea, and two counts of fourth-degree sexual contact (touching), N.J.S.A. 2C:14-3b, receiving a five-year sentence, with no period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC). Defendant appealed his sentence, and we affirmed it, after a hearing on our excessive sentencing oral argument calendar, in an order dated June 12, 2003. Defendant did not petition for certification.

On January 5, 2004, defendant filed a pro se petition for post-conviction relief, which was later supplemented by a brief filed on defendant's behalf by the Office of the Public Defender. Upon consideration of the petition, the motion judge ordered a testimonial hearing, State v. Preciose, 129 N.J. 451 (1992), which occurred on February 22 and 27, 2007. At its conclusion, the judge denied relief. This appeal followed.

On appeal, defendant raises the following issues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE EVIDENCE CLEARLY PROVED THAT PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE-ASSISTANCE-OF-COUNSEL BY FAILING TO PROPERLY INFORM DEFENDANT ON [THE] STATUS OF HIS CASE REGARDING PRE-TRIAL MOTIONS AS ALLEGED, AND BY FAILING TO NEGOTIATE THE BEST PLEA OFFER, THEREBY LEADING TO A BREAK-DOWN OF THE ATTORNEY-CLIENT RELATIONSHIP RENDERING THE ENTRY OF THE PLEA INVOLUNTARY AND UNKNOWING.

B. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED SINCE TRIAL COUNSEL PROVIDED INEFFECTIVE-ASSISTANCE-OF-COUNSEL BY FAILING TO PROPERLY INFORM DEFENDANT AS TO THE POTENTIAL APPLICABILITY [OF] CIVIL COMMITMENT FOLLOWING SENTENCING, THEREBY RENDERING ENTRY OF THE PLEA INVOLUNTARY AND UNKNOWING, AND APPELLATE COUNSEL WAS FURTHER INEFFECTIVE BY FAILING TO RAISE THE ISSUE ON APPEAL THEREBY DENYING DEFENDANT THE BENEFIT OF HIS RIGHTS UNDER STATE V. BELLAMY, 178 N.J. 127 (2003).

Having carefully considered the record in light of applicable precedent, including the two-pronged standard for granting post-conviction relief in cases alleging ineffective assistance of counsel, established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and recognized in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), we affirm.

The record establishes that, in the period between 1996 and 1999, defendant, a fifty-one-year-old teacher at Passaic Vocational Technical School and a counselor with the Morris County Youth Advocate Program (YAP), molested four boys under the age of sixteen. In his plea, defendant admitted to digital penetration of two of the boys and to touching the intimate parts of the other two while the boys were in defendant's charge as a YAP counselor. Following defendant's arrest, he retained the law firm of Alan Zegas to represent him in the criminal prosecution. Handling of the pre-trial aspects of the case was assigned by Zegas to an associate, Patricia Lee, who appeared in court on defendant's behalf and prepared and argued an omnibus multi-issue motion seeking, among other things, dismissal of the indictment, suppression of defendant's statement to the police, and suppression of items seized from defendant's residence pursuant to a warrant. Additionally, Lee engaged in plea negotiations and counseled defendant with respect to the resolution of his case.

The Preciose hearing held in the matter focused on defendant's claims that Lee failed to inform him of the results of the omnibus motion filed on his behalf, failed to negotiate effectively for a better plea bargain, failed to communicate with him, coerced him into pleading guilty, and further, coerced him into waiving a hearing, pursuant to State v. Horne, 56 N.J. 372 (1990), to challenge the finding of an ADTC psychologist that defendant's conduct was repetitive and compulsive. Lee testified at the hearing, as did defendant.

In her testimony, Lee discussed the results of the omnibus motion, and she testified that both she and defendant engaged in the preparation of a follow-up motion providing detail that the trial judge had found necessary after reviewing defendant's initial papers, thereby offering circumstantial evidence that the result of the initial motion had been communicated to defendant. Lee testified further that the State had initially offered defendant a prison term of seven years, and had stated that the plea offer would be withdrawn if any pretrial motions were filed. Following the filing of the omnibus motion, the plea offer was, in fact, withdrawn, but when negotiations resumed, she was able to negotiate a five-year prison term. Lee testified that she regarded the plea offer to be "very good," and she expressed that opinion to defendant, while telling him that the decision whether or not to plead guilty was his. Lee testified that her evaluation of the plea offer was affected by her recognition of essentially incontrovertible unfavorable evidence against defendant, consisting of a tape of a telephonic intercept of a conversation between defendant and one of his victims that contained defendant's admission that the two had engaged in mutual masturbation; defendant's incriminating statement to the police; and pictures taken of defendant's genitals by the police that disclosed skin pigmentation discolorations in locations described accurately by the victims. Lee also disclosed that the office had retained an investigator in the matter, but that his investigation had uncovered further information that was unfavorable to defendant. Lee further testified to frequent conferences with defendant, who admitted in his own testimony that he was "proactive" in his defense.

In connection with the plea, Lee testified that defendant's agreement to its terms was voluntary, and that she had gone over each question on the plea forms with him prior to his allocution. Lee confirmed that defendant was an intelligent person, having recently completed his college education. She had no question that his responses were knowing and voluntary.

As a final matter, Lee testified that, following defendant's unfavorable evaluation by the ADTC's psychologist, her office retained a defense expert to challenge the psychologist's findings. However, in an oral report to her, the defense psychologist concurred with the findings of the ADTC's expert. Therefore, she informed defendant that the defense expert would not be called, and if a Horne hearing took place, she would rely on cross-examination of the State's witness. However, prior to the hearing, defendant agreed to waive it. Lee confirmed that on the day of the hearing, defendant had an abscessed tooth, and she stated that sentencing was considerably delayed to permit treatment. The transcript of proceedings on September 28, 2001, the date scheduled for the Horne hearing, establishes defendant's voluntary waiver of his right to a hearing, and does not support defendant's contention that Lee and the trial judge conditioned defendant's dental treatment on his waiver of the hearing.

In his testimony, defendant contradicted much of what Lee stated had occurred in connection with his defense. However, in detailed factual findings made at the conclusion of the hearing, the PCR judge found Lee's testimony to be credible, and he rejected that given by defendant, observing that defendant's lapses in memory were "convenient," that he "fenced" with the prosecutor. In particular, the judge focused on defendant's claimed "unwillful" falsehoods, given in connection with his plea, concluding that defendant's testimony in that regard further eroded his credibility. Finding no factual basis for defendant's claims of ineffective assistance of counsel to exist, the judge denied defendant's request for post-conviction relief, determining that Lee's representation was not deficient.

In reviewing the PCR judge's decision, we give deference to those findings that "are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964); see also State v. Locurto, 157 N.J. 463, 474 (1999). Our role on appeal is limited to a determination whether the findings made by the PCR judge could reasonably have been reached on sufficient credible evidence present in the record. Johnson, supra, 42 N.J. at 162; Locurto, supra, 157 N.J. at 472.

Our review of the record, in light of the standards that we have just articulated, satisfies us that the factual findings of the PCR judge were adequately supported by evidence in the record, and we affirm his conclusion that defendant did not meet his burden of demonstrating the first prong of Strickland's test, requiring a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We thus find it unnecessary to address Strickland's second prong, which requires evidence that counsel's deficient performance prejudiced the defense. Ibid.

 
Defendant also argues that Lee's performance was deficient because she failed to inform him of the possibility of civil commitment following release from the ADTC, and that the performance of appellate counsel was likewise deficient, because the issue was not raised on appeal. If it had been, defendant contends, he would have been able to claim the benefit of the Supreme Court's decision in State v. Bellamy, 178 N.J. 127, 131 (2003), requiring that such information be conveyed and affording pipeline retroactivity to its decision. Id. at 142-43. However, our review of the record satisfies us that possibility of civil commitment was addressed on the supplemental plea form applicable to certain sexual offenses committed on or after December 1, 1998, which defendant signed. Moreover, the issue has been mooted by defendant's parole without commitment. We thus decline to address it further. R. 2:11-3(e)(2).

Affirmed.

In his brief on appeal, defendant suggests that there was in fact a lower plea offer, basing that contention on the following question and answer on cross-examination:

Q. Now . . . you had responded in response to the State's question that as far as you recall there was no lower plea offer ever mentioned other than the five years that eventually was put through. Is that correct?

A. Well our office had saw a lesser plea term, but in terms of an actual offer, no.

Lee's further testimony that, when a second-degree crime was reduced to a third-degree one for plea purposes, the office always sought a three-year term, and when not offered, then sought four years before agreeing to five, provides evidence that the word "saw," upon which defendant's argument turns, was mis-transcribed, and should have been "sought."

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9

A-4676-06T4

RECORD IMPOUNDED

April 20, 2009