STATE OF NEW JERSEY v. NICHOLAS SCIROCCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1461-07T41461-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS SCIROCCO a/k/a NICOLA SCIROCCO,

Defendant-Appellant.

_____________________________________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Graves and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

97-10-1680.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Robert D. Van Pelt, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (John J. Scaliti,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Nicholas Scirocco appeals from an order dated September 26, 2007, denying his petition for post-conviction relief (PCR), without an evidentiary hearing. After reviewing defendant's arguments in light of the record and the applicable law, we affirm.

Defendant was charged in a three-count indictment with first-degree carjacking, second-degree aggravated assault, and third-degree aggravated assault. A jury acquitted defendant of all three charges, but the jury found him guilty of the lesser-included offenses of fourth-degree joyriding and simple assault, a disorderly persons offense. On October 22, 1999, the court sentenced defendant to a three-year term of probation with 250 hours of community service and anger management counseling as special conditions. All mandatory penalties and assessments were also imposed.

Defendant appealed his convictions and in an unpublished opinion, this court affirmed. State v. Scirocco, No. A-1918-99 (App. Div. Sept. 21, 2001), certif. denied, 171 N.J. 41 (2002). In our initial opinion, we summarized the pertinent facts of the case as follows:

Prior to January 28, 1996, defendant and Thomas Glenn had been friends. At Glenn's request, defendant, who had some experience in repairing vehicles, agreed to do some repairs on a 1989 Firebird Glenn had recently purchased "as is." The car had been in an accident and required a fair amount of work. A dispute arose between the two over the repairs performed by defendant as Glenn thought they were defective and defendant wanted more money.

Ultimately, on January 28, 1996, defendant, along with a friend, went to Glenn's house to demand the money. Initially, Glenn was inside his house. He took the keys to the Firebird and went outside where he showed defendant what he considered to be problems with the repairs. He retained possession of the keys and ordered defendant and his friend to leave the property. He was, then, attacked by both men and the keys to the car were snatched from his hand. Defendant drove the Firebird away, eventually leaving it in a Grand Union parking lot.

We recognize defendant's version of what occurred was quite different and that the jury obviously did not accept all of the inferences the State argues could be drawn from the evidence. But for the purposes of the issue raised by defendant here, we must view the evidence most favorably to the State and give it all of the reasonable inferences that can be drawn therefrom. State v. Reyes, 50 N.J. 454, 459 (1967). Our recitation of the facts reflects that standard.

In January 2004, defendant filed an amended petition for PCR in which he claimed he was denied the effective assistance of trial counsel because: (1) "counsel failed to conduct [a] thorough cross-examination of state witnesses"; (2) "counsel failed to call witnesses to verify [the] victim had a psychiatric history"; (3) "counsel failed to object to the photograph of the victim's alleged injuries"; (4) "counsel failed to move for disclosure of the alleged victim's criminal history . . . and failed to call witnesses who could verify the alleged victim's criminal history"; (5) "counsel failed to call witnesses to rebut the alleged victim's denial . . . that he never told anyone that he wanted to commit suicide"; (6) "counsel failed to effectively cross[-]examine the victim about his psychiatric history as well as other relevant issues"; (7) "counsel failed to elicit all relevant evidence from the [defendant] during his direct testimony"; (8) "counsel failed to effectively examine witnesses David Roberto and Justin Picone regarding [defendant] having permission to take the alleged victim's car as well as other issues"; and (9) "counsel failed to elicit evidence regarding the alleged victim's sale of the car worked on by [defendant] as well as his threat to the buyer that he would report the car stolen if he didn't finish making the payments."

In a letter dated October 27, 2004, the PCR court stated that defendant's petition was denied because "defendant has not established a prima facie case." The court memorialized its decision in an order and defendant appealed. In an unpublished opinion, this court recognized "that defendant's trial counsel was largely successful in his efforts on defendant's behalf, and that the PCR judge was intimately familiar with the facts of the case because he was also the trial judge." State v. Scirocco, No. A-5399-04 (App. Div. Dec. 26, 2006) (slip op. at 4). Nevertheless, we reversed the order denying defendant's petition because the order was entered "without oral argument, without an evidentiary hearing, and without an adequate statement of reasons." Id. at 1-2.

On September 17, 2007, the PCR court heard arguments on defendant's petition. In an oral decision, the court found defendant's trial counsel had presented "a very strong, zealous, diligent defense" and "if there was a mistake" by defense counsel, it was "immaterial."

On appeal, defendant presents the following arguments:

POINT I

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, PURSUANT TO R. 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE DEFENDANT'S COUNSEL AT THE POST CONVICTION RELIEF HEARING FAILED TO ADVANCE GROUNDS SOUGHT BY THE DEFENDANT.

POINT III

THE COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL.

We are satisfied from our review of the record and briefs that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.

To successfully argue trial counsel did not provide the level of assistance required under the Sixth Amendment, a "defendant must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). These standards for assessing ineffective assistance of counsel claims were adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

 
In the present matter, the judge who presided over defendant's trial found that defendant failed to satisfy the Strickland/Fritz test because there was no showing by defendant that the performance of his trial counsel was constitutionally deficient, and there was no showing that the allegedly deficient performance of counsel prejudiced his defense. We conclude that these findings are amply supported by the record and that the matter was correctly decided. Moreover, PCR counsel's representation of defendant fully conformed with the requirements of State v. Rue, 175 N.J. 1, 13-19 (2002) and State v. Webster, 187 N.J. 254, 257-58 (2006).

Affirmed.

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A-1461-07T4

May 6, 2010