STATE OF NEW JERSEY v. STEPHEN TOME, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3451-08T43451-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN TOME, JR.,

Defendant-Appellant.

_______________________________

 

Argued: February 3, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-07-1420.

Michael D'Alessio, Jr., argued the cause for appellant (Walder, Hayden & Brogran, P.A., attorneys; Mr. D'Alessio, of counsel and on the brief; Kevin A. Buchan, on the brief).

Hillary Horton, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Acting Attorney General, attorney; Ms. Horton, of counsel and on the brief).

PER CURIAM

Defendant Stephen Tome, Jr. appeals from the January 23, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant had argued to the PCR judge, and renews the arguments on appeal, that his trial counsel was ineffective, and an evidentiary hearing was warranted, because counsel failed to advise him of his right to testify at trial, advised him to plead guilty to a lesser count of the indictment and to proceed to trial on the other count, and failed to present a key expert witness. We affirm.

On July 1, 2004, defendant was charged in Indictment No. SGJ-494-04-5 with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(a) (count one), and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b) (count two). Prior to trial, defendant moved to dismiss count one of the indictment for insufficient evidence, to suppress evidence seized from defendant's residence pursuant to a search warrant, and to suppress the inculpatory statements made by defendant, which were denied. In subsequent motions, the court denied defendant's motion to preclude the State from introducing into evidence the child pornography found in defendant's possession.

On December 21, 2005, and January 4, 2006, there were lengthy discussions on the record between counsel and the court about the defense strategy of defendant pleading guilty to the second-degree charge prior to trial, his desire the jury be informed of the guilty plea, and his request for certain charges. Defendant, who was present during the colloquy, then entered an unconditional guilty plea to the fourth-degree endangering charge, which did not require him to register as a sex offender. Defendant acknowledged he was knowingly and voluntarily entering the plea, in accordance with the plea form he executed, with a full opportunity to discuss the charges with his attorney, with whose services he was satisfied. He expressly acknowledged there was no agreement with the State; he could receive a maximum sentence of eighteen months for the charge; he had a right to proceed to trial on the charge and if he did so, he would have an absolute right to testify on his own behalf or to remain silent without recrimination, in all instances similar to what he was doing on the other count; and by pleading guilty he was waiving those and other enumerated rights.

Defendant then testified to provide a factual basis for his guilty plea that he used the computer to copy images and movies from the Internet depicting underage children engaged in prohibited sexual acts and knowingly possessed and viewed those images. He further testified that he kept some of those images in a file designated as "My Music" in his computer, which was a file connected to a WinMX program.

Trial commenced the next day. As agreed, in its preliminary instruction the court informed the jury that defendant had pled guilty to the second count, namely, that he possessed and viewed child pornography on his computer, but that such plea could not be considered in determining whether he was guilty of the first count, namely, knowingly offering through the Internet the prohibited images. In his opening, defense counsel told the jury that defendant had admitted guilt to the judge of searching the internet to find, copy and view child pornography in the privacy of his room, for which he was ashamed and for which the judge would determine the punishment. However, he asserted there was no evidence defendant distributed or offered anything to other people or that anyone copied anything from defendant. He repeated a similar theme in his closing. After several days of trial, during which defendant did not testify or present any witnesses, he was convicted of second-degree endangering the welfare of a child. On March 24, 2006, the court merged count two into count one, decided to sentence defendant within the range permitted for third-degree offenses, and imposed a three-year term of imprisonment that also required defendant to register as a sex offender. The sentence was stayed pending appeal.

We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Stephen Tome, Jr., No. A-4283-05 (App. Div. April l8, 2007). The Supreme Court denied defendant's petition for certification on June 21, 2007. State v. Stephen Tome, Jr., 192 N.J. 74 (2007).

On or about August 23, 2008, defendant filed a PCR petition, which was denied by Judge Eugene Austin on January 23, 2009, following oral argument with defendant present but without an evidentiary hearing. The judge addressed the three claims of ineffective assistance of trial counsel, which defendant reargues on appeal: (1) counsel failed to explain or advise defendant about his right to testify at trial; (2) on the eve of trial, counsel advised defendant to plead guilty to fourth-degree endangering, the lesser offense (downloading, viewing and possessing child pornography), and to proceed to trial on the more serious count of the indictment, second-degree endangering (offering child pornography through a WinMX sharing system on his computer); and (3) counsel failed to present a computer expert who had prepared a report that would have supported a defense that pornographic files were not distributed from defendant's computer.

Based on his review of the record, the judge found defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Thus, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Judge Austin referenced the trial transcript and concluded that defendant was informed of his right, and chose not to testify at trial. The judge further concluded the record demonstrated that it clearly was trial strategy to plead guilty to the fourth-degree offense the day before and take it "out of the picture" and perhaps convince the jury that justice had been served because defendant had already owned up to possessing child pornography. The judge was also satisfied that all other defense decisions, such as trial experts, were a matter of trial strategy that did not require second-guessing or hindsight. This appeal ensued.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

"In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)." State v. Catagna, 376 N.J. Super. 323, 360 (App. Div.), certif. granted, 185 N.J. 35 (2005). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Ibid. (quoting State v. Dennis, 43 N.J. 418, 428 (l964)).

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall III, 148 N.J. 89, l58 (1997) (internal citations omitted).

It is clear from the record that defendant and his trial counsel discussed defendant's right to testify, the advantages and disadvantages of defendant taking the stand, and that defendant made a conscious decision not to do so. Defendant's right to testify at trial was discussed at length during the plea colloquy. At trial the court took a ten minute recess for defense counsel to go over the "Election not to testify" form with defendant. Trial counsel represented that he had discussed defendant's election not to testify not only during the recess but at other times as well. Defense counsel then said:

I have discussed with [defendant] that he has a right to testify if he wants to, and conversely, he has a right to remain silent if he wants to. We discussed the advantages and disadvantages of each choice. I made a recommendation, and [defendant] has elected not to testify.

To make sure defendant understood what had transpired, the court

asked defendant if his attorney had "correctly" stated that it was defendant's decision not to testify, to which defendant responded "yes." Defendant expressed no confusion or disagreement. Defendant gave no indication whatsoever of the self-serving claims he now makes in his affidavit, i.e., that his trial counsel merely told him it was not a good idea for him to testify and provided him no explanation of the reason why.

As set forth in our prior opinion, State v. Stephen Tome, Jr., supra, slip op. at 3, defendant admitted to the arresting officers that he used WinMX, that his files could be accessed by other WinMX users, and that he had "swapped downloaded material," referring to the child pornography involved herein, with other people. In his opening, defense counsel argued that "[t]he only reason we're here is because somebody downloaded a WinMX program into [defendant's] computer using -- default settings and that other people could, maybe, take something . . . You're going to have to decide whether [defendant] maybe knowingly left something negligently where other people might have picked it up, whether he offered it to them." In view of the evidence, defendant would have had significant difficulty proceeding with that line of defense if he had testified.

The record also supports the finding that defense counsel, a certified criminal trial attorney, had a well-planned, plausible trial strategy to separate out the two charges of the indictment and for defendant to plead guilty to the lesser count prior to the trial. There was overwhelming evidence that defendant downloaded, viewed and possessed child pornography - he admitted to the police that he downloaded and viewed it, he paid a monthly subscription fee to access the "boyswillbeboys.net" website to view it, and he possessed an additional fifty-six videos of it stored on floppy disks that he hid in his truck. In view of this nearly overwhelming evidence, defendant's decision to plead guilty to the "possession" count was rational. It appears defense counsel was able to keep these disks from the eyes of the jury when he pled guilty to possession the day before trial.

Moreover, defense counsel was emphatic that the jury be told of defendant's plea at the outset and that specific instructions be given to the jury, and was successful in convincing the court to do so, in part, over the State's objection. Experienced defense counsel followed through from the opening to the closing with his strategy of pointing to defendant's "mea culpa" and willingness to accept punishment for possessing and viewing child pornography, perhaps hoping the jury might be satisfied that no further punishment was necessary. There is no doubt from the record that defendant understood and acquiesced in the trial strategy and knowingly and voluntarily entered the plea after discussion with counsel with whose services he was satisfied, and that he never indicated otherwise to the court.

Although PCR counsel may question the timing of the plea, or argue that defendant would have been in a better position strategically to "roll the dice" on both charges, we do not agree with his bald assertion that "[f]rom a legal standpoint, the fact that counsel eliminated the lesser charge from the jury's consideration defies logic." Moreover, defendant has presented insufficient proof of professional incompetence on this issue to warrant an evidentiary hearing.

We are also satisfied that defendant's trial counsel made a strategic decision not to call his computer expert as a witness. Defendant argues that Michael Michalowicz's opinion that "there was no indication or conclusive evidence that any pornographic files were distributed from [defendant's] computer" should have been presented to the jury. In his affidavit, defendant states that he does not know why Michalowicz was not called as a witness at trial. We disagree that an evidentiary hearing is "vital" to ascertain why the computer expert was not called as a witness. We are satisfied defendant failed to make a prima facie case under Preciose. This is the same general ignorance defendant now asserts of everything that occurred in connection with his trial, i.e., his guilty plea and decision not to testify, which are belied by the record. We also note that during the colloquy between the court, defense counsel and defendant at the close of the State's case respecting defendant's choice not to testify, defendant indicated no surprise that no witnesses were being called on his behalf.

This is not a case in which trial counsel failed to consult an expert witness. See e.g., State v. Thompson, 405 N.J. Super. 163, 171-72 (App. Div. 2009). Defense counsel extensively cross-examined the State's computer expert, State Investigator Christopher Howell, which included significant inquiry into the WinMX system, and involved discussions on the default settings and other technical aspects of the software program. We can therefore assume defense counsel consulted with Michalowicz in connection with this trial preparation. It appears that after reviewing his and the State's computer experts' reports, defense counsel made a professional judgment that defendant would be better served by a vigorous cross-examination of the State's witness than by presenting his own expert witness, who would also be subject to a vigorous cross-examination.

The record and case law clearly support Judge Austin's finding that defendant has failed to establish a prima facie case of deficient performance of counsel - the first Strickland prong. Accordingly, the order denying defendant's PCR petition and request for an evidentiary hearing was properly granted.

Affirmed.

 

The court made an in camera inspection of twenty-two video files, consisting of twenty-one video file folders from defendant's hard drive that had been placed on the WinMX network and one floppy disk, which depicted underage children engaging in prohibited sexual acts.

WinMX is a software program that allows peer-to-peer file sharing. Similar to Napster, the purpose of WinMX is to share multi-media files, such as movies or images, among its network of users and provides a mechanism for the files to be copied or downloaded from the computer on which the file is stored to the searching user's own computer.

In his subsequent charge, the judge reiterated, in part, that defendant had pled guilty only to the offense of "possession," which could not be used as an inference of guilt to the charge of "offering."

(continued)

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2

A-3451-08T4

RECORD IMPOUNDED

March 8, 2010