STATE OF NEW JERSEY v. NICHOLAS KYRIAZIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4374-07T4

STATE OF NEW JERSEY,

Plaintiff Respondent,

v.

NICHOLAS KYRIAZIS,

Defendant-Appellant.

__________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-12-2433.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nicholas Kyriazis appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In April 2003, defendant was convicted, following a jury trial, of second degree armed burglary, N.J.S.A. 2C:18-2; first degree robbery of Helen Imperatore and Margaret Madden, N.J.S.A. 2C:15-1; second degree theft, N.J.S.A. 2C:20-3; third degree criminal restraint, N.J.S.A. 2C:13-2; fourth degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-5d; second degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second degree conspiracy to commit armed burglary, N.J.S.A. 2C:5-2 and 2C:18-2; second degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3; second degree dealing in stolen property, N.J.S.A. 2C:20-7.1b; second degree conspiracy to deal in stolen property, N.J.S.A. 2C:5-2 and 2C:20-7.1b; second degree receipt of stolen property, N.J.S.A. 2C:20-7; third degree possession of a controlled dangerous substance (Xanax), N.J.S.A. 2C:35-10a(1); and third degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1).

Judge Eugene H. Austin granted the State's motion to sentence defendant to an extended term as a persistent offender, merged several convictions and imposed terms aggregating seventy years with a thirty-seven year parole disqualifier and a seventeen-year NERA parole disqualifier. These terms were to run consecutively with another sentence that defendant was serving in Ocean County. We affirmed on direct appeal. State v. Kyriazis No. A-5626-01T4 (App. Div. Feb. 28, 2005), certif. denied, 183 N.J. 591 (May 23, 2005).

The convictions stem from a home invasion and armed robbery of two elderly women. The evidence is set forth in our opinion on direct appeal. These are the relevant facts. On June 1, 1998, Helen Imperatore and Margaret Madden, Imperatore's house assistant, were watching television at Imperatore's residence. Around 9 p.m., Imperatore went upstairs to go to bed. Madden subsequently heard "running" footsteps in the kitchen and two men came through the doorway, wearing stockings over their heads and gloves. Madden differentiated between the men as "taller and shorter." The taller man, who was described as white, and later identified as defendant, grabbed, choked and covered Madden's mouth. Madden was instructed not to speak. The shorter male, later identified as co-defendant Mark Vassos, held a six-inch knife to Madden's throat. The two men demanded money. She replied that she did not have any money. Defendant and Vassos told her that if she did not give them the money, then she would "die tonight."

Vassos went into Madden's bedroom and removed all the bureau drawers and dumped them. He did not find money in her bedroom. Madden disclosed that there was $25 in her pocketbook. Defendant asked Madden whether there was anyone else in the house. Madden initially denied that anyone else was in the house but she eventually disclosed that Imperatore was upstairs. Defendant ordered Madden to accompany them and dragged her up the stairs.

Imperatore awoke and saw two men possessing six to eight-inch hunting knives in their hands. The two men ordered Madden to kneel down and threw Imperatore to the floor after she attempted to push the men. Imperatore stood up and was then hit in the head with a flashlight three times. Imperatore indicated that there was $500 in a drawer. The intruders demanded more money. Imperatore was able to view Vassos's face through the stocking.

After ransacking the bedroom, Vassos used stockings to tie Madden's and Imperatore's hands behind their backs. Imperatore was able to untie herself. She called 911. The robbery yielded between $80,000 and $90,000 worth of jewelry, and $170,500 in cash.

The following day, defendant contacted Trifon Nomidis, the owner of Creations Between Us, a Newark jewelry store, and told him that he robbed "two old ladies in Fort Lee" and stole $250,000. Trifon appraised the jewelry for defendant. Defendant left without the jewelry. Shortly after, Newark and Bergen County police officers arrived and Trifon gave the officers consent to confiscate the jewelry. Trifon pleaded guilty to receiving stolen property.

Defendant visited George Kyriazis, his older brother, subsequent to the robbery. George testified that defendant arrived at his house in a green Dodge Stealth and disclosed that he obtained a large sum of money and instructed George to watch the news because "[s]omething happened in Fort Lee." Defendant displayed to George rolls of bills in a CVS bag and disclosed that he left the jewelry with "Trifon" at Creations Between Us.

Imperatore agreed to offer a $10,000 reward for information leading to the arrest of the individuals who committed the robbery. After seeing the award advertised on television, George contacted the Fort Lee Police Department and disclosed that his brother committed the crime. George informed the police that defendant was in possession of $150,000 and brought the jewelry to Creations Between Us.

After receiving this information, Fort Lee Police Detective Cottrell arrested defendant while driving a green Dodge Stealth. The vehicle was searched and $39,000 in $100 bills and empty knife cases were found. The vehicle was owned by Thomas Conroy, who was identified by further investigation as the "mastermind" behind the burglary and robbery. Conroy consented to a search of his apartment in Bayonne. The search revealed a pearl-colored stone and a gold chain, which were identified as proceeds from the robbery.

Defended went to trial by himself. Conroy and Vassos were tried separately and convicted. Maria Serrano, the driver of the getaway car, and Mark Serrano, who was in possession of some of the jewelry, were also charged.

More than two years after his conviction, defendant filed pro se a first PCR petition. An amended petition was filed on his behalf by an attorney designated by the Office of the Public Defender. Judge Austin denied the petition without an evidentiary hearing.

Defendant appeals, contending:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL.

We are not persuaded.

New Jersey follows the federal rule in evaluating an ineffective assistance of counsel claim. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Therefore, in order to establish a prima facie case for ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This test establishes a two-pronged analysis. Ibid. The first prong requires the defendant to demonstrate that counsel's performance was deficient. Ibid. The second prong requires the defendant to demonstrate that he was prejudiced by counsel's deficient performance. Ibid.

Defendant argues that his trial attorney was ineffective for failing to retain and consult a psychologist expert to conduct an evaluation of defendant because such psychological analysis was necessary in light of his history of mental illness, involvement with DYFS and substance abuse. Defendant also argues that evidence of his mental limitations should have been submitted to the jury to consider in deciding whether defendant formed the requisite mental intent. We disagree.

The State was required to prove that the defendant acted "purposely" or "knowingly." Purposely means that, with respect to the nature of his conduct or a result thereof, it was defendant's conscious objective to engage in conduct of that nature or to cause such a result. N.J.S.A. 2C:2-2b. "Knowingly" requires the State to prove that the defendant was aware that his conduct would cause the result or he is practically certain that his conduct would cause the result. Ibid.; State v. Cruz, 163 N.J. 403, 418 (2000).

Evidence of mental disease or mental defect, however, is admissible if relevant to an element of an offense, i.e., purposeful or knowingly. N.J.S.A. 2C:4-2. This evidence is admissible to prove that the defendant's mental condition interfered with the formation of the requisite mental element of the offense. State v. Galloway, 133 N.J. 631, 647 (1993). The jury may be charged regarding a mental disease or defect where there exists a diagnosed underlying mental disease or disorder. State v. Reyes, 140 N.J. 344, 364-66 (1995). It therefore follows that where there is ample evidence that the defendant might prevail on a diminished capacity defense but his trial counsel, due to strategic considerations or negligence, failed to investigate or assert the defense, the defendant may have a claim of ineffective assistance of counsel. See State v. Savage, 120 N.J. 594, 612-22 (1990) (involving the insanity defense).

Here, defendant relies on a report prepared by Gerard A. Figurelli, Ph.D. on March 26, 2007, to argue that his diminished capacity prevented him from forming the requisite mental intent of the crimes convicted. Dr. Figurelli found that defendant had a history of drug dependence, social maladjustment, mental illness (disturbance in personality functioning), learning disorder, low level of cognitive functioning and self-defeating judgment, which impacted his judgment when committing the underlying offensive behavior. Dr. Figurelli noted that evidence of defendant's psychological dysfunction and cognitive limitations would have been "significant" for a jury to assess in determining defendant's capacity to form intent.

Judge Austin held that it is a matter of attorney strategy whether to present psychological evidence. We agree with the judge's conclusion that there did not exist a reasonable probability that the presentation of such evidence would have precluded the State from proving that the robbery was calculated and planned.

Moreover, defendant did not present any evidence on PCR that established that he was incapable of forming the mental elements of the crimes in which he was convicted. See Galloway, supra, 133 N.J. at 647. Defendant instead presented a report that opined that the submission of evidence of defendant's psychological dysfunction would have been "significant" to the fact finder. However, Dr. Figurelli did not opine that defendant was unaware of the nature and quality of his acts or lacked the capacity to act knowingly and purposely at the time of the offense. Evidence concerning defendant's impulsiveness, rage, depression, substance abuse or personality disorder was irrelevant unless it was pertinent to his ability to form the requisite mental intent. State v. Russo, 243 N.J. Super. 383, 393-96 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991). Defendant provided no evidence that he was acting under hallucinations or delusions at the time of the offense. Thus, defendant has not satisfied his burden in establishing a prima facie claim of ineffective assistance of counsel.

Likewise, defendant cannot demonstrate that he was prejudiced by trial counsel's failure to raise a diminished capacity defense in light of the overwhelming evidence of his planned execution of the home intrusion and robbery. First, the evidence produced at trial established that defendant arrived in New Jersey from North Carolina, where he resided, on May 31, 1998, three days before the robbery. Defendant disclosed to his brother and nephew that his friend Conroy was the "mastermind" of the robbery. This showed advanced preparations of the robbery. Testimony regarding telephone records also established that defendant, Vassos and Conroy were in contact several weeks before the event, which provided a further inference that the robbery was planned. Thus, defendant's awareness of and participation in the robbery demonstrated "purposeful" and "knowing" conduct in coming to New Jersey to commit the robbery.

Further, defendant contacted Nomidis shortly after the robbery to provide an estimation of the jewelry so that defendant could sell it in New York. George Roman testified that defendant intended to use the proceeds of the robbery to purchase a house. These details established that defendant was involved in the planning of the robbery and intended to obtain money from breaking into the house provides ample support for the jury finding of purposeful and knowing conduct. All of this bespeaks purposeful conduct.

Finally, the circumstances of the robbery indicate that it was defendant's purpose to break into the Imperatores' residence and steal money. Imperatore and Madden testified that the perpetrators repeatedly demanded money and threatened death. This conduct cannot be characterized as "bizarre," but instead supports the jury's finding that it was defendant's objective to take money from the Imperatore residence. Thus, defendant was not prejudiced by the alleged deficient performance of his attorney.

Defendant next contends that his trial attorney precluded him from exercising his constitutional right to testify on his own behalf. The record belies defendant's contention. Defendant acknowledged on the record that his trial attorney provided defendant with advice regarding whether to testify. Specifically, defendant stated that he believed that he was compelled to testify until his trial attorney informed him that he did not have to testify. Moreover, the judge informed defendant that he had an absolute right to testify, pursuant to State v. Bey, 161 N.J. 233, 269-70 (1999). Thus, the record establishes that defendant was informed of his right to testify by his trial attorney and the judge. He made that choice.

Defendant also contends that "trial counsel misrepresented his sentencing exposure and failed to fully explain the plea offer." Defendant argues that trial attorney informed him that the maximum sentence was "40 years with a 20 year [parole disqualifier]." Defendant now asserts that he would have accepted the plea offer if he was advised of the correct information regarding the maximum sentence. However, defendant's argument is contradicted by the record.

During the pretrial conference, the prosecutor explained to defendant that if he did not accept a plea and was convicted of first degree armed robbery, the presumptive term was fifty years and the exposure was twenty years to life on a discretionary extended term. The prosecutor informed defendant that twenty years would be under NERA, automatically requiring defendant to serve seventeen years without parole. Defendant was advised that this sentence would run consecutively to the sentence that he was currently serving. Defendant was informed that this plea offer could be reduced in the court's discretion. Finally, defendant acknowledged on the record his understanding of the plea offer and his exposure. This contention therefore lacks merit.

Defendant also argues that his trial attorney failed to present any evidence pertaining to his history of mental illness and psychological issues during sentencing and such evidence would have constituted a mitigating factor. We disagree.

Judge Austin found the following seven aggravating factors pursuant to N.J.S.A. 2C:44-1a applied, i.e., (1) the nature and circumstances of the offenses and the role of defendant in the offenses was heinous, cruel and depraved; (2) the harm inflicted on the victims was serious; (3) there was a risk of re-offense; (6) defendant's prior criminal record was extensive and the offenses of which he was convicted were serious offenses; (9) there was a need to deter defendant and others from violating the law; (11) the imposition of a fine without prison sentence would be perceived as merely the cost of doing business; and (12) defendant committed the offenses against persons who he knew or should have known were sixty years or older, or disabled. The judge found no mitigating factors.

The sentencing court, in determining the appropriate sentence, may consider whether there was substantial grounds tending to excuse or justify the defendant's conduct, although failing to establish a defense as mitigating circumstances. N.J.S.A. 2C:44-1b(4). We have recognized that this factor may be applicable despite the jury rejecting the insanity defense. State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998). Drug dependency, however, does not justify the finding of this mitigating factor. State v. Ghertler, 114 N.J. 383, 389-90 (1989).

From our careful review of the record, we conclude that Judge Austin correctly identified the sentencing factors and there was sufficient evidence to support each the factors found. However, the judge's finding of aggravating factor eleven was erroneous because there was no possibility of a probationary sentence in this case. See State v. Dalziel, 182 N.J. 494, 502-03 (2005). This error was harmless in view of the other well-supported findings of the aggravating factors and the absence of mitigating factors which fully supports the sentence imposed. R. 2:10-2. We note that defendant was not a first time offender but instead had an extensive criminal record. Thus, because the presentation of the psychological report would have been accorded little weight, defendant cannot satisfy either prong of the Strickland/Fritz standard.

Defendant next contends that trial attorney did not adequately prepare the case for trial and provided erroneous information to defendant regarding his right to testify and plea bargain, and due to the cumulative errors, he is entitled to an evidentiary hearing. We disagree.

Although an error or series of errors may not individually amount to plain error, in combination the errors can cast doubt upon the verdict to warrant reversal. State v. Reddish, 181 N.J. 553, 615 (2004). However, as already demonstrated, we conclude that defendant's trial attorney did not commit any errors warranting reversal. Therefore, there is no cumulative effect. Defendant is not entitled to an evidentiary hearing.

Defendant also contends:

THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO HAVE VARIOUS FAMILY MEMBERS TESTIFY AT TRIAL. (NOT RAISED BELOW).

Defendant alleges that his trial attorney was ineffective for failing to present the testimony of his family members, including Gloria Kyriazis, Spiro Kyriazis, Dimitri Kyriazis and Emmanuel Kyriazis. Defendant argues that such testimony would have negated the State's case in chief. The judge did not address this issue. However, failure to make specific findings of a tangential allegation does not necessarily require remand. See State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). We do not perceive how the family members, who were not witnesses to the event, could negate the State's case. The statements the family members would have provided do not purport to establish that defendant was incapable of forming the requisite mental intent. Therefore, if it was error at all, the failure to address the contenting constituted harmless error.

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

(continued)

10

A-4374-07T4

 

August 12, 2010