STATE OF NEW JERSEY v. DEBBIE MOORE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5836-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEBBIE MOORE,
Defendant-Appellant.
____________________________
Submitted June 2, 2010 - Decided August 16, 2010
Before Judges Wefing and LeWinn.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. 98-06-1091.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Alison Perrone,
Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant appeals from the December 3, 2007 order of the
trial court denying her petition for post-conviction relief
(PCR). We affirm.
Tried to a jury in May 2000, defendant was convicted of
first-degree possession of a controlled dangerous substance
2C:35-5(a)(1) and
(CDS) with intent to distribute, N.J.S.A.
2C:35-5(b)(10)(a); second-degree conspiracy/possession with
intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-
5(b)(10)(a); three counts of second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(3). On August 25, 2000,
defendant was sentenced to an aggregate term of thirty years
with a ten-year period of parole ineligibility.
Defendant appealed her convictions and sentence, and we
State v. Moore, No. A-1177-00 (October 8, 2002),
affirmed.
certif. denied,
176 N.J. 73 (2003).
The trial evidence was discussed in our opinion (slip op.
at 2-4), and we summarize it here. Defendant, along with co-
defendants Jesus "Fernando" Zamudio and Patrick Huntley Pearce,
drove a vehicle to a hotel parking lot which was under
surveillance by members of the Bergen County Narcotics Task
Force as the site of an imminent transaction involving the
transfer of 273 pounds of marijuana. Defendant parked the car
next to the vehicle known to contain the marijuana. "Fernando"
obtained the keys to that vehicle and gave them to defendant who
"unlocked the driver's door . . . and got into the driver's seat
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. . . while one of her children got into the passenger's seat."
Id. at 3-4. The task force surveillance team then arrested
defendant and the two men.
At trial, the State produced an expert who testified that
"children are often put in cars containing 'huge' loads of
marijuana to avoid suspicion." Id. at 12. Among defendant's
contentions on appeal was her claim that her trial counsel
rendered ineffective assistance by failing to "present expert
Noting that
testimony to rebut the State's expert." Ibid.
"[o]rdinarily, this issue is reserved for a [PCR] petition where
defendant may develop evidence outside the record[,]" we
nonetheless addressed the claim on the merits and rejected it
because defendant did not proffer any expert who would have been
available to testify on her behalf on this issue; nor did she
"illuminate the subject matter of such testimony." Id. at 12-
13.
On April 15, 2005, defendant filed a pro se PCR petition
essentially raising challenges to the sufficiency of evidence at
trial. Counsel was assigned and filed an amended PCR petition
on or about March 23, 2007, raising claims of ineffective
assistance of counsel for failure to investigate witnesses and
to consult with defendant in preparation of her case. For the
first time, defendant asserted a claim of ineffective assistance
A-5836-07T4
3
based on counsel's failure "to retain and or consult an expert
psychologist to conduct an evaluation of [defendant] and have
the psychologist testify at trial." Counsel appended a report
by Gerard A. Figurelli, Ph.D., dated March 5, 2007, which
contained the doctor's evaluation of defendant, including an
interview in which defendant
report[ed] that in her relationship with
. . . Pierce, [sic] her co-defendant, she
was subjected to intimidation, coercion,
emotional abuse and physical abuse[,] . . .
[and] that . . . Pierce [sic] . . .
threatened to withdraw financial support he
provided her, and threatened to have her
children removed from her care and custody
. . . if she did not do as he
instructed/demanded of her in various
matters.
Based on his evaluation, psychological testing and
interview, Figurelli opined "within a reasonable degree of
psychological certainty[,]" that defendant "was emotionally co-
dependent and financially dependent upon . . . Pierce [sic]";
and that "Pierce [sic] emotionally and physically abused
[defendant]; manipulated her fears and her dependence; and
her to control her behavior and
threatened and intimidated
with his needs, wants and demands."
coerce her compliance
Figurelli described defendant's history as "[c]onsistent with
the dynamics of battered women's [sic] syndrome," and opined
that "it would have been appropriate and helpful for a jury, at
A-5836-07T4
4
the time of [defendant's] trial, to have been made aware of the
dynamics of [defendant's] relationship to her co-defendant, and
the nature of the influence of those dynamics exerted on her
judgment and behavior at the time of her offending behavior."
PCR counsel also raised claims of excessive sentence,
ineffective assistance of appellate counsel and cumulative
error. Counsel submitted no certification by defendant in
support of her battered woman syndrome claim.
On December 3, 2007, the PCR judge heard argument on
defendant's petition. At the conclusion, the judge rendered his
decision from the bench, denying relief for the following
reasons:
I find that although [PCR counsel]
makes a very strong argument I don't come to
the conclusion that the result of this jury
finding would have been different. I do
find that trial counsel did extensive . . .
examination and cross examination based on
the transcript. There is no reason for me
to find differently.
There are allegations of appellate
counsel. I find that they do not go beyond
the two-prong test, either, which leaves me
to just address whether or not there should
or should not be an evidentiary hearing.
I don't feel that this defendant has
established a prima facie claim of
ineffective assistance of counsel both at
the trial and at the appellate level. I am
impressed with Dr. Zigarelli's [sic] report,
but it's not enough to get over the hurdle.
It has to be more than conclusory . . . .
A-5836-07T4
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I find that there was at the trial
level meaningful cross examination of the
State's witnesses. The trial strategy or
tactics of defense counsel cannot be second-
guessed after the fact. Speculation
. . . does not rise to the level of
warranting an evidentiary hearing, so
accordingly based upon a thorough reading of
the transcripts, despite the analysis of
[PCR counsel] and the report of Dr.
Zigarelli [sic] and his submission I am
going to deny this post-conviction relief
without . . . an evidentiary hearing.
On appeal, defendant raises the following contentions for
our consideration:
POINT ONE
TRIAL COUNSEL'S FAILURE TO CONSULT AN EXPERT
IN SUPPORT OF A BATTERED WOMEN'S [sic]
SYNDROME DEFENSE DEPRIVED DEFENDANT OF THE
EFFECTIVE ASSISTANCE OF COUNSEL
POINT TWO
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
HEARING ON HER PCR CLAIMS
POINT THREE
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
HEARING AND/OR POST-CONVICTION RELIEF BASED
ON THE REMAINING ARGUMENTS ADVANCED BY
DEFENDANT AND DEFENSE COUNSEL
Having reviewed these contentions in light of the record and
controlling legal principles, we are satisfied they are without
We affirm substantially for the reasons stated by Judge
merit.
A-5836-07T4
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Eugene H. Austin in his decision rendered from the bench on
December 3, 2007. We add only the following comments.
A defendant's claim of ineffective assistance of counsel is
considered under the standards established in Strickland v.
Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674
(1984), and adopted by our Supreme Court in interpreting our
State Constitution. State v. Fritz,
105 N.J. 42, 58 (1987). In
order to prevail on such a claim, a defendant first must show
that her attorney's performance was deficient. Id. at 52 (citing
Strickland, supra,
466 U.S. at 687,
104 S. Ct. at 2064,
80 L.
Ed 2d at 693). Second, the defendant must show that counsel's
deficient performance prejudiced her defense. Ibid.
We are satisfied that defendant failed to meet these
standards. The PCR judge's finding that Figurelli's report was
"conclusory" is clearly supported by the record. The opinions
in his report are largely based on information "report[ed]" by
defendant. While Figurelli did report that the "results of the
psychological measures that" he administered to defendant
"indicate that she continues to experience various
neurovegetative and cognitive-affective symptoms of depression
[,] . . . as well as . . . symptoms of anxiety[,]" the doctor
did not connect these "results" to his conclusion that
A-5836-07T4
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defendant's reported history was "[c]onsistent with the dynamics
of" the battered woman syndrome.1
"[T]he experience of being battered" has been recognized
"as a potential triggering event for Post Traumatic Stress
183 N.J. 171, 183 (2005)
Disorder (PTSD)." State v. B.H.,
(citing American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 453-68 (4th ed. text rev.
2000)). The battered woman syndrome has been "referred to . . .
as a 'sub-category' or 'subclass' of PTSD." Ibid. Nowhere in
his report does Figurelli opine that defendant suffers from
PTSD. Moreover, Figurelli examined and interviewed defendant
seven years into her thirty-year prison sentence. Nowhere does
he specify that his test results support a finding of battered
woman syndrome as opposed to a psychological pattern engendered
by years of incarceration.
Defendant has failed to make a prima facie showing that she
exhibited symptoms of the battered woman syndrome at or before
the time of her trial in 2000. She has, therefore, failed to
make a prima facie showing of ineffective assistance of counsel
1
We note that in his March 5, 2007 report, Figurelli states:
"The following is a summary report of the evaluation I conducted
with [defendant]. A complete report of my evaluation will
follow." No such additional report is in the record.
A-5836-07T4
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and was not entitled to a plenary hearing on this issue. State
v. Preciose,
129 N.J. 451, 462 (1992).
Defendant's claim that she was entitled to an evidentiary
hearing based on the "remaining arguments" advanced in her PCR
petition, is "without sufficient merit to warrant discussion in"
this opinion. R. 2:11-3(e)(2).
Affirmed.
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