STATE OF NEW JERSEY v. RICHARD K. PASHUCK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6040-08T46040-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD K. PASHUCK,

Defendant-Appellant.

_____________________________________

Argued March 2, 2010 - Decided June 7, 2010

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 93-04-164-I.

John P. Morris argued the cause for appellant.

Gregory G. Waterston, Assistant County Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Mr. Waterston, on the brief).

PER CURIAM

Defendant Richard Pashuck appeals from a Law Division order dismissing his supplemental petition for post-conviction relief (PCR). Defendant had filed an initial PCR petition, which was denied. He appealed from the order denying relief but his appeal was administratively dismissed. Defendant then filed a supplemental PCR petition arguing PCR counsel was ineffective, and requested review of the issues previously raised, but not reviewed, on appeal. He argues:

POINT I

BECAUSE OF PCR COUNSEL'S FAILURE TO TIMELY FILE THE APPELLATE BRIEF, THE APPEAL WAS ADMINISTRATIVELY DISMISSED. THE GROUNDS SOUGHT TO BE ADVANCED ON THE DEFENDANT'S APPEAL OF RIGHT FROM THE DISMISSAL OF THE INITIAL PCR PETITION WERE NOT REVIEWED BY THE APPELLATE DIVISION. THE APPELLATE DIVISION DENIED THE MOTION TO REINSTATE WITH LEAVE TO FILE A PCR PETITION BASED ON THAT FAILURE TO PERFECT THE DEFENDANT'S APPEAL. ON THE SUPPLEMENTAL PCR HEARING, THE TRIAL JUDGE WOULD NOT REVIEW THOSE APPELLATE GROUNDS BUT INSTEAD DISMISSED THE SUPPLEMENTAL PCR PETITION SO THAT THOSE APPELLATE GROUNDS COULD BE REVIEWED BY THE APPELLATE DIVISION, THOSE GROUNDS BEING SET FORTH AT POINT II, III AND IV BELOW.

POINT II

THE PCR JUDGE DID NOT UNDERSTAND THE "BRADY VIOLATION ON INTERLOCUTORY APPEAL" ISSUE AS HE HELD THAT THIS ISSUE "WAS FULLY LITIGATED AT THE TRIAL LEVEL AND ON THE DIRECT APPEAL." THE BRADY-MISIMPRESSION PRESENTED TO THE APPELLATE DIVISION ON ITS GRANT OF INTERLOCUTORY APPEAL COULD NOT HAVE BEEN DECIDED BY A TRIAL JUDGE ON REMAND FROM THE INTERLOCUTORY APPEAL. LIKEWISE, THIS INTERLOCUTORY JUDICIAL DECEIT ISSUE WAS NOT RAISED ON THE DIRECT APPEAL [OR CERTIFICATION] BY PREDECESSOR TRIAL COUNSEL.

POINT III

THE PCR JUDGE ERRED IN ASSESSING DUE PROCESS ENTRAPMENT BASED ONLY ON THE TRIAL RECORD. THAT TRIAL RECORD IS NECESSARILY DEFICIENT SINCE DUE PROCESS ENTRAPMENT WAS NEVER RAISED BY TRIAL COUNSEL. PCR COUNSEL WAS ENTITLED TO DISCOVERY AND AN EVIDENTIARY HEARING ON THE DUE PROCESS ENTRAPMENT ISSUES OUTLINED IN PCR COUNSEL'S IN CAMERA SUBMISSION.

POINT IV

THE PCR JUDGE, WHOSE FATHER WAS THE TRIAL JUDGE, ERRED IN DENYING THE RECUSAL MOTION. THE PCR ISSUES IMPLICATED JUDICIAL INQUIRY INTO FACT SENSITIVE ISSUES INVOLVING THE PRETRIAL AND TRIAL PROCEEDINGS. AT THE LEAST, THE APPEARANCE OF IMPROPRIETY REQUIRED RECUSAL OF THIS PCR JUDGE. IN CONTESTED PROCEEDINGS WITH SUCCESSIVE JUDICIAL INVOLVEMENT OF FAMILY MEMBERS, THERE SHOULD BE PER SE DISQUALIFICATION OF THE SECOND FAMILY MEMBER.

We have considered these arguments in light of the record and applicable standards. We affirm.

These are the facts adduced at trial. On March 15, 1993, defendant met a man in the Woodstown Hotel bar who identified himself as "Miami Eddie" Taylor. After several hours of drinking and playing pool, Miami Eddie asked whether defendant could procure some cocaine. According to defendant, he refused four times before acquiescing to Miami Eddie's request. Defendant approached someone he knew in the bar who agreed to sell him two packets of cocaine for $90. Defendant obtained the cocaine then, in a transaction occurring outside the bar in Miami Eddie's car, sold the cocaine to an undercover police officer, Detective Edward Spinelli, posing as Miami Eddie's brother-in-law. Defendant was arrested and indicted for possession and distribution of cocaine and resisting arrest.

Prior to trial, defendant sought disclosure of the identity of the informant posing as Miami Eddie, presumably to call him as a witness in an effort to prove an entrapment defense. The trial court denied the motion, concluding it implausible that disclosure of the informant's true identity could assist in proving the defense. However, he ordered the State generally to reveal Miami Eddie's role if he was a confidential informant. We granted leave to appeal and affirmed the trial court's order in an unpublished opinion. State v. Pashuck, No. A-862-93T5 (App. Div. March 22, 1994) (slip op. at 2) (Pashuck I). Immediately before the four-day trial commenced, the State disclosed Miami Eddie was an informant who had previously participated in undercover operations for the federal Drug Enforcement Agency and the Salem County Narcotics Task Force (Task Force). State v. Pashuck, No. A-6359-93T1 (App. Div. Dec. 5, 1995) (slip op. at 3) (Pashuck II).

The jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1); and fourth-degree resisting arrest by use or threat to use physical force or violence, N.J.S.A. 2C:29-2. The court merged the possession conviction into the distribution conviction and, after considering both aggravating and mitigating factors, sentenced defendant to two years probation with sixty days in the county jail. Appropriate fines and penalties were also imposed, and defendant's driver's license was suspended for one year.

Defendant appealed his conviction and sentence alleging, among other things, the trial judge should have molded the charge on entrapment to the facts of the case and that the judge should not have denied defendant's request for discovery of reports and other information on the prior informant activities of Miami Eddie. We affirmed defendant's conviction, generally finding his arguments were without merit. Pashuck II, supra, slip op. at 2. We noted "defendant received sufficient information in discovery to enable him to present an entrapment defense" and, further, the jury could have easily found on the facts presented at trial "that the defendant had not been entrapped." Id. at 6.

The Supreme Court denied certification on February 25, 1996. Defendant subsequently exhausted all available federal appeals, ending when the United States Supreme Court declined to grant certiorari on June 17, 1998.

Defendant filed his first PCR petition on June 22, 1999, wherein he asserted trial counsel was ineffective for failing to raise the issue of due process entrapment and declining to raise, after learning of the State's misleading comments to the court regarding Miami Eddie's relationship with the Salem County Prosecutor's Office, the prejudicial effect of depriving him of his requested discovery. He also maintained that appellate counsel was ineffective for failing to raise these two issues on direct appeal. When defendant learned the PCR judge was the son of the trial judge, he additionally filed a motion for recusal. Both applications were denied in the court's April 11, 2000 letter opinion.

Defendant appealed the order denying his motions. However, the matter was administratively dismissed. Defendant moved for leave to reinstate the appeal eight years later, which was denied without prejudice to his right to file a PCR petition regarding ineffective assistance of appellate counsel and for appellate review of the initial PCR petition on that basis.

Defendant then filed "a supplemental petition for PCR." The second PCR judge denied the petition, declining to review those issues, which should have been presented on direct appeal or, otherwise, were more appropriately presented to this court on appeal from the denial of his first PCR petition, R. 3:22-4, -5.

Defendant argues the ineffective assistance of appellate counsel resulted in the dismissal of his first PCR petition, warranting consideration of the issues previously raised in that initial appeal. These include the ineffectiveness of trial counsel in failing to properly present the discovery violation and the claim of procedural entrapment; the ineffectiveness of appellate counsel who failed to raise the matters on direct appeal; and the error by the first PCR judge who denied his request for recusal.

To establish ineffective assistance of counsel, a defendant must prove not only that counsel's performance was objectively deficient, but that the cited deficiencies prejudiced the defense and adversely affected the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). This two-pronged test, as first enunciated by the United States Supreme Court in Strickland, supra, requires a defendant to show:

First, . . . that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

In this matter, defendant has satisfied the first prong of the Strickland/Fritz test, as counsel's error resulted in the administrative dismissal of his appeal of the Law Division order denying his first petition for PCR. However, to establish the second prong, defendant must show more than the fact that the complained of "errors had some conceivable effect on the outcome of the proceeding." Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. Rather, the errors "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). In short, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We must consider whether the alleged errors by the first PCR judge would have resulted in reversal on appeal.

Defendant argues the first PCR judge did not understand the Brady violation issue in denying PCR relief. Defendant claimed Miami Eddie plied him with alcohol and pool tricks to entrap him to obtain cocaine. The State had been ordered to release information surrounding Miami Eddie's informant activities. Additionally, defendant moved for further discovery, including Miami Eddie's identity and the specific facts surrounding any other matters where he acted as an informant.

During the Rule 8 hearing review to consider defendant's discovery request, Spinelli testified Miami Eddie had not been previously employed by the Task Force. Spinelli's statements, later proven to be incorrect, were accepted as credible by the trial judge and the appellate panel on interlocutory review. Defendant argues the State continued the "misimpression" that Miami Eddie was a "tipster" and not a paid informant, resulting in the withholding of the requested discovery defendant claimed was crucial to an entrapment defense.

Defendant asserts the first PCR judge's "misunderstanding of the precise PCR 'Brady interlocutory appeal misimpression' issue and its impact on the trial," resulted in the erroneous conclusion that the issues had been "fully litigated both at the trial level and on direct appeal," and barred pursuant to Rule 3:22-5. Defendant argues he was foreclosed from the entire truth regarding Miami Eddie's compensated informant role and concludes the interlocutory appellate panel would have ruled differently had it known of the extent of the Brady violation and the State's "deceit" during the Rule 8 pre-trial hearings. Because this issue was never presented on direct appeal, defendant contends appellate counsel's assistance was flawed.

In Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the Supreme Court extended constitutional due process protections to require the disclosure of information, which may tend to exculpate the accused. See also R. 3:13-3(g)(2). "If evidence favorable to the defendant has been suppressed by the State and that evidence is likely to have affected the verdict, a conviction cannot stand." State v. Reddish, 181 N.J. 553, 639-40 (2004) (citing State v. Martini, 160 N.J. 248, 268-69 (1999)). To establish a Brady violation, the defendant must show that: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." Martini, supra, 160 N.J. at 268-69 (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)).

Defendant admits the State disclosed, albeit late, that Miami Eddie had previously assisted the prosecution's efforts. His challenge is directed to the insufficiency of that disclosure, stating he should have been provided Miami Eddie's true identity. Defendant's PCR petition speculates that the informant induced him to obtain narcotics by "using alcohol" and "his trick pool shooting ability," thereby deviating from his informant guidelines and resulting in entrapment.

During the pre-trial hearing, Spinelli apparently did not know the entirety of Miami Eddie's interaction with the Task Force. The scope of the informant's past activities was disclosed following the interlocutory appeal, on the eve of trial. Thus, the record reflects that, by the time trial commenced, defendant was provided sufficient information to formulate and present an entrapment defense to the jury. Specifically, the State revealed Miami Eddie (1) had received instructions from the Task Force on how to proceed with a drug transaction; (2) that he had been involved in several other narcotics investigations, for which he was provided room and board, and (3) he was told his sentence for a pre-existing weapons offense could be reduced. On cross-examination, defendant explored the differences in Spinelli's Rule 8 hearing and trial testimony. Spinelli admitted his prior testimony regarding Miami Eddie's involvement was wrong.

Further, information regarding Miami Eddie's past role as an informant was elicited from other State witnesses. This testimony included that Miami Eddie had performed field work on four prior investigations in Salem County.

At trial, defendant testified regarding the casual interactions he had with Miami Eddie. Defendant stated he had no intention of obtaining or selling narcotics to Miami Eddie, and did so only in an "attempt[] to help him out" because defendant believed Miami Eddie had "befriended" him, showed him "some fantastic trick shots" and "bought [] drinks and cigarettes."

Following our review, we find no exculpatory information was withheld from defendant and his claims that Miami Eddie may have violated his informant instructions are only speculative. Defendant has not shown that disclosure of the informant's actual identity and the extent of his involvement in other narcotics investigations was relevant and necessary to prepare and present his entrapment defense. See Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 645 (1957) (holding "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the State's privilege to withhold disclosure of the informer's identity "must give way"). Defendant had the information necessary to prove to the jury that Miami Eddie was a paid police informant, and no one contradicted defendant's contention that Miami Eddie bought defendant drinks and showed him how to perform trick pool shots. The defense was fully aired before the jury, which was not persuaded.

The State proved beyond a reasonable doubt each element of the offenses charged. Defendant has not satisfied the second prong of the Strickland/Fritz test as the information sought, even if provided, would not have resulted in a different outcome. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 58. We conclude there is no basis to interfere with the order denying PCR.

In a related argument, defendant challenges the first PCR judge's conclusion that he could have raised the additional defense of due process entrapment earlier in the proceeding. Defendant maintains the first PCR judge "avoided a hearing on the due process entrapment defense" in order "to avoid a hearing which would require critical analysis of the PCR judge's father's involvement in the pretrial and trial proceedings." We disagree.

Due process entrapment occurs when "patently wrongful" governmental conduct "constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." State v. Johnson, 127 N.J. 458, 473 (1992).

"Tactics like heavy-handed pressure; repetitive and persistent solicitation, or threats or other forms of coercion; the use of false and deceitful appeals to such humanitarian instincts as sympathy, friendship, and personal need; and the promise of exorbitant gain are generally disallowed because they can overwhelm the resistance of ordinary people."

[State v. Florez, 134 N.J. 570, 586 (1994) (quoting Johnson, supra, 127 N.J. at 478).]

The elements of the two defenses -- statutory entrapment and due process entrapment -- are similar. Due process entrapment scrutinizes "government conduct in light of all the surrounding circumstances," including

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime.

[Johnson, supra, 127 N.J. at 474.]

During the May 16, 1994 pretrial hearing, the Assistant County Prosecutor disclosed Miami Eddie had a gun charge and "indicated that he would be willing to cooperate in any fashion that he could in order to receive some consideration[.]" As a result, the informant was assigned to assist in a specific case, unrelated to this matter, and was compensated with room and board. The prosecutor further advised, "[t]here were no written reports by [Miami Eddie], there were no taped electronic recording either of this confidential informant or any statements, or anything like that, by the defendant. We have provided at this point everything that we know that we possibly can provide."

Notwithstanding this testimony, defendant requested further discovery regarding the "arrangement" that the State had with the informant. The Rule 8 hearing continued with the testimony of Lieutenant Charles Miller, who supervised Miami Eddie. Miller detailed the arrangement between the Task Force and Miami Eddie. Miami Eddie told Miller he would "do some investigation" and in exchange for his cooperation as an informant might receive some consideration from the Prosecutor's Office on his weapons offense. Miller also revealed Miami Eddie had used the same fictitious name in all of the investigations. Also, Miller described the informant's contacts regarding a possible narcotics transaction made on March 15, 1993, and the instructions he provided on the procedures to follow. Miller stated no one with the Prosecutor's Office told Miami Eddie to go to the Woodstown Hotel Bar or to target defendant. Miami Eddie was told to meet with Spinelli to receive further instructions, including that Spinelli was to be introduced as Miami Eddie's brother-in-law. Thereafter, defendant exited the bar, the drug deal took place, and defendant was arrested.

We agree with the PCR judge that this disclosure was sufficient to allow defendant to marshal a due process entrapment claim. The record reveals there was no significant government involvement in setting up the drug transaction or the type of coercion necessary to trigger due process entrapment. Thus, revealing Miami Eddie's identity would add nothing to defendant's ability to assess whether to present the defense. Defendant's contentions of error are not supported; as such, no basis to "undermine the court's confidence in defendant's conviction" has been shown. State v. Echols, 199 N.J. 344, 359 (2009).

In his final argument presented on appeal, defendant maintains the first PCR judge should have recused himself from reviewing the petition, as his father presided over defendant's trial. We are not persuaded.

Recusal decisions are entrusted to the sound discretion of the judge to whom they are addressed, R. 1:12-2, and are subject to review for abuse of discretion. State v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66, 71 (App. Div. 2001)). Judges must "refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question." Id. at 43 (quoting DeNike v. Cupa, 196 N.J. 502, 514-15 (2008)). The applicable standard in making our de novo review, id. at 45 (citing Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), is: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" DeNike, supra, 196 N.J. at 517.

Here, the familial relationship between the trial judge and the first PCR judge, when considered alone, is insufficient to reasonably conclude a "fair and unbiased hearing and judgment" could not occur. More importantly, as we have discussed in this opinion, the first PCR judge's review of the merits of the substantive issues raised by defendant was unassailable. Under these circumstances, we conclude no harm resulted from the PCR judge's determination denying recusal.

Affirmed.

Defendant's appeal was filed on June 2, 2000. No brief or appendix was filed, and the matter was dismissed in November 2000.

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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