STATE OF NEW JERSEY v. MICHAEL A. REVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2807-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. REVAN,

Defendant-Appellant.

________________________________________________________________

April 6, 2011

 

Submitted March 22, 2011 - Decided

 

Before Judges Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-1093.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a trial by jury, defendant Michael A. Revan appeals from his July 10, 2009 conviction on a charge of second-degree robbery, N.J.S.A. 2C:15-1, for which the judge sentenced him to a six-year term of imprisonment subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. The sole issue on appeal is whether trial counsel rendered ineffective assistance by failing to present evidence to support a defense of due process entrapment. Because resolution of that issue depends on evidence that lies outside the trial record, we decline to address defendant's claim, and instead preserve it for post-conviction review.

I.

In the early part of September 2008, the Plainfield Police Department became aware of a number of robberies that occurred in and around the 400 block of West Front Street, in which intoxicated men wearing cowboy hats and leaving local taverns at closing time were being attacked and robbed. To address that problem, Detective Ronald Fusco, along with Detectives Troy Alston and Daniel Staten, decided to have Fusco wear a disguise and act as an intoxicated male, which Fusco described as "working undercover as a decoy robbery victim."

On the night of September 12, 2008, Fusco donned the disguise and started "walking [while] pretending to be intoxicated." As a "prop," he had a wallet, with three $20 bills protruding from it, hanging by a chain from his belt. The currency had been photocopied by Fusco before he placed it into the wallet. While Fusco was "stumbling" and "pretending that [he] was drunk," he observed a male, later identified as defendant, across the street at the intersection of Washington Avenue and West Front Street. Defendant began walking in Fusco's direction, but Fusco kept his head down because he was "well-known out there" and was afraid of being recognized. Defendant approached Fusco, while defendant was holding money in his hand, and asked Fusco for change. When Fusco began fumbling with his money, still pretending to be intoxicated, defendant grabbed Fusco by his arms and threw him to the ground.

According to Fusco, defendant used "a lot" of force and "knocked the wind out of [him], [putting him] in fear for [his] life." With Fusco on the ground, defendant began to pull on the wallet "violently" until the chain broke. Once he had grabbed the wallet, defendant ran eastbound toward Detective Alston, who was also in disguise. Alston tackled defendant to the ground, at which point Detective Staten assisted and other members of the police force, who were in undercover vehicles within the area, also responded. Defendant was found to be in possession of the wallet and the pre-marked money.

Defendant testified on his own behalf, explaining that on the night in question, he was walking to his friends' house. As he proceeded down Front Street, he saw a man leaning against a fence, fumbling as if he was drunk. When defendant approached the man to ask him if he had any change, he saw that the man had money in his wallet, but defendant did not realize that the wallet was attached to the man's belt by a chain. Defendant grabbed the wallet and ran. By the time he reached the middle of the block, he was caught and apprehended by police. Defendant insisted that he never pushed the man who he later learned was Detective Fusco.

In his closing argument, defense counsel argued that defendant was not guilty of robbery, as he had not used force against Detective Fusco. The jury returned a verdict of guilty nonetheless. During his allocution at the time of sentencing, defendant asserted that he had been "set up." He stated:

[A]t the time[,] I was going about my business, you know, and they set the crime up, and I was (indiscernible) and I went for it. I never denied I did it. That's why I took the stand. I said all I did was snatch the wallet and I ran.

 

The trial judge acknowledged defendant's position, commenting that defendant's belief that he had been set up had prevented him from entering a plea of guilty to a charge of third-degree theft. The judge stated:

Look, I talked to you about this offer, [defense counsel] talked to you about this offer, you didn't want this offer. You didn't want to hear about it. You felt that you were entrapped. I explained to you what entrapment was, [defense counsel] explained to you what entrapment was. You know, you turned down the offer, and now you're stuck with what you're stuck with.

 

On appeal, defendant raises the following claim:

 

I. IT WAS ERROR TO DENY DEFENDANT'S POSITION THAT HE WAS ENTRAP[P]ED BY THE STATE INTO COMMIT[T]ING THE INSTANT OFFENSE AND DEFENSE COUNSEL'S FAILURE TO PRESENT EVIDENCE IN SUPPORT OF THIS DEFENSE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

II.

 

Relying on State v. Florez, 134 N.J. 570, 584 (1994), and State v. Johnson, 127 N.J. 458, 473 (1992), defendant maintains that he was entrapped into committing the offense of which he was convicted. He does not rely on the statutory defense of entrapment set forth in N.J.S.A. 2C:2-12(c), which he concedes "would not apply to this case." Instead, he relies on a claim of "due process entrapment" as described in Florez and Johnson. Due process entrapment occurs when police engage in conduct that is "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Johnson, supra, 127 N.J. at 473. Although the burden of producing evidence to prove due process entrapment lies with a defendant, the burden of disproving the defense of due process entrapment by clear and convincing evidence falls upon the State. Florez, supra, 134 N.J. at 590.

Defendant maintains that he was walking on Front Street when he saw a man whom he believed was impaired, and he intended merely to commit a theft from the person by snatching the man's wallet. According to defendant, "the [S]tate had set the offense up so that any attempted theft of the wallet would have to be a robbery as the wallet was attached to Fusco. Once defendant pulled on the wallet, he pulled on Fusco. It would have been impossible . . . to just grab the wallet and run." He asserts that "[b]y design of the [S]tate, any attempt to grab the wallet was going to be a crime of personal violence"; and the "police activity in this case was most certainly egregious and had nothing to do with defendant's predisposition to commit a robbery." For that reason, the circumstances were "unfair" and "offend[ed] notions of fundamental fairness," thereby "violat[ing] defendant's right to due process."

Defendant maintains that

there can be no strategic reason for [trial counsel's] failure to attempt to avail himself of the [defense of due process entrapment, which was the] only defense available, the only defense that defendant presented to him and the only defense that made any sense given the overwhelming evidence that defendant did try to snatch the wallet.

 

Consequently, according to defendant, trial counsel's failure to pursue that defense constituted ineffective assistance.

For its part, the State urges us to preserve defendant's claims for post-conviction review because the "trial record does not disclose the facts essential to [a review of] trial counsel's failure to present evidence in support of, and argue, an entrapment defense."

III.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

"Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Instead, "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." Ibid. Our Supreme Court has expressed a "general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Only in the rare instances "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims," should an appellate court consider the issue of ineffective assistance on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006).

Defendant has presented no meritorious basis to deviate from the rule established in Preciose. As the State correctly argues, the trial record contains none of the facts that are essential to an evaluation of defendant's ineffective assistance of counsel claim, because the record is devoid of any facts explaining why trial counsel chose not to present, or argue, an entrapment defense. Counsel may well have believed, as a matter of strategy, that defendant's prospects for acquittal were greater if counsel confined his argument to the single theory that counsel pursued repeatedly at trial, namely, that defendant was not guilty of second-degree robbery because he did not use force against Detective Fusco. Alternatively, counsel may have believed that the facts supporting a defense of due process entrapment were so weak as to prejudice the jury against defendant had such a defense been asserted. It is also possible that trial counsel had no legitimate reason for not pursuing that issue. The trial record gives us no insight into this critical issue.

We therefore conclude that resolving defendant's ineffective assistance of counsel claim involves an analysis of strategic decisions and other evidence that lie outside the trial record. For that reason, the issue of ineffective assistance of counsel that defendant has raised on direct appeal is more appropriate for post-conviction review. We therefore decline to consider it and deem the issue preserved for the post-conviction relief phase. Preciose, supra, 129 N.J. at 460.

Affirmed. Defendant's claim of ineffective assistance of counsel is preserved for post-conviction review.