STATE OF NEW JERSEY v. ANTHONY CARLINO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY CARLINO,

Defendant-Appellant.

_______________________________

December 23, 2013

Submitted1 December 10, 2013 - Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0936.

Miles Feinstein, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Carlino, who was found guilty by a jury in 2004 of committing various crimes against a minor, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). We affirm.

We need not repeat the facts in detail, as they are set forth at length in our 2007 unpublished opinion affirming defendant's conviction. State v. Carlino, No. A-3839-04 (App. Div. June 13, 2007), certif. denied, 192 N.J. 480 (2007). In essence, the State's proofs showed that on a morning in May 2003, defendant was driving a burgundy van near a school. He rolled down the window and spoke with the victim, a ten-year-old girl, and offered her candy. She ran and reported the incident to a security guard at the nearby school. Meanwhile, defendant continued to drive his van around the school area. When police officers subsequently apprehended defendant, the girl identified him as the man who had approached her. A search warrant was issued for the van, and the police discovered within it a rope, condoms, masking tape, and other incriminating items. Defendant was then arrested.

A grand jury charged defendant with attempted kidnapping (count one), N.J.S.A. 2C:13-1b(1) and N.J.S.A. 2C:5-1a(3); luring or enticing a child (count two), N.J.S.A. 2C:13-6; and endangering the welfare of a child (count three), N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1a(3). Prior to trial, the State offered defendant a plea agreement, which included a recommendation that he serve a three-month sentence. Defendant rejected the plea offer.

After the jury was empaneled before Judge Ronald G. Marmo,2 defendant moved for an adjournment and to have his trial counsel relieved for another lawyer that he was expecting to retain. Judge Marmo considered the application in a hearing outside of the jury's presence. Defendant complained that his present attorney was refusing to call certain witnesses and was inadequate in various other respects. The trial attorney, meanwhile, explained on the record why he thought it would be harmful to defendant's case to call those particular witnesses. The attorney also provided other explanations about his efforts to prepare the case. Judge Marmo rejected defendant's request in light of those explanations, specifically finding that the defense attorney had been acting diligently to advance his client's interests.

Later at trial, the State presented several witnesses, principally the minor victim. Defendant testified on his own behalf. He claimed that he had been driving near the school because he was lost and had only stopped the van to get directions. He also claimed that because of his poor eyesight he could not tell that he was speaking with a child rather than an adult. Defendant, who was in the business of repossessing vehicles, contended that the rope and tape the police found in his van had come from a car he had earlier repossessed.

The jury found defendant guilty of all three counts of the indictment. After merging count three into counts one and two, Judge Marmo imposed a seven-year custodial sentence, with a parole disqualifier for eighty-five percent of the maximum term. Defendant was also made subject to the requirements of Megan's Law.3

On direct appeal, we rejected defendant's claims of various trial errors, the denial of a fair trial, insufficient evidence, and an excessive sentence. Carlino, supra, slip op. at 5-13. The opinion preserved for a future PCR application defendant's claims of ineffective assistance of counsel. Id. at 12-14.

After the Supreme Court denied certification, defendant filed the instant PCR petition. He contended that his trial lawyer was unconstitutionally ineffective in a variety of ways, including: (1) failing to adequately investigate and call certain defense witnesses; (2) failing to move to suppress the warrant for the search of the van; (3) failing to object to his post-arrest statements made to a detective sergeant; (4) failing to adequately cross-examine the victim; (5) failing to produce his mother to testify; (6) failing to object to testimony by one of the police officers referring to a hearsay radio transmission that had reported an act of luring; (7) making ineffective statements during closing argument; and (8) failing to represent defendant effectively in a post-trial bail motion.

Judge Raymond A. Reddin conducted an evidentiary hearing on the PCR petition, at which defendant testified. As part of that proceeding, Judge Reddin considered the explanatory comments that defendant's trial attorney had provided about his representation to Judge Marmo.

On September 22, 2011, Judge Reddin issued a written opinion rejecting defendant's petition. The judge found that defendant's trial counsel had not been ineffective, either before trial, at trial, or in the post-trial proceedings. Among other things, Judge Reddin noted that the trial attorney was being improperly challenged in the PCR application for decisions that were "clearly strategic."

In his present appeal, defendant raises the following general point:

THE COURT BELOW ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT ANTHONY CARLINO WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTILCLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION DUE TO THE NUMEROUS PRETRIAL, TRIAL, AND POST-TRIAL ERRORS; A PRESUMPTION OF PREJUDICE EXISTS OR, AT THE VERY LEAST, A REASONABLE PROBABILITY EXISTS THAT, BUT FOR THE ERRORS THE RESULT OF THE TRIAL WOULD HAVE BEEN DIFFERENT.

Defendant's brief develops these claims of ineffectiveness in more specific detail.

Having considered defendant's claims in light of the applicable law, we affirm the denial of his PCR petition. We do so substantially for the sound reasons expressed in Judge Reddin's written opinion. We only add a few comments.

To establish a deprivation of the constitutional right to the effective assistance of counsel, a convicted defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must demonstrate that: (1) his counsel's performance was deficient, and (2) the deficient performance actually prejudiced his defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

Here, defendant presented his claims of ineffectiveness in the context of a PCR petition. We are mindful, of course, that "a PCR petition is a defendant's last chance to challenge the fairness and reliability of a criminal verdict," and that "[i]f an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted) (internal quotation marks omitted).

In reviewing ineffectiveness claims, we apply a strong presumption that a defendant's former counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy of representation by counsel." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963)). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" Id. at 314 (quoting State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983)).

Guided by these well-established standards, we concur with Judge Reddin that defendant's complaints of ineffective assistance essentially, if not exclusively, amount to improper attacks on his former attorney's strategic choices. In addition, we agree with Judge Reddin that defendant has failed to show that any of the errors complained of produced actual prejudice. We need mention only a few illustrative examples.

As to defendant's claim that his trial counsel should have called certain witnesses, we agree with Judge Reddin that the attorney's decision to refrain from calling those persons was within the permissible zone of trial strategy. In fact, the record developed before Judge Marmo on defendant's motion to relieve counsel shows precisely why counsel thought several of those witnesses would have been unhelpful to defendant's cause. A criminal defense attorney's judgment call in assessing a potential trial witness's credibility should not be readily second-guessed. See, e.g., State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting that a court's review of a defense attorney's decision as to whether to call a witness is highly deferential).

In addition, defendant's claim that his trial lawyer should have filed a pretrial motion to suppress the evidence seized from the van is unavailing for several reasons. First of all, although the suppression issue was not raised before trial, Judge Marmo inquired about that issue during the trial itself, and counsel was unable to identify a constitutional or other defect in the search warrant. In addition, defendant has not presented, either in the present appeal or before the PCR judge, a compelling argument for why the search warrant was invalid or the fruits of the search should otherwise have been suppressed. Judge Marmo specifically found that there was probable cause for the issuance of the warrant. That was certainly a sound conclusion, in light of the child's credible account that defendant had attempted to lure her from his van. Defendant has not come close to meeting his burden of showing prejudicial error. State v. Preciose, 129 N.J. 451, 459 (1992).

Defendant's claim that his trial attorney should have objected to the testifying police officer's reference to a hearsay radio report of a luring incident is likewise unavailing. Although an objection or a motion to strike the officer's reference to the hearsay might have had merit, see State v. Bankston, 63 N.J. 263, 268 (1973), we agree with Judge Reddin that the reference was "relatively meaningless and did not [a]ffect the outcome of the case." The trial centered on the relative credibility of the victim and of defendant, respectively; the officer's stray reference to the radio report was, at most, merely collateral.

The other specific claims raised of deficient performance are not worthy of discussion. R. 2:11-3(e)(2).

1 Although appellant's counsel initially requested oral argument, the argument was subsequently waived with the consent of both counsel.

2 Judge Marmo is now retired.

3 Defendant has since been paroled, and continues to be subject to Megan's Law restrictions.