STATE OF NEW JERSEY v. KENNETH PAGLIAROLI

NOT FOR PUBLICATION WITHOUT THE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.

KENNETH PAGLIAROLI,

Defendant-Appellant.

______________________________________

July 31, 2014

 

Submitted February 12, 2014 Decided

 

Before Judges Nugent and Accurso.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

No. 05-03-0335.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

A jury found defendant Kenneth Pagliaroli guilty of conspiracy, N.J.S.A. 2C:5-2; armed robbery, N.J.S.A. 2C:2-6 and 2C:15-1; aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense of murder, N.J.S.A. 2C:11-3a(1) and 2C:11-3a(2); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The jury acquitted him of felony murder, N.J.S.A. 2C:11-3a(3). Defendant's motion for new trial was denied, and the judge sentenced defendant to an aggregate term of fifty years subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence on direct appeal, State v. Pagliaroli, No. A-6153-05 (App. Div. Apr. 8, 2009), and the Supreme Court denied certification, 200 N.J. 206 (2009).

Defendant appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel, raising the following issues:

POINT ONE:

 

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

 

POINT TWO:

 

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

 

Defendant supplements his counsel's brief with these additional points:POINT I

 

BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITION, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING AND ITS RULING SHOULD BE REVERSED.

 

A. Defendant's Counsel Was

Ineffective for Failing to

Object to Numerous Hearsay

Statements Made by [Certain

Witnesses] and the Trial

Court Abused Its Discretion

in Holding Otherwise.

 

B. Defendant's Counsel's Failure

To Object to Prior "Bad Acts"

and "Bad Character" Testimony

Was Ineffective Assistance Of

Counsel and the Trial Court

Abused Its Discretion in Holding

Otherwise.

 

POINT II

 

DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING ON THIS ISSUE.

 

POINT III

 

DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR HIS COUNSEL'S FAILURE TO DISMISS HIS CASE UNDER THE INTERSTATE AGREEMENT ON DETAINERS ("IAD").

 

POINT IV

 

THE LOWER COURT ERRED IN FAILING TO ENTERTAIN ORAL ARGUMENT ON THE MERITORIOUS CLAIMS SUBMITTED BY DEFENDANT IN HIS PRO SE SUPPLEMENTAL BRIEF IN SUPPORT OF HIS PCR PETITION.

 

A. Defendant's Counsel Was

Ineffective for Failing to

Challenge [Defendant's Wife's] Competency to Testify and for Failing to Call a Psychiatric Expert Regarding Her Mental

Health Issues.

 

B. Defendant's Counsel's Failure

to Introduce Exculpatory Evidence

and Conduct Effective Cross-

Examination Violated His Sixth

Amendment Right To Counsel.

 

C. Defendant's Counsel's Failure

to Adequately Advise Him of His

Right to Testify Violated His

Sixth Amendment Right To Counsel.

 

POINT V

 

DEFENDANT'S COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE JURY CHARGES OF AGGRAVATED AND RECKLESS MANSLAUGHTER (Not Raised Below).

 

POINT VI

 

DEFENDANT'S COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO A MICRO-CASSETTE TAPE CONTAINING A HOMEMADE RECORDING OF PATT[O]N'S INADMISSIBLE HEARSAY STATEMENTS GOING INTO THE JURY ROOM. (Not Raised Below).

 

Because we conclude that defendant presented a prima facie case of ineffective assistance of counsel on one of the issues he raised, warranting an evidentiary hearing, we affirm in part, reverse in part, and remand for such a hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992).

The facts are set out at length in our opinion on defendant's direct appeal. Defendant was accused of conspiring with Delphie Patton to rob and murder Richard "Pops" Maskevich, a drug dealer who had long treated defendant and his wife, Catalina, as if his own children. Following his arrest, Patton hanged himself in jail. The evidence linking defendant to the crimes was entirely circumstantial and consisted of a host of witnesses, almost all friends or relatives of defendant and Maskevich, who testified about the relationship between the two men and how it had changed in the months leading up to Maskevich's murder.

The State's theory was that Maskevich suspected defendant of having robbed him of tens of thousands of dollars in money and drugs in a break-in of Maskevich's home and had, as a consequence, determined to stop giving defendant any more money and to cut defendant out of his will. Realizing that his relationship with Maskevich was over, defendant plotted with Patton to rob and murder Maskevich. The State's most damning testimony came from Catalina, who testified that she overheard defendant in a telephone conversation at the time of the murder tell Patton to "shoot him again," and from a jailhouse snitch, Ralph Anthony DiSimone, who testified that defendant admitted his part in the killing and solicited DiSimone to murder Catalina to keep her from testifying against him.

The defense attempted to present the relationship between defendant and Maskevich as an enduring, complicated bond that had survived many periods marked by hostile, invective-laden exchanges. Defense counsel claimed that in the months leading up to Maskevich's death, defendant was angry at Maskevich for interfering in his marriage and supplying Catalina, who defendant had been imploring to stop using cocaine, with crack.1

Defense counsel did not deny that it was defendant who had robbed Maskevich's home in the months before his death. He claimed that not only had his client taken Maskevich's money in the robbery, but also flushed thousands of dollars of Maskevich's cocaine down the toilet at the same time. Defense counsel contended that defendant was not after Maskevich's money, but was trying to communicate how serious he was about getting Maskevich to stop supplying Catalina with cocaine.

It was the defense's contention that if anybody had conspired with Patton, it was Catalina, who made a habit of playing defendant and Maskevich off one another to her own advantage. Catalina admitted she would steal cocaine from Maskevich when he would not provide it voluntarily. Defense counsel suggested that it was Catalina's need for drugs, and money to buy drugs, that caused her to plot with Patton, who also had a drug problem, to rob and kill Maskevich.

Among the more notable features of defendant's trial was the amount of hearsay and other bad acts evidence that defendant either did not object to or actually elicited from the many witnesses who testified at trial. In our prior opinion, we noted one of several sidebar conferences in which the trial judge, who also heard defendant's PCR petition, noted his concern with the manner in which defense counsel was proceeding. Because it is central to the issues we decide, we quote our retelling of it in full.

Gentlemen, I want you to know, and I want to place it on the record, that the Court accepts that both of you are seasoned and experienced trial lawyers. Criminal trial lawyers in particular. And accordingly, this Court is not going to interfere with the trial and is not going to sua sponte make any objections or rulings, but rather accepts that both parties know exactly what they're doing and/or are conducting this trial in a manner which they think is appropriate.

 

Defense counsel said that he had agreed to allow the prosecutor to ask some leading questions in certain areas, then the court clarified that its foregoing statement was in relation to the hearsay testimony:

 

I don't have any problem with that [allowing the prosecutor to ask some leading questions]. We also

-- well -- there's statements being made about what somebody said to someone else. The gentleman [Maskevich] has passed away. That's all the Court's saying.

 

The prosecutor responded that "if there was an objection [from defense counsel], I would stop. I assume that Counsel has a purpose and a reason for allowing it in." The court agreed:

 

As does the Court. That's why I do not interfere. But I don't want, should there be an unfavorable result to the defense and there be appellate review, the reviewing court to think that the Court wasn't aware that some of the questions might be objected to. Rather, the Court believes Counsel should be able to try his own case.

 

Defense counsel responded: "I believe some of these would come in as state of mind exception [sic]." The court then said: "Some might, some may not. I'm not ruling on them."

 

[State v. Pagliaroli, supra, slip op. at 44-45.]

 

The judge harkened back to these sidebar exchanges in finding that defendant had failed to make out a prima facie case of ineffective assistance. The judge noted that

The Court took it upon itself to notify trial counsel of the perceived hearsay and bad acts problems. The fact that trial counsel continued to fail to object or seek curative instructions, coupled with his summation, firmly convinces the Court that this was a part of counsel's trial strategy. Much of the elicited hearsay and bad acts evidence shed a negative light upon others besides the defendant. For example, various references to drug use and drug dealing tarnished the character of Catalina, the State's key witness, in addition to the [defendant's] character. It was these types of references to bad acts that allowed trial counsel to highlight for the jury the "cast of characters" that had come before it during the course of trial. This Court will not second guess the reasonable professional judgments made by counsel.

 

Noting that defendant was acquitted of the most serious charges of murder and conspiracy to commit murder, the judge further found that defendant could not demonstrate that he was prejudiced by counsel's performance.

The judge separately rejected defendant's argument that his counsel was ineffective for failure to move to dismiss under the Interstate Agreement on Detainers (IAD). The judge noted that many of the requested adjournments were by the defense and that the court had sought, and obtained, consent for each adjournment in open court with defendant present. The judge found that defendant could not establish a prima facie case based on those circumstances.

To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001).

Measured by that standard, we agree that defendant has not established that he received ineffective assistance as a result of his counsel's failure to move to dismiss under the IAD. The record simply does not support defendant's belated claim that he did not authorize his counsel to consent to further trial adjournments after September 6, 2004.2

Defendant's assertion that his counsel was constitutionally ineffective for failing to object to hearsay and other bad acts evidence, and that he sustained actual prejudice as a result, presents a more difficult question. We agree with the trial judge that certain decisions of defense counsel not to object, such as to DiSimone's testimony, certainly appear strategic. Allowing the jury to hear the particulars of that testimony, for example, allowed defense counsel to compare DiSimone's tale to a letter that defendant's brother sent to him the day after DiSimone arrived at the jail.

In the letter, defendant's brother writes that Catalina told him that a woman called her to say that the woman's boyfriend was jailed with defendant and that defendant had solicited him to kill Catalina. Defense counsel used the similarities between the letter and DiSimone's testimony to argue to the jury that DiSimone had lifted his story from defendant's letter and used it to hoodwink the prosecutor into lowering DiSimone's bail, thus allowing his release from jail. Defense counsel used that hearsay and bad act evidence to discredit all of DiSimone's testimony, including that defendant confessed to him, and to cast doubt on the State's discernment in relying on witnesses like DiSimone and Catalina, whose own charges were dropped after she agreed to testify against her husband, to prosecute defendant.

While we have provided a straight-forward example of an instance in which counsel's strategy appears easy to discern,3 defendant has raised numerous other examples that are much harder to fathom, such as that the victim had loaned defendant bail money, that defendant had a sexual relationship with Catalina's daughter, that defendant had evaded taxes in connection with his tattoo parlor, testimony by a witness that Maskevich had told her that Catalina told him that defendant had beaten her, and a witness's testimony that Maskevich had told him that defendant was stealing from Maskevich and repaying money defendant owed Maskevich with Maskevich's own money. We note also that although the judge questioned defense counsel's tactics at sidebar, defense counsel never confirmed the judge's surmise that counsel was employing strategy in determining not to object. In the sidebar conference we quote, counsel explained that he thought the testimony was admissible under an exception to the hearsay rule.

No doubt "there is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694), but a defendant may rebut that presumption by showing that his trial counsel's actions were not "sound trial strategy." Ibid. Although we respect the perspective of the experienced and conscientious trial judge who watched the trial unfold, the seriousness and sheer number of examples of hearsay and other bad acts testimony admitted without objection makes it impossible for us to conclude that such was the result of defense counsel's strategy without hearing from defense counsel at an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63.

Although establishing prejudice, the second prong of the Strickland test, is "far more difficult" id. at 463, we find plausible on this record defendant's contention that without the wholesale admission of objectionable hearsay and other bad acts testimony, the result would have been different. In coming to this conclusion, we are guided by Judge Weissbard's discussion of harmless error in State v. Pillar, 359 N.J. Super. 249, 276-79 (App. Div.), certif. denied, 177 N.J. 572 (2003), and particularly its focus on "not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand." Id. at 277 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279-280, 113 S. Ct. 2078, 2081-82, 124 L. Ed. 2d 182, 189 (1993)).

The jury acquitted defendant of murder and conspiracy to commit murder, strongly suggesting that the jurors rejected the testimony of both Catalina and DiSimone that defendant directed Patton to shoot Maskevich again after Patton reported that the first shot to Maskevich's head had not killed him. That evidence was the State's strongest proof linking defendant to Patton in a plot to kill Maskevich. Although there was certainly other properly admitted evidence that linked defendant to the crimes,4 it is difficult to conclude that the evidence of defendant's other bad acts did not weigh the scales against him as the jury moved further down the verdict sheet.

We do not suggest by our discussion of the prejudice prong that plaintiff has proved that he was prejudiced by the representation he received. Indeed, in our opinion on defendant's direct appeal we noted that "he may have benefitted substantially from the jury charge which may have spared him from a conviction for felony murder." Pagliaroli, supra, slip op. at 3. Defendant's counsel may well have been pursuing a consciously chosen strategy that resulted in defendant's acquittal of the most serious charges against him. Defendant has only established the right to explore whether that was indeed the case at an evidentiary hearing and to have the court consider the merits of his claim that the admission of hearsay and other bad act evidence constituted ineffective assistance of counsel.

We reject defendant's remaining arguments as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)2.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 We note that many of the witnesses were habitual drug users, a point defense counsel made to the jury many times over. Almost all of the witnesses testifying to the relationship between defendant and the victim were connected either through their use and sale of drugs or their employment in tattoo parlors operated by defendant and others.

2 Defendant attaches a letter he wrote to his counsel on that date objecting to any further adjournments. Defendant does not address subsequent adjournments consented to by his counsel in his presence.

3 This particular instance was not only easy to discern, but also provides no basis for an ineffective assistance claim as we found that its admission was not plain error on direct appeal. State v. Pagliaroli, supra, slip op. at 35-39; see State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("Suffice it to say, as there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied effective assistance of counsel."), certif. denied, 197 N.J. 477 (2009).

4 We note in this regard that the jury asked to view the videotapes of defendant and Patton meeting at a casino shortly after the murder. The prosecutor had argued in his closing that defendant's explanation for having gone to meet Patton, to prevent him from acting on his threat to harm defendant's son for telling defendant of Patton's involvement in Maskevich's murder, was refuted by their interactions on the videotape.