STATE OF NEW JERSEY v. MICHAEL PIERRO

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL PIERRO,

Defendant-Appellant.

____________________________________

April 14, 2014

Submitted October 23, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4979.

Greggory M. Marootian, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial in the municipal court and trial de novo on the municipal court record in the Law Division, defendant Michael Pierro was convicted of driving while intoxicated, N.J.S.A. 39:4-50, and sentenced as a third-time offender to pay a $1006 fine, $33 in court costs, a $50 VCCB assessment, a $200 DWI surcharge, and a $75 SNSF assessment. In addition, the judge revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, ninety of which could be served in an in-patient program, and ordered him to spend forty-eight hours at the Intoxicated Driver's Resource Center. We affirmed his conviction, State v. Pierro, No. A-1598-09 (App. Div. March 21, 2011), and the Supreme Court denied defendant's petition for certification, State v. Pierro, 207 N.J. 228 (2011).

Defendant thereafter filed a timely petition for post-

conviction relief (PCR) in the municipal court alleging he received ineffective assistance of counsel. His petition was denied and he appealed to the Law Division. Defendant claimed that his counsel failed to call his chiropractor who would have testified that his back and neck problems would have hampered his ability to perform field sobriety tests; failed to call an available expert in field sobriety tests who would have testified that the arresting officer's failure to properly administer the tests compromised their validity; failed to effectively cross-examine the arresting officer on his conduct of the field sobriety tests; and failed to guard his right to a speedy trial.

After hearing argument, the trial judge issued an oral opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, the judge found that according to the arresting officer, defendant smelled of alcohol, his eyes were bloodshot, and his speech was slurred. Defendant never advised of any physical problems that would have affected his ability to perform the field sobriety tests. The officer testified that defendant was swaying as the officer attempted to administer the tests and was not listening to or following his instructions.

In addition, the judge noted that the driver who reported defendant's erratic driving to the police also testified at trial. According to the driver, she became aware of defendant when she heard the drivers of oncoming cars blowing their horns. Looking in her rearview and side mirrors, she saw defendant's car driving over the center line and into oncoming traffic. The car then swerved back almost to the curb. The driver called

9-1-1 and continued to observe defendant swerve in and out of his lane.1

The judge concluded that there was ample evidence in the record, beyond the field sobriety tests, to indicate that "defendant was driving drunk." Further, defense counsel presented an orthopedist who testified that defendant had fractured his hip previously and had problems with his back and right leg as a consequence. The orthopedist testified that those conditions, as well as arthritic changes in defendant's lumbar spine, would have adversely affected his ability to pass the field sobriety tests. The judge concluded that counsel's decision to call the orthopedist instead of the chiropractor and not to call the expert on field sobriety tests were obviously the strategic decisions of experienced counsel and not the result of ineffective assistance. See State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting that determining which witnesses to call to the stand is one of the most difficult of strategic decisions).

The judge further concluded that defendant had not shown that the result of the trial would have been different had the additional experts testified. Finally, the judge rejected defendant's contention that his counsel had failed to effectively guard his right to a speedy trial. He concluded that much of the delay in getting the case to trial "was as a result of the extensive pretrial work performed by [defendant's] trial counsel." Because there was no basis under Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101, 117-119 (1972), to make a motion to dismiss on speedy-trial grounds, the judge concluded that defense counsel was not ineffective for failing to make that motion. Accordingly, the judge found that defendant could not establish ineffective assistance of his counsel under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant renews these arguments on appeal and adds that his petition should not have been dismissed without an evidentiary hearing. Our review of the record convinces us that Judge Gallucio carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his counsel was substandard or that, but for any of the alleged errors, the result would have been different. Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Accordingly, we affirm substantially for the reasons expressed by Judge Gallucio in her oral opinion.

We also reject defendant's argument that the judge should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. Preciose, supra, 129 N.J. at 462; R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, at 462-63. As defendant did not

establish a prima facie case for relief, no evidentiary hearing was required.

Affirmed.

1 An officer's stop of a motor vehicle on the basis of a 9-1-1 call was upheld in State v. Golotta, 178 N.J. 205, 218-28 (2003).