STATE OF NEW JERSEY v. STANISLAW SMOLINSKI

NOT FOR PUBLICATION WITHOUT THE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.

STANISLAW SMOLINSKI,

Defendant-Appellant.

July 17, 2015

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0822.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Lynne G. Seborowski, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a June 28, 2013 Law Division order denying his petition for post-conviction relief ("PCR") without conducting an evidentiary hearing. We affirm.

I.

Defendant was charged under Hudson County Indictment No. 03-04-0822 with purposeful/knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (count one), and criminal contempt, N.J.S.A. 2C:29-9 (count two). Count two charged defendant with violating a final restraining order entered in July of 2002 pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.1

The murder charge arose from the January 2003 death of fifty-year old Grazyna Ziaja in Jersey City. Defendant and Ziaja had been involved in a stormy romantic relationship. According to the State's proofs, on January 1, 2003, at approximately 10:00 p.m., Ziaja's neighbor saw defendant knocking on the Ziaja's apartment door and heard him yelling. After she opened the door, defendant pushed his way inside, pulling Zaija with him.

Ziaja was not seen again until six days later, when her daughter found her naked body in the apartment. The daughter called the police, who inspected the scene and saw no signs of a struggle. However, they observed droplets on the wall that appeared to be blood. Following an autopsy, the death was eventually ruled a homicide. Dr. John Krolikowski, the State's acting medical examiner, estimated the death occurred days before the discovery of the body, although the exact time of death was uncertain.

Dr. Krolikowski performed the autopsy, which revealed that Ziaja's face, jaw and neck sustained multiple abrasions, hemorrhages and bruises. Numerous other parts of the body showed abrasions and bruises, and hemorrhages were present in the tongue and right eye. Ziaja's internal organs revealed no evidence of death by natural causes. Dr. Krolikowski therefore concluded, within a reasonable degree of medical certainty, that Ziaja's death was caused by asphyxiation and blunt trauma.

Police questioned defendant the day after the discovery of Ziaja's body. Detective Ryan Muller conducted the interview, but because defendant only speaks Polish, another detective translated. Before the interview, the detectives informed defendant of the investigation into the Ziaja's death, and advised him of his Miranda2 rights.

Defendant initially denied any recent contact with Ziaja. After approximately five hours of questioning, Det. Muller showed defendant a photograph of the crime scene and falsely told him that police had found his fingerprints on a drinking glass pictured in the photograph. Defendant then admitted to having recently visited the apartment. At that point, Det. Muller told defendant he was being charged with the Ziaja's murder, and reiterated defendant's Miranda rights.

After another two hours of questioning, defendant claimed that he and Ziaja, who was overweight, had been having consensual rough sex when she began gasping for air and eventually became unresponsive. After being advised yet again of his Miranda rights, defendant gave an audio statement to the same effect. According to Detective Kwiecinski, defendant was informed of his Miranda rights approximately ten times during the course of the interrogation, in addition to having been offered food, drink, and access to the bathroom.

In support of his account, defendant presented Dr. Thomas Gilchrist, a forensic pathology expert, who testified that Ziaja had an abnormal heart condition, and that her injuries were neither fatal nor consistent with death by strangulation. Dr. Gilchrist opined that the cause of Zaija's sudden death was a heart abnormality. He admitted, however, that the blunt trauma to Ziaja's neck could have been caused by strangulation, and that sudden death caused by Zaija's particular heart abnormality was rare.

Evidently crediting the testimony of Dr. Krolikowski, the jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11-4a(1), a lesser-included offense of murder. The court sentenced defendant to twenty-five years of incarceration, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the appropriate fees and penalties.

Defendant appealed, contending his waiver of Miranda rights was neither knowing nor voluntary, certain evidence was inadmissible, and his sentence was excessive. We affirmed the conviction but remanded for sentencing in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Smolinski, No. A-6683-04 (App. Div. Oct. 12, 2007) (slip op. at 22). On remand, the trial court imposed the same sentence. Defendant appealed his sentence, and his appeal was heard on our excessive sentence oral argument calendar. We affirmed. State v. Smolinski, No. A-5574-07, E.S.O.A. order, July 30, 2009.

On March 21, 2012, defendant filed this pro se petition for PCR, claiming he was denied the effective assistance of trial counsel. His petition also asserted claims previously raised and rejected on direct appeal: that his waiver of Miranda rights was neither knowing nor voluntary, that certain evidence was inadmissible, and that his sentence was excessive. The court appointed counsel to represent defendant.

On March 7, 2013, Judge John A. Young, Jr., heard argument on the petition. Thereafter, Judge Young filed a written opinion in which he concluded that the petition was not procedurally barred by Rule 3:22-12(a)(1), but nevertheless rejected defendant's contention that he was denied the effective assistance of trial counsel. The judge also rejected defendant's remaining claims, concluding that they were raised or could have been raised on direct appeal. See Rule 3:22-4 and 5. The judge entered an order on June 28, 2013, denying PCR. This appeal followed.

On appeal, defendant raises the following arguments

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS IT CONSISTED VIRTUALLY ENTIRELY OF HEARSAY.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO MAKE AN APPROPRIATE MOTION PRIOR TO TRIAL BASED UPON THE VIOLATION OF THE DEFENDANT'S RIGHTS TO WHICH HE WAS ENTITLED PURSUANT TO THE VIENNA CONVENTION ON CONSULAR RELATIONS.

II.

We are convinced from our review of the record that these arguments clearly lack substantive merit. We affirm the denial of PCR substantially for the reasons stated by the Judge Young in his comprehensive twenty-one page decision. R. 2:11-3(e)(2). We add the following.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective assistance of counsel, first, a defendant must show that his or her attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, the defendant must show that the attorney's deficient performance prejudiced defendant. Ibid.

"[A]n indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citation and internal quotation marks omitted). The decision on a motion to dismiss an indictment is generally addressed to the discretion of the trial judge. State v. McCrary, 97 N.J. 132, 144 (1984). A trial court's "exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Hogan, supra, 144 N.J. at 229.

Here, defendant alleged he was denied the effective assistance of counsel because his trial attorney failed to move to dismiss the indictment on the ground that it was based almost entirely on hearsay. Defendant contends that the indictment would have been dismissed because there was only one witness before the grand jury, and he allegedly did nothing but present information from the prosecutor's file.

In support of his argument, defendant relies on two trial court opinions that are not binding on us: State v. Chandler, 98 N.J. Super. 241 (Law Div. 1967), and State v. Costa, 109 N.J. Super. 243 (Law Div. 1970). In Chandler, the defendant filed a motion to dismiss the indictment premised on the fact that the only witness who testified before the grand jury did not witness the event. Chandler, supra, 98 N.J. Super. at 244-45. The trial judge dismissed the indictment, explaining that the witness, a police detective, did not have any "relevant information" because he did not witness the alleged crime and "served only the limited purpose of consigning the prosecutor's file to the grand jury . . . ." Id. at 251. Similarly, in Costa, the defendant filed a motion to dismiss the indictment because the sole witness before the grand jury, a police officer, "simply relat[ed] what had been told him by other persons." Costa, supra, 109 N.J. Super. at 244-46. The judge dismissed the indictment on the grounds that it was based exclusively on the hearsay testimony of the police officer, who lacked any first-hand knowledge of the incident. Id. at 247-48.

In State v. Holsten, 223 N.J. Super. 578, 584 (App. Div. 1988), we questioned the continued viability of the holdings in Chandler and Costa following our decision in State v. Ferrante, 111 N.J. Super. 299 (App. Div. 1970). In Ferrante, we held that "[a]bsent misconduct or abdication by grand jurors, the question whether evidence before a grand jury was competent or incompetent, . . . [is] irrelevant on a motion to dismiss the indictment." Ferrante, supra, 111 N.J. Super. at 306.

As we explained in Holsten, an "indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." Holsten, supra, 223 N.J. Super. at 585 (citation and internal quotation marks omitted); see also McCrary, supra, 97 N.J. at 146 ("[H]earsay and other informal proofs are permissible in determining issues that implicate important rights."); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictment should not be dismissed. Holsten, supra, 223 N.J. Super. at 585-86.

Judge Young correctly rejected defendant's claim, finding no reasonable prospect that a motion to dismiss the indictment would have been granted. Moreover, while a grand jury may indict based on hearsay alone, Det. Muller, the officer who testified, was directly involved in the murder investigation, and some of his testimony consisted of non-hearsay observations. Additionally, the State also presented the grand jury with defendant's statement, in which he admitted that he was with the victim at the time of her death.

Defendant further argues that his trial attorney was ineffective because he did not seek to have the indictment dismissed based upon an alleged violation of defendant's rights under the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, art. 36, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, (the "VCCR"). As Judge Young noted, under the VCCR, defendant, as a native of Poland, would only have been entitled to have Poland's consulate informed that he had been arrested and was being detained.

Defendant argues that, if the consulate had been told of his arrest and detention, he would have been provided with assistance, and would have had a better understanding of his rights before he responded to questions posed by law enforcement. Judge Young correctly found that any violation of the VCCR would not have resulted in the suppression of defendant's statement, which was otherwise admissible.3 Defendant also contends that the PCR court erred by failing to conduct an evidentiary hearing on his petition. However, a hearing was not required because defendant failed to establish a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 Count two was eventually dismissed after defendant's trial.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 As previously noted, in defendant's direct appeal we concluded that he had knowingly and voluntarily waived his Miranda rights during the interview with law enforcement.