STATE OF NEW JERSEY v. MICHAEL JOSEPH IPPOLITI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5776-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL JOSEPH IPPOLITI,

Defendant-Appellant.

__________________________________

November 30, 2015

Submitted October 26, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0762.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a February 19, 2014 order denying his petition for post-conviction relief (PCR). Defendant maintains that his trial counsel rendered ineffective assistance of counsel. We conclude his arguments are unavailing and affirm.

A grand jury indicted and charged defendant with second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(4) (Count One); second-degree luring, N.J.S.A. 2C:13-6 (Count Two); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4a (Count Three); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(b) (Count Four).

The charges against defendant arise out of defendant's internet and telephone communication with someone he believed was a thirteen-year-old girl named Julie.1 A jury tried defendant from October 16, 2007 to October 26, 2007. We discern the following facts from the evidence adduced at trial.

Defendant communicated with Julie on the internet and over the telephone for approximately three weeks. A female detective played the role of Julie during telephone conversations between Julie and defendant, which were recorded, transcribed, and played for the jury. Communication between defendant and Julie began when a male detective logged in to Yahoo under an account with a corresponding profile indicating that the account was operated by someone named Julie and entered a chat room. Defendant sent Julie a message. After Julie stated that she was thirteen years old, defendant stated he was "[j]ust looking for a date" and later asked her for a photograph.

During the following few weeks, defendant requested details about an older man that Julie stated she had engaged in oral sex with, sent Julie a picture of himself after she promised him that he would not get in trouble, suggested that he and Julie meet, proposed to Julie that she could perform oral sex and he would pay for a hotel room, and repeatedly instructed Julie to delete from her computer all communication between them.

Defendant made plans to meet Julie in a parking lot. The police were waiting for defendant at that location and apprehended defendant as he drove towards an exit. They then arrested defendant and transported him to the prosecutor's office. Defendant waived his Miranda2 rights, consented to a search of his work and personal computers, and provided a sworn confession. Defendant's electronic equipment revealed evidence of the communications and pictures that defendant and Julie had exchanged.

The jury found defendant guilty of Counts One, Two, and Three, and on Count Four, the jury found defendant guilty of a lesser-included offense of fourth-degree resisting arrest. The judge initially imposed an aggregate prison term of eight years.3 Defendant appealed, contending that his sentence was excessive. After hearing the appeal on our excessive sentencing oral argument (ESOA) calendar, we remanded for resentencing. In March 2009, the court modified defendant's sentence with respect to Counts One, Two, and Three by imposing concurrent prison terms of seven years on Counts One and Two and three years on Count Three. In March 2010, we issued an order from our ESOA calendar affirming the resentence. The Supreme Court denied certification. State v. Ippoliti, 204 N.J. 39 (2010).

In August 2010, defendant filed a pro se petition for PCR. Defendant was later assigned PCR counsel, who asserted a panoply of arguments. Specifically, defendant's counsel argued that the judge erred by denying defendant's motions to dismiss the indictment, suppress physical evidence, and suppress his statements to police; trial counsel failed to raise an entrapment defense; the prosecutor made improper statements in her opening statement and summation and trial counsel was ineffective for not objecting; trial counsel ineffectively cross-examined a detective during the trial; the judge failed to declare a mistrial; the judge gave an erroneous jury charge; defendant was deprived of his right to testify and present a defense; cumulative errors deprived defendant of a fair trial; both appellate and trial counsel rendered ineffective assistance; defendant's PCR petition should not be procedurally barred; and that defendant was entitled to an evidentiary hearing.

In February 2014, the PCR judge conducted oral argument, denied the petition without an evidentiary hearing, and rendered a comprehensive written opinion. Although the judge determined that the majority of defendant's contentions were barred by Rule 3:22-4(a), the PCR judge concluded that, on the merits, the otherwise barred arguments did not satisfy either prong of the Strickland4 test. On the claims that were not procedurally barred, the PCR judge concluded that defendant failed to demonstrate a prima facie case of ineffective assistance of counsel.

On appeal, defendant raises the following points;

POINT I

THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] 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 [PCR].

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, AS A RESULT OF WHICH HE WAS DEPRIVED OF HIS RIGHT TO TESTIFY ON HIS OWN BEHALF AT TRIAL AS WELL AS TO PRESENT A VIABLE DEFENSE.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PROPERLY ADVISE HIM WITH RESPECT TO THE MIRANDA HEARING, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY AT THAT HEARING.

POINT II

THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] SINCE THE TRIAL COURT SHOULD HAVE GRANTED TRIAL COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

POINT III

THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] RELATING TO THE TRIAL COURT'S DENIAL OF TRIAL COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his written opinion and add the following comments.

For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Here, we are persuaded that the alleged deficiencies clearly fail to meet either the performance or prejudice prongs of the Strickland test.

I.

We begin by rejecting defendant's contention that trial counsel rendered ineffective assistance by failing to (1) inform defendant he could reject counsel's advice that he not testify at trial; (2) provide defendant with information necessary to decide whether to testify at trial; and (3) adequately discuss at the end of the State's case in chief whether defendant should testify at trial.

A criminal defendant has a constitutional right to testify on his own behalf and "[t]he decision whether to testify rests with the defendant." State v. Bey, 161 N.J. 233, 269 (1999) (citations omitted), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Counsel must inform a defendant of his right to testify, "the tactical advantages or disadvantages of doing so or not doing so[,]" and "the benefits inherent in exercising that right and the consequences inherent in waiving it." Id. at 269-70 (citation and internal quotation marks omitted).

Defendant has failed to demonstrate trial counsel's performance was deficient. The PCR judge properly explained that defendant's claims are belied by the record. At trial, defendant acknowledged under oath that he: knew the decision whether to testify was his constitutional right and ultimately his decision; had ample time to reflect on discussions regarding the decision with counsel and others from counsel's office; discussed the decision with members of his family; was knowingly and voluntarily choosing not to testify; and had no questions about his election not to testify. Thus, defendant has not satisfied prong one of Strickland.

Defendant also cannot establish prejudice. Defendant argues he would have testified that he lacked the requisite criminal intent because he: (1) was "interested only in meeting an age appropriate female"; (2) "was only playing along to see where it would lead" because "[h]e suspected someone was playing a joke on him and wanted to find out who it was"; and (3) only attempted to flee at the parking lot because he did not know the people approaching him with guns were police and was scared. The State's evidence against defendant, including proof of his intentions, was overwhelming and included incriminating internet and telephone communications during which defendant repeatedly engaged in sexual conversations with Julie and repeated attempts to conceal his relationship with Julie. Thus, there is no reasonable probability defendant's proffered testimony would have changed the outcome and therefore defendant's claims do not meet prong two of Strickland.

II.

Defendant also argues trial counsel was ineffective for failing to advise him of his right to testify at the hearing to suppress his confession. On this point, defendant has not met either Strickland prong.

A confession given during custodial interrogation is only admissible if law enforcement first advised the defendant of his constitutional rights and the State proves beyond a reasonable doubt that the defendant's waiver of those rights was "voluntary, knowing, and intelligent." State v. Hreha, 217 N.J. 368, 382-83 (2014) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). This analysis can include factors such as "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Id. at 383 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).

In support of his PCR petition, defendant certified for the first time that he only confessed "because of the emotional duress exerted upon [him]" because "[t]he officers were in [his] face and were continually screaming at [him]." Defendant further certified the officers: told him that he would be released in a few hours if he told them what they wanted; wrote down what defendant was supposed to say; and would stop recording to scream at defendant if he tried to say something different.

Indeed, the trial judge observed that "[n]othing is indicated by the defendant, either in his brief or otherwise, that the defendant was coerced . . . ." At the suppression hearing, the male detective testified that he and an investigator interviewed defendant, and that defendant: was calm and cooperative; paid attention as he was read his rights; understood those rights and had no questions; read the constitutional rights form, wrote the word "yes" and his initials next to each right, and then wrote and signed his name in the waiver portion; was "very forthcoming" when he discussed his relationship with Julie; agreed to provide a formal statement and did not indicate he wished to remain silent or wanted an attorney; and provided a statement lasting less than twenty minutes. The video recording of the statement was then played for the judge.

The record shows that defendant's confession was not the product of coercion. As the trial judge explained, defendant was an educated, forty-two-year-old, full-time certified public accountant (CPA) who printed and signed his name and initialed a constitutional rights form prior to being interviewed for approximately one hour and issuing a formal statement. Defendant's certification, that he was forced to read from a script and the recording was stopped so detectives could berate him for going off-script, is simply incompatible with the record, including: a stenographer was present during the alleged coercion; defendant used slang for oral sex that the male detective had to ask defendant to explain; and the judge did not believe defendant was coerced after watching the recording.

Moreover, even assuming defendant's confession was admitted in error, which is not the case, this error was harmless, R. 2:10-2, in light of the overwhelming other evidence of defendant's guilt. See Arizona v. Fulminante, 499 U.S. 279, 295-302, 111 S. Ct. 1246, 1257-61, 113 L. Ed. 2d 302, 322-26 (1991) (applying harmless-error analysis to improperly admitted coerced confession); State v. Burris, 145 N.J. 509, 546 (1996) (Stein, J., concurring) (collecting cases).

III.

Defendant argues trial counsel's motion for a mistrial should have been granted. Defendant contends this issue is not procedurally barred by Rule 3:22-4(a) because appellate counsel was ineffective by failing to raise this point on direct appeal.

The Strickland test applies to claims of ineffective assistance of appellate counsel. State v. Loftin, 191 N.J. 172, 197-98 (2007). Appellate counsel is not required to raise every argument a defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983). Indeed, "[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. Even assuming defendant satisfies the first Strickland prong by certifying appellate counsel advised defendant he could "raise other issues later[,]" there is no reasonable probability that the we would have reversed the order denying defendant's mistrial motion.

Defendant argues trial counsel's motion for a mistrial should have been granted because, in her summation, the assistant prosecutor (1) expressed her own interpretation of the case, (2) appealed to the emotions of the jury, and (3) commented on information outside the scope of the evidence.

To determine whether a prosecutor's improper comments in summation warrant reversal, this court must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. Id. at 82. Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments" and may respond to arguments raised by defense counsel "as long as their comments are reasonably related to the scope of the evidence presented." Ibid.

Here, there was nothing egregious or unduly prejudicial in the assistant prosecutor's summation. Defendant points to the assistant prosecutor's following statements

Then there's the private [defendant]. The private [defendant], the one he purposely[,] deliberately keeps to himself, that private [defendant] is a man who harbors a dark obsession for a [thirteen-]year[-]old child named Julie. That [defendant] is a man who during the month of December, 2005, literally can't get enough of Julie.

He chats with her on the internet. He calls her on the phone, he texts her when he's in [the Mall] from his cell phone. He truly is the man in the throes of an obsession.

. . . .

The public [defendant] is a guy that coaches recreational sports and little leagues and acts as a mentor to the kids in his public life. The private persona of [defendant] that you see during this evidence is a man that teaches Julie about deception and cover-up.

. . . .

And the reason why is abundantly clear. Because [defendant] wants contact with [Julie]. He wants to get to know her. He wants to meet her. And as the days in December progress, his desire intensifies, it becomes a frenzy to the point where you'll see later on he literally can't stand another moment without her.

. . . .

It is very clear from all of the evidence that [defendant] wanted Julie. And as the days of December go on, he wants her badly. He saves the chats. He looks at her picture again and again and again. Fueling his desire, fueling his dark obsession to be with this [thirteen-]year[-]old girl.

[Defendant] literally can't get enough and won't rest until he sees [Julie]. Until he gets to meet her.

. . . .

[Defendant] knows that he can't speak his truest desires out loud. And the reason why he knows that what it comes down to using common sense and life experience is quite simple. He doesn't want to scare Julie off. That's the part of the trap and the ensnarement that I was referring to, that he participates in. He wants to lure Julie to him. And he's afraid to say out loud what he wants.

. . . .

Now it's the weekend and even though it's the weekend, [defendant] can't stop thinking about Julie. And he sends her an off-line message again.

And now it's Sunday, and even though it's Sunday, [defendant] can't stop thinking about Julie. And so he sends her another off-line message.

. . . .

The chat continues. Then there's the chat

-- oh, yeah, call, chat continues. [Defendant] asks Julie for another picture. And what we know from the forensic examination is that on December 21[], 2005, he viewed the pictures he already had. So not only is he listening to her voice and chatting with her on[-]line, he's looking at her. Because he can't get enough.

. . . .

None of those things come out of [defendant's] mouth. Because he's need driven and his needs and his wants literally overtake his life on December 21[], 2005. You can almost hear the frenzy in his voice. You can feel the intensity in his chats. When we going to meet, when we going to meet, when we going to meet.

The assistant prosecutor's statements are reasonably related to the scope of the evidence presented. Also, the theme of defendant having a "dark obsession" or a private and public persona was not impermissible under the facts of this case; rather, it was a forceful manner to present the State's case and respond to defense counsel's statements that defendant was a "regular ordinary" man, living an "ordinary . . . CPA life[,]" who was foolishly trapped by law enforcement in "[t]he dark world of cyber space[,]" and did not attempt "to seduce [Julie] into his dark world."

Defendant also argues the assistant prosecutor's reference to the girl meant to represent Julie in the photographs sent to defendant impermissibly appealed to the emotions of the jury and called the jury to speculate on facts outside the evidence. The assistant prosecutor stated "[w]e don't need to know anything about [the girl], except her noble sacrifice allowed --[,]" whereby defense counsel objected and the judge instructed the jury: "Once again, I instruct you, you will be the ultimate judges of the facts. The attorneys make objections, the attorneys make statements." The assistant prosecutor continued "[the girl's] noble sacrifice allows us to get to [defendant] before he gets to a real live child. And this is the child [defendant] looked at again and again and again."

The assistant prosecutor's statements did not impermissibly invite the jury to consider facts outside the evidence because she specifically stated that the jury did not need to know anything about the girl and the judge instructed the jury that they are to determine facts, not counsels' statements. Moreover, defense counsel had specifically addressed the girl and speculated that police might have victimized the girl for the sake of their investigation. Thus, none of the assistant prosecutor's statements were so egregious that they deprived defendant of a fair trial.

IV.

We are also convinced that an evidentiary hearing was unwarranted. An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must make out a prima facie case, demonstrating a reasonable likelihood of succeeding under the Strickland test. Id. at 463; see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Defendant failed to meet this standard.

Affirmed.

1 Julie is a fictitious person who was portrayed by members of the prosecutor's office.

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

3 The judge sentenced defendant to concurrent terms of: eight years in prison on Count One; eight years in prison on Count Two; four years in prison on Count Three; and one year in prison on Count Four. The sentence was subject to Megan's Law.

4 Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).