STATE OF NEW JERSEY v. WILLIAM ALLEGRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3363-05T2F3363-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM ALLEGRO,

Defendant-Respondent.

_______________________________________

 

Argued September 20, 2006 - Decided

Before Judges Wefing, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-06-1163.

Barbara Suppa, Assistant Prosecutor, argued the cause for appellant (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Suppa, on the brief).

Kelly Anderson Smith argued the cause for respondent (Garces and Grabler, attorneys; Ms. Smith, on the brief).

PER CURIAM

By leave granted, the State appeals from an order entered on October 19, 2005, granting a petition by defendant William Allegro for post conviction relief (PCR). For the reasons that follow, we reverse.

I.

Defendant was charged with maintaining a facility for the production of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-4 (count one); and possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(10) (count two). The charges arose from the discovery on February 21, 1999, of a marijuana-growing facility and a large quantity of marijuana during a search of an apartment following a fire.

In January 2000, defendant moved to suppress certain evidence seized at the fire site. Before the motion was heard, the assistant prosecutor placed the State's plea offer on the record. On count one, the State offered defendant a twenty-year term of imprisonment, with a four and one-half year period of parole ineligibility. Count two would be dismissed. However, the prosecutor stipulated that if defendant went forward with the suppression motion, the offer would be twenty years of imprisonment, with five and one-half years of parole ineligibility. Furthermore, if defendant elected to go to trial, the State would not waive the mandatory extended term and defendant would, as the assistant prosecutor stated, face "a term of between [twenty] years and life imprisonment with one half of that being parole ineligibility." Defendant rejected the offer and went forward with his suppression motion, which was granted in part and denied in part.

On May 22, 2000, a hearing was held on the State's application for a plea "cut-off." The assistant prosecutor stated on the record that the State's plea offer on count one was twenty years with a five and one-half year period of parole ineligibility, with the dismissal of the second count. The assistant prosecutor said that, if the defendant went to trial and was convicted, the State would seek a mandatory extended term "substantially more than twenty years, upwards of life imprisonment," and one-half of the sentence would be without parole. In response to questioning by the judge, defendant rejected the offer. The defendant stated that he understood his "jeopardy" if he was convicted. He said that he wanted to proceed to trial.

The trial took place on August 8 and 9, 2000. The State presented evidence that on February 21, 1999, a fire broke out in an apartment at the rear of property located at 408 Monmouth Avenue in Bradley Beach. The apartment was on the second story of the building, over a garage. Officers of the Bradley Beach Police Department (BBPD) entered the apartment after the fire was extinguished. They saw no furniture in the apartment but found irrigation pumps, plant lights, potted plants, and black bags of green vegetative material that was later determined to be marijuana.

Patrolman Michael Ricciardi (Ricciardi) testified that when he responded to the scene, he spoke with William Nutting (Nutting), who lived in the house at the front of the property. Nutting told Ricciardi that defendant resided in the apartment but he did not see defendant "that much." Nutting said that defendant would come to the apartment late at night and leave "right away." Nutting told Ricciardi that he never saw defendant spend the night in the apartment. Nutting also told Ricciardi that the last time he had seen defendant was a few days before the fire.

Fire Inspector Keith DiLello (DiLello) testified that he conducted an investigation into the cause and origin of the fire. According to DiLello, the fire was caused by an electrical overload, which overheated the wiring and ignited a fire in the garage area that burned through the bottom of the floor up into the second floor apartment. DiLello also said that a certificate of occupancy (CO) for the rear apartment had been issued in 1994 to James Allegro (James), defendant's brother. The CO had been amended in 1998 to add defendant as an occupant of the premises.

Nutting testified that defendant lived in the apartment in or around February 1999. Nutting stated that defendant had a construction company and he would see defendant frequently "coming and going." Nutting saw defendant "coming and going" in February of 1999. Nutting said the last time he had seen defendant, defendant was in his white van. He stated, "I saw the van come and I saw the van go." Nutting added that, around the time of the fire, he believed defendant was living in the apartment.

The State also presented testimony from Muruvvet Reyal (Reyal), the owner of the property. She said that on February 21, 1999, defendant was renting the rear apartment. Reyal said that defendant paid the rent but not always on time. At times, Reyal would knock on the door of the apartment and ask for the rent payments. Defendant did not pay the rent in February 1999 but Reyal stated that this was not unusual because "he was always late." Reyal also stated that it did not appear that anyone else was living in the apartment. She added that it appeared that the lights were always on in the apartment. On cross-examination, Reyal said that defendant drove a white pickup truck and she had seen the truck in the driveway. Reyal conceded that she did not actually see defendant driving the vehicle. Reyal said, "Well, I saw the pickup truck sitting there. Since I know that he was the only one in the apartment, . . . I thought that that was his pickup truck."

The State also called Detective Lieutenant Richard Lizzano (Lizzano) of the BBPD. Lizzano stated that on February 24, 1999, defendant called police headquarters. The phone call was recorded. The tape was played and a transcript of the recording distributed to the jurors. Defendant had left the State. He told Lizzano that he was the person Lizzano was looking for. Lizzano asked defendant if the matter only involved him or whether it also involved others. Defendant said that "it doesn't involve nobody else, nobody." Later in the conversation, Lizzano asked, "So everything in there is just yours? It's got nothing to do with [James] or anybody else." Defendant replied, "It has nothing to do with anybody, nobody."

Defendant did not testify in his own behalf but called James and Jennifer Steibel (Steibel) as witnesses. James testified that he rented the apartment at 408 Monmouth Avenue and lived there a "couple of years." James later moved out of the apartment and his brother moved in but James could not recall the date. James moved to Ocean Township and took his furniture and personal belongings with him. He explained that the electric utility service had been in his name but he "switched" the electric service because he was moving into another house and he did not "want to have two services in two different places."

James further testified that defendant continued living in the apartment for about a year after James moved out. According to James, defendant subsequently moved from the apartment. James said, "I didn't help him move, but I remember him moving into Belmar." James testified that defendant moved about the time when he "switched" the electric service, in August or September 1998. James was asked what type of vehicle defendant had been driving in 1998 and he said it was a blue pickup. James testified that to his knowledge, his brother did not own a white pickup truck.

Steibel testified that that she was dating defendant in February 1999. Steibel said that she was with defendant on the evening of February 20, 1999, and remained with him until the next day. Steibel was asked, "Did you ever know [defendant] to own a white pickup truck?" She replied, "No." On cross-examination, Steibel said that the last time she dated defendant was in February or March of 1999 but they had remained friends since that time. Steibel stated that around February 21, 1999, defendant informed her that there had been a fire at the apartment "he used to live at in Bradley Beach."

After closing arguments and the judge's instructions, the jury found defendant guilty on both counts. At sentencing, the judge granted the State's motion pursuant to N.J.S.A. 2C:43-6f for a mandatory extended term of imprisonment based on defendant's prior drug conviction. The judge expressed reservations about imposing the extended term, noting that he would have been "perfectly comfortable with a sentence of eighteen years with a seven-year stip." However, the judge said that he was compelled by law to impose a sentence of between twenty years and life on count one. The presumptive extended term for the offense was fifty years. Accordingly, the judge sentenced defendant on count one to a custodial term of fifty years, with a sixteen-year and eight-month period of parole ineligibility. On count two, the judge imposed a concurrent nine-year term with a four-year period of parole ineligibility.

Defendant appealed and argued that: 1) the trial judge erred in failing to suppress all of the evidence obtained as a result of the warrantless searches of the apartment; 2) the convictions should be vacated because the testimony of the State's expert was improper and prejudicial; 3) the verdicts were against the weight of the evidence; and 4) errors in the jury charge had denied defendant a fair trial. We rejected these contentions and affirmed defendant's convictions and sentences. State v. Allegro, No. A-4349-00T2 (App. Div. September 30, 2002). The Supreme Court denied defendant's petition for certification.

On December 30, 2003, defendant filed a petition for PCR, in which he alleged that he had been denied the effective assistance of counsel. In his supporting certification, defendant asserted that defense counsel L. Gilbert Farr (Farr): 1) failed to consult adequately with defendant concerning his defense; 2) did not inform defendant that the State's plea offer would change if the suppression motion was denied; 3) did not discuss with defendant the strategy for the suppression motion or the trial; 4) advised defendant at the time of the plea cut-off that the matter would be tried and there was an excellent chance of success; 5) never explained the consequences of the extended term sentence; 6) failed to consult with a drug expert for trial; 7) undertook no independent investigation; 8) failed to speak to the defense witnesses out of court; 9) failed to contact Lieutenant Siciliano (Siciliano), a witness who was said to have exculpatory information; 10) never filed a brief in support of the suppression motion; 11) only spoke with James and Stiebel five minutes before they testified at trial; 12) did not present testimony from Donald Brandt (Brandt), who was at the court house during the trial and could have testified that defendant's name was on a lease with Brandt's for an apartment in Belmar; 13) appeared to be "extremely unprepared and disorganized" at trial and may have been under the influence of illegal drugs during his representation of defendant; 14) failed to utilize or explore information regarding the registration of defendant's vehicles; 15) failed to discuss testifying with defendant and discouraged him from taking the stand "without any kind of rationale or explanation"; 16) failed to visit defendant in jail after the trial was over to discuss his status, motions or sentencing; 17) did not provide defendant with a copy of the pre-sentence report nor discuss it; and 18) failed to advise defendant that he had been suspended from the practice of law in New Jersey and defendant would have to secure the services of another attorney for sentencing and other motions.

The judge conducted an evidentiary hearing on June 2, 2005, at which seven witnesses testified: James Allegro, Arthur Axelsen (Axelsen), Daniel Stewart (Stewart), Michael Basile (Basile), Anthony Tallarico (Tallarico), Eileen LaFauci (LaFauci), and defendant.

The judge placed his decision on the record on August 5, 2005, denying PCR. The judge rejected defendant's contention that Farr failed to properly advise defendant concerning the State's plea offer. The judge found that when defendant rejected the State's plea offer, he was fully aware of the consequences of doing so and the potential for imposition of an extended term sentence if the matter went to trial and he was convicted.

The judge also rejected defendant's claim that Farr may have been using drugs during the course of the trial. He found no ineffectiveness by Farr due to drug use at the trial. The judge stated:

The transcript of his performance at the trial speaks for itself. I mean, he did cross examine witnesses. He did call witnesses on defendant's behalf in this case, and certainly at trial, I think his performance was adequate. And the Court is satisfied that certainly his performance at trial in the courtroom in front of this Court was adequate. He cross examined the State's witnesses. There were two witness, Mr. [Nutting] and I think the last name of the woman was [Reyal] who were two incriminatory witnesses toward this defendant.

Mr. [Nutting]'s position was [that] he knew the defendant. He saw his truck there the night before the fire. Mr. Farr cross examined about that, brought out inconsistencies in the information that [Nutting] had given to the police, brought out through [James] that he didn't have a white vehicle. He also effectively cross examined the landlord who had indicated that he was the [person] responsible for paying the rent. So I think he really did an effective job during the course of the trial at least as it appeared before this Court.

In addition, the judge found that Farr had not been deficient in failing to present Axelsen, Basile, Tallarico and LaFauci as witnesses. The judge determined that their testimony would not have made a difference because it was cumulative. The judge stated that Farr had presented evidence that defendant had moved out and was not living at 408 Monmouth Avenue in Bradley Beach at the time of the fire but none of the witnesses could say whether defendant had returned to the apartment or whether he was still maintaining it, as the State's witnesses had testified.

Defendant filed a motion for reconsideration, which was heard on October 7, 2005. In his decision on the motion, the judge focused upon the allegation that Farr failed to interview and produce additional witnesses at trial. The judge noted that, in our decision affirming defendant's conviction, we stated that the case amounted to a "classic credibility contest to be assessed by the jury." The judge commented:

At the post conviction relief hearing on June 2nd, there were I believe seven witnesses presented. [Defendant's] brother was a repeat witness, and one witness was testifying as to the actions of Mr. Farr at trial. But there were five witnesses who testified that they were familiar with the defendant's place of residence in 1999. None of them were called as witnesses, nor even interviewed by Gilbert Farr.

For what it's worth, Mr. Farr was suspended from the practice of law on October 31st of 2000, thus requiring [another attorney] to take his place at the sentencing, for among other things gross neglect and lack of diligence. He was permanently disbarred on February 25th of 2004.

And as indicated before, [this] only delayed the sentencing in this case because following the defendant's conviction by the jury, Counsel did not speak to defendant prior to the sentencing date, and was unprepared to argue against an extended term.

In making the decision to deny post conviction relief on August 5th 2005, the Court pointed to the cumulative nature of the witnesses' testimony, and also to certain motivations the witnesses may have had. But in a "classic case of credibility", the trial jury should have had the opportunity to hear and evaluate these witnesses.

Because of Mr. Farr's lack of diligence and neglect, these witnesses were not heard by the jury. Mr. Farr could not make an informed decision not to call them, or at least call some of them, because he never interviewed them to find out what they had to say.

The level of Mr. Farr's incompetence in not properly preparing for the trial undermines this Court's confidence in the ultimate outcome of this case.

The judge thereupon entered an order on October 19, 2005 vacating defendant's conviction and granting defendant a new trial. We granted the State's motion for leave to appeal.

II.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and the deficiency prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "This requires [a] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.

To establish that his attorney was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." Ibid.

To show that he was prejudiced by counsel's deficient performance, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Here, the trial judge concluded that Farr was ineffective because he failed to present Axelsen, Basile, Tallarico and LaFauci as witnesses at the trial. The judge reasoned that, because this matter involved a "classic credibility contest," a jury should have been given an opportunity to evaluate the testimony of these witnesses. We disagree with the judge's conclusion that Farr's failure to produce these witnesses rises to the level of the ineffective assistance of counsel.

In this matter, defendant was charged with maintaining or operating a facility for the production of CDS, in violation of N.J.S.A. 2C:35-4. Defendant also was charged with possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5b(10). Suffice it to say, the State presented overwhelming evidence that on February 21, 1999, the garage apartment at 408 Monmouth Avenue was being used as a facility for the manufacture of marijuana and the marijuana in the apartment was possessed for purposes of its distribution.

The State additionally presented evidence upon which the jury reasonably could find that defendant maintained the manufacturing facility and possessed the marijuana on February 21, 1999. Reyal, the owner of the apartment, testified that defendant was renting the apartment as of February 21, 1999. Defendant's name appeared on the CO for the apartment. Nutting, the resident of the adjacent house, stated that he saw defendant "coming and going" from the apartment in February 1999 and he believed that defendant was living there at the time. Furthermore, defendant phoned the Bradley Beach police, spoke with Detective Lieutenant Lizzano and stated that the matter involved him and no one else. He implicitly admitted maintaining the CDS manufacturing facility and possessing the CDS.

We point out again that under the Strickland test, defendant must not only show that his attorney's performance was deficient, he must also establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Moreover, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings." Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. Defendant therefore was required to establish that it was reasonably probable the jury would have reached a different verdict if Farr had called Axelsen, Basile, Tallarico and LaFauci as witnesses. We are satisfied that defendant failed to do so.

The testimony that would have been provided by Axelsen, Basile, Tallarico and LaFauci would have been essentially the same as the testimony that the jury heard from James and Steibel. Evidence that is merely cumulative or repetitive does not create a reasonable probability that, had such evidence been presented at trial, the jury would have reached a different verdict. State v. Ways, 180 N.J. 171, 188-89 (2004); State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000); State v. Conway, 193 N.J. Super. 133, 174 (App. Div. 1984), certif. denied, 97 N.J. 650 (1984).

Furthermore, Axelsen, Basile, Tallarico and LaFauci did not have personal knowledge concerning the key issue in this case: whether defendant continued to rent and maintain the apartment in Bradley Beach even though he had moved his personal belongings and was apparently living in an apartment in Belmar. Indeed, these witnesses did not contradict the testimony that had been provided by Nutting and Reyal at the trial. Nor did they contradict Lizzano's testimony that defendant called the Bradley Beach police, stated that the matter involved only him, thereby implicitly admitting that he maintained the marijuana production facility and possessed the contents of the apartment.

Because it was not reasonably probable that the jury would have reached a different verdict if Axelsen, Basile, Tallarico and LaFauci had testified at trial, defendant has not established that Farr's failure to call these witnesses rises to the level of a denial of the effective assistance of counsel.

III.

We are additionally satisfied that the judge correctly disposed of defendant's other claims regarding Farr's performance as trial counsel.

As the judge pointed out in his decision of August 5, 2005, defendant was properly advised concerning the consequences of his rejection of the State's plea offer. The judge found that defendant "knew what the situation was" and noted that defendant was no stranger to the criminal justice system. The judge stated that defendant's assertion that he did not "understand the ramifications of what he was doing" was "hard for the Court to accept." The judge's finding was one that could reasonably have been reached based on the evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).

The judge also correctly rejected defendant's assertion that Farr was deficient because he had not properly prepared for trial. In his decision of August 5, 2005, the judge found that Farr had performed adequately. He noted that counsel had called witnesses for the defense and had cross-examined the State's witnesses. Indeed, the transcript reveals that Farr brought out certain inconsistencies in Nutting's and Reyal's testimony. The judge found that defense counsel "really did an effective job" during the trial. In our view, the record supports this finding.

The judge additionally rejected defendant's contention that counsel may have been using drugs during the trial. At the PCR hearing, Daniel Stewart (Stewart) testified that it was his impression that Farr was a person who used drugs. Stewart said that Farr had referred to his use of drugs and commented about "partying." Defendant also addressed this issue in his testimony at the PCR hearing. Defendant asserted that from the way Farr acted, he thought that Farr may have been using drugs during the trial. Defendant testified that Farr was "distracted, busy, very scatterbrained, . . . [and] looked like he was hung over sometimes."

On this issue, the judge stated, "Now, in terms of the alleged drug use during the course of the trial, the bottom line is I saw no evidence of any drug use during the course of the trial." Clearly, the judge who presided over the trial is in the best position to determine whether an attorney's performance was adversely affected by the use of drugs. We are satisfied that the judge's finding was one that could be reasonably reached based on his own observations and the evidence presented at the PCR hearing.

We recognize that Farr was temporarily suspended from the practice of law on October 31, 2000. In the Matter of Farr, 165 N.J. 540 (2000). The Disciplinary Review Board (Board) thereafter sought Farr's disbarment for, among other things, gross neglect, lack of diligence, failure to communicate, charging an unreasonable fee, failure to provide a written fee agreement, negligent misappropriation of client funds, and commission of a criminal act that reflects adversely on a lawyer's honesty. In the Matter of Farr, 178 N.J. 458 (2004). Farr did not contest the Board's application and he was disbarred by order entered on February 25, 2004. Ibid. We fully appreciate the seriousness of the charges that led to Farr's disbarment. However, we are satisfied that whatever personal, professional, and legal problems Farr may have had, there is no evidence that they affected his handling of this case.

In his PCR petition, defendant also claimed that Farr failed to adequately consult with him concerning his defense. At the PCR hearing, defendant testified that Farr did not speak with him about the discovery; spoke with him briefly only five or six times; and did not advise him about what was going to transpire at the suppression hearing. Perhaps it would have been advisable for counsel to spend more time with defendant discussing the case; however, we are not convinced that his failure to do so rises to the level of the ineffective assistance of counsel.

Defendant also claimed that Farr did not contact three witnesses who might have testified on his behalf. According to defendant, Farr was supposed to contact Siciliano and failed to do so. Defendant also said that he inquired about an expert who might testify in the field of botany. Defendant gave the information to Farr but, to his knowledge, Farr did not contact the expert. Farr told defendant that they did not need the expert's testimony. In addition, defendant said that he believed Farr probably did not contact Brandt, who was available and would have testified that defendant was living with him in Belmar at the time of the fire.

We are not convinced that Farr was deficient in failing to contact or call these three witnesses. First, Siciliano did not testify at the PCR hearing and the record does not establish that his testimony would have been of any assistance to defendant. Second, defendant did not present testimony at the PCR hearing from any expert in botany and he has not explained how such expert testimony would have aided his defense. Third, Brandt merely would have testified that defendant was living with him in an apartment in Belmar in February 1999 but that point was essentially addressed at trial by James and Steibel. Brandt's testimony, like that of Axelsen, Basile, Tallarico and LaFauci, would merely have been cumulative.

Defendant also testified that he and Farr briefly discussed whether defendant would testify on his own behalf. Defendant said that he would have taken the stand if his testimony was needed. According to defendant, Farr encouraged him not to testify. However, defendant had been convicted in 1993 on drug charges. This prior conviction could have been used to impeach defendant if he had testified. We must assume that Farr made a strategic decision to discourage defendant from testifying. We cannot say that Farr's decision was "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

In addition, James testified at the PCR hearing that Farr did not contact him before James came to court to testify. Farr met with James briefly in the hallway before he testified. According to James, Farr did not go over the testimony or inform him of the questions he would be asked. It is clear, however, that James' testimony was not affected by the alleged lack of preparation. Indeed, the judge asked James if he would have testified differently if he had met with Farr before he testified. James essentially said that his testimony would have been the same.

We feel compelled to respond to certain of the observations and conclusions expressed so ably by our dissenting colleague. We note first that our colleague has no complaint with regard to our affirmance of the trial court's rejection of the great bulk of defendant's claims that his trial counsel was ineffective. He focuses on the core issue of counsel not having interviewed or called certain witnesses during the defense case.

In his opinion, our colleague concludes that the "course of conduct" of defendant's counsel that led to his disbarment "was undoubtedly at play during the time of defendant's trial." (slip op at 4). In our view, this conclusion disregards the clear factual findings of the trial court to the contrary, which we quoted at length previously.

Our colleague takes issue with our description of the proposed testimony of Axelsen, Basile, Tallarico and LaFauci as "cumulative." However, that is how the trial judge characterized it in his initial denial of defendant's petition for PCR. We do not understand the trial judge, by selecting the word "cumulative" in his initial determination, to have done so with N.J.R..E. 403 in mind. Rather we have conducted our analysis on the premise that the testimony, if received, would not have changed the result and was thus properly viewed as cumulative. We consider that view correct.

Our colleague additionally notes that the State has not argued that it would be prejudiced by proceeding to a new trial. Whether the State would be prejudiced is, however, immaterial to the question whether defendant received the effective assistance of counsel.

Our colleague recognizes that the law requires a defendant contending he received ineffective assistance from counsel to establish that he was prejudiced by the conduct of his counsel. We are unable to conclude from the record before us that defendant presented a legally sustainable claim of prejudice.

We are not blind to the fact that the factual complex presented here paints a sympathetic portrait, at least on the surface. We are obligated, however, to analyze the record in terms of the legal issues presented. Whether defendant physically lived at another address is, in our judgment, legally immaterial to the determination of whether he maintained the drug production facility on Monmouth Avenue in Bradley Beach. Because the testimony of the witnesses defendant now complains were not presented at trial did not go to that issue, defendant's petition for post-conviction relief should have been denied.

 
In sum, we are convinced that the trial judge erred in concluding that defendant was denied the effective assistance of counsel. We therefore reverse the order granting PCR relief and reinstate defendant's convictions.

Reversed.

_____________________________________

FISHER, J.A.D., dissenting.

A marijuana manufacturing facility was discovered when a fire broke out in a Bradley Beach apartment on February 21, 1999. Defendant was indicted and the critical issue at his trial was whether defendant, who had once resided in the apartment, was the person maintaining the marijuana manufacturing facility, conduct made unlawful by N.J.S.A. 2C:35-4.

A jury found defendant guilty and, because he was convicted of a drug offense in 1993, the State moved for an extended term pursuant to N.J.S.A. 2C:43-6(f). The trial judge sentenced defendant to an extended term of imprisonment of fifty years, with a sixteen-year, eighteen-month period of parole ineligibility. We affirmed the judgment of conviction by way of an unpublished opinion and the Supreme Court denied certification.

Defendant thereafter sought post-conviction relief, claiming he was deprived of the effective assistance of counsel because his trial counsel failed, among other things, to interview or call to the stand five persons who would have testified to defendant's lack of connection to the Bradley Beach apartment. Defendant also based his application on the fact testified to defendant's lack of connection to the Bradley Beach apartment. Defendant also based his application on the fact that his trial attorney was suspended from the practice of law soon after the trial's conclusion, In the Matter of Farr, 165 N.J. 540 (2000), and was eventually disbarred for, among other things, "gross neglect," a "pattern of neglect," and "lack of diligence," In the Matter of Farr, 178 N.J. 458 (2004). After an evidentiary hearing, the trial judge first denied relief, but later reconsidered and granted defendant a new trial, concluding that all these circumstances had undermined his confidence in the outcome of the trial. We granted the State's motion for leave to appeal and the majority has now determined to reverse the order granting defendant a new trial. I would affirm.

"Post-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). When a defendant bases an application for post-conviction relief on the ineffectiveness of counsel, the trial court must consider whether there has been an actual or constructive denial of the Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 683, 104 S. Ct. 2052, 2062, 80 L. Ed. 2d 674, 690 (1984); State v. Fritz, 105 N.J. 42, 51 (1987).

The same day the Court decided Strickland it also decided United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984), holding that there is a presumption of unreliability in the results of a trial if counsel "fails to subject the prosecution's case to meaningful adversarial testing," and, in that circumstance, a defendant need make no "specific showing of prejudice." Cronic did not set any precise parameters beyond these generalities and, as a result, the decisions which have followed in its wake have adopted a rather limited view of what constitutes a per se deprivation of counsel. One federal court of appeals candidly stated what many other courts have demonstrated by example, namely, a "reluctan[ce] to extend a rule of per se prejudice in any new direction," and, when finding a new ground for such a conclusion -- such as when defense counsel was not even a member of the bar -- the court has admittedly extended Cronic's per se rule "without enthusiasm." Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996).

Here, the record reveals that defendant's trial counsel was suspended shortly after the trial ended for gross neglect, a pattern of neglect, and lack of diligence, as well as numerous other misdeeds cited in the Supreme Court's subsequent order of disbarment. That counsel was ultimately found in his disciplinary matter to have failed to meet the standards required of an attorney at law, which course of conduct was undoubtedly at play during the time of defendant's trial, in my view, ought to be sufficient to require a new trial without a showing of prejudice.

I recognize, however, that courts have been careful to avoid expanding Cronic. For example, it has been held that the slumber of trial counsel does not constitute a per se violation unless the attorney slept through "a substantial portion" of the trial, Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984), or unless the attorney was "repeatedly unconscious for periods of time in which defendant's interests were at stake," Tippins v. Walker, supra, 77 F.3d at 687, or when, as a result of sleep, defense counsel was "repeated[ly] unconscious[] . . . through not insubstantial portions of the critical guilt-innocence phase of . . . [a] capital murder trial," Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc). In addition, it has been held that prejudice must still be demonstrated even when a defendant was represented at trial by an attorney who admittedly was addicted to and used heroin and cocaine throughout the trial, People v. Badia, 552 N.Y.S.2d 439, 440-41 (N.Y. App. Div.), app. denied, 559 N.E.2d 683 (N.Y. 1990), by an attorney who suffered from Alzheimer's disease at the time of trial, Pilchak v. Camper, 741 F. Supp. 782, 792-93 (W.D. Mo. 1990), aff'd, 935 F.2d 145, 147 (8th Cir. 1991), by an attorney who suffered from mental illness at the time of trial, Smith v. Ylst, 826 F.2d 872, 875-76 (9th Cir. 1987), cert. denied, 488 U.S. 829, 109 S. Ct. 83, 102 L. Ed. 2d 59 (1988), and by an attorney who consumed alcohol and was intoxicated during trial, People v. Garrison, 765 P.2d 419, 440 (Cal. 1989) (Garrison's attorney was actually arrested during trial for driving with a .27% blood alcohol content).

These extreme examples in the debate about the scope of Cronic have not been considered by our courts, but I assume from our Supreme Court's prior distinguishing of Cronic in other circumstances that proof of prejudice is required in the circumstances at hand. See, e.g., State v. Fisher, 156 N.J. 494, 500-01 (1998) (holding that defense counsel's failure to file a suppression motion does not constitute per se ineffective assistance of counsel); State v. Savage, supra, 120 N.J. at 617 (holding that "[i]n most instances, a defense attorney who communicates with a defendant only once before a capital trial would warrant the Cronic per se analysis," but that one meeting coupled with "at least fifteen to thirty" telephone calls would not). In light of this narrow interpretation, I assume that it is unlikely that the manner in which Cronic has been interpreted in the past would presently permit a finding that an attorney, who was later determined to have been suspended for engaging in gross negligence and lack of diligence during the time this trial occurred, was per se ineffective and that, in such circumstances, a defendant would have to make a showing of prejudice. Although I would hold otherwise if writing on a blank slate, I assume that the current state of the law requires our recognition that since defendant was represented at trial by an attorney whose suspension from the practice of law did not occur until a few months after the trial's conclusion, In the Matter of Farr, supra, 165 N.J. 540, there was no per se violation of defendant's Sixth Amendment right to the effective assistance of counsel, and so, like my colleagues, I will focus on whether the trial judge correctly determined that there was a constitutional deprivation of counsel based on actual ineffectiveness and defendant's showing of prejudice.

Strickland described the standard to be applied in examining claims of actual ineffectiveness in the following way:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Although the trial judge indicated that defense counsel appeared to be performing adequately in the courtroom, the judge also recognized that what occurs at trial is not all that is required and does not alone define when an attorney's representation of a client is sufficient. As the Court explained in State v. Fritz, supra, 105 N.J. at 63 (quoting Moore v. United States, 432 F.2d 730, 739 (3rd Cir. 1970) (en banc)), even a seemingly adequate performance of counsel at trial "is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance." No one questions that defense counsel erred in failing to interview or call to the stand five individuals who would have disputed facts offered by the State to prove defendant's connection to the marijuana manufacturing facility. Defendant's relationship to this facility was the lynchpin of this case and the testimony of these five persons directly related to that key issue. It was undisputed that trial counsel had been made aware of these other witnesses prior to trial and was provided with information as to how to reach each of them; it was also undisputed that he failed to communicate with any of them. These omissions fell far short of what was expected -- and fulfilled the first aspect of the Strickland/Fritz test -- as all agree.

In reversing, the majority has focused on the prejudicial effect of counsel's errors -- the second aspect of the Strickland/Fritz test -- and concluded that this omitted testimony was "cumulative" of testimony provided by two defense witnesses. In considering this holding, it is not clear to me whether the majority means that this testimony, if offered, should have been excluded pursuant to N.J.R.E. 403's balancing test, which permits a trial judge to bar relevant evidence "if its probative value is substantially outweighed by the risk of . . . [the] needless presentation of cumulative evidence." If that is what the majority means, I disagree. The fact that a witness has provided testimony on an issue does not automatically render cumulative and excludable the testimony of other persons on that same issue. Such evidence does not become repetitive and wasteful of time when presented by individuals whose ability to perceive and convey learned or observed information differs from what was learned, observed or conveyed by other persons who were permitted to testify -- particularly when this information relates to a critical aspect of the case. For example, if a defendant was accused of firing a weapon at someone, and if defendant sought to call as witnesses seven individuals to testify that they all saw someone else shoot the victim, an argument in favor of excluding five of the seven from testifying because their evidence would be cumulative of the other two would strike me as absurd. By the same token, I see no merit in an argument that the testimony of five persons who possessed relevant evidence that would tend to divorce defendant from the Bradley Beach apartment could be legitimately excluded because two other persons testified on the same issue. Our decisional law does not embrace that broad a view of what constitutes cumulative evidence in this context. See, e.g., State v. Clark, 347 N.J. Super. 497, 509-10 (App. Div. 2002). If this is what the majority means to suggest in labeling this omitted evidence as "cumulative," I respectfully disagree.

Alternatively, it may be that in describing this evidence as "cumulative" my colleagues believe it would not have added weight to the defendant's position at trial. The use of the "cumulative" rubric -- insofar as it is intended to mean that the thrust of the evidence was inconsequential -- seems to me inaccurate. This testimony, as the post-conviction record reveals, does not consist of identical information from each witness but is cumulative only in the sense that these five persons independently obtained information about defendant's lack of connection to the Bradley Beach apartment prior to the fire. The jury may have rejected the testimony of the two defense witnesses on this subject (defendant's brother and girlfriend), but might have been persuaded to defendant's position, or at least found a reasonable doubt about whether defendant maintained the marijuana manufacturing facility, if these five other persons had taken the witness stand. Of course, it is not possible to know for certain what impact this omitted evidence would have actually had if presented to the jury. But because the omitted testimony addressed the very heart of the matter, I would conclude that in this case -- which we previously described in rejecting defendant's direct appeal as a "classic case of credibility" -- trial counsel's failure to interview or call these witnesses prejudiced defendant.

Minimizing the trial judge's stated lack of confidence in the trial as a result of this omitted evidence, the majority concludes that this evidence was merely cumulative and did not "create a reasonable probability that, had such evidence been presented at trial, the jury would have reached a different verdict" (slip opinion at 17). In so holding, the majority has saddled defendant with a heavier burden than the already heavy burden imposed by Strickland and Fritz because the majority's holding unduly emphasizes whether the outcome would have been different rather than focusing on the fairness and reliability of the adversarial process as a result of counsel's mistakes. As the Court stated in Strickland, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result." 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. And, when the Supreme Court held that a post-conviction relief applicant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," it defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome," Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (emphasis added); see also State v. Fritz, supra, 105 N.J. at 52, again focusing on "the fundamental fairness of the proceeding whose result is being challenged" as the benchmark for any such analysis, Strickland, supra, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. Defendant was not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes. Defendant was only required to show that his attorney's errors and omissions were of such significance as to undermine confidence in the trial's outcome.

The trial judge originally held that the omitted testimony was cumulative as have my colleagues. But, on motion for reconsideration, the trial judge altered his earlier view. In quoting from our earlier unpublished opinion in this matter, the trial judge observed that this case was "a classic case of credibility" and that the outcome of this credibility contest was unfairly skewed by trial counsel's failure to call witnesses who would have, if called, addressed the most critical factual dispute in the case. Having considered and weighed all that occurred at trial and the evidence that he heard at the post-conviction relief hearing, the trial judge concluded that a new trial was warranted because his "confidence in the ultimate outcome of this case" had been "undermine[d]."

Certainly, reasonable minds may differ as to the weight that might have been given to the omitted testimony, a fact demonstrated by the trial judge's own change of course and the difference of opinion now expressed by the members of this court. In the final analysis, however, I depart from my colleagues' view because I believe we should give greater deference to the trial judge's loss of confidence in the trial's outcome -- a factor defined in Strickland and Fritz as the crux of the matter. Since appellate courts are obligated to give deference to the findings of trial judges in post-conviction relief matters, State v. Harris, 181 N.J. 391, 415 (2004), I believe the trial judge's "feel of the case" and his apprehension and lack of confidence about the trial's outcome are fact findings entitled to our deference. The highly experienced trial judge correctly applied the elements of the Strickland/Fritz test, considered his own observations about what occurred at trial and what he learned from the testimony presented at the post-conviction hearing, and concluded that a new trial was warranted.

I am not convinced that we are in a position to know better from a cold record what the trial judge ascertained by being personally present during the trial and the post-conviction proceedings. I believe the trial judge's expressed lack of confidence in the trial's outcome warrants our deference and, for that reason, I respectfully dissent from the majority's insistence that defendant be deprived of a new trial.

 

1The jury rendered its verdict on August 9, 2000 and the Supreme Court suspended counsel from the practice of law on October 31, 2000.

The Court disbarred defendant's trial attorney, not only for gross neglect, a pattern of neglect, and lack of diligence, but also for breaches of RPC 1.4 (failure to communicate), RPC 1.5(a) (unreasonable fee), RPC 1.5(b) (failure to provide written fee agreement), RPC 1.15 (failure to safeguard client property), RPC 1.15(a) (negligent misappropriation of client funds), RPC 1.15(d) (failure to maintain required attorney books and records), RPC 1.16(d) (improper termination of representation), RPC 3.3(a)(5) (failure to disclose material fact to tribunal), RPC 8.1(b) (failure to cooperate with ethics authorities), RPC 8.4(b) (commission of a criminal act that reflects adversely on lawyer's honesty, trustworthiness or fitness), RPC 8.4(c) (conduct involving fraud, dishonesty, deceit or misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice). 178 N.J. at 458.

In reaching a different conclusion about the significance of defense counsel's suspension and disbarment, my colleagues refer to what they view as the judge's contrary findings regarding the worth of defense counsel's performance (slip opinion at 23). The judge, however, only described his observations of defense counsel's performance in the courtroom, stating:

[t]he transcript of his performance at the trial speaks for itself. I mean, he did cross examine witnesses. He did call witnesses on defendant's behalf in his case, and certainly at trial, I think his performance at trial in the courtroom in front of this [c]ourt was adequate.

[Emphasis added.]

These findings do not address the inadequacies of counsel in investigating and preparing for trial. Sun Tzu said that it is the successful general who makes many calculations prior to battle, while the losing general is he who makes but few calculations beforehand. Sun Tzu, The Art of War (circa 500 B.C.), ch. I, 26 and ch. IV, 14. Our Supreme Court has similarly held that adequate preparation and thorough pretrial investigation are significant aspects of what constitutes the effective assistance of counsel guarantee of the Sixth Amendment, State v. Savage, 120 N.J. 594, 617-22 (1990), and that the lack of investigation or slipshod preparation for trial cannot overcome even a "vigorous" courtroom performance, State v. Fritz, supra, 105 N.J. at 63-64. In reconsidering his earlier decision, the trial judge addressed the inadequacy of defense counsel's pretrial investigation and concluded that counsel's failure to interview or call five witnesses to the stand "undermine[d] . . . his confidence in the ultimate outcome of this case." The judge's findings as to whether defense counsel appeared to be adequately performing during the actual trial have no direct bearing on whether the attorney performed adequately outside the courtroom and in preparation for the trial. The fact that defense counsel was soon after the trial in this matter suspended for gross neglect and lack of diligence, among other things, requires an inference that his representation of defendant was consistent with that unfortunate course of conduct.

The "sleeping attorney" holdings in Javor and Burdine were not unanimous, a fact which further demonstrates a general reluctance by courts to expansively view Cronic. The care in which these federal courts have avoided adopting per se rules about sleeping attorneys seems well summed up by the majority in Burdine, which announced that it "decline[d] to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice," 262 F.3d at 349, even in a capital murder trial.

A friend of defendant's, who attended the trial, testified at the post-conviction hearing that defense counsel made statements during breaks at the trial which suggested he was a drug user.

By comparison, defendant testified at the post-conviction hearing that he never had the opportunity to meet with his attorney at his office prior to trial, but instead met him outside of the courthouse for only two ten or fifteen minute meetings, one of which occurred at a gas station and the other which occurred in a 7-Eleven parking lot. In addition, their discussions prior to both days of trial were very brief because, as the unrebutted testimony at the post-conviction hearing revealed, defense counsel showed up late and disheveled on those occasions.

The record on appeal also reveals that defendant's trial counsel later pled guilty to offenses involving controlled dangerous substances, which apparently, along with other things, resulting in his later disbarment. In the Matter of Farr, supra, 178 N.J. 458.

One critic has viewed the narrow interpretation of Strickland and Cronic that has followed since those cases were decided as permitting the rejection of a Sixth Amendment claim without a showing of prejudice so long as there was a "warm body with a law degree" next to defendant during trial. Richard Klein, Gideon -- A Generation Later: The Constitutionalization of Inef-fective Assistance of Counsel, 58 Md. L. Rev. 1433, 1446 (1999).

Defendant's brother, who did testify at trial, testified at the post-conviction hearing that defense counsel made no attempt to speak to him about his testimony until they spoke for "no more than five minutes" in the halls of the courthouse immediately before he testified.

My colleagues insist that they do not mean to indicate that the omitted evidence was excludable pursuant to N.J.R.E. 403 in describing that evidence as cumulative, but their assertion that the testimony, which the five overlooked witnesses would have provided but for counsel's mistakes, was "legally immaterial to the determination of whether [defendant] maintained the drug production facility" (slip opinion at 24)(emphasis added) suggests otherwise.

The majority discounts the importance of this omitted testimony by stating that it related only to whether "defendant physically lived at another address" (slip opinion at 24). However, this omitted evidence did not just seek to prove that defendant resided elsewhere but also that defendant had completely removed himself from and ceased to have a connection with the Bradley Beach apartment. For example, two of the omitted witnesses testified at the post-conviction hearing that they helped move defendant's belongings out of the Bradley Beach apartment, that nothing was left behind after they departed, and that defendant was never seen at the Bradley Beach apartment again. In addition, the State offered testimony -- in attempting to show that defendant "knowingly maintain[ed] or operate[d] any premises, place or facility used for the manufacture" of marijuana, N.J.S.A. 2C:35-4 -- that defendant in fact resided in the Bradley Beach apartment at the time of the fire. If that type of evidence could be used to convict defendant, then evidence which rebutted that same point, and, further, challenged the credibility of those who claimed defendant still resided there, should be viewed as more than inconsequential.

The trial judge also held that his confidence was undermined because trial counsel was suspended for, among other things, "gross neglect" and "lack of diligence" very soon after the trial in this matter, correctly inferring -- from the errors and omissions of defense counsel revealed by the post-conviction hearing -- that these deficiencies were at play at the time of the trial.

My colleagues acknowledge that "the judge who presided over the trial is in the best position" (slip opinion at 20) to determine the effect of an attorney's performance on the proceedings as a reason for deferring to certain of the judge's findings. If deference is to be given to the judge's findings -- and I think it should -- then deference should be given to all his findings, including his expressed lack of confidence in the outcome of the trial.

To the extent these cases involve a comparison of the significance of trial counsel's mistakes and their impact on defendant's Sixth Amendment right to counsel, on the one hand, against the prejudice to the State and the burden on the administration of justice generated by the conducting of a new trial, on the other, I would conclude that the import of the former imposes far greater moral force than the latter particularly when, as in this case, the State has not argued it has been prejudiced by the trial judge's ordering of a new trial.

(continued)

(continued)

1

A-3363-05T2

December 18, 2006