STATE OF NEW JERSEY v. RALPH FORMATO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3190-04T43190-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH FORMATO,

Defendant-Appellant.

____________________________

 

Submitted October 25, 2006 - Decided February 28, 2007

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Union County, 99-04-0546-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark S. Carter, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Ralph Formato appeals from the denial of his petition for post-conviction relief (PCR) from his conviction for fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). Tried to a jury, defendant was adjudged guilty and sentenced on February 9, 2001 by Judge Walter R. Barisonek to a term of eighteen-months incarceration with a nine-month parole disqualifier. We affirmed the conviction and sentence in our per curiam decision filed on October 22, 2003 (Docket No. A-3162-01T4), and the Supreme Court denied defendant's petition for certification. State v. Formato, 178 N.J. 455 (2004). On March 8, 2004, defendant filed a pro se verified petition for post-conviction relief. An amended petition was filed by counsel on November 4, 2004. The matter was argued before Judge Barisonek on January 7, 2005. He denied defendant's petition without an evidentiary hearing.

Defendant submits the following argument:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS, OR IN THE ALTERNATIVE, DEFENDANT HAD PRESENTED A PRIMA FACIE CASE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD.

We have summarized the trial in our earlier per curiam opinion. Briefly, the State presented evidence that defendant had sexually fondled C.G., a thirteen-year-old boy, while riding with him in a car. The defense theory was that the charge had been concocted by C.G.'s family in retaliation for defendant informing the police that J.G., C.G.'s uncle, possessed a stolen boat. Defendant also contended that the allegations as to sexual contact with C.G. were the second attempt at retaliation, the other being allegations by J.G.'s son, J.G., Jr., for harassment.

When the State called the seventeen-year-old J.G., Jr. to testify at trial, defense counsel did not request an N.J.R.E. 404(b) hearing or move to exclude testimony of J.G., Jr. regarding bad acts, including testimony that defendant said, "I want to suck your dick." Judge Barisonek advised the defendant prior to the testimony that "based on the nature of this strategy of showing a bias, it's going to come out as to the allegation concerning the complaint made by ... [J.G., Jr.], against you, including the nature of it." Judge Barisonek then summarized the anticipated testimony by J.G., Jr. Defendant was given an opportunity to further consult with trial counsel, but he declined, stating that "he explained it to me."

Defendant was explicitly cautioned by the judge that since this was a strategy position, "[Y]]ou can't complain, is the bottom line, after the case is over, that it backed up on me and I didn't get the result I thought I was going to get." During his testimony J.G.. Jr. also said that defendant had taken him shopping and had placed his hand inside of the witness' thigh. Defense counsel objected and informed the judge at sidebar that he had not received discovery as to the testimony and that it came as a complete surprise and was prejudicial. The trial judge agreed, and at counsel's request, charged the jury to disregard the statement.

Defendant argues that he was deprived of effective assistance of counsel because his trial attorney did not request a 404(b) hearing as to J.G., Jr.'s testimony. However, the record clearly shows that the decision of trial counsel was based on trial strategy of which defendant was aware, and counsel cannot be considered ineffective simply because the strategy failed. State v. Buonadonna, 122 N.J. 22, 42 (1991); State v. Hightower, 120 N.J. 378, 402 (1990); State v. Sheika, 337 N.J. Super. 228, 243 (App. Div. 2001).

Defendant also asserts that trial counsel was ineffective in failing to ask the court to give a "false in one, false in all" instruction to the jury, conceding that it is a discretionary charge. In his decision denying defendant's PCR petition, Judge Barisonek said that he would not have given this discretionary charge even if defense counsel had asked for it, adding "this is not the kind of case where you do that charge. This is not a case where the witness admitted to lying." We find no basis for the claim of ineffective assistance when counsel did not request a charge that in all likelihood would not be given. Furthermore, the essence of this charge was covered by the general charge on credibility given to the jury.

Our review of the record in this case convinces us that defendant established neither of the prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), failing to show either that trial counsel's performance was deficient or that the representation prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also State v. Fritz, 105 N.J. 42, 58 (1987). Since there was no dispute of fact on matters not of record and defendant did not present a prima facie case demonstrating a reasonable likelihood that his complaint would ultimately succeed on the merits, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000); R. 3:22-10; see also State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Affirmed.

 

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5

A-3190-04T4

RECORD IMPOUNDED

February 28, 2007