STATE OF NEW JERSEY v. THOMAS D'AMICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3187-07T43187-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS D'AMICO,

Defendant-Appellant.

_____________________________

 

Argued January 12, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0676.

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Mary Frances Palisano, on the brief).

Ann M. Luvera, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Luvera, of counsel and on the brief).

PER CURIAM

Defendant Thomas D'Amico appeals from the March 24, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

On October 24, 1999, defendant, while off duty as a full-time police officer for the Elizabeth Police Department, along with co-defendants Jean Morales, Josephine Castagna, Violet Arias, Carmine Perrotti, Alvin Baez, and Edward Gentile violently beat and caused the death of Bennett Grant.

In July 2000, a Union County Grand Jury charged defendant and co-defendants in an eleven count indictment. The Grand Jury charged defendant with murder by purposely or knowingly causing serious bodily injury to Grant, resulting in his death, N.J.S.A. 2C:11-3a(1), or (2) (count one); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count two); two counts of official misconduct, N.J.S.A. 2C:30-2a (counts three and four); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count eleven). Because the trial facts were discussed at length in our prior consolidated opinion, State v. Castagna, 376 N.J. Super. 323 (App. Div. 2005), and in the Supreme Court's subsequent opinion, 187 N.J. 293 (2006), it is unnecessary for us to detail the evidence against defendant for these crimes.

Prior to trial, Arias, Perrotti, Baez, and Gentile pled guilty to second-degree reckless manslaughter, with the State agreeing to recommend a seven-year term of imprisonment. Defendant, Morales, and Castagna proceeded to trial.

The jury acquitted defendant of count one, but convicted him on all remaining counts. The jury convicted Morales of murder, first-degree aggravated manslaughter and related weapon offenses. The jury convicted Castagna of the lesser-included offense of second-degree aggravated assault by attempting to cause serious bodily injury to Grant.

On March 22, 2002, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(1), (3), and (9), and mitigating sentencing factors N.J.S.A. 2C:44-1b(8) and (11), the court sentenced defendant on count two to a twenty-year term of imprisonment, with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year period of parole supervision upon release. On count three, the court sentenced defendant to a seven-year term of imprisonment, consecutive to the sentence imposed on count two, and merged the convictions on counts four and eleven with the conviction on count three. Defendant, Morales, and Castagna appealed.

In a consolidated opinion, we reversed, determining that defendant and co-defendants were denied their Sixth Amendment right to confront witnesses "when the trial court precluded defense counsel from cross-examining a key prosecution witness on the results of a stipulated polygraph examination, because these defendants were not parties to the stipulation." Castagna, supra, 376 N.J. Super. at 330. We also determined that as to Morales, the trial court erred by not sua sponte providing the jury with a passion/provocation manslaughter instruction as a lesser-included offense of the crime of murder. Id. at 331. Lastly, we concluded that defendant was denied effective assistance of trial counsel because his attorney's "performance fell far below the standard of competence expected of a criminal trial lawyer in this State," ibid, because during his opening statement, the attorney referred to defendant as a criminal, told the jury that defendant was guilty of certain charges, and would testify in his own defense during the trial. Id. at 359.

On certification granted, the Supreme Court reversed our judgment as to defendant and Castagna, and reinstated their convictions and sentences. Castagna, supra, 187 N.J. at 316. The Court determined that the trial court erred in denying defendant and co-defendants the right to cross-examine Arias concerning her polygraph test results, but because of other evidence in the case, the error was "harmless beyond a reasonable doubt." Id. at 312-13. The Court also reversed our determination that defendant was denied effective assistance of trial counsel. In so doing, the Court stated:

Although defense counsel could have used less strident language in admitting D'Amico's involvement in the incident, on this record we do not conclude that defense counsel's high-risk strategy of admitting D'Amico's guilt to lesser-included offenses in the hope that it would enhance D'Amico's credibility, eventually leading to a not guilty verdict of the most serious offense, was prima facie evidence of ineffective assistance of counsel.

Beyond that, we cannot determine whether D'Amico had agreed in advance with defense counsel's trial strategy to admit D'Amico's guilt to certain offenses to gain credibility with the jury in an attempt to earn a not guilty finding on the first-degree murder charge, and whether D'Amico agreed that counsel should inform the jury that he would testify. If D'Amico had agreed in advance with defense counsel's strategy, then defense counsel's conduct was not plainly ineffective. The answers to these questions lie outside the record and must await a post-conviction relief petition. It was error to conclude that D'Amico satisfied the Strickland[] test to establish that he was denied effective assistance of counsel.

[Id. at 316.]

On March 22, 2007, defendant filed a petition for PCR. In so doing, defendant argued:

POINT I.

PETITIONER'S CONVICTION WAS SECURED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A FAIR TRIAL.

A. WITHOUT CONSULTING MR. D'AMICO, TRIAL COUNSEL ENGAGED IN A DEFENSE THAT UNDERMINED THE PROPER FUNCTIONING OF THE ADVERSARIAL PROCESS AND ONLY CAST PETITIONER IN A NEGATAIVE LIGHT AND PRODUCED AN UNJUST RESULT.

1. TRIAL COUNSEL MADE HIGHLY INFLAMMATORY REMARKS TO THE JURY DURING HIS OPENING STATEMENT, WITHOUT CONSULTING WITH MR. D'AMICO, THAT CONCEDED THAT MR. D'AMICO PARTICIPATED IN THE MOB ASSAULT AND MR. D'AMICO'S GUILT AS TO ALL OF THE CHARGES RELATING TO HIS STATUS AS A POLICE OFFICER, WHICH UNDERMINED MR. D'AMICO'S CREDIBILITY AS A WITNESS IN HIS OWN DEFENSE.

2. TRIAL COUNSEL FAILED TO PROPERLY ADVISE PETITIONER REGARDING HIS RIGHT NOT TO TESTIFY, THEN ADVISED THE JURY, WITHOUT CONSULTING WITH PETITIONER, THAT PETITIONER WOULD TESTIFY.

3. TRIAL COUNSEL ERRONEOUSLY ELICITED FROM PETITIONER KEY CONCESSIONS DURING DIRECT EXAMINATION.

B. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S REQUEST FOR PETITIONER TO PROVIDE A SAMPLE KICK.

C. TRIAL COUNSEL FAILED TO PROPERLY ADVISE PETITIONER REGARDING HIS PLEA OFFER.

D. TRIAL COUNSEL FAILED TO EMPLOY AN INVESTIGATOR TO ASSIST WITH THE CASE AND PROPERLY INVESTIGATE AND TO INTERVIEW RELEVANT WITNESSES.

1. TRIAL COUNSEL FAILED TO INVESTIGATE AN INTOXICATION DEFENSE, CONSULT WITH A TOXICOLOGIST AND IMPROPERLY ADVISED PETITIONER AND CERTAIN DEFENSE WITNESSES NOT TO MENTION INTOXICATION WHEN THEY TESTIFIED.

2. TRIAL COUNSEL FAILED TO CALL ANY CHARACTER WITNESSES ON MR. D'AMICO'S BEHALF AT TRIAL.

E. PETITIONER'S TRIAL ATTORNEY FAILED TO OBJECT TO CERTAIN AGGRAVATING AND MITIGATING FACTORS SET FORTH BY THE TRIAL JUDGE DURING SENTENCING, WHICH THE COURT RELIED ON IN A PRESUMPTIVE SENTENCE THAT IS NOW IMPROPER PURSUANT TO THE NEW JERSEY SUPREME COURT'S DECISION IN STATE V. NATALE.[]

F. TRIAL COUNSEL FAILED TO REVIEW WITH PETITIONER OR MAKE ANY CHALLENGE TO INCORRECT INFORMATION PRESENTED IN THE PRESENTENCE REPORT PREPARED BY THE PROBATION DEPARTMENT.

G. TRIAL COUNSEL FAILED TO DISPUTE THAT THE STATE FAILED TO PROVIDE WRITTEN NOTICE TO PETITIONER OF THE GROUND PROPOSED FOR A [NERA] SENTENCE.

In November 2007, Judge Barisonek, the judge who presided over defendant's trial, conducted a four-day PCR evidentiary hearing. On January 22, 2008, the judge rendered a fifty-eight page oral decision denying the petition. On March 24, 2008, the judge entered a confirming order from which defendant appealed.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S POST-CONVICTION RELIEF CLAIMS THAT HIS FEDERAL AND STATE CONSTITIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A FAIR TRIAL HAD BEEN VIOLATED BY THE GROSSLY DEFICIENT PERFORMANCE OF HIS TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE TO THE APPELLANT BY FAILING TO: (1) ADVISE APPELLANT OF THE FINAL PLEA OFFER, (2) PROPERLY ADVISE APPELLANT OF THE SENTENCING AND PENAL CONSEQUENCES, AND (3) REQUEST A PRETRIAL CONFERENCE.

1. WAS THE APPELLANT ADVISED OF THE FINAL PLEA OFFER?

2. WAS THE APPELLANT ADVISED OF THE PENAL CONSEQUENCES OF THE CHARGES AGAINST HIM?

3. IN REJECTING THE PLEA AND PROCEEDING TO TRIAL, WAS THE APPELLANT ABLE TO MAKE A FAIR EVALUATION OF THE PLEA?

POINT II.

TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE TO THE APPELLANT BY ENGAGING IN A DEFENSE THAT UNDERMINED THE PROPER FUNCTIONING OF THE ADVERSARIAL PROCESS AND INCLUDED A HIGHLY PREJUDICIAL OPENING STATEMENT THAT ADVISED THE JURY THAT MR. D'AMICO WOULD TESTIFY WITHOUT CONSULTING WITH MR. D'AMICO.

POINT III.

TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE TO THE APPELLANT BY FAILING TO EMPLOY AN INVESTIGATOR TO ASSIST WITH THE CASE AND PROPERLY INVESTIGATE AND TO INTERVIEW RELEVANT WITNESSES.

POINT IV.

TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE TO THE APPELLANT BY FAILING TO OBJECT TO CERTAIN AGGRAVATING AND MITIGATING FACTORS SET FORTH BY THE TRIAL JUDGE DURING SENTENCING, WHICH THE COURT RELIED ON IN AN PRESUMPTIVE SENTENCE THAT IS NOW IMPROPER PURSUANT TO THE NEW JERSEY SUPREME COURT'S DECISION IN STATE V. NATALE.

POINT V.

TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE TO THE APPELLANT BY NEGLECTING TO DISPUTE THE STATE'S FAILURE TO PROVIDE WRITTEN NOTICE TO PETITIONER OF THE GROUNDS PROPOSED FOR A [NERA] SENTENCE.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland. See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting Castagna, supra, at 314). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Barisonek in his well-reasoned oral decision of January 22, 2008. Nevertheless, we add the following comments.

In Point II, defendant argues, as he did on his PCR petition, that he was denied effective assistance of trial counsel, asserting the same contentions he raised on direct appeal. Defendant contends that without obtaining his prior consent, his attorney made "highly inflammatory remarks to the jury during his opening statement," conceding defendant's guilt to the charges concerning his status of a police officer, admitting defendant participated in the assault, referring to defendant as "a criminal," and telling the jury that defendant would testify during the trial. Noting that the Supreme Court did not conclude that the remarks constituted ineffective assistance of counsel per se, the trial judge framed the issue as "whether the strategy in making these admissions to the jury in opening was discussed with the defendant before trial and whether [c]ounsel's comments to the jury, that the defendant would take the stand and testify were discussed with the defendant prior to trial."

Resolution of the issues required the trial judge to assess the credibility of defendant's and his trial attorney's testimony during the PCR proceeding. Defendant testified that his trial counsel never advised him prior to trial of counsel's intention to inform the jury that defendant was guilty of the charges relating to his status as a police officer, that he was a disgrace to the badge and a criminal, and that he was shocked when he heard those comments. Defendant further testified that had his attorney informed him prior to trial of those comments, he would never have agreed to such a strategy. To the contrary, trial counsel testified that he had discussed his trial strategy with defendant on several occasions prior to trial, and that defendant told him to do: "[w]hatever you think." As to the words he employed, the attorney stated that he had discussed the general phrasing he intended to use in referring to the official misconduct charges, but he did not believe he informed defendant about referring to him as a criminal.

The court resolved the issue of credibility in favor of the State and found that prior to trial, counsel had discussed the contents of his opening statement with defendant and made the remarks that he did as part of an overall agreed upon trial strategy. In so doing, the court reasoned:

I find that the admission of guilt of the official misconduct was discussed before trial because the State had always insisted on a plea to the official misconduct which was the only . . . issue being concurrent or consecutive as the plea offers changed. The defendant, I find, knew this and it was clear he knew he was guilty of official misconduct. He admitted he lied to the police and was involved in a cover-up. He clearly had to know there was no defense, especially since the [c]ourt had already denied the motions to dismiss the official misconduct charge. I find, in fact, [trial counsel], as he testified, did advise Mr. D'Amico that [trial counsel] in the opening, would admit guilt on that charge. Candidly, in light of the overwhelming evidence, including the defendant's own admission that he lied to the investigating officers[,] I find this was sound strategy to admit . . . the offense and concentrate on the . . . more crucial issue of causation and aiding and abetting. When the entire opening is read, I find it is clear [trial counsel did] not in any way, shape or form concede to the jury that because his client is guilty of the word misconduct, without using the entire name of official misconduct, that Mr. D'Amico is guilty of the other charges.

. . . .

Here, defendant cannot assail that trial strategy now. Literally, the strategy used was to have the jury recognize that the defendant was a police officer, suffered substantially to a loss of his job, loss of his pension, faces jail, and would never be a cop again by admitting to the official misconduct. This strategy, however, would also have allowed the jury to concentrate on the causation and aiding and abetting issue. This was sound strategy at the time. As stated earlier with hindsight, it is not difficult to suggest a different strategy. Here, however, this [c]ourt finds that the strategic choices were made after a thorough investigation of the law and facts, and the strategy was discussed with the defendant prior to the actual trial. I believe [trial counsel], when he testified that he told the defendant what he was going to say in opening and that the defendant's response was to "Do whatever you think."

Defendant also argued to the PCR court that by his counsel stating in his opening "[m]y client is going to testify that he assaulted Bennett Grant," and that "[h]e is going to get on the stand and take responsibility for his act" that counsel violated his right not to testify. Again, defendant contends that his attorney made these statements to the jury without first consulting him. Like before, defendant and his trial counsel presented the PCR court with differing accounts.

Defendant testified that he never agreed prior to trial to testify, and that his attorney first discussed it with him during the trial. Defendant stated that his attorney discussed the matter with him during the recess break immediately before defendant was set to testify with his attorney advising him that he had "no choice" because the attorney had already informed the jury that he would testify. According to defendant, his attorney did not even begin to prepare him for his trial testimony until the weekend immediately following when defendant first took the witness stand.

In contrast, trial counsel testified that he had discussed whether defendant should testify "numerous times" with defendant before trial, both had agreed that defendant should testify, and they engaged in a "dry run of direct and cross[-examination] before the trial began." The attorney denied ever advising defendant that he had no choice but to testify, although he acknowledged that his opening statement had for the most part "locked" defendant into doing so. Again, the court resolved the issue in favor of the State, determining that trial counsel was more credible than defendant.

Mr. D'Amico states during direct at the PCR hearing that the [c]ourt took a recess and he was told he had to testify. He felt, based on the evidence that he saw, that he did not have to take the stand. He said [trial counsel] told him he had no choice but to testify. Mr. D'Amico then on cross[-examination] said, "Over the weekend, [trial counsel] told me the questions he would ask and what questions the [p]rosecutor may ask." Finally, the defendant on redirect stated he never told [trial counsel] he wanted to testify and that he took the stand because [trial counsel] in opening told the jury he was going to testify.

[Trial counsel] testified that he represented hundreds of police officers. He said he prepared his opening several weeks prior to the trial and that he met with Mr. D'Amico and discussed the specifics of the opening several times. [Trial counsel] testified on direct that both made a decision of whether Mr. D'Amico would be a witness after both of them reviewed the discovery. [Trial counsel] indicated in preparation, based on the discovery, he asked the defendant specific questions to see how Mr. D'Amico would hold up as a witness. [Trial counsel] said based on his experience of representing more than 100 police officers that he believed cops should be treated a little differently than the regular defendant and that most cops should testify. [Trial counsel] said he specifically discussed with the defendant [trial counsel's] opinion of whether Mr. D'Amico would be a good witness or not. [Trial counsel] testified he prepped the defendant before the trial and during the trial over the weekend after the State had rested, which was corroborated by Mr. D'Amico's testimony. [Trial counsel] testified he made flash cards of what would be asked and that the defendant stated at the PCR hearing, however, he had no recollections of seeing or using flash cards.

While [trial counsel] admitted on cross that he may have locked the defendant into testifying when he did the opening, I find nothing transpired during trial which would have changed the decision that the defendant testify. Further, [trial counsel] testified that based upon his experience as a criminal defense attorney in 90[%] of non-police defendant cases he does not recommend the defendant testify. His experience in cases where a police officer is a defendant, and where the defendant is potentially a good witness he would, generally, have the officer testify. The fact, in our case, that the defendant did not stand up well under cross does not, in hindsight, make [c]ounsel ineffective. The fact that the comment of the defendant testifying was made during opening was of no consequence, based on the full record of how the trial progressed. This matter still comes down to the issue of did [trial counsel] discuss with the defendant before opening that he would testify, and did the defendant agree to the strategy.

I find [trial counsel] did discuss this strategy in advance of the trial and he began prepping the defendant in advance of trial and that the defendant agreed prior to opening to the strategy of testifying. I do not believe, as the defendant testified, that after Mr. D'Amico was placed on the stand on January 31st, 2002, in the afternoon, that this was the first time that Mr. D'Amico was told he had to testify.

An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 159 (1964); accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162.

Here, the PCR judge, after having the opportunity to hear and view the witnesses, determined counsel's testimony that he had discussed his litigation strategy with defendant prior to trial, including that he would inform the jury that defendant was guilty of the official misconduct charges and defendant would testify on his own behalf, was credible, and defendant's contrary testimony was not. Indeed, as to defendant denying that he had discussed testifying with his attorney before trial, the judge categorically stated that "[t]he defendant fabricated his testimony at the PCR hearing. I find he told me the truth at trial, namely, it was his decision to testify and I find he was prepared to testify, because this was determined prior to the start of trial and prior to opening." Because resolution of these ineffective assistance of trial counsel contentions rested on the trial judge's credibility findings, we discern no reason to interfere with the judge's determination.

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

State v. Natale, 184 N.J. 458 (2005).

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May 3, 2010