STATE OF NEW JERSEY v. VINCENT CONTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2894-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT CONTE,

Defendant-Appellant.

_______________________________________________________

December 15, 2011

 

Submitted December 6, 2011 - Decided

 

Before Judges Fisher and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 01-01-145.

 

Fusco & Macaluso, LLC, attorneys for appellant (Anthony J. Fusco, Jr. and Darryl M. Saunders, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

 

PER CURIAM

At the conclusion of a jury trial, defendant was convicted of the first-degree murder of his former girlfriend, Deborah Schroeder, N.J.S.A. 2C:11-3a, the second-degree aggravated assault of Ms. Schroeder's boyfriend, Joseph DeMayo, N.J.S.A. 2C:12-1b(1), and second-degree burglary, N.J.S.A. 2C:18-2; he was also convicted of other offenses that, for sentencing purposes, merged with the murder conviction. The trial judge imposed: a life sentence, subject to a thirty-year period of parole ineligibility, on the murder conviction; a consecutive ten-year prison term, subject to a five-year period of parole ineligibility, on the aggravated assault conviction; and a five-year concurrent prison term on the burglary conviction.

Defendant appealed, arguing in three points that: statements he made to police should have been suppressed; the judge erred in denying his motion for a new trial and should have conducted an evidentiary hearing to explore his ineffective-assistance-of-counsel claim; and the judge erred in denying an adjournment of the trial to allow new counsel to assume his defense. In rejecting these arguments, we noted that defendant's ineffective-assistance-of-counsel claim included five specific contentions, namely:

(1) that counsel had not moved to disqualify the trial judge; (2) that counsel did not ask defendant whether the jury was satisfactory to him; (3) that counsel did not probe prospective jurors about their willingness to consider a psychiatric defense or whether they, their families or friends had experienced psychiatric illness; (4) that counsel visited defendant only four times in jail; and (5) counsel's failure to request that a juror be excused who recognized a trial witness.

 

[State v. Conte, No. A-6672-01 (App. Div. Mar. 23, 2004) (slip op. at 24).]

 

We rejected the fourth of these contentions on its merits. Id. at 24-25. We observed that the other ineffective-assistance-of-counsel contentions had not been previously raised in the trial court and, consequently, we declined to rule on them, noting that "[s]uch claims are better reserved for an application for post judgment relief especially in view of defendant's request for an evidentiary hearing." Ibid. The Supreme Court denied defendant's petition for certification. 181 N.J. 285 (2004).

In March 2007, defendant filed in the trial court a petition for post-conviction relief (PCR), which was later supplemented and ultimately denied by way of a written decision and order entered on December 21, 2010. Defendant appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT'S AND APPELLATE DIVI-SION'S ERRONEOUS DENIAL OF A CRIMINAL DEFEN-DANT'S SIXTH AMENDMENT RIGHT TO BE REPRE-SENTED BY COUNSEL OF CHOICE REQUIRES AUTOMATIC REVERSAL OF PETITIONER'S CONVICTIONS.

 

II. A STRUCTURAL ERROR OCCURRED WARRANTING REVERSAL OF THE CONVICTION WHEN THE TRIAL COURT FAILED TO FOLLOW THE PROPER PROCEDURES IN DECIDING TO ALLOW THE TRIAL TO PROCEED WITH THE DEFENDANT IN ABSENTIA. THIS ERROR WARRANTS REVERSAL OF THE CONVICTION.

 

III. THE TRIAL COURT AND APPELLATE DIVISION'S CONCLUSORY DENIALS OF MR. CONTE'S PRO SE PETITION FOR POST-CONVICTION RELIEF DID NOT RISE TO THE LEVEL OF LEGAL ANALYSIS. THE CONVICTIONS SHOULD BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL.

 

IV. THE TESTIMONY OF THE STATE'S PSYCHIATRIC EXPERT, AZARIAH ESHKENAZI, M.D., SHOULD NOT HAVE BEEN ALLOWED IN AND RELIED UPON.

 

We find these arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

The PCR judge concluded that defendant's arguments were procedurally barred. We agree. "Post-conviction relief is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits." State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). As relevant to this matter, Rule 3:22-4(a)(1) bars a defendant from seeking post-conviction relief unless the court finds "that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding." And Rule 3:22-5 declares that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceedings." See also State v. Marshall, 173 N.J. 343, 350-53 (2002). Both rules bar defendant's first two points in this appeal.

In Points I and II, defendant complains of the fact that the trial judge refused to adjourn the trial when defendant made an eleventh hour request to change attorneys and further argues he was erroneously tried in absentia despite the fact that he knowingly and willingly refused to appear for his trial. The trial judge's refusal to adjourn the trial for this reason was raised in defendant's direct appeal. In disposing of defendant's third point in the direct appeal, we rejected what is a central theme of defendant's current Points I and II, holding:

[D]efendant challenges the trial judge's decision not to permit a trial adjournment to allow new counsel to assume defendant's defense. That delay in counsel's estimate would have amounted to thirty days. We have carefully reviewed the record on appeal on this issue, the arguments of counsel and the applicable law and conclude that the arguments raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We need only briefly add that the trial judge thoroughly considered the factors set forth in [State v.] Furguson, . . . 198 N.J. Super. [395,] 402 [(App. Div. 1985)][,] as he found them applicable together with the unique circumstances of the situation before him. We find no basis to disturb his ultimate application of the law to those facts and circumstances. United States v. Burton, 584 F.2d 485, 489 (D.C. Cir. 1978)[,] cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979).

 

[Conte, supra, slip op. at 26.]

 

Those aspects of defendant's Points I and II not adjudicated in our prior decision certainly could have been asserted on direct appeal. And the same can be said for the argument contained in defendant's Point IV in this appeal.

Lastly, in considering Point III, as we noted earlier, with one exception, we did not pass on the merits of the ineffective-assistance-of-counsel arguments presented in defendant's direct appeal and recognized his right to pursue them in the first instance in the trial court by way of a PCR petition. The PCR judge did consider the merits of those arguments and found, in applying the Strickland/Fritz1 test, that defendant's contentions lacked merit, particularly relying upon the second prong of the test and defendant's failure to demonstrate prejudice in not being permitted to proceed with counsel of his own choosing.

We find defendant's remaining arguments that the findings of the PCR judge were inadequate and that the PCR judge failed to conduct an evidentiary hearing, as well as all other arguments that might be detected in his brief to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).