STATE OF NEW JERSEY v. JAMES V. CANTANDO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES V. CANTANDO,

Defendant-Appellant.

______________________________

November 1, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4828.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James V. Cantando appeals from the trial court's March 7, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief. Defendant asserts his trial attorney was ineffective by failing to file motions to suppress evidence seized pursuant to a search warrant, and by failing to assert his right to a speedy trial. We affirm.

We discern the following facts from the record. Representatives of the Chubb Institute (Chubb) in Cherry Hill, where defendant was a student, notified the local police on October 9, 2003, that they suspected that defendant was utilizing a school-owned computer to access child pornography. Based on Chubb's consent, police seized the suspected computer. After conducting an analysis of the contents of the computer, the police, on February 13, 2004, signed a summons-complaint charging defendant with violating N.J.S.A. 2C:24-4b(5)(b).

After police served defendant with the complaint at his home in Merchantville, defendant consented to a search of his home computer. Once Mirandized1, he handwrote a signed statement:

I have downloaded porn, some of which was illegal. I did not distribute, in any way shape or form, any illegal porn. I attempted to delete it whenever possible, or d[e]stroy it with any means possible. I was not 100% successful. I do not make any type of porn. I have downloaded it on a borrowed laptop from the Chubb Institute and had some at home. I use kazaa to mass download porn videos and pictures, I go through the pictures after they dow[n]load and delete what I don[']t want.

Based on his statement, and the police's preliminary review of the computer seized from his home, police on February 24, 2004, sought a search warrant to conduct a further forensic search of the seized computer and other storage media. The warrant was granted and the forensic analysis was completed in June 2005.

The prosecutor's office and defendant engaged in fruitless, pre-indictment plea negotiations. The record includes a September 28, 2005, letter from the prosecutor to defendant's attorney offering a pre-indictment plea agreement that also would have resolved two separate criminal complaints charging theft of telephone service and theft of electrical service. The State sought an aggregate term of four years of incarceration. The prosecutor's notes reflect that defendant's counsel had difficulty contacting defendant and that he was about to vacate his apartment without a new address.

The child pornography matter was eventually presented to a Camden County grand jury, which returned an indictment on December 21, 2005, charging defendant with four counts of fourth-degree endangering the welfare of a child based on the possession of child pornography, N.J.S.A. 2C:24-4b(5)(b). Counts one and two pertained to offenses on October 9, 2003, in Cherry Hill; counts three and four pertained to offenses on February 13, 2004, in Merchantville.

It appears that defendant or counsel appeared for a pre-arraignment conference on January 20, 2006, followed by arraignment on February 14, 2006. Defendant has not presented us with transcripts of the arraignment or subsequent conferences. However, we have been provided the prosecutor's file notes, and subpoenas commanding defendant to appear. Based on those documents, it appears that defendant stated at arraignment that he intended to assert the material was downloaded onto his computer by mistake. According to the subpoena served on defendant at the arraignment, it appears the court immediately scheduled a pre-trial conference indicated by the initials "PC" for March 13, 2006.

At the March 13, 2006, conference, defendant requested a "postponement in order to retain a computer expert." The State offered to accept a plea based on a recommendation of probation conditioned upon 364 days of incarceration. At an April 20, 2006, appearance, also apparently designated a pre-trial conference, the prosecutor noted that defendant was still waiting for "approval to hire a computer expert," but was willing to accept a plea based on the State's recommendation of a non-custodial probationary sentence.

The State ultimately agreed. Defendant entered a plea on June 5, 2006, before Judge Thomas A. Brown, Jr., to one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b) the count pertaining to the use of the Chubb computer in Cherry Hill. In accord with his plea agreement, Judge Brown sentenced defendant on September 1, 2006, to two years of non-custodial probation, with supervision to be transferred to the State of Nebraska, where defendant had relocated, provided Nebraska accepted.

Defendant filed his pro se PCR petition on December 29, 2008, in which he claimed he did not knowingly waive his right to a speedy trial, and his attorney failed to advise him of weaknesses in the State's case allegedly, that the computer seized was not his and had been tampered with, presumably by someone else.

After counsel was appointed, defendant filed a supplemental certification alleging that his attorney was ineffective by failing to properly investigate potential defenses, in particular, one based on a discrepancy between the serial number of the Chubb computer seized and the serial number listed in defendant's computer user agreement with Chubb. Defendant claimed the Chubb computer seized was not his. Defendant asserted that he asked his attorney to move to suppress the evidence seized from his computer pursuant to the warrant because it was based on the incorrect information from Chubb.

Defendant stated that he was living in Nebraska "at the time of the ongoing criminal proceedings," although he did not state when he moved. He asserted that it was costly for him to return to New Jersey for each court appearance. He alleged that he took a plea because he could not afford to continue to travel for his court dates in his case.

Judge Brown denied the petition in a written opinion. He applied the well-settled two-pronged standard for establishing ineffective assistance of counsel: that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J.42, 58 (1987) (adopting Stricklandstandard).

We quote at length from Judge Brown's opinion:

Petitioner claims that he was denied effective assistance of counsel because of the failure of counsel to assert Petitioner's rights to a speedy trial. Petitioner asserts that he had been living in Nebraska during the proceedings and could not travel to his court dates. Because of this, he was prejudiced because he could no longer afford to defend himself since he was required for a number of hearings over a long period of time. In Baker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court held that whether a defendant's Sixth Amendment right to a speedy trial has been violated depends on careful weighing of four factors: 1) the length of the delay, 2) the reason for the delay, 3) whether defendant asserted his right to speedy trial, and 4) any prejudice to defendant resulting in the delay. Here, Petitioner's speedy trial rights were not violated.

Petitioner was arrested February 13, 2004 and on February 24, 2004, police obtained a search warrant to conduct a thorough search of Petitioner's computer. On June 20, 2005, Cherry Hill's computer forensics expert submitted his report concerning the computer, which revealed numerous images of child pornography. On September 28, 2005, the Camden County Prosecutor's Office contacted Petitioner's attorney with discovery and a pre-indictment plea offer. After this initial contact there were several conversations between the prosecutor and defense counsel. Defense counsel had difficulty contacting Petitioner and when the case could not be resolved pre-indictment, the case was presented to the Grand Jury in December 2005. Petitioner was arraigned February 14, 2006, requested a postponement in March and April, and rejected a plea offer. Petitioner finally agreed to non-custodial probation and pled guilty on June 5, 2006.

Although Petitioner's counsel did not assert his speedy trial rights, the remaining three Barker factors weigh in favor of the fact that Petitioner's Sixth Amendment rights were not violated. Even though Petitioner was indicted almost two years after his initial arrest, the State did not cause any undue delay in Petitioner's prosecution. The forensic examination of Petitioner's computer took over a year, but neither the State nor Petitioner could enter into plea negotiations without the expert's report. Further, the Petitioner himself requested several postponements in order to retain his own computer expert which caused some of the pre-indictment delay. If Petitioner's attorney asserted speedy trial rights at this point, it would have been adverse to Petitioner's own interests.

The final factor, whether Petitioner was prejudiced by the delay, works heavily against Petitioner's favor. Petitioner's initial plea offer of four years in State Prison was lowered to non-custodial probation. Although Petitioner claims he was prejudiced in having to make repeated trips from Nebraska, Petitioner chose to relocate while he had criminal charges pending in New Jersey. Further, Petitioner's final plea deal was quite favorable to Petitioner because the State was willing to allow him to serve his probation in Nebraska. Therefore, Petitioner has failed to demonstrate serious error by his counsel or prejudice resulting from counsel's decision not to assert a speedy trial claim.

Petitioner's second argument is that he was denied effective assistance of counsel by failure of counsel to properly investigate Petitioner's case. Petitioner asserts that there is a discrepancy regarding the documents and computer records originally turned over by CHUBB Institute to the Cherry Hill Police, which call into question his control over the computer turned in to police. Petitioner claims that had his counsel investigated his claims, there would have been no probable cause for the search warrant of his home computer since the search warrant was premised on the information obtained from CHUBB Institute. However, this argument is without merit.

Although the CHUBB Institute computer confiscated by police contained a different serial number than marked on the usage and assignment forms signed by Petitioner, Petitioner has not submitted any affidavits or certifications from CHUBB employees indicating he lacked access to the confiscated computer. . . .

Lastly, Petitioner admitted to Merchantville Police that he had downloaded "illegal porn" on both the school computer and his home computer. Even though Merchantville Police used the information gathered by Cherry Hill Police to arrest Petitioner, probable cause for the warrant to search Petitioner's home computer was based upon this admission, his consent to search his home computer, and the preliminary review of that computer. Therefore, Petitioner has failed to show that his counsel erred in not attempting to suppress the fruits of either search. Further, Petitioner has not demonstrated that a motion to suppress would have been successful.

Petitioner's final argument that his plea was not made willingly and voluntarily due to failure of counsel to assert his speedy trial rights and to assert the appropriate motions is without merit. Petitioner asserts that he was not able to properly defend himself and was unable to continue to travel to New Jersey for the court hearings. Because of this, he had to accept a plea since he could not afford to travel to New Jersey. As stated previously, Petitioner was in no way prejudiced by counsel's failure to assert a speedy trial claim. Nor did Petitioner produce proof that counsel inadequately investigated his case or should have filed motions to suppress evidence. Further, Petitioner chose to move to Nebraska during the criminal proceedings, knowing that he would have to continually travel to New Jersey on numerous occasions. Petitioner received a highly favorable plea offer for non-custodial probation when he was facing prison time. Therefore, Petitioner's motion for post-conviction relief is denied because he fails to meet the prima facie case for ineffective assistance of counsel.

This appeal followed. Defendant presents the following issues for our consideration:

POINT I

THE LOWER COURT ERRED IN RULING THAT MR. CANTANDO'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WERE PROCEDURALLY BARRED BECAUSE THEY COULD HAVE BEEN RAISED ON DIRECT APPEAL.

POINT II

THE LOWER COURT ERRED IN DENYING MR. CANTANDO AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE PCR COURT ERRED IN DENYING MR. CANTANDO'S PETITION FOR POST-CONVICTION RELIEF ON THE PAPERS.

We have considered defendant's arguments in light of the record and the applicable legal principles, and affirm substantially for the reasons cogently set forth by Judge Brown in the above-quoted excerpt. Judge Brown carefully applied the Strickland standards and correctly concluded that defendant failed to make a prima facie showing of ineffective assistance of counsel necessitating a hearing. Any further discussion is not warranted in a written opinion. R. 2:11-3(e)(2).

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