STATE OF NEW JERSEY v. ANTHONY PETER FAVOROSO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY PETER FAVOROSO,

Defendant-Appellant.

_____________________________________

May 12, 2014

Submitted March 10, 2014 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0062.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Nicole D. Wallace, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Anthony Peter Favoroso appeals from an order entered by the Law Division on May 3, 2012, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Monmouth County Indictment No. 05-01-00062 with second-degree luring or enticing a minor into a motor vehicle, N.J.S.A. 2C:13-6 (count one); fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The trial court denied defendant's motion to suppress statements he made to law enforcement officers when he was interviewed. Thereafter, defendant was tried before a jury.

At the trial, the State presented evidence showing that on an evening in July 2004, T.M. was at home communicating with his friends online. He was using his screen name, which included the term "soccerkid," to which no user profile was attached. T.M. received an instant message from a screen name he did not recognize. T.M. closed the window containing the message and continued communicating with his friends. He received another instant message from the unknown person, who asked if he wanted to "hang out." T.M. agreed to meet. He was thirteen years old at the time.

T.M. told his parents that he was going to a nearby tennis club to watch a friend compete in a match. Shortly thereafter, defendant arrived and waited outside T.M.'s home in his car. T.M. went out to meet defendant and his parents followed. T.M. told his parents that the man was his friend's father. T.M. said his friend had gone to the match earlier. T.M. entered the car, and he and defendant drove away.

After he entered the car, defendant asked T.M. where the closest motel was located and T.M. directed him to one nearby. Defendant testified that he asked about a motel because he needed a place to stay for the evening. According to defendant, he entered the motel room only to turn on the air conditioner and intended to bring T.M. home immediately, but T.M. unexpectedly followed him into the room. Defendant stated that he and T.M. were in the motel room for "seconds" and nothing of a sexual nature happened.

However, T.M. testified that, when he and defendant entered the motel room, he sat on the bed and defendant went to the bathroom. Shortly thereafter, defendant emerged from the bathroom. He was naked from the waist down and had an erection. Defendant sat on the bed next to T.M. and put his arm around him. T.M. became alarmed and asked to be taken home. When T.M. arrived home, his parents questioned him about where he had been. After learning that he had been with defendant, whom he did not know, T.M.'s parents took him to the local police station and reported the incident.

The police ascertained defendant's identity and address. Thereafter, two investigators from the Atlantic County Prosecutor's Office went to defendant's apartment to question him about the incident. Defendant told the investigators that on the date in question, he thought he was going to meet a twenty or twenty-one year old female who he met online.

Defendant said that, when he arrived at T.M.'s home, he became aware that the person he had been communicating with was actually a male, who was about seventeen or eighteen years of age. Although he was confused, he allowed the male to enter his car and they drove away. Defendant said his plan was to drive around and get something to eat. He acknowledged that he went to the motel room and the male entered the room with him. He denied that anything of a sexual nature occurred during the encounter.

The jury found defendant guilty on all three counts. The court later sentenced defendant to seven years of imprisonment on count one, with a three-year period of parole ineligibility, pursuant to N.J.S.A. 2C:13-6. The court also sentenced defendant to eighteen months of imprisonment on count two, and four years of imprisonment on count three. All sentences were to run concurrently.

Defendant appealed and presented the following arguments:

I. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF DISORDERLY PERSONS LEWDNESS AS AN ALTERNATIVE TO THE CHARGE OF ATTEMPTED CRIMINAL SEXUAL CONTACT. THIS ERROR WARRANTS REVERSAL OF ALL THE CONVICTIONS.

II. THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. THE TRIAL COURT SHOULD HAVE GRANTED THE TRIAL AND/OR POST TRIAL APPLICATIONS FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL. THE APPELLATE DIVISION SHOULD REVERSE THE VERDICTS NOW.

III. THE TRIAL COURT ERRED IN RULING THAT APPELLANT'S VERBAL STATEMENT TO THE POLICE WAS ADMISSIBLE FOLLOWING THE CONDUCT OF AN N.J.R.E. 104(c) HEARING. THE APPELLATE DIVISION SHOULD REVERSE THE DECISION OF THE TRIAL COURT.

IV. VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT IN THE OPENING AND CLOSING STATEMENTS OF THE PROSECUTOR AND IN CROSS-EXAMINATION OF THE APPELLANT WARRANT REVERSAL OF THE CONVICTION.

V. TRIAL COUNSEL COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE TRIAL COURT SHOULD HAVE EITHER VACATED THE VERDICTS BASED UPON THE INEFFECTIVE ASSISTANCE OF COUNSEL OR SHOULD HAVE CONDUCTED A N.J.R.E. 104 HEARING FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

VI. THE SENTENCE IMPOSED WAS CLEARLY EXCESSIVE AND SHOULD BE VACATED.

We reversed the conviction on count two, but affirmed the convictions and sentences imposed on counts one and three. State v. Favoroso, No. A-0357-06 (App. Div. June 26, 2007) (slip op. at 3). In our opinion, we considered and rejected several of defendant's claims of ineffective assistance of counsel. Ibid. (slip op. at 21-22). We concluded, however, that defendant's claims regarding counsel's alleged failure to undertake an investigation of certain facts or call particular witnesses were best left to PCR proceedings. Ibid. (slip op. at 22-23).

On May 6, 2011, defendant filed a pro se petition for PCR, alleging the ineffective assistance of counsel. The court assigned counsel to represent defendant, and PCR counsel filed a brief in support of defendant's petition, arguing that defendant's trial counsel was ineffective because he did not fully investigate the facts of the case. Specifically, PCR counsel argued that trial counsel failed to call a witness from America Online (AOL) to fully explain the significance of the AOL accounts, the profiles attached to them, and the fact that no information could be garnered from an account with no profile.

PCR counsel also argued that trial counsel erred by failing to explore defendant's "long history of mental health issues," as detailed in two reports prepared by Dr. Andrew P. Musetto, defendant's treating psychologist. PCR counsel asserted that Dr. Musetto should have been called as a witness at the hearing on defendant's suppression motion because he would have been able to "shed light" on defendant's state of mind and his reaction when T.M. emerged from his home, instead of the adult female defendant expected to meet.

PCR counsel further argued that Dr. Musetto would have been able to "shed light" on defendant's behavior during the questioning by the investigators from the prosecutor's office. In addition, PCR counsel said that defendant's trial counsel should have consulted with Dr. Musettto to determine the viability of having defendant testify in his own defense.

On March 23, 2012, the PCR court heard oral argument on the petition. On May 3, 2012, the court filed a written opinion and order denying PCR. This appeal followed.

In his main brief, defendant raises the following arguments:

POINT ONE

THE PCR COURT ERRED IN DENYING FAVOROSO AN EVIDENIARY HEARING EVEN THOUGH FAVOROSO PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AS THE CONDUCT OF TRIAL COUNSEL WAS NOT REASONABLE TRIAL STRATEGY.

POINT TWO

FAVOROSO INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND BRIEF.

Defendant has filed a supplemental pro se brief, in which he raises the following argument.

PETITIONER ANTHONY P. FAVOROSO CONTENDS HE SUFFERED PREJUDICE DUE TO TRIAL COUNSEL'S PERFORMANCE. AS STATED IN CRIMINAL LAW 641.13(1)[,] "A COURT NEED NOT DETERMINE WHETHER COUNSEL'S PERFORMANCE WAS DEFICIENT BEFORE EXAMINING PREJUDICE SUFFERED BY DEFENDANT AS A RESULT OF ALLEGED DEFICIENCIES."

II.

Defendant contends that the PCR court erred by denying his petition without an evidentiary hearing. He contends that he presented a prima facie case of ineffective assistance of counsel. We do not agree.

Where, as here, a defendant claims he was denied the right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, the defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for consideration of similar claims brought under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and to rebut that presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Counsel's error "'must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

Furthermore, under Rule 3:22-10(b), an evidentiary hearing on a PCR petition is only required if a defendant presents a prima facie case in support of PCR, the court finds that there are material issues of fact in dispute that cannot be resolved by reference to the existing record, and the court determines that a hearing is necessary to resolve the claims for relief. See also State v. Porter, 216 N.J. 343, 354 (2013); State v. Preciose, 129 N.J. 451, 462 (1992).

A. Computer Expert

Defendant contends that his trial counsel erred by failing to call a witness from AOL to explain how the chat service functioned. Defendant recognizes that some of this information was elicited in his own testimony. He maintains, however, that an expert witness would have educated the jury on the operations of the chat service and member profiles.

At trial, defendant testified that he had received an instant message and immediately attempted to get information from the individual's AOL profile, but no such profile existed. According to defendant, the person who sent the message indicated that "she" was a twenty-year-old female from Belmar, New Jersey. T.M. testified that he was using the screen name with the reference to "soccerkid" at the time of his contact with defendant. T.M. stated that the "soccerkid" account did not have an attached profile.

Defendant argues that it was impossible for him to have had any knowledge that T.M. was not a twenty-year-old female. He contends that the jury did not understand how the chat was initiated and by whom. He maintains that his trial counsel's strategy was unreasonable because he failed to call an expert to explain the significance of the AOL accounts and the profiles attached to them. He contends that this "point" goes to the heart of whether he lured T.M. by electronic means into his motor vehicle, in violation of N.J.S.A. 2C:13-6.

The PCR court rejected this claim. The court noted that T.M. had testified about the "soccerkid" screen name and admitted that there was no profile attached to that name. The court pointed out that the evidence showed that anyone communicating online with "soccerkid" "could not discover any information about that 'soccerkid' person as no profile existed."

In his closing statement, defense counsel argued that because the "soccerkid" screen name had no profile, defendant thought he was going to meet a female. The PCR court concluded that, because the profile's significance had been communicated to the jury, defense counsel's decision not to call a computer expert "did not fall below the objective standard of reasonableness." We are convinced that the record supports the court's finding.

The PCR court also determined that defendant had not shown that his defense was prejudiced by his attorney's failure to present expert testimony on this issue. The court wrote:

Even if the jury was truly convinced that at the time of their online conversation, the defendant believed he was communicating with a 20 year old girl, this argument is rendered meaningless once the defendant drove to the victim's house and picked up the victim, who was in fact a 14 year old boy.[1] The charge of luring or enticing a victim arises from the events which began when the victim entered the motor vehicle and then the motel room. Any computer expert's testimony regarding profiles and lack thereof would be irrelevant to these facts.

The record supports the court's finding and the conclusion that defendant was not denied the effective assistance of counsel because his attorney did not present testimony from a computer expert.

B. Mental Health Expert

Next, defendant argues that his trial attorney was deficient because he failed to present the jury with evidence concerning his "long history of mental health issues." He notes that in July 2001 and October 2009, Dr. Musetto issued reports in which he indicated that defendant was suffering from severe anxiety, depression and post-traumatic stress disorder. According to Dr. Musetto, defendant had difficulty concentrating and thinking clearly, as indicated by rapid and unintelligible speech, among other things.

Defendant contends that his attorney should have called Dr. Musetto to testify at the suppression hearing and the trial. He asserts that Dr. Musetto would have "shed light" on defendant's state of mind and his reaction when T.M. exited the home and entered his car. He says that Dr. Musetto would have been able to "shed light" on his behavior when he was questioned by the investigators from the prosecutor's office. Defendant also asserts that his attorney should have consulted with Dr. Musetto in determining whether to have him testify in his own defense.

In its opinion, the PCR court noted that, since the trial in this matter took place in 2005, defense counsel would not have had Dr. Musetto's 2009 report. Moreover, Dr. Musetto's 2001 report was apparently written because defendant had been arrested for a sex crime.

The PCR court concluded that it was a reasonable trial strategy for defense counsel not to present Dr. Musetto as a witness or introduce his 2001 report. Either would have opened the door for the State to elicit evidence regarding defendant's prior conviction for sexual assault, even though a limiting instruction might have been given.

In our view, the court properly determined that defense counsel's decision not to call Dr. Musetto at trial was a reasonable trial strategy. Furthermore, defendant failed to show that the results of the suppression hearing would have been different if Dr. Musetto had testified concerning defendant's behavior at the time he was questioned by the investigators from the prosecutor's office.

Moreover, there is no indication that if defendant's counsel had consulted with Dr. Musetto, he would have elected not to have defendant testify in his own defense. Indeed, as the State notes, this was a reasonable trial strategy because only defendant could testify that he believed he was communicating online with an adult female.

C. Defendant's Refusal to Provide Audio-Taped Statement

Defendant contends that, when he testified, his trial attorney erroneously questioned him about his refusal to provide the investigators with an audio-taped statement. According to defendant, this allowed the State to raise this issue on cross-examination and in the closing arguments.

Defendant asserts that he did not want to provide a taped statement because he had been previously been through this experience, and in the past, he felt compelled to lie when a statement was taped. Defendant says that, at the suppression hearing, defense counsel recognized the prejudicial nature of this testimony.

The PCR court correctly rejected this claim. The court noted that the mere reference to defendant's refusal to provide a taped statement was not prejudicial. The court pointed out that reference to the reasons why defendant did not want to provide a taped statement might have been prejudicial, but at trial, no evidence was presented indicating that defendant had been convicted of a prior sexual offense. Thus, defendant was not prejudiced by testimony that he refused to provide the investigators with an audio-taped statement.

We have also considered the arguments raised by defendant in his supplemental pro se brief and conclude that they are without sufficient merit to warrant further comment. R. 2:11-3(e)(2).

We therefore conclude that the PCR court correctly determined that defendant failed to present a prima facie case of ineffective assistance of counsel and did not err by denying PCR without an evidentiary hearing.

Affirmed.

1 As noted previously, the victim was thirteen years old at the time of his encounter with defendant.