STATE OF NEW JERSEY v. PETER LISA

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NOT FOR PUBLICATION WITHOUT THE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.

PETER LISA,

Defendant-Appellant.

___________________________________

December 9, 2015

Submitted March 17, 2015 - Decided

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-07-1076.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Defendant Peter Lisa appeals from the Law Division's order on August 27, 2012 denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On December 17, 2007, in accordance with a temporary restraining order (TRO), Paramus police officers searched defendant's residence and seized sixteen handguns, eight of which were determined to have been stolen. Lieutenant Kenneth Ehrenberg observed that, upon the officers' entry into the home, defendant covered his computer and then shut it down, as if "attempting to conceal from view images and/or text displayed on the screen."1 During the TRO search, Detective Frank Scott also observed a motorcycle trailer in defendant's garage, and became suspicious because it fit the description of a trailer that was recently stolen.

After returning to police headquarters, Scott's research led him to believe that the trailer was stolen. Consequently, that same night, Scott and Gleason returned to defendant's home and proceeded to obtain written consent to search from defendant's mother an assertion that she disputes in her certification and testimony. Pursuant to the consent, Scott and Gleason's inspection confirmed that the trailer matched the one that was reported stolen.

The next day, Scott obtained a search warrant for the premises, the attached garage and computer software including CD-ROMS, DVD's and other similar items. During the execution of the search warrant, the motorcycle trailer was seized together with the computer, tapes including four 8 mm videotapes, and other audio and visual data including eleven digital flash cards.2 The tapes were found to contain illicit videos of a minor engaged in sexual activity with defendant and his two co-defendants. A second search warrant was obtained on January 4, 2008, during which time additional items believed to have been stolen were also seized.

On June 24, 2008, defendant was indicted on twenty-four counts3 involving various sexual and weapons offenses, with the most serious charges being first-degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:24-4 (count one), and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts two and nine).

On November 4, 2008, defendant moved to suppress the physical evidence seized during all three searches, specifically, the December 17, 2007 TRO search as well as the December 18, 2007 and January 8, 2008 searches conducted pursuant to the search warrants. Defendant argued that the TRO search exceeded the scope of the TRO since the TRO had only authorized the police to remove weapons. Defendant also contested the State's contention that it had received consent from the mother on December 17 to inspect the motorcycle trailer. According to defendant, police did not seek his mother's consent or ask his mother to sign the consent form until December 18, but backdated the form to December 17 to make it appear that the inspection that occurred on December 17 had been lawful. He further maintained that the unlawful police conduct, in exceeding the scope of the TRO search and in inspecting the trailer without consent, tainted the later issued search warrants and rendered the fruits of those searches illegal.

On April 22, 2009, Judge Patrick J. Roma heard defendant's motion. The State indicated it did not intend to call any witnesses. Trial counsel assumed the State would present witnesses, an assumption the trial court indicated she should not have made. Accordingly, trial counsel only presented the testimony of defendant's mother and his sister. The mother denied signing the consent to search form permitting the search of her property on December 17, 2007; rather, she testified that she signed the form, which was blank, at 9:50 p.m. on December 18, 2007.

In a written decision dated June 23, 2009, Judge Roma denied the suppression motion in its entirety, reasoning that the issuance of the December 18, 2007 and January 4, 2008 search warrants was supported by probable cause. The court also found that Scott conducted a "thorough and complete investigation," and believed "the defendant's behavior with respect to his computer" could contain further evidence of the crimes under investigation. The judge stated, "[t]here is no evidence that Detective Scott sought to conduct an arbitrary, meaningless search of defendant or the premises described in the search warrant."

Approximately a month later, on August 13, 2009, defendant appeared before Judge Roma and pled guilty to first-degree conspiracy to commit aggravated sexual assault, count one of the indictment, pursuant to a plea agreement under which the State agreed to recommend a maximum fifteen-year sentence, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the sentencing, defendant's guilty plea was contemporaneously amended to a plea on count two, first-degree aggravated sexual assault to reflect the appropriate sentence to which the parties agreed. Defendant's initial guilty plea was on conspiracy to commit aggravated sexual assault, which is a second-degree offense, but was mistakenly identified in the indictment and the plea agreement as a first-degree offense. The prosecutor's recommended sentence of fifteen years NERA did not change. The judge, however, sentenced defendant to fourteen years subject to NERA.

Defendant filed a direct appeal on the denial of his motion to suppress and in an unpublished opinion, we affirmed his conviction and sentence. State v. Lisa, No. A-3896-09T3 (App. Div. Apr. 15, 2011). We concluded that even assuming that defendant was correct with respect to the lack of consent to search the garage and inspect the trailer, that single fact would not be sufficient to invalidate an otherwise valid warrant. Id. at 13-14. The consent was "but a small part of the probable cause Detective Scott presented to the issuing judge," thus the "remaining statements were more than sufficient to support a probable cause finding." Id. at 14-15. Accordingly, we rejected the contentions that the portion of the affidavit describing the trailer so tainted the warrant issued on December 18, 2007 as to require the trial court to grant the motion to suppress. Id. at 15.

We further rejected the contention that the four 8 mm videotapes and eleven digital photograph flash cards seized had no nexus to the crimes of theft and burglary that were the basis for the issuance of the warrant, reasoning that defendant's attempt to hurriedly turn off his computer gave police probable cause to believe that the computer contained further evidence of thefts and burglaries. Id. at 15-17. As such, the warrant authorized police to search any "digital cameras" or "digital video recorders." Id. at 16.

We also rejected defendant's contention that the trial counsel rendered ineffective assistance by failing to call Scott, Gleason, and Ehrenberg as witnesses during the motion to suppress and by failing to adequately elicit testimony from defendant's sister. Id. at 17-18. It was concluded that defendant had not satisfied the requirements set forth in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), in which a defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Noting that the defense had not submitted certifications from any of the three police officers or from defendant's "girlfriend"4 detailing what their testimony would have been had trial counsel called them as witnesses during the suppression hearing, the contentions were characterized as "nothing more than 'bald assertions.'" Ibid. On October 20, 2011, the Supreme Court denied defendant's petition for certification. State v. Lisa, 208 N.J. 371 (2011).

On February 3, 2012, defendant filed a pro se PCR petition alleging ineffective assistance of counsel due to trial counsel's failure to call witnesses on his behalf for the motion to suppress and to review all relevant discovery with him prior to the plea agreement. The petition was later supplemented by a letter-brief filed by defendant's designated counsel. PCR counsel maintained that trial counsel inadequately prepared for the suppression hearing by failing to subpoena police officers for the hearing and failing to present defendant as a witness. PCR counsel further argued that trial counsel did not adequately represent defendant during the plea and sentencing because trial counsel did not understand the degree of crime to which the petitioner was pleading, incorrectly completed the plea papers to reflect a crime of the first degree, and did not zealously argue the applicable mitigating factor embodied in N.J.S.A. 2C:44-1b(11) regarding whether "the imprisonment of the defendant would entail excessive hardship to himself or his dependents."

On August 24, the matter was argued before Judge Roma and three days later he issued an order and written decision denying the petition without the need for an evidentiary hearing. The judge held that defendant's petition was procedurally barred under Rule 3:22-5 since similar arguments had been raised and rejected on direct appeal.

This appeal followed.

II.

Before us, defendant raises the following issues

POINT I.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. Factual Background.

B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO PRESENT THE DEFENDANT'S TESTIMONY DURING THE MOTION TO SUPRESS HEARING, AS WELL AS FAILING TO PRESENT ADDITIONAL TESTIMONY FROM THE DEFENDANT'S MOTHER, WARRANTING AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

POINT II.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

It is well-settled that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "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.

A defendant is only entitled to an evidentiary hearing where there is a prima facie showing of counsel ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992). A "prima facie case" requires a defendant demonstrate "'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits,'" and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J 343, 355 (2013) (quoting R. 3:22-10(b)).

A procedural bar applies to a PCR claim pursuant to Rule 3:22-5, in that "[a] prior adjudication upon the merits of any ground for [PCR] relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings."

We agree with Judge Roma that defendant's claim is procedurally barred. In his PCR petition, defendant contends that his trial counsel provided ineffective assistance in the motion to suppress. We rejected the same claim in defendant's direct appeal. Defendant does not get another opportunity to rehash or repackage the claim that trial counsel inadequately represented him at the suppression hearing.

Nonetheless, examining the merits of defendant's claim, we see no reason to disturb Judge Roma's findings that defendant was not denied effective assistance of counsel and there is no need for an evidentiary hearing. On neither his direct appeal nor his PCR petition did defendant supply any affidavits or certifications to support his argument that testimony by witnesses, who were not presented to testify, would have provided a reasonable likelihood that his motion to suppress would have been granted.

To the extent we have not addressed defendant's remaining ineffective assistance claims, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant contests this allegation based upon his mother's testimony at the suppression hearing that she and defendant were sitting on the couch, unable to move, while the police officers conducted a search of the premises.

2 While the police officers maintain that these tapes and flash cards were seized on December 18, 2007, pursuant to the executed search warrant, defendant asserts in his certification in support of his petition for post-conviction relief that he saw the police improperly seize boxes containing these items on December 17, 2007, as part of the search conducted pursuant to the TRO.

3

The indictment listed twenty-five counts, but count eight did not pertain to defendant.

4 The opinion inadvertently referred to the sister as "girlfriend."