STATE OF NEW JERSEY v. MICHAEL FALCO

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL FALCO,

Defendant-Appellant.

__________________________________

January 5, 2015

Submitted November 6, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-06-0823.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Falco appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In March 2006, defendant was indicted on eleven counts charging forgery, uttering a forged instrument, theft by deception, and fraudulent use of credit cards. In April 2008, he was tried before a jury and convicted. He was sentenced to a total of five years imprisonment with two-and-a-half years of parole ineligibility.

The charges arose from defendant's activities in assisting an elderly woman with her financial affairs. Through his church, defendant was introduced to Clara Fazi, who was eighty-eight years old and living alone. A police investigation later revealed that defendant forged and cashed several checks on Fazi's account and used her debit card to make purchases for himself. At trial, defendant testified and denied he had forged the checks. He stated he wrote out some checks as repayment of loans he had made to Fazi, and she signed the checks. He also denied he had used her debit card. Defendant's version lacked credibility because the checks were made out to cash, which Fazi did not have a history of doing, and some of the charges on her debit card were made near defendant's home at a time when Fazi was not in New Jersey.

In addition to a handwriting expert who testified that Fazi had not written the checks, the prosecution presented bank records and other documentary evidence of the transactions. However, Fazi had died before defendant's trial and was not available to testify. The prosecution elicited testimony from the investigating detectives about certain statements Fazi and her family members made during the investigation regarding her handling of her checking account and debit card. The jury deliberated for about one-and-a-half hours and found defendant guilty on all counts of the indictment.

On direct appeal, defendant's appellate attorney raised many issues claiming trial error, including the admission of the hearsay statements of Fazi and her relatives. We concluded that the hearsay evidence did not prejudice defendant's right to a fair trial because it pertained to matters that were not significantly disputed and because other non-hearsay evidence supported the same contentions of the prosecution. We affirmed defendant's conviction, but we remanded for correction of the sentence to include mergers of several counts. State v. Falco, No. A-1745-08 (App. Div. May 14, 2010). The Supreme Court denied defendant's petition for certification. State v. Falco, 205 N.J.101 (2011).

Defendant filed this PCR petition on July 30, 2010, alleging ineffective assistance of his trial and appellate attorneys. The trial court denied the petition without holding an evidentiary hearing. The court stated its reasons orally and entered an order denying the petition on August 23, 2012.

Defendant now makes the following arguments on appeal

POINT I

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

In considering a PCR, we begin with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984); State v. Loftin, 191 N.J.172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J.at 198.

In Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Stricklandtest, "defendant must show that there is 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. The Stricklandtest was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J.42, 58 (1987).

Here, defendant claims ineffective assistance of counsel for four reasons: (1) his trial and appellate attorneys failed to make effective argument to bar the hearsay evidence admitted against him; (2) his trial attorney failed to bring to the court's attention that a juror appeared to be sleeping; (3) the trial attorney failed to prepare defendant adequately for his testimony; and (4) the attorney did not object when the trial court failed to respond to juror inquiries during deliberations indicating that they had scheduling conflicts, and therefore, the jury deliberated too hastily and did not consider all the evidence in his favor.

We reject defendant's first reason for PCR because the issue was already decided against him in the direct appeal. Rule3:22-5 excludes from cognizable issues on a PCR "[a] prior adjudication upon the merits of any ground for relief . . . ." Appellate counsel argued the hearsay evidentiary issue on direct appeal. Trial counsel could not have provided ineffective assistance in failing to prevail on an issue that we previously considered and determined did not prejudice defendant at his trial.

With respect to the other arguments, "a reviewing court must assess the performance of counsel with a 'heavy measure of deference to counsel's judgments.'" State v. Difrisco, 174 N.J.195, 220 (2002) (quoting Strickland, supra, 466 U.S.at 691, 104 S. Ct.at 2066, 80 L. Ed.2d at 695). Ineffective assistance of counsel is not proven by showing with the benefit of hindsight that counsel's strategic decisions did not succeed. Id.at 221; seeState v. Drisco, 355 N.J. Super.283, 290 (App. Div. 2002), certif. denied, 178 N.J.252 (2003). Furthermore, even if counsel could have performed better, defendant is not entitled to PCR relief if there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698.

Here, the jury found defendant guilty because there was strong evidence that he wrote checks to himself without Fazi's authorization and used her debit card without her knowledge. Even if a juror seemed inattentive during some part of the trial, there is no probability that his attorney's bringing that fact to the trial court's attention would have altered the verdict. Either the court would have questioned and admonished the juror, still permitting him to deliberate at the conclusion of the evidence, or another juror would have been substituted for the inattentive one. Neither eventuality leads to a probability that the jury would have viewed the evidence of defendant's guilt differently.

As to preparation of defendant to testify, there is nothing in the record to show that defendant's disclaimers and denials would have been more effective in the face of persuasive documentary and circumstantial evidence had his attorney spent more time in preparing his testimony. Defendant claims that his demeanor before the jury was not favorable, but his argument that more preparation would have changed that factor is mere speculation.

Nor is there any indication in the trial record that the jury felt rushed in its deliberations. One-and-a-half hours of deliberations was not unreasonable given the nature of the case.

In State v. Arthur, 184 N.J.307 (2005), the Court stated: "In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" Id.at 319 (alteration in original) (quoting Stickland, supra, 466 U.S.at 693, 104 S. Ct.at 2067, 80 L. Ed.2d at 697). The Court reconfirmed that "[a] reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." Ibid.(quoting Stickland, supra, 466 U.S.at 693, 104 S. Ct.at 2068, 80 L. Ed.2d at 697). Here, defendant's claims do not undermine our confidence in the outcome of his trial. We agree with the trial court's conclusion that defendant simply lacked a credible defense in the face of compelling evidence of his guilt.

In addition, the trial court did not err in deciding the matter without holding an evidentiary hearing. An evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined. SeeState v. Porter, 216 N.J.343, 354-55 (2013); State v. Preciose, 129 N.J.451, 462 (1992). The trial court has discretion to decide the PCR petition on the basis of the papers submitted and the arguments of counsel "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . ." State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); accordPreciose, supra, 129 N.J.at 462-63. In this case, the trial court did not abuse its discretion in proceeding without an evidentiary hearing.

Defendant has not presented evidence demonstrating that the result of his trial would have been different had his attorney more actively pursued the issues that defendant now raises in hindsight after he has had his day in court and the jury has found him guilty.

Affirmed.