STATE OF NEW JERSEY v. CHRISTOPHER JOHN FASANO

NOT FOR PUBLICATION WITHOUT THE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.

CHRISTOPHER JOHN FASANO,

Defendant-Appellant.

___________________________

June 25, 2015

Submitted May 26, 2015 Decided

Before Judges Leone and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-04-0870.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison S. Perrone, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Christopher John Fasano appeals from a November 15, 2013 order denying, without an evidentiary hearing, his petition for post-conviction relief ("PCR"). We affirm.

I.

The following facts were presented at trial. In December 2007, defendant was separated from and in the process of divorcing his wife, Joan Fasano. At that time, defendant and Joan had been married for over twenty years and they had three children, ages eighteen, fourteen and ten. Defendant had moved out of the marital home, which was located in Brick Township, and he was living in Pennsylvania. As part of the divorce proceedings, the couple had entered into a consent order that granted Joan "sole use and exclusive possession" of the marital home. The couple had also agreed that the two younger children would live with Joan, but defendant would have liberal parenting time with the children.

On December 7, 2007, defendant drove to the former marital home to pick up the two younger children for the weekend. While picking up the children, defendant had a heated argument with Joan concerning ownership of a coin collection. The police were called, and after the police arrived, defendant left with the children.

Two days later, on December 9, 2007, defendant drove the children back to Brick Township to drop them off. While driving back, defendant began talking about Joan and became upset. The children reported that he drove erratically and that he made threats against Joan.

After dropping the children off, defendant returned to the marital home about an hour later. He entered the home without permission and confronted Joan while holding a knife. When defendant came towards Joan, she grabbed his arms, defendant pushed Joan, and she fell to the floor. The children heard the confrontation, the police were called, and the fourteen-year-old daughter tried to intervene and restrain defendant. Defendant then fled in his white pick-up truck.

During the confrontation, Joan was cut three times and the ten-year-old son also suffered a laceration to his right hand. Joan and the son were taken to the hospital. As a result of her injuries, Joan permanently lost feeling in the index finger of her left hand, and the son received five stitches. Meanwhile, the police responded and they began to search for defendant. During that search, the police obtained a description of defendant's truck and broadcast that information to law enforcement in the area. The police also obtained information about defendant's cell phone and used that information to try to track defendant's movements.

Later in the evening on December 9, 2007, a police officer in Holmdel Township saw and began to follow defendant's truck. The officer called for backup, and when another police officer in a separate patrol car joined in following defendant's truck, the officers attempted to effectuate a motor vehicle stop by turning on their overhead lights. Defendant, however, fled and thereafter led the police on a high-speed chase. During that chase, one of the officers got caught in traffic and lost contact with defendant's truck. The other officer continued his pursuit, which included speeds of over 100 miles per hour. As the chase continued, defendant rammed his truck into the police officer's car, forcing it off the road. The officer's vehicle was disabled and the officer sustained injuries, including a herniated disc in his neck and contusions to his head. Defendant continued to flee in his truck.

Thereafter, the police learned that defendant had been in contact with a friend, his brother, and his mother. Using information learned from defendant's brother, the police located defendant's abandoned truck. The following day, December 10, 2007, defendant showed up at his friend's workplace. The police were notified and eventually defendant was taken into custody.

Defendant was indicted on a number of crimes, including burglary, aggravated assault, and eluding. A jury trial was conducted between June 9, 2009 and July 9, 2009. At trial, defendant put forward a diminished capacity defense. In support of that defense, defendant's trial counsel presented testimony from defendant's mother and a psychiatrist. Defendant's mother testified about defendant's physical and psychological problems, including defendant's stay at a hospital in July 2007, for psychiatric treatment. The psychiatrist testified that defendant was experiencing a mood disorder during the assault and flight, and ultimately opined that defendant did not act "knowingly, purposely or recklessly" when the actions occurred on December 9, 2007.

In rebuttal, the State called a psychologist. The State's psychologist testified that defendant had the ability to understand what he was doing at the time that he committed the alleged crimes.

In July 2009, the jury convicted defendant of second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree aggravated assault while fleeing, N.J.S.A. 2C:12-1(b)(6); and third-degree assault, N.J.S.A. 2C:12-1(a).

In August 2009, defendant was sentenced. The judge merged the convictions on the weapons-related crimes with the burglary conviction, and merged the convictions on the eluding and third-degree assault crimes with the conviction for aggravated assault while fleeing. On the second-degree convictions for burglary and aggravated assault while fleeing, the judge sentenced defendant to eight years in state prison, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The judge also ran those sentences consecutively. Furthermore, the judge sentenced defendant to three years of parole supervision following his release from prison, suspended defendant's driver's license for two years, and imposed mandatory assessments and penalties.

Defendant filed a direct appeal, contending that (1) the court erred in denying a mistrial based on alleged juror misconduct, (2) his conviction for burglary was inconsistent and "illogical," and (3) his sentence was excessive. This court rejected all of those arguments and affirmed defendant's conviction in an unpublished opinion. State v. Fasano, No. A-1129-09 (App. Div. June 29, 2011). The Supreme Court denied certification. State v. Fasano, 209 N.J. 97 (2011).

On April 3, 2012, defendant filed a self-represented petition for PCR. Defendant was assigned legal counsel, and counsel filed an amended petition and supplemental brief. Judge Ronald Lee Reisner, who was the trial judge, heard oral argument on defendant's PCR petition. On November 15, 2013, Judge Reisner entered an order, accompanied by a written decision, denying defendant's PCR petition without an evidentiary hearing. On November 22, 2013, the judge issued a corrected written opinion.

II.

On this appeal, defendant argues that his trial counsel provided ineffective assistance. Specifically, defendant makes two primary arguments

POINT ONE

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVE ASSITANCE OF COUNSEL.

POINT TWO

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We reject these arguments essentially for the reasons given by Judge Reisner in his well-reasoned, twenty-four page written opinion issued on November 22, 2013. We make the following additional comments.

III.

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. "However, a defendant is not entitled to an evidentiary hearing if the 'allegations are too vague, conclusory, or speculative.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting Marshall, supra, 148 N.J. at 158). If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" on appeal. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). First, "the defendant must demonstrate [] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid.

To establish that his trial counsel was deficient, defendant must show his "'counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In making that showing, a defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid. (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

To establish prejudice from a deficiency, defendant must also show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). This "is an exacting standard: '[t]he error committed 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)).

A.

The primary argument presented on this appeal is that defendant's trial counsel was ineffective because trial counsel allegedly failed to retain "a competent expert witness on the issue of diminished capacity and/or inadequately prepared the expert witness for trial." Defendant then argues that the PCR judge erred in not granting an evidentiary hearing on that issue.

Judge Reisner detailed how defendant was attempting in his PCR petition to mischaracterize the psychiatrist's preparation and testimony at trial. Judge Reisner then found that there was no basis in the record for defendant's arguments about the alleged incompetent performance of the expert used at trial, much less any prima facie showing that trial counsel was deficient for retaining the expert witness. Judge Reisner also correctly pointed out that defendant made no showing that there was a more qualified expert who was prepared to offer a better opinion concerning the diminished capacity defense.

As framed by defendant himself, defendant's claim of ineffective assistance of counsel concerning the expert witness is dependent upon defendant making a prima facie showing that the expert used at trial was not "competent." In other words, defendant is trying to argue that the expert witness used at trial committed malpractice, or at a minimum, fell below a recognized standard of professional performance. To make such a showing, defendant would need an expert witness. Defendant, however, had no such expert witness. Moreover, even if defendant had an expert witness who could opine on the performance of the psychiatric expert who testified at trial, defendant would still then have to make a prima facie showing that his trial counsel should have recognized that incompetency and trial counsel fell below an objective standard of legal professional norms in not recognizing the incompetency of the expert. The record in this case is devoid of any prima facie showing of any deficient performance by defendant's trial counsel.

Defendant also complains that trial counsel did not require the expert to interview defendant more than once, to interview witnesses other than his mother, or to administer psychological tests. Defendant, however, failed to proffer what trial counsel would have learned had the expert taken those steps. "'[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed[.]'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).

In short, as Judge Reisner correctly recognized, defendant's arguments are "speculative and unsupported by any expert proof." Consequently, there was no need for an evidentiary hearing on these contentions.

B.

Next, defendant argues that he was entitled to relief based on a series of alleged deficiencies and errors. Specifically, defendant contends

he was denied the effective assistance of counsel due to counsel's failure to emphasize to the jury that his conduct was influenced by his medication;

trial counsel had a conflict of interest that could not be waived;

he was never advised by his divorce attorney that he could not enter the family home;

defense counsel was ineffective in failing to attend the pre-sentence report interview with defendant, in failing to emphasize at sentencing that defendant was remorseful, and in failing to call an expert witness at sentencing.

The above quotation is defendant's entire argument in his appellate brief. We have considered these contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons given by Judge Reisner in his November 22, 2013 written opinion.

IV.

Our review of the record satisfies us that defendant failed to make a prima facie showing of ineffective assistance by trial counsel. Thus, there was no need for an evidentiary hearing as defendant failed to show that he could satisfy either prong of the Strickland test.

Affirmed.