STATE OF NEW JERSEY v. THOMAS ZOWASKY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00725-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS ZOWASKY,

Defendant-Appellant.

___________________________

April 13, 2016

Submitted January 19, 2016 Decided

Before Judges Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1179.

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

RobertD. Bernardi,Burlington County Prosecutor, attorney for respondent(Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Thomas Zowasky appeals from the August 21, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on the ineffective assistance of counsel. For the following reasons, we affirm.

A grand jury indicted defendant on five counts of first-degree aggravated sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (counts one through five); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count seven). The charges stemmed from defendant's repeated sexual assault of S.P., a twelve-year-old girl he had befriended when he was forty-five years old, from December 2003 to September 2004. Defendant gave the police a videotaped statement admitting his criminal conduct.

Prior to trial, defendant filed a motion to suppress the videotaped statement based on an alleged Miranda1 violation. He also argued that someone had tampered with and spliced the videotape to omit his exculpatory statements, he was coerced and threatened into changing his story and fabricated everything he said on the videotape, and he could not read the Miranda card because he did not have his eyeglasses. During his testimony at the motion hearing, defendant added that the police gave him a "script" to read prior to the videotaped statement.

Judge John A. Almeida denied the motion, finding that defendant's Miranda rights were read to him, defendant said numerous times that he understood his rights, and defendant read the Miranda card from a distance without eyeglasses. The judge called defendant's testimony about the "script" an "incredible fairy [tale]."

The jury found defendant guilty of all charges. Judge Almeida sentenced him to an aggregate forty-five-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence. We reversed and remanded for a new trial based, in part, on the improper introduction of polygraph evidence and the jury's unrestricted private review of the videotaped statement without any precautionary measures. State v. Zowasky, No. A-1089-06 (App. Div. Jan. 15, 2009).

In light of our opinion, prior to playing the videotaped statement at the re-trial, defendant agreed to mute parts that mentioned the polygraph evidence and redact those parts from the transcript of the statement. He also agreed to mute and redact parts where he made racial remarks. In addition to the videotaped statement being played to the jury, S.P. testified about her sexual relationship with defendant and the State produced greeting cards and letters defendant sent her, which evidenced the nature and extent of their ongoing sexual relationship.

Defendant testified at length about his view of discrepancies in the videotaped statement to prove his theories that: (1) someone had tampered with and spliced it to remove certain parts, including where he denied any sexual contact with S.P. and said he did not understand his Miranda rights and could not read the Miranda card because he did not have his eyeglasses; and (2) his demeanor and behavior on the videotape showed the police had coerced or forced him into changing his story, and that he had "made up" everything he said because of certain promises the police made to him. In addition, in summation, defense counsel attacked the credibility of the videotaped statement, and urged the jury to consider that defendant's demeanor on the videotape indicated he was led into fabricating the incriminating statements. During deliberations, defendant consented to a playback of the videotaped statement.

The jury found defendant guilty on all counts, and Judge Almeida imposed the same sentence. Defendant appealed his conviction, arguing, in part, that the judge failed to follow the prescribed cautionary procedures for a playback of the videotaped statement, and erred in denying his motion to suppress the statement and allowing a read-back of redacted portions of the statement. We affirmed, and our Supreme Court denied certification. State v. Zowasky, No. A-2592-09 (slip op. at 2-3) (App. Div. Mar. 28, 2012), certif. denied, 213 N.J. 537 (2013). We found the record lacked credible evidence supporting defendant's theories about the videotaped statement. We emphasized that

defendant claimed no prejudice from the replay [of the videotaped statement] and consented to it. He no doubt wanted the jury to again see his demeanor and behavior in order to prove his theory that someone had tampered with and spliced the videotape to eliminate his exculpatory statements, and coerced him into changing his story and fabricating everything he said. . . . Defendant cannot seek to benefit from the replay of the videotape, and then claim that the replay led to an unjust result.

[Id. at 14.]

We also determined the record lacked credible evidence supporting a reversal of the denial of the motion to suppress. Id. at 16.

On July 31, 2013, defendant filed a PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by failing to: (1) file a second motion to suppress the videotaped statement; (2) retain an expert to determine the veracity of the videotaped statement; (3) obtain the audiotape version of the videotaped statement to show the videotape was altered; and (4) retain an optometrist as an expert to support his contention that he was unable to read the Miranda card without his eyeglasses.

In an August 21, 2014 written opinion, Judge James W. Palmer denied the petition without an evidentiary hearing. The judge found that other than defendant's bald assertions, there was no evidence the videotaped statement was altered, and no evidence a second motion to suppress would have been meritorious. The judge concluded that

The contention that testimony by experts in optometry and video recordings would render the motion meritorious is tenuous at best. Judge Almeida, in establishing the videotape's admissibility, found [d]efendant was able to read along the rights outlined on the [Miranda] card as they were read to him and sign his initials next to each one. Additionally, the flaws in the video recording of [d]efendant's statement were explained to the jury at trial. The [c]ourt finds [d]efendant's further criticisms of the veracity of the videotape to be incredible. At the time, it was reasonable for trial counsel not to pursue the [suppression] issue further and [d]efendant has therefore failed to establish the first prong of Strickland[2] on this ground.

Judge Palmer also found that even if trial counsel failed to obtain the audiotape version of the videotaped statement, this did not satisfy the second Strickland prong because there was no reasonable probability that counsel's error deprived defendant of a fair trial and reliable results. The judge emphasized that the jury heard defendant's lengthy testimony that the videotape was altered and he was coerced into making the inculpatory statements. This appeal followed.

On appeal, assigned counsel contends that defendant presented a prima facie case that trial counsel rendered ineffective assistance by failing to file a second motion to suppress and retain an expert regarding the authenticity of the videotape. In a pro se supplemental brief, defendant adds that trial counsel rendered ineffective assistance by failing to retain an optometrist and the audiotape version of the videotaped statement.3

We have considered all of these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Palmer in his well-reasoned written opinion. However, we add the following brief comments.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013).

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170; see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). When claiming ineffective assistance of counsel based on the failure to file a motion to suppress, a defendant must satisfy the two Strickland prongs and also show that the motion was meritorious. State v. O'Neal, 190 N.J. 601, 618-19 (2007).

Here, defendant failed to present any expert report showing the videotaped statement was altered. Defendant's bald assertions regarding the videotaped statement without any tangible proof it was altered did not establish a prima facie case of ineffective assistance of counsel to warrant an evidentiary hearing.

Affirmed.

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

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

3 We decline to address the additional contentions defendant raises in his pro se supplemental brief. Defendant did not raise those contentions before the trial court and they do not involve the court's jurisdiction or a matter of public importance. State v. Robinson, 200 N.J. 1, 20 (2009); Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).