STATE OF NEW JERSEY v. DANIEL A. CATALANO

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2429-17T2

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

DANIEL A. CATALANO,

          Defendant-Appellant.
______________________________

                    Submitted January 14, 2019 – Decided January 25, 2019

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 15-01-0212.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew R. Burroughs, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Tiffany M. Russo,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Daniel Catalano appeals from the Law Division's July 17, 2017

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing, and the court's September 11, 2017 order denying his

motion for reconsideration. We affirm.

      On August 25, 2014, a team of State Troopers was conducting a

surveillance of an alley in Newark. According to his written report, Detective

Meyers observed defendant engage in a hand-to-hand drug transaction with

another individual. 1 Defendant then got into his co-defendant's 2 car and drove

away. The Troopers stopped the car and, after searching defendant, found

seventy-five bags of heroin in his sweatshirt.

      Based upon this evidence, an Essex County grand jury returned a five-

count indictment charging defendant with third-degree conspiracy,  N.J.S.A.

2C:25-2 and  N.J.S.A. 2C:35-5(a)(1) (count one); third-degree possession of

heroin,  N.J.S.A. 2C:35-10(a) (count two); third-degree possession of heroin,

with the intent to distribute it,  N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three);



1
  The detective's report, which was provided to us by the parties at our request
following the submission of their appellate briefs, stated that he "was able to see
[defendant] with an unobstructed view from an undisclosed location."
2
  During his plea colloquy, defendant testified that the co-defendant, who was
driving the car, had no knowledge that defendant was in possession of heroin.
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third-degree possession of cocaine,  N.J.S.A. 2C:35-10(a) (count four); and

third-degree possession of cocaine with the intent to distribute it,  N.J.S.A.

2C:35-5(a)(1) and (b)(3) (count five).

      Defendant's attorney filed a motion to suppress the heroin. The attorney

asserted that although defendant was in the alley as claimed by the Troopers, he

did not engage in any drug transaction. In addition, defense counsel argued that

the alley was so narrow that the Troopers could not have seen into it if they were

conducting their surveillance while sitting in their unmarked undercover car

located on the adjacent street.

      Several months later, the State offered to dismiss counts one, three, four,

and five of the indictment if defendant agreed to plead guilty to count two,

possession of heroin. The State also stated it would recommend that the trial

judge sentence defendant to a three-year term with no period of parole

ineligibility, and that this term should be concurrent to an anticipated custodial

sentence defendant expected to receive in Monmouth County on unrelated

offenses. Defendant agreed to this proposal, and defense counsel withdrew the

suppression motion. The judge thereafter sentenced defendant in accordance

with his negotiated plea.




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      Defendant filed a timely petition for PCR. Defendant argued that his plea

attorney provided ineffective assistance by failing to properly investigate his

case. In support of this assertion, defendant retained an investigator who took

photographs from various locations he personally selected into the alley. From

the vantage points the investigator chose, he stated he could not see into the

alley. Defendant claimed that if his plea attorney had hired an investigator prior

to his plea to take similar photographs, defendant would not have withdrawn his

motion to suppress and, instead, could have proven that the Troopers had

fabricated their claims that they observed him engage in a drug transaction while

in the alley.

      In a thorough oral opinion, Judge Michael Petrolle considered defendant's

assertion and denied his petition. The judge concluded that defendant failed to

satisfy the two-prong test of Strickland v. Washington,  466 U.S. 668, 687

(1984), which requires a showing that a defendant's performance was deficient

and that, but for the deficient performance, the result would have been different.

      Judge Petrolle observed that defendant's attorney filed a motion to

suppress the heroin, but defendant then decided to accept the State's plea offer.

Under those circumstances, the judge found that defense counsel "did all that

the attorney would be expected to do in the circumstances in light of . . .


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defendant's decision not to proceed with the motion, [and instead] to plead

guilty[.]"

      In addition, the judge noted that defendant did not produce a certification

from the investigator "as to what he could see or couldn't see. All we have is

photographs from that person." 3 The judge concluded that the photographs were

"not in any way dispositive of what an officer saw or said he saw in his report[,]"

because there was nothing from the investigator to indicate where he was when

he took the photographs. In short, defendant produced no evidence that the

investigator took the pictures from the same surveillance locations the Troopers

used on the date of defendant's offenses. The judge found that an evidentiary

hearing was not necessary because defendant failed to prove a prima facie case

of ineffective assistance.

      Defendant thereafter filed a motion for reconsideration. In support of this

motion, defendant produced a written memo, but not a certification or affidavit,

from the investigator. This memo did not identify the specific locations the

investigator used to take the photographs, and merely asserted that he was "not




3
  The parties did not provide us with these photographs with their appellate
submissions, but later did so at our request.
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sure how the police were able to see around the corner . . . to see a drug deal

take place."

      After oral argument, Judge Petrolle denied defendant's motion for

reconsideration. In denying the motion, the judge explained:

                     [I]t appears to me that these photographs are
               photographs from vantage points that the investigator,
               whom I know to be a very fine investigator and a[n]
               experienced police officer, are vantage points for
               photographing that he chose to take. But they're not the
               same vantage points that – or the points that the State
               Police had.

                      It appears to me, from reading the report, that
               there was more than one vantage point. And with the
               detail that the police, the State Police Officer supplied
               as to actions and dress, apparel, each individual
               involved participating, it – there's no way that the . . .
               investigator could know where the officers, who were
               the State Police Investigating Officers, made their
               observations from.

                      And what we have is . . . a really an effort at . . .
               and I don't mean to be facetious or insulting, but an
               effort at . . . trying to set up a straw person that the
               defense can then argue against.

                     The defense is supplying the vantage points that
               they say the police couldn't see from. They're not in
               any way establishing a challenge to the vantage points
               the police did see from. And this is an after the fact
               challenge to credibility purely based on speculation.

This appeal followed.


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      On appeal, defendant presents the following contentions:

            POINT I

            AS DEFENSE COUNSEL FAILED TO PROPERLY
            INVESTIGATE THE CASE, DEFENDANT'S
            GUILTY PLEA WAS NOT KNOWINGLY,
            VOLUNTARILY, AND INTELLIGENTLY MADE.

            POINT II

            THE PCR COURT WAS WRONG WHEN IT DENIED
            DEFENDANT'S         MOTION         FOR
            RECONSIDERATION.

            POINT III

            AS THERE WAS A GENUINE DISPUTE OF
            MATERIAL FACTS, AN EVIDENTIARY HEARING
            WAS REQUIRED.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash,  212 N.J. 518, 541 (2013); State v. Preciose,  129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell,  126 N.J. 565, 579 (1992).

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel."         State v.

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Cummings,  321 N.J. Super. 154, 170 (App. Div. 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.

Preciose,  129 N.J. at 462.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland,  466 U.S.  at 687; State v. Fritz,  105 N.J. 42, 58 (1987). The

United States Supreme Court has extended these principles to a criminal defense

attorney's representation of an accused in connection with a plea negotiation.

Lafler v. Cooper,  566 U.S. 156, 162-63 (2012); Missouri v. Frye,  566 U.S. 134,

143-44 (2012).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland,  466 U.S.  at 690. Further, because prejudice is not

presumed, Fritz,  105 N.J. at 52, the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic,  466 U.S. 648, 659 n.26 (1984).




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      We have considered defendant's 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 expressed by Judge Petrolle in his well-reasoned

written opinion, and add the following brief comments.

      The record amply supports Judge Petrolle's determination that defendant's

plea attorney did not provide defendant with ineffective assistance. The attorne y

filed a motion to suppress, raising the same allegation as defendant raised in his

PCR petition. Rather than pursue that motion, defendant decided to accept the

State's offer, negotiated by his attorney, to dismiss four of the five counts of the

complaint in return for a recommended sentence that would run concurrent to a

sentence defendant was about to receive in another county.

      Contrary to defendant's claim in his motion for reconsideration, the

investigator's memo added nothing to defendant's assertion that he would have

been able to establish that the Troopers' claims that they saw defendant in the

alley were not credible. Reconsideration should only be granted in "those cases

which fall into that narrow corridor in which either 1) the [c]ourt has expressed

its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance


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of probative, competent evidence[.]" Cummings v. Bahr,  295 N.J. Super. 374,

384 (App. Div. 1996) (quoting D’Atria v. D’Atria,  242 N.J. Super. 392, 401-02

(Ch. Div. 1990)). Therefore, we have held that "the magnitude of the error cited

must be a game-changer for reconsideration to be appropriate." Palombi v.

Palombi,  414 N.J. Super. 274, 289 (App. Div. 2010).

      As Judge Petrolle found, the barebones memo was not "a game-changer"

because the investigator did not establish that he took the photographs from the

same surveillance points the Troopers used when they observed defendant. The

investigator also did not submit a certification in support of the memo. State v.

Cummings,  321 N.J. Super. at 170 (stating that a defendant seeking PCR must

present facts "supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification").     Thus, the

judge properly concluded that defendant failed to meet either prong of the

Strickland test and, therefore, he was not required to conduct an evidentiary

hearing on defendant's PCR application. Preciose,  129 N.J. at 462.

      Affirmed.




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