STATE OF NEW JERSEY v. MICHAEL TAFFARO

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3776-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

MICHAEL TAFFARO,

           Defendant-Appellant.


                    Argued December 5, 2018 – Decided February 8, 2019

                    Before Judges Alvarez and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 04-07-1501.

                    Robert H. McGuigan, Designated Counsel, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender, attorney; Robert H. McGuigan, on the brief).

                    Tom Dominic Osadnik, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Dennis Calo, Acting Bergen County
                    Prosecutor, attorney; William P. Miller, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, of
                    counsel and on the brief; Catherine A. Foddai, Legal
                    Assistant, on the brief).
PER CURIAM

      Defendant Michael Taffaro appeals from a March 20, 2017 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

      The circumstances underlying this offense date back to 2004. That year,

an order issued under the Prevention of Domestic Violence Act ,  N.J.S.A.

2C:25-17, restrained defendant from contact with his sister; the two were

embroiled in a probate dispute regarding their parents' estate. A few months

later, defendant's sister alleged he posted an ad on Craigslist purporting to be in

her name soliciting sexual encounters. The ad disclosed the sister's phone

number and address in violation of the order. As a result, defendant was charged

with fourth-degree contempt,  N.J.S.A. 2C:29-9(a).

      The matter was tried three times. The first trial resulted in a conviction

but was reversed by the Supreme Court. State v. Taffaro,  195 N.J. 442 (2008).

The second trial ended in a mistrial.

      A jury convicted defendant at the third trial, presided over by now-retired

Judge Eugene H. Austin. We affirmed on appeal. State v. Taffaro, No. A-1911-

11 (App. Div. Apr. 14, 2014). The Supreme Court denied certification. State v.

Taffaro,  220 N.J. 40 (2014).




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      During in limine motions, defendant sought to move into evidence

recordings he had made of telephone conversations with two acquaintances he

claimed were the guilty parties. Judge Austin ruled that they would not be

admitted unless defendant testified because he was concerned about the

authentication of the recordings. Regardless, the judge allowed defense counsel

to fully cross-examine one of the men, who was a witness at the trial, about the

statements he made during the call which defendant claimed conflicted with his

testimony.

      Defendant's PCR claim of ineffective assistance of counsel rests upon

appellate counsel's alleged failure, on the direct appeal, to properly address the

exclusion of the tape. Judge Christopher R. Kazlau decided the PCR petition,

and found that defendant's claim was barred by Rule 3:22-5, which bars

consideration of issues previously "expressly adjudicated." He further found

that defendant's contentions did not establish a prima facie case such that an

evidentiary hearing was warranted. See R. 3:22-10; State v. Porter,  216 N.J.
 343, 347 (2013).

      On appeal, defendant raises the following points for our consideration:

             POINT I
             THE ERROR OF THE PCR COURT COMPLAINED
             OF IN THE INSTANT ACTION, STEMMED FROM
             THE INITIAL ERROR OF THE TRIAL COURT IN

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            EXCLUDING,    ON   INVALID   GROUNDS,
            EVIDENCE WHICH SHOWS THE TESTIMONY OF
            THE STATE'S SOLE WITNESS TO BE BRAZEN
            PERJURY.

            POINT II
            APPELLANT    WAS    DENIED   EFFECTIVE
            ASSISTANCE OF APPELLATE COUNSEL BY THE
            FAILURE TO RAISE IN A WAY THAT WAS
            EITHER COMPREHENSIVE OR SPECIFIC, THE
            ISSUE OF THE TRIAL-COURT'S ERROR IN
            EXCLUDING THE TRANSCRIPT OF THE TAPED
            CONVERSATIONS.

            POINT III
            IN ITS DENIAL OF APPELLANT'S PCR PETITION,
            WITHOUT EVIDENTIARY HEARING, THE PCR
            COURT COMMITTED PLAIN ERROR BOTH IN ITS
            APPLICATION OF RULE 3:22-5, FINDING THE
            ISSUES RAISED HAD BEEN ADJUDICATED ON
            APPEAL, AND IN ITS APPLICATION OF THE
            STRICKLAND STANDARD, FINDING THAT THE
            CORE ISSUE HAD BEEN EFFECTIVELY RAISED
            BY APPELLATE COUNSEL.

            POINT IV
            ALTERNATIVELY,    ASSUMING    ARGUENDO
            THAT THE PCR COURT WAS CORRECT IN
            FINDING THAT THE ISSUE OF THE TAPE'S
            ERRONEOUS     EXCLUSION     HAD    BEEN
            ADJUDICATED ON ITS MERITS, THE RES
            JUDICATA BAR OF R. 3:22-5 SHOULD BE
            RELAXED, AS ITS APPLICATION RESULTS IN A
            FUNDAMENTAL INJUSTICE.

      Defendant's first three points require little discussion. They all essentially

restate defendant's position that the taped telephone conversation should have

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been admitted, and that its admission would have entirely exonerated him.

Clearly, this issue has been previously addressed.

      Our prior decision affirming the conviction stated that defendant's self-

serving statements on the recording "are not admissible under any exception to

the hearsay rule." (Slip op. at 12). Furthermore,

            the benefit defendant would have gained from
            admission of the recorded statements, he gained
            through [the third party's] testimony. . . . [D]efendant
            developed the defense that [the third party] was
            incredible because he wanted to avoid damaging his
            likelihood of becoming an attorney, or of getting into
            trouble himself. That the jury rejected the theory, and
            convicted defendant, was not the result of the court's
            exclusion of the evidence in the form of the transcripts,
            as the substance was presented to the jury.

            [Id. at 12-13.]

Therefore, Judge Kazlau properly refused to consider this same contention on

PCR, and rejected defendant's thinly veiled reiteration of the argument.

      Defendant further contends that the application of Rule 3:22-5 should be

relaxed in this case in the interest of justice. We simply do not agree. It is clear

that Judge Austin's decision to allow for cross-examination based on the

transcript permitted defendant to develop his third-party culpability defense to

the jury. Thus, no reason at all, much less a compelling reason, has been

presented which would warrant the relaxation of the rule in this case. The

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application of the rule indeed is "not an inflexible command." State v. Franklin,

 184 N.J. 516, 528 (2005). In this case, however, there is nothing in the record

which warrants such relaxation.

      Affirmed.




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