STATE OF NEW JERSEY v. VASILIO KOUTSOGIANNIS
Annotate this CaseNOT 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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3693-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VASILIO KOUTSOGIANNIS,
a/k/a VASILIO KOUTSGIANNIS,
VASILIO KOUTSOGIANNIA,
VASILLIO KOUTSOGIANNIS,
VISILIO KOUTSOGIANNIS,
and VEE,
Defendant-Appellant.
Submitted September 21, 2020 - Decided October 21, 2020
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment Nos. 13-06-1400
and 13-07-1902.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven E. Braun, Designated Counsel, on the
brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; William Kyle Meighan,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Vasilio Koutsogiannis appeals from the denial of his petition
for post-conviction relief (PCR), contending trial and appellate counsel were
ineffective and the PCR court improperly denied his petition without an
evidentiary hearing. We affirm.
In January 2013, defendant was involved in a single-car accident in which
he struck a telephone pole. He was transported to the hospital for medical
treatment. During the transport, an emergency medical technician discovered a
small bag of what would later be identified as marijuana inside defendant's right
boot. The police later recovered this bag of marijuana from the hospital. Later,
while defendant was still being treated, a nursing supervisor found a small
cellophane wrapper inside a pack of cigarettes that contained cocaine. The bag
was also turned over to police.
Defendant was charged in an indictment with a single count of third-
degree possession of a controlled dangerous substance (CDS) in violation of
N.J.S.A. 2C:35-10(a)(1).
A-3693-18T3
2
In March 2013, Tyler Miles contacted the Ocean Township Police
Department and reported he was robbed at gunpoint by two individuals during
a drug transaction which occurred in the assailants' car. Miles provided officers
with a physical description of his assailants, as well as the license plate number
and description of the vehicle. This information led to the arrest of defendant
and his sister.
Thereafter, defendant was charged in a second indictment with: (1) first-
degree robbery in violation of N.J.S.A. 2C:15-1 (count one); (2) second-degree
possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39- -
4(a) (count two); (3) third-degree unlawful possession of a weapon in violation
of N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b) (count three); (4) fourth-degree
aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count four); (5) third-
degree possession of a CDS in violation of N.J.S.A. 2C:35-10(a)(1) (count five);
and (6) second-degree possession of a firearm by a convicted person in violation
of N.J.S.A. 2C:39-7(b) (count six).
On February 6, 2015, defendant pled guilty to count one of the second
indictment, amended to a charge of second-degree robbery. On the same day,
defendant also pled guilty to count one of the first indictment, a charge of third -
degree possession of a CDS. Under the plea agreement, the State sought a
A-3693-18T3
3
sentence of seven years' incarceration, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, for the robbery charge with a concurrent sentence
of four years flat for the CDS charge. The State agreed to dismiss the remaining
charges.
During the plea hearing, the judge advised defendant not to hesitate to ask
the court if he had any questions. Defendant responded that he wished to plead
"no contest" so his plea could not be "used against [him] at any further civil
proceedings." The judge informed defendant that "a no contest plea i s not
available in New Jersey[,]" but defendant might be entitled to have the plea
marked inadmissible in a civil proceeding upon a showing of good cause. The
judge further advised defendant that even if he granted a civil reservation, "the
factual basis and the information that is provided in discovery . . . will be
available" in a civil suit.
Defendant told the judge he was a plaintiff in a civil suit alleging claims
against the police officers who arrested him in connection with the robbery
charges and he wanted to prevent his guilty plea from being used against him as
a defense. The judge stated he would rule on defendant's request at the
sentencing hearing. The judge permitted defendant to submit a letter brief
before sentencing to demonstrate good cause for the civil reservation.
A-3693-18T3
4
The plea judge asked defendant if he understood the plea bargain.
Defendant indicated that he understood the charges to which he was pleading
guilty, as well as the sentence he was likely to receive. Defendant also ass erted
that no further promises were made to persuade him to plead guilty and that no
one forced, threatened, or otherwise coerced his guilty plea. The judge then
directed plea counsel to elicit a factual basis for defendant's plea.
The following colloquy took place during the discussion of the CDS
charge:
[PLEA COUNSEL]: And on that date you were in
possession of a controlled dangerous substance, what
they call a CDS, correct?
[DEFENDANT]: Correct.
[PLEA COUNSEL]: Namely, that CDS being cocaine,
correct?
[DEFENDANT]: Correct.
[PLEA COUNSEL]: And you understand that that
Schedule II drug is illegal to possess correct?
[DEFENDANT]: Correct.
When plea counsel asked defendant if he wished to plead guilty to
possession of the cocaine, defendant responded:
What was -- I mean, to be honest with the Court, I don't
recollect anything after that car accident. But they
A-3693-18T3
5
claim to have found a very small amount of some type
of substance on me. And I've had no opportunity really
to go into this case. I wasn't presented with anything.
It was -- everything was focused on, you know, another
indictment. And at the last second this got brought to
my attention. So I've done no -- From my recollection
and from what I understand, they found a small amount
of CDS in the vehicle after the car accident. I was in
trauma for a week. I don't remember barely any of that
incident. And they claim to have found it. So if indeed
they found it in the vehicle, it may have been there. I'm
not disputing the fact.
Plea counsel reaffirmed the voluntary nature of the plea and again asked
defendant, "you are in fact pleading guilty to possession of the cocaine on
[January 6, 2013] within the Township, correct?" Defendant responded
affirmatively.
The plea judge asked defendant whether he had the opportunity to review
discovery related to the CDS charge. Defendant asserted he had reviewed only
"partial discovery." The judge then asked counsel if he had provided defendant
with all of the discovery and discussed it with him. Counsel responded that he
had forwarded all of the discovery to defendant and met with him in the jail on
several occasions to discuss the investigation and discovery materials on all of
the charges.
Thereafter, defendant confirmed he had received the discovery and had
the opportunity to review it, stating "I was -- I was provided, yes. with this –
A-3693-18T3
6
information. . . ." Defendant indicated he was under the impression that the
CDS charge was going to be dismissed and therefore did not "channel all [his]
energy and resource into it."
The judge advised he would not accept a guilty plea until defendant had
an opportunity to review discovery, understood what he was pleading guilty to,
and asked his attorney questions. Defendant said he only had "one major issue"
relating to the CDS charge:
[DEFENDANT]: Because, due to -- due to the fact that
I was just in a serious accident and I was unconscious,
there's -- from what I was told and from what I
understand, they found this substance in the vehicle and
it changed hands three different times before it made its
way to the police officer. And I'm not -- I'm not 100
[percent] sure of, you know, who touched it; who did
what. It's not available in the discovery. Which is really
the only issue I have --
The judge characterized this as a "chain of custody issue" and informed
defendant that such issues are generally resolved by juries rather than courts.
The judge told defendant that he needed to ensure his counsel had reviewed the
discovery with him and discussed all possible defenses and suppression issues
before entering a guilty plea.
The judge stated further:
Although you may not have [a] specific recollection
because of the accident, you don't dispute the
A-3693-18T3
7
discovery, you don't dispute that there was cocaine in
the car, that they could have found it in the car. Those
are the things that I'm interested in hearing from you.
Even though you don't have [a] specific recollection,
it's not unusual that people have accidents who are
involved in situations where they don't have specific
recollection but they don't dispute the discovery. They
recognize that there may have been cocaine in your case
or cocaine in the car and they don't dispute that they
found it.
But I want to make sure that you have all the questions
that you have, you have them answered before you
enter a guilty plea today.
Defendant confirmed he was not disputing that there was cocaine in his
car and it was found by the police, stating:
[DEFENDANT]: I don't -- Your Honor, I don't dispute
the fact it was -- that there was -- I mean -- there was -
- we went to Atlantic City on New Year's and there may
have been -- there was a bunch of people in the car,
there may have been. I'm not disputing the fact that I
was in there.
THE COURT: Okay. At one point you were aware that
there was cocaine in the car and you had ability to
access control over it. You just weren't aware at that
night that it may still have been in your car?
[DEFENDANT]: Right.
THE COURT: Is that what you're saying?
[DEFENDANT]: Right.
A-3693-18T3
8
THE COURT: And you don't dispute the discovery that
indicates that they found the cocaine in the car? You
don't dispute that either?
[DEFENDANT]: No, I don't dispute that.
THE COURT: Okay. So having said that, you wish to
plead guilty to that charge?
[DEFENDANT]: Yes.
THE COURT: And you are pleading guilty because you
are guilty?
[DEFENDANT]: Right.
After defendant established a factual basis for the robbery charge, 1 he
raised again the issue of obtaining a civil reservation. The judge reiterated that
he would decide the issue at sentencing and inquired of defendant whether the
civil reservation was essential to his plea. Defendant responded that the
outcome of the civil reservation request did not affect his desire to plead guilty
to the robbery charge. Plea counsel further clarified defendant's position when
questioned by the judge:
THE COURT: All right. I just wanted to make sure that
it was clear. What I'm understanding is he is pleading
guilty to the charge. He wants a civil reservation. But
it's -- he'll rely on whatever I decide as far as the law,
won't affect his guilty plea, correct?
1
Defendant does not challenge his plea to the robbery charge.
A-3693-18T3
9
[PLEA COUNSEL]: Correct.
At the conclusion of the plea hearing, the judge found there was a factual
basis to accept the plea and that "defendant had freely, knowingly, and
voluntarily given up his right to trial."
In July 2015, defendant appeared before a different judge for sentencing.
Defendant reaffirmed his guilty pleas and advised the court that the plea judge
intended to address the civil reservation at sentencing. The court then sentenced
defendant to five years in prison subject to NERA for the second-degree robbery
charge and four years in prison for the third-degree CDS charge, to run
concurrent with the first sentence.
Prior to the conclusion of the sentencing hearing, the judge asked
defendant, "do you have any questions about your sentence, about your pleas in
this case or about anything about the case?" Defendant responded, "I think it 's
just going to be addressed on appeal, Your Honor. I don't want to cause any
more confusion."
In his direct appeal, defendant only challenged his plea on the robbery
charge. We affirmed his convictions and sentence. State v. Koutsogiannis, No.
A-5772-14 (App. Div. June 8, 2017) (slip op. at 2).
A-3693-18T3
10
In defendant's PCR petition, he raised the following arguments: (1) there
was an insufficient factual basis to support his guilty plea for the CDS charge
and plea counsel was ineffective for failing to review discovery and discuss
possible defenses with defendant; (2) defendant was deprived of effective
assistance of appellate counsel because counsel failed to raise the issue of an
insufficient factual basis to support the CDS charge; and (3) the court must
amend defendant's judgment of conviction to include a civil reservation.
After entertaining oral argument on the petition, the PCR judge requested
defense counsel provide him with the reasons for defendant's request for a civil
reservation and the status of the civil litigation.
On January 23, 2019, the PCR court issued an order and written opinion
denying defendant's petition for PCR. In addressing defendant's assertion that
his plea lacked an adequate factual basis, the PCR court found the claim was
procedurally barred because defendant failed to raise it on direct appeal. In
addition, defendant did not claim he was innocent on the CDS possession charge
and therefore allegations of an insufficient factual basis alone were not enough
to invalidate his conviction.
Furthermore, the judge found the ineffective assistance of plea counsel
claim meritless because there was a factual basis established for the plea.
A-3693-18T3
11
Defendant admitted possessing cocaine when questioned at the plea hearing ,
which established the elements of possession of a CDS. His contention in the
PCR petition that the cocaine was found on his person also established a factual
basis for the possession of CDS.
The PCR court also rejected defendant's argument that appellate counsel
was ineffective for failing to assert there was an insufficient factual basis to
support the CDS charge. The judge noted the record did not reflect that
defendant provided a certification or affidavit directing appellate counsel to
raise the argument on appeal. Moreover, defendant submitted a pro se appellate
brief in which he only raised arguments related to his robbery conviction,
including an argument that the robbery plea lacked a sufficient factual basis.
The judge stated, "[a]ppellate counsel could not have been expected to raise a
claim on the CDS indictment absent some specific direction or request by
petitioner to do so, especially because the issue was not apparent on the record."
The judge concluded that defendant failed to demonstrate appellate counsel's
representation was deficient and if the argument had been raised on direct
appeal, whether the outcome would have been different.
In considering defendant's argument that trial counsel was ineffective for
failing to request a civil reservation, the PCR court found the argument was
A-3693-18T3
12
procedurally barred because it should have been raised on direct appeal.
Nevertheless, the court addressed and rejected the claim. The court noted Rule
3:9-2 required a showing of good cause for the grant of a civil reservation.
The PCR court found defendant had not shown good cause. In a
supplemental certification submitted to the PCR court, defense counsel informed
the court that defendant had a civil rights claim pending against various police
officers. But the certification failed to explain why defendant needed the civil
reservation, the nature of defendant's claims, and whether the police officer
defendants were seeking to use defendant's judgment of conviction against him.
In addition, defendant did not provide his own certification to demonstrate there
was good cause for the civil reservation. Therefore, the judge determined
defendant had not established good cause for a civil reservation. The PCR
petition was denied.
On appeal, defendant raises the follow points:
I. THE DENIAL OF POST-CONVICTION
RELIEF MUST BE REVERSED BECAUSE THERE
WAS AN INSUFFICIENT FACTUAL BASIS TO
SUPPORT THE GUILTY PLEA FOR THE
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE CHARGE
II. DEFENDANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL DUE TO COUNSEL'S FAILURE TO
A-3693-18T3
13
RAISE THE ISSUE OF AN INSUFFICIENT
FACTUAL BASIS TO SUPPORT THE
CONTROLLED DANGEROUS SUBSTANCE
CHARGE
III. THIS COURT MUST REMAND THE MATTER
TO ALLOW THE LAW DIVISION TO AMEND THE
JUDGMENT OF CONVICTION TO INCLUDE A
CIVIL RESERVATION AS TO THE CONTROLLED
DANGEROUS SUBSTANCE CHARGE
The standard for determining whether trial counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668, 687 (1984) and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-pronged test establishing
both that: l) counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment to the United States Constitution; and 2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.
We are satisfied from our review of the record that defendant failed to
demonstrate trial counsel was ineffective under the Strickland-Fritz test. We
A-3693-18T3
14
affirm substantially for the reasons expressed in the PCR court's comprehensive
opinion. We add only the following comments.
Defendant admitted to the plea court that he was provided with discovery
from trial counsel. He did not dispute his counsel's representation that they met
several times to discuss the discovery and answer any of defendant's questions.
He advised the court he was pleading guilty knowingly and willingly.
Defendant's choice to focus his attention on a charge in another indictment does
not support his contention that trial counsel was deficient in his representation.
Furthermore, defendant did not demonstrate how additional time to review
discovery would have changed the outcome. He asserted to the plea judge
several times that he wanted to accept the plea deal. And he received a favorable
plea deal on the two charges.
There is no merit to defendant's contention that trial counsel and appellate
counsel were deficient in not raising the issue of the sufficiency of the factual
basis to support the CDS plea. As the PCR judge noted, defendant admitted
during the plea hearing that he had cocaine in his possession, thus satisfying the
elements of possession of a CDS. Therefore, as the contention lacks merit,
defendant has not established appellate counsel was ineffective in failing to raise
the issue on the direct appeal.
A-3693-18T3
15
We also are satisfied defendant has not shown good cause for the grant of
a civil reservation under Rule 3:9-2. As we have stated, "The purpose of [Rule
3:9-2] is to avoid an unnecessary criminal trial of a defendant who fears that a
civil claimant will later use [the defendant's] plea of guilty as a devastating
admission of civil liability." Stone v. Police Dep't of Keyport, 191 N.J. Super.
554, 558 (App. Div. 1983) (emphasis added).
Here, defendant seeks to suppress the use of his guilty plea for a civil suit
in which he is the plaintiff. He did not provide a certification to the PCR court
to enlighten the court as to the need for the reservation nor did he indicate any
party sought to use the guilty plea against him in the suit. The PCR court's
denial of the civil reservation is supported by the evidence. Therefore,
defendant has not established trial counsel was deficient in not pursuing the
issue during the sentencing hearing.
Because defendant has not demonstrated a prima facie case of ineffective
assistance of counsel, he was not entitled to an evidentiary hearing.
Affirmed.
A-3693-18T3
16
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
