STATE OF NEW JERSEY v. ANDRE A. DEMELO

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0830-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

ANDRE A. DEMELO,

Defendant-Appellant.

Argued December 16, 2020 – Decided January 12, 2021

Before Judges Fuentes, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 12-11-2782.

James H. Maynard argued the cause for appellant.

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

PER CURIAM
Following an evidentiary hearing, defendant Andre A. DeMelo appeals

from: (1) a September 24, 2019 order denying his petition for post-conviction

relief (PCR) that intertwined ineffective assistance of counsel claims with a

request to vacate his guilty plea; and (2) a July 19, 2019 order denying his

motion to compel post-conviction discovery. The crux of defendant's

contentions on appeal is that his plea counsel failed to investigate various

possible defenses, thereby warranting withdrawal of his guilty plea. We

disagree and affirm substantially for the reasons expressed by Judge John Zunic

in his comprehensive written decisions that accompanied the orders under

review.

The underlying facts are straightforward; the post-conviction procedural

history is protracted. Because both aspects of this appeal are well known to the

parties and accurately detailed in Judge Zunic's decisions, we highlight only

those facts and events that are pertinent to our analysis.

In November 2011, while searching the internet for persons who received

or transmitted child pornography, detectives assigned to the Cyber Crime -Tech

Services Unit of the Essex County Prosecutor's Office (ECPO) identified

defendant's residence as a source of child pornography files. On November 15,

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2011, between 9:08 a.m. and 9:57 a.m., an ECPO detective utilized the peer-to-

peer file sharing network, Gnutella, and downloaded one file from defendant's

computer. That file entitled, "(Pthe) Toddler – child 5yo sofie.mpg," depicted

an adult male and "a naked prepubescent girl under the age of sixteen" engaged

in penile-vaginal penetration.

On January 31, 2012, ECPO detectives executed a search warrant at

defendant's home and seized three computers, including an HP laptop that

contained child pornography. After waiving his Miranda1 rights, defendant told

the detectives he lived at the residence with his mother and stepfather, but

defendant was the only person who used his HP laptop. Defendant also admitted

he accessed the file-sharing program, LimeWire, to download and view child

pornography. Claiming he disabled the sharing function in his LimeWire

program, defendant said he never "share[d]" files.

Later that year, defendant was charged in a two-count Essex County

indictment with second-degree endangering the welfare of a child (EWC) by

distributing child pornography, N.J.S.A. 2C:24-4(b)(5)(a) (count one), and

fourth-degree EWC for possessing child pornography, N.J.S.A. 2C:24-

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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4(b)(5)(b) (count two). In May 2013, defendant entered a negotiated guilty plea

to count one.

During his plea hearing, defendant admitted he "offer[ed] – or pre-

offer[ed] through . . . a video file-sharing program – certain photographs, films

and videotapes" one of which "depicted a child younger than the age of sixteen

engaged in prohibited sexual acts." Defendant further acknowledged "by

knowingly offered, [he] mean[t] [he] knew that others could obtain those videos

and photos from [him]." Defendant told the judge he was satisfied with plea

counsel's advice, had reviewed all the questions and his answers to the plea form

with his attorney, and those answers were truthful.

Another judge sentenced defendant within the third-degree range to a

three-year prison term and dismissed count two of the indictment pursuant to

the plea agreement. Defendant also was required to register as a sex-offender

under Megan's Law. 2

Defendant did not file a direct appeal. In January 2016 – more than two

years after his August 2013 sentence – defendant retained PCR counsel "to

determine whether he had a plausible [PCR] claim." The ECPO denied PCR

2
At the time he entered his guilty plea, defendant neither was required to submit
to an evaluation at the Adult Diagnostic and Treatment Center nor was subject
to parole supervision for life.
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counsel's request for all discovery related to defendant's case. Judge Zunic , who

had not conducted the plea or sentencing proceedings, issued an oral decision

denying defendant's ensuing motion for post-conviction discovery. We

affirmed, concluding the judge did not abuse his discretion in denying

defendant's "generalized" request. State v. DeMelo, No. A-3903-15 (App. Div.

May 22, 2017) (slip op. at 7). The Supreme Court denied certification. 231 N.J.
323 (2017).

Thereafter, PCR counsel timely filed defendant's initial verified petition

for PCR,3 and twice amended the petition. Filed four days before the scheduled

evidentiary hearing, defendant's second amended petition was accompanied by

another motion to compel discovery. Defendant sought the identity of the

software and source code utilized by the Cyber Unit detectives, and another

inspection of his computer. Notably, the State had previously permitted

examination of defendant's computer by Tino Kyprianou, one of defendant's

three forensic experts.

In his second-amended PCR petition, defendant claimed plea counsel

misadvised him about the "mens rea element" of the crime charged in count one;

"failed to investigate whether a computer forensic expert analysis was required

3
Defendant's initial petition was not provided on appeal.
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to establish a defense to the distribution of child pornography charge"; "failed

to investigate and assert an alibi defense;" and, as such, plea counsel ignored

defendant's "repeated denial that he had shared child pornographic files."

Asserting "a colorable claim of innocence," defendant also requested that the

PCR judge consider his application as a motion to withdraw his plea.

Denying defendant's request to adjourn the evidentiary hearing "prior to

completing all of the forensic work," Judge Zunic commenced the hearing on

June 18, 2019 and carried the discovery motion to afford the State the

opportunity to respond. Defendant presented the testimony of his former

attorney and testified on his own behalf. Defendant also introduced in evidence

six documents, including his paystubs for the month of November 2011.

Plea counsel testified he was familiar with our decision in State v. Lyons,

417 NJ. Super. 251 (App. Div. 2010),4 addressing the distribution of child

pornography under the child pornography statute in effect at the time of

4
In Lyons, we analyzed the various amendments to N.J.S.A. 2C:24-4(b)(5)(a),
and found they "evince[d] a clear legislative intent to prohibit 'any means' of
dissemination of child pornography, specifically including over the [i]nternet
and specifically including computer 'files' containing such materials." Id. at 262.
"Consider[ing] . . . the terms in the statute in light of these legislative
initiatives[,]" we concluded "the terms should be construed very broadly." Ibid.
We noted the "[d]efendant used the modern technology of computers and the
[i]nternet, with a file sharing network, to provide and offer child pornography
he possessed in his shared folder." Ibid.
A-0830-19T4
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defendant's arrest. After reviewing discovery, plea counsel determined

defendant had no defense to that charge. Plea counsel explained that had

defendant disabled the shared function as he had claimed, the Cyber Unit

detectives "would never have been able to download files" using defendant's

LimeWire. Further, defendant provided "no other possibilities for defenses" and

never said he was not home when the file at issue was downloaded. Plea counsel

testified he "would never have a client plead guilty, if they [we]re in fact not

guilty."

Plea counsel further testified he would not have hired a forensic computer

expert in this case, even "[i]n retrospect." Noting his office handles "a lot of

child pornography cases" and no issues concerning the sharing or downloading

of files over LimeWire or "other programs" have arisen, plea counsel maintained

an expert was unnecessary.

Defendant's testimony contradicted his prior statements to the Cyber Unit

detectives. For example, defendant testified his stepfather had used his

computer, which was not password protected. Defendant acknowledged he told

the detectives "[n]o one else use[d] [his computers]," but testified that he meant

"while [he] was home." He claimed he did not make that distinction when

questioned by detectives because he "had just woken up."

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Defendant maintained he never "put any files into th[e] public-shared

folder," and disabled the sharing function on LimeWire "every time" he used the

computer because he "did not want to . . . share any files." He said he was

working in New York City when the file at issue was downloaded. Defendant

claimed he "lied" at his plea hearing "when [he] said [he] shared or distributed

child . . . pornography" because plea counsel "told [him] that [he] had to say yes

to be able to get that plea deal." But when asked on cross-examination what he

felt he "had to gain by lying[,] knowing that it would send [him] to prison for

three years[,]" defendant responded: "What I had to gain was not going to jail

for five to ten years."

At the conclusion of defendant's testimony, PCR counsel indicated he

anticipated calling two forensic expert witnesses and reserved his "right to recall

witnesses based on further discovery or further investigation." Accordingly, the

judge adjourned the hearing.

II.

A. Motion to Compel Post-Indictment Discovery

Following argument on July 15, 2019, Judge Zunic reserved decision and

thereafter issued a cogent written decision that accompanied the July 19, 2019

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order, denying defendant's motion to compel post-conviction discovery. Citing

State v. Marshall, 148 N.J. 89 (1997), the PCR judge correctly recognized

our Supreme Court noted that the relevant court rules
for PCR proceedings do not authorize discovery.
However, the decision [in Marshall] also noted courts
have in PCR proceedings, the "'inherent power to order
discovery when justice so requires.'" Id. at 269
(quoting State ex rel. W.C., 85 N.J. 218[, 221] (1981)).
The [Court's] opinion expected trial courts to [grant
post-conviction discovery] only in the "unusual" PCR
case and only on a showing of "good cause" and
relevance to "defendant's case." The Court also noted:
"PCR 'is not a device for investigating possible claims,
but a means for vindicating actual claims.'" Id. at 270
(quoting People v. Gonzalez, . . . 800 P.2d 1159, 1206
(Cal. 1990) . . . ).

Addressing the procedural posture of the matter, including our affirmance

of defendant's first motion to compel post-conviction discovery, the PCR judge

described defendant's present motion as "precisely the proverbial 'fishing

expedition' frowned upon by Marshall." Noting the absence of any New Jersey

caselaw on point, the judge recognized no federal court has permitted the

production of the particular software at issue or other "similar software utilized

by law enforcement, even in post-indictment settings." The judge thoroughly

considered the cases cited by defendant and found defendant's experts failed to

"provide[] any proof that the programs or software[] used in this case

malfunctioned or were prone to malfunction." Nor did defendant demonstrate

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the Cyber Unit detectives "downloaded only fragments of child pornography

from his computer." Cf. U.S. v. Budziak, 697 F.3d 1105, 1112 (9th Cir. 2012).

The PCR judge further observed defendant failed to cite any cases

requiring production of the Gnutella program or its source code "in a post-

conviction proceeding." The judge correctly distinguished the Court's decision

in State v. Chun, 194 N.J. 54 (2008) and our decision in State v. Behn, 375 N.J.

Super. 409 (App. Div. 2005), neither of which decided applications for post-

conviction discovery.

The judge elaborated:

In short, [defendant] has not cast even a slight
doubt upon the fact that law enforcement was able to
download the subject video from his computer. In fact,
his experts acknowledge, or at least do not dispute, that
the file was downloaded. Mr. Kyprianou, in his
unsworn and unsigned report, essentially confirms the
file was downloaded but he wanted to further examine
the computer image in an "attempt to establish what
happened that day and why the investigator was able to
download this one file" Apparently he was given that
opportunity but issued no follow-up report. This
unsupported hunt for a possible plausible claim by
[defendant] is further confirmed by [PCR counsel]'s
correspondence to the [c]ourt dated May 2, 2018, which
states [defendant] sought access to the computer hard
drives "in order to prove or disprove" his claim of
disabling the file-sharing feature.

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Further, the judge found defendant's argument "that there may be

something wrong with the programs and software" utilized by the Cyber Unit

detectives contradicted defendant's assertion that "perhaps his stepfather turned

on the file-sharing feature while [defendant] was at work." Because "the file-

sharing feature was activated[,]" the judge found defendant's admissions

"confirm[ed] that nothing was wrong with the program or software."

Accordingly, Judge Zunic denied defendant's motion and the parties thereafter

declined the judge's invitation to present additional witnesses.

B. Application to Withdraw Guilty Plea and for PCR on Ineffective
Assistance of Counsel Grounds

In his thirty-four-page written decision that accompanied the September

24, 2019 order, Judge Zunic thoroughly reviewed the factual background and

procedural history of the case, made detailed factual and credibility findings

from the testimony elicited at the evidentiary hearing, analyzed the issues raised

by the parties, and comprehensively applied the applicable legal principles. In

doing so, the judge squarely addressed the separate, although sometimes

overlapping tests that govern withdrawal of guilty pleas and PCR claims

challenging a defense attorney's effectiveness. See State v. O'Donnell, 435 N.J.

Super. 351, 368 (App. Div. 2014).

A-0830-19T4
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In evaluating the credibility of the witnesses, the PCR judge described

plea counsel's testimony as "very credible," ascribing "great weight" to his

testimony. According to the judge, plea counsel

spoke clearly with a calm demeanor, which was
consistent on direct examination as well as on cross-
examination. He maintained good eye contact with
everyone and did not avoid answering any questions.
He was also unemotional, professional and showed no
interest or bias in the case. Despite the questioning of
his representation, [plea] [c]ounsel did not take on a
defensive tone or posture. When he did not know an
answer or was unsure, he so indicated. He also had
significant recollection of events in this case despite the
passage of time (approximately six years), and set forth
[his] experience in defending such cases even when
questioned as to relevant case law.

By contrast, the PCR judge "did not find [defendant] credible at all."

Referencing defendant's various statements, the judge found defendant's "sworn

PCR hearing testimony clearly contradicted his sworn plea testimony[,] . . . his

statement to detectives at the time of his arrest," and his "certifications in

support of his present petition for PCR." Accordingly, the judge "simply c[ould]

not tell which version, if any [wa]s 'the truth.'"

Regarding defendant's request to vacate his guilty plea, the judge

determined defendant failed to satisfy the "manifest injustice" standard under

Rule 3:21-1 that "governs the withdrawal of guilty pleas . . . subsequent to

A-0830-19T4
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sentencing." The judge then methodically evaluated the applicable factors

enunciated by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009): "(1)

whether the defendant has asserted a colorable claim of innocence; (2) the nature

and strength of defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal [will] result in unfair prejudice to the State

or unfair advantage to the accused."

Judge Zunic separately considered defendant's ineffective assistance of

counsel claims, concluding defendant failed to demonstrate by a preponderance

of the credible evidence that plea counsel's performance fell below the objective

standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

49-53 (1987), or that defendant was prejudiced as required under the second

prong of the Strickland/Fritz test. In doing so, the judge rejected defendant's

argument that plea counsel failed to properly investigate his contradictory

defenses.

As to both applications, the PCR judge cited his credibility findings. For

example, as to the first Slater factor, the judge found defendant provided nothing

more than "bald assertions" thereby "fail[ing] to allege specific, credible facts"

to support a "colorable claim of innocence." Citing defendant's testimony, the

A-0830-19T4
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judge found defendant failed to support his claim that he was working when the

Cyber Unit downloaded the child pornography file, or that his stepfather "turned

on [defendant's] computer, accessed LimeWire, and enabled file sharing."

Indeed, the judge noted defendant "never provided the name of his stepfather

during his testimony or [in] his submitted certifications" for PCR.

Similarly, the judge found defendant failed to support his ineffective

assistance of counsel claims. The judge detailed one notable example:

[Defendant] at no point submitted any documents
tending to prove he was at work on the date and time
the [ECPO] downloaded the file. The [paystubs] he did
provide . . . did not list hours or days worked, or even
location. Petitioner also did not submit any statements
or proffer any testimony by his stepfather that he was
home on the same date, had in fact used or knew how
to use [defendant]'s laptop, opened LimeWire, and/or
enabled file sharing. [Defendant] noted during his
testimony that after leaving state prison, his stepfather
was still around. If so, it strains credulity that
[defendant] made no attempt to contact his stepfather
either after his arrest or after his release from prison.
[Defendant] also did not provide his stepfather's name
during his testimony or his several certifications and
briefs. In addition, he never testified as to the computer
skills, or lack thereof, of his stepfather.

Similarly, [defendant] never told law
enforcement about the potential stepfather/alibi
defense. Given the credibility findings above, the
[c]ourt also concludes he never advised [plea] [c]ounsel
of the potential defense. Moreover, the State played his
audio statement to law enforcement [at the hearing]

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where on two separate occasions he said no one else
used his laptop.

Cumulatively, [defendant]'s lack of credibility
shows [he] has failed to prove that [plea] [c]ounsel
ignored his potential defenses, and thus was not
ineffective in his representation. Moreover, because
[defendant] did not tell [plea] [c]ounsel that his
stepfather used his laptop, or that he was at work at the
time, proves [defendant] in fact had no defense to the
distribution of child pornography charge, not but for
[plea] [c]ounsel's alleged misrepresentation, but rather,
for the unavailability of such a defense.

Finally, the PCR judge correctly applied the reasoning of our decision in

Lyons, 417 NJ. Super. 251 (2010), to reject defendant's contention that plea

counsel erroneously advised defendant he had no defense to the child

distribution charge. As the PCR judge observed, in Lyons we determined "the

defendant was aware that LimeWire's shared folder made anything in the folder

available to others." See id. at 263. Although defendant claimed he disabled

the sharing function, Cyber Unit detectives downloaded the file containing child

pornography on November 15, 2011. And, as the judge observed, def endant

offered no evidence to support his alternate theories that the file was not

downloaded or that he was not home when it was downloaded.

On appeal, defendant raises the following overlapping points for our

consideration:

A-0830-19T4
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POINT I

[DEFENDANT] ESTABLISHED GOOD CAUSE IN
SUPPORT OF HIS MOTION TO COMPEL
DISCOVERY WHICH WAS NECESSARY IN THE
INTERESTS OF JUSTICE, AND THE PCR COURT'S
DENIAL OF THE MOTION WAS AN ABUSE OF
DISCRETION.

A. [DEFENDANT] ESTABLISHED GOOD CAUSE
FOR REQUESTING DISCOVERY OF THE
STATE'S SOFTWARE USED TO ACCESS
[DEFENDANT]'S COMPUTER.

B. [DEFENDANT] WAS NOT ENGAGED IN A
"FISHING EXPEDITION" FOR EVIDENCE, BUT
MADE SPECIFIC REQUESTS FOR MATERIAL
EVIDENCE CRITICAL TO HIS DEFENSE.

C. THE PCR COURT MISCHARACTERIZED THE
CASE LAW RELIED UPON BY . . .
[DEFENDANT] AND FAILED TO APPLY A
FUNDAMENTAL RULE OF LAW PRECLUDING
THE STATE FROM OBTAINING A
CONVICTION WITH "SECRET EVIDENCE."

POINT II

THE PCR COURT ABUSED ITS DISCRETION AND
MISAPPLIED THE LAW BY DENYING
[DEFENDANT]'S PCR PETITION, WHERE [PLEA]
COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE BY ERRONEOUSLY ADVISING
[DEFENDANT] AS TO THE KNOWLEDGE
ELEMENT OF THE DISTRIBUTION OF CHILD
PORNOGRAPHY CHARGE.

A. [DEFENDANT] ESTABLISHED A CLEAR CASE

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OF INEFFECTIVE ASSISTANCE OF COUNSEL
BASED ON [PLEA] COUNSEL'S
MISUNDERSTANDING OF THE ELEMENTS OF
THE CHILD PORNOGRAPHY DISTRIBUTION
STATUTE.

B. [PLEA] COUNSEL'S DEFICIENT
PERFORMANCE PREJUDICED [DEFENDANT]
BECAUSE, BUT FOR COUNSEL'S ERRONEOUS
ADVICE, [DEFENDANT] WOULD HAVE
MAINTAINED HIS INNOCENCE ON THE
DISTRIBUTION CHARGE AND PROCEEDED
TO TRIAL.

C. THE PCR COURT'S CREDIBILITY FINDINGS
SUPPORT [DEFENDANT]'S CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL.

D. [THE] PCR COURT REPEATS THE LEGAL
ERROR COMMITTED BY [PLEA] COUNSEL.

E. THE PCR COURT'S FINDING OF NO
PREJUDICE[] ASSUMED A JURY VERDICT
CONTRARY TO RELEVANT CASE LAW.

F. [THE] PCR COURT ABUSED ITS DISCRETION
IN REJECTING [DEFENDANT]'S ALIBI
DEFENSE AS A BASIS FOR ASSERTING
INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE PCR COURT ABUSED ITS DISCRETION AND
MISAPPLIED THE LAW BY DENYING
[DEFENDANT]'S PCR PETITION WHERE [PLEA]
COUNSEL ERRONEOUSLY ADVISED
[DEFENDANT] ABOUT THE KNOWLEDGE
ELEMENT OF THE DISTRIBUTION OF CHILD

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PORNOGRAPHY CHARGE, WHICH RENDERED
[DEFENDANT]'S PLEA NEITHER KNOWING,
INTELLIGENT, NOR VOLUNTARY.

A. FIRST SLATER FACTOR: WHETHER
DEFENDANT HAS ASSERTED A COLORABLE
CLAIM OF INNOCENCE.

B. SECOND SLATER FACTOR: THE NATURE
AND STRENGTH OF DEFENDANT'S REASONS
FOR WITHDRAWAL WEIGH HEAVILY IN
FAVOR OF PERMITTING DEFENDANT TO
WITHDRAW HIS GUILTY PLEA.

C. THIRD SLATER FACTOR: THE EXISTENCE
OF A PLEA BARGAIN.

D. FOURTH SLATER FACTOR: WHETHER
WITHDRAWAL COULD RESULT IN UNFAIR
PREJUDICE TO THE STATE OR UNFAIR
ADVANTAGE TO THE ACCUSED.

POINT IV

THE PCR COURT ABUSED ITS DISCRETION AND
MISAPPLIED THE LAW BY DENYING
[DEFENDANT]'S PCR PETITION WHERE [PLEA]
COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
CONDUCT PROPER INVESTIGATION, IN
PARTICULAR, BY FAILING TO CONSULT A
FORENSIC COMPUTER EXPERT.

A. THE PCR COURT COMPLETELY IGNORED
[DEFENDANT]'S INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIM GROUNDED IN [PLEA]
COUNSEL'S FAILURE TO CONSULT WITH A
FORENSIC COMPUTER EXPERT.

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III.

Our review following an evidentiary hearing for PCR "is necessarily

deferential to a PCR court's factual findings based on its review of live witness

testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an evidentiary

hearing has been held, we should not disturb "the PCR court's findings that are

supported by sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015) (citation omitted). We review any legal conclusions of the

court de novo. Nash, 212 N.J. at 540-41.

We also review a court's decision in a plea-withdrawal appeal for abuse

of discretion because the court makes "qualitative assessments about the nature

of a defendant's reasons for moving to withdraw his plea and the strength of his

case and because the court is sometimes making credibility determinations about

witness testimony." State v. Tate, 220 N.J. 393, 404 (2015). A motion to

withdraw a guilty plea is committed to the judge's sound discretion. Slater, 198 N.J. at 156; State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975).

Finally, we review the judge's post-conviction discovery ruling under the

same abuse of discretion standard governing pre- and post-indictment discovery.

See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009).

A-0830-19T4
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We have considered defendant's arguments raised on this appeal in view

of the record, the applicable legal principles, and our deferential standards of

review, and conclude defendant's reprised contentions lack sufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(2). Having

conducted a de novo review of the PCR judge's legal conclusions, Nash, 212 N.J. at 540-41, we likewise find no reason to disturb the judge's decisions. We

rely instead on the judge's thorough and reasoned analyses of the issues raised.

Affirmed.

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