On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-08-2075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Baxter.
Defendant William Conyers appeals from a trial court order dated November 21, 2006, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted on July 10, 2002, of attempted theft by deception, tampering with a witness named William Thompson, and related offenses, in connection with a scheme in which he and two co-defendants fraudulently obtained life insurance policies covering unsuspecting third parties whom defendant believed had AIDS. Defendant named himself and his co-defendants as beneficiaries, although they had no insurable interest in the insured individuals. In his direct appeal defendant argued, among other things, that "the trial court erred by admitting into evidence the tape recorded meeting between William Thompson and the defendant as a hearing should have been ordered by the court, sua sponte, to determine its admissibility under State v. Driver*fn1 ." Defendant contended that because the tape had a number of inaudible portions, it might have been ruled inadmissible had it been challenged. We rejected this argument as being without sufficient merit to warrant discussion, under Rule 2:11-3(e)(2). State v. Conyers, Docket No. A-3075-02 (App. Div. Oct. 26, 2004)(slip op. at 8), certif. denied, 182 N.J. 630 (2005).
On November 7, 2005, defendant filed a PCR petition asserting three arguments: his first trial attorney, Anthony Rathe, had a conflict of interest; his second trial attorney, Ian Hirsch, provided ineffective assistance of counsel in failing to request a Driver hearing with respect to the taped conversation between defendant and William Thompson; and Hirsch was ineffective in failing to cross-examine Thompson on the taped conversation. Defendant later added a claim that his appellate counsel was ineffective. In denying the PCR, Judge Donald Venezia rejected all of these contentions, concluding that defendant was not denied effective assistance of either trial or appellate counsel, and the trial court did not abuse its discretion in admitting the Thompson tape into evidence without a Driver hearing.
The only legally competent evidence supporting the PCR was defendant's certification. In that certification, defendant attested that when he first learned he would be criminally charged in connection with the insurance policies, he retained Rathe, his long-time family and business attorney to represent him as well as other family members who might be charged in the matter. Prior to trial, Rathe informed defendant that each family member needed separate counsel. Accordingly, Rathe assisted defendant and each family member, including defendant's wife, to retain a separate attorney. Defendant retained Hirsch as his attorney, while Rathe continued to represent defendant's daughter Cynthia. The indictment against Cynthia was dismissed. Rathe, however, continued to be involved in defendant's case by sitting in on meetings between defendant and Hirsch and interviews with potential witnesses. Defendant contended that Rathe's "inherent conflict of interest" and his continuing involvement in the case denied him effective assistance of counsel. However, defendant provided no specific details as to how Rathe's involvement interfered with or compromised his defense.
In his certification, defendant also asserted that he had two conversations with Thompson which were recorded. He contended that the morning after Thompson had surreptitiously recorded the second conversation with him, Thompson called defendant and alerted him that he had been "wired" during that conversation. According to defendant, Thompson then told him that the battery on the recording device was weak during the conversation, and that the recorded conversation was ten minutes long. Defendant asserted that his attorney should have challenged the authenticity of the tape, because it was admittedly enhanced by the State Police due to "lack of clarity" and it was longer than ten minutes. He also complained that Hirsch failed to cross-examine Thompson about the recorded conversation.
The State responded that at defendant's trial the defense strategy was to admit the accuracy of the tape, and to provide a benign explanation of its content. Consequently, since Thompson was a helpful witness, there was no need to challenge the authenticity of the tape or to cross-examine him about its authenticity.
The State also argued that once the indictment against Cynthia was dismissed, and because defendant was not inculpating her, there was no adversity of interest between them and no impropriety in Rathe lending assistance to Hirsch. Further, none of the daughters testified at the trial, and defendant did not specify how Rathe's participation interfered with defendant's ability to freely communicate with Hirsch or otherwise affected Hirsch's representation.
In an oral opinion placed on the record on October 31, 2006, Judge Venezia rejected all of defendant's PCR contentions. He concluded that there is nothing to indicate in this case that there was any contrary adverse interest between Mr. [Rathe], Mr. Hirsch, any of the other attorneys, anybody that Mr. [Rathe] had represented, anybody that Mr. Hirsch had represented including the defendant. There's nothing in this case to indicate that there was any adverse interest that would have prevented Mr. [Rathe] from being involved in this case . . . or Mr. Hirsch for that matter.
He also found no evidence placed before him that Hirsch had "functioned ineffectively." The judge concluded that the argument that Hirsch should have cross-examined Thompson about the tape was "Monday morning quarter backing." He reasoned that that was the strategy that was used because . . . apparently Thompson in the opinion of the attorneys wasn't somebody that was going to hurt the defendant . . . nor did the tape, because it seems to ...