April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT MORRIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-12-3022.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 24, 2009
Before Judges Parker, Yannotti and LeWinn.
Defendant Vincent Morris appeals from an order entered by the trial court on July 18, 2008, denying his petition for post-conviction relief (PCR). We affirm.
Defendant and Christo Vardakis (Vardakis) were charged under Bergen County Indictment No. 01-12-3022 with two counts of second-degree usury in violation of N.J.S.A. 2C:21-19a. Defendant's first trial resulted in a mistrial, after the jury could not reach a verdict. At defendant's second trial, the State presented evidence that defendant made loans to James Siderias (James) and Konstantine Siderias (Gus) at rates of interest exceeding the rates permitted by law.
In October 1999, defendant loaned James $50,000 at an interest rate of three percent per week. In January 2000, defendant loaned Gus $20,000 at four percent per week. James and Gus executed notes which stated that the interest rates on the loans were twenty-one percent but the State presented evidence which established that the notes did not reflect the actual agreed-upon interest rates.
In 2000 and 2001, defendant made additional loans to the Siderias brothers. In April 2000, defendant loaned Gus another $15,000 at four percent per week, and in June 2000, defendant loaned Gus $10,000 at the same rate. Defendant later agreed to reduce the rate on these loans to three percent per week. In June 2000, James reduced his indebtedness to defendant but in November 2000, borrowed an additional $15,000 from defendant at a rate of three percent per week. In March and May 2001, defendant made additional loans to Gus totaling $25,000, at a rate of three percent per week.
In July 2001, Gus discussed the loans and interest payments with his lawyer in the presence of his attorney's spouse, who happened to be a detective in the Office of the Bergen County Prosecutor. An investigation ensued and defendant's conversations with James and Gus regarding the loans were recorded, including conversations that occurred in Vardakis' office. In September 2001, the detectives approached Vardakis. Initially, Vardakis denied any involvement in the making of the loans, but he later admitted that he was defendant's partner in some of the loans.*fn1
Defendant was found guilty on both charges. He was sentenced to two concurrent six-year terms of incarceration and ordered to pay certain fines and penalties. Defendant appealed and challenged his convictions by raising the following issues:
I. THE TRIAL COURT'S CRITICISM OF DEFENSE COUNSEL IN FRONT OF THE JURY REQUIRES A NEW TRIAL.
II. TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRES A NEW TRIAL.
III. DEFENDANT WAS DENIED THE RIGHT TO TESTIFY IN HIS OWN BEHALF.
We rejected these contentions and affirmed. State v. Morris, No. A-0160-03 (App. Div. Oct. 13, 2004).
On March 24, 2008, defendant filed a petition for PCR in the trial court.*fn2 Defendant alleged that he had been denied the effective assistance of trial counsel because his attorney failed to call him as a witness. Defendant asserted that, as a result, the jury was unaware of certain "critical facts" that it required to render an informed decision. Defendant further maintained that he had expressed a will and desire to testify but his wishes were overborne by his attorney, who allegedly kept him "sequestered" from the jury. The PCR court entered an order dated July 18, 2008, denying the petition. This appeal followed.
Defendant appeals the denial of PCR and raises the following issues for our consideration:
POINT 1: BECAUSE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO CALL [DEFENDANT] AS A FACT WITNESS IN HIS OWN BEHALF, THE JURY WAS LEFT IN THE DARK AS TO THE FACTS OF THE CASE WHICH ONLY HE COULD PROVIDE THEM THUS DENYING HIM A FAIR TRIAL. CONSEQUENTLY THE COURT SHOULD NOW SET ASIDE HIS CONVICTION AND ORDER A NEW TRIAL.
POINT 2: BECAUSE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO CALL [DEFENDANT] AS A FACT WITNESS AND THEREBY FAILING TO DEVELOP A DEFENSE THEORY OF THE CASE TO COUNTER THE STATE'S THEORY OF THE CASE, [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL. CONSEQUENTLY THE COURT SHOULD NOW SET ASIDE HIS CONVICTION AND ORDER A NEW TRIAL.
POINT 3: THE CUMULATIVE ERRORS OF COUNSEL CAUSED OVERWHELMING PREJUDICE TO [DEFENDANT], DENYING HIM THE EFFECTIVE ASSISTANCE OF COUNSEL, A MEANINGFUL AND VIABLE DEFENSE AND A FAIR TRIAL.
POINT 4: [RULE] 3:22-5 DOES NOT BAR ALL CLAIMS THAT WERE PREVIOUSLY RAISED ON APPEAL.
POINT 5: THE PCR COURT ERRED IN DENYING RELIEF ON THE GROUNDS THAT IT WAS 'SOUND TRIAL STRATEGY' ON COUNSEL'S PART NOT TO CALL DEFENDANT AS A WITNESS IN HIS OWN BEHALF. SUCH AN ARGUMENT IS MISPLACED AND CONSTITUTIONALLY INSUPPORTABLE.
Nothwithstanding defendant's arguments to the contrary, we are convinced that Rule 3:22-5 bars defendant's claim that he was denied the effective assistance of counsel because his trial attorney allegedly precluded him from testifying on his own behalf. The rule states that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post- conviction proceeding brought pursuant to [Rule 3:22-1] or . . . in any appeal taken from such proceedings." R. 3:22-5. The rule precludes a defendant from asserting a ground for PCR when the issue has previously been adjudicated, particularly on direct appeal. State v. Harris, 181 N.J. 391, 494 (2004), cert. denied sub nom. Harris v. New Jersey, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
The record shows that defendant's claim that his trial attorney wrongfully precluded him from testifying was first raised in a motion for a new trial. In support of that motion, defendant presented certifications from Howard Miller (Miller), his trial attorney, and Robert F. Conley (Conley), who assisted Miller at defendant's second trial. In his certification, Miller stated that defendant wanted to testify at his first trial, but Miller advised defendant that it was not necessary and it was not in his best interest to do so. Defendant did not testify at that trial. As stated previously, a mistrial was declared and defendant was tried again.
According to Miller, defendant wanted to testify at the second trial. Miller advised defendant not to do so. He stated that this advice was based on his belief that the State's case "was extremely weak and legally inadequate[.]" Miller asserted that defendant's testimony was not needed and it was not in his best interest to testify. Miller additionally asserted that he informed the court that defendant would not testify but Miller said this decision was erroneous and, moreover, "it was not [defendant's] decision."
In his certification, Conley stated that, prior to the second trial, Miller told him that this "was a slam dunk case" and "there [was] no way that [defendant] should be found guilty[.]" Conley said that defendant wanted to testify on his own behalf but Miller had not prepared defendant's testimony. Even so, defendant "wanted to go on and take the stand."
Conley noted that Miller had discussed whether defendant would be testifying with the trial court and the prosecutor at a sidebar conference and, thereafter, explained to defendant that he thought the trial had gone well and there was no need for him to testify. Miller told defendant that, if defendant took the stand, Miller would state on the record that defendant was testifying against his advice. Conley said that Miller "made the decision that [defendant] should not testify[.]"
The trial court denied defendant's motion and defendant argued on direct appeal that the trial court erred in doing so. We rejected this contention and stated:
[D]efendant asserts that he is entitled to a new trial because he was wrongfully denied his right to testify in his own behalf. The defendant asserts that he wanted to testify at trial but his attorney decided otherwise. In support of this contention, defendant submitted two [certifications] to the trial judge, one from Mr. Miller and one from his co-counsel, Mr. Conley. The defense attorneys state that Mr. Miller decided that defendant should not testify and that Mr. Miller overrode the defendant's expressed desire to testify.
In denying defendant's motion for a new trial on these grounds, the trial court noted that defendant was in court when his attorney informed the trial judge after a short recess that defendant would not testify. Defendant, who was not new to the criminal justice system, said nothing. This was the second trial on these charges and defendant did not testify at the first trial. The trial judge, who presided at both trials, properly determined that defendant's silence showed that defendant consented to and agreed with his counsel's decision not to call him as a witness. Accordingly, the trial judge did not err in denying the motion for a new trial on this basis.
Thus, the issue raised by defendant in his PCR petition was raised and decided in his direct appeal. Accordingly, Rule 3:22-5 bars defendant from re-litigating this claim.
In light of our determination, we need not address the other issues raised on appeal.