October 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN J. KADONSKY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 92-06-0210, 92-06-0228 and 94-06-0324.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 5, 2009
Before Judges Rodríguez and LeWinn.
Defendant Steven J. Kadonsky appeals from the denial of his second petition for post-conviction relief (PCR). We affirm.
In September 1993, on the day of trial, defendant entered a negotiated plea of guilty to: first-degree offense of being a leader or "kingpin" of a narcotics trafficking network, N.J.S.A. 2C:35-3; two counts of second-degree conspiracy to possess marijuana, a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) and N.J.S.A. 2C:5-2; second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(10); and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3).
There was an in camera hearing before Judge Michael R. Imbriani. The attorneys for defendant, his brother George Kadonsky and co-defendant Carolyn Czick were present. The then Somerset County Prosecutor, Nicholas Bissell, was also present and agreed that if defendant cooperated with law enforcement, the sentence recommendation would be reduced. The amount of the reduction would depend on the extent of defendant's cooperation.
Specifically, defendant was to provide information concerning the narcotics organization of co-defendant Howard Weinthal, which was believed to be a nationwide network. Defendant agreed that he would be given consideration on his sentence each time the Prosecutor's Office obtained information sufficient to obtain a warrant to search for and seize large quantities of marijuana or make arrests of individuals involved in narcotics trafficking. That same day, defendant and George Kadonsky entered pleas of guilty before Judge Imbriani, who accepted the pleas, but postponed defendant's sentence for several months.
During a six-month period, the State made several seizures of large quantities of marijuana based on tips and information given by defendant to the Prosecutor's Office. Weinthal's girlfriend, Kimberly Cruson, and three undocumented aliens from Mexico, were charged in connection with one of the seizures.
Linda Taylor and Joseph William were also arrested following an extensive investigation by the Somerset County Prosecutor into defendant's cooperation.
Before the sentencing hearing, Assistant Prosecutor Head- Melitto wrote a letter to defendant's counsel, outlining defendant's cooperation, which led to nine seizures of 3,160 pounds of marijuana, $509,945 in cash, and the arrest of three individuals involved in the transportation of the marijuana.
The letter stated:
At the time of his plea on September 8, 1993[,] defendant agreed to the following cooperation for the listed sentence consideration:
Within 30 days 500-1,000 pounds No Credit of the plea of marijuana and thereafter:
1,000 pounds of 15 years marijuana with a 5 year stipulation
500 pounds of 10 years
marijuana with a 3
500 pounds of 10 years
500 pounds of 7 years
You will recall that the State insisted that any cooperation include arrests of individuals involved in narcotics trafficking above the level of mere transportation, or so-called "mules."
As you can see, defendant's cooperation has not precisely coincided with the terms that he proffered and agreed to in Court. In some cases he has exceeded the agreement and in other areas he has fallen short.
At the sentencing hearing, however, the State sought the maximum statutory penalty. According to the Prosecutor's Office, it conducted investigations after each seizure and maintained ongoing surveillance of defendant and his associates.
During the investigations, Taylor and Williams were interviewed.
They revealed that the information that defendant had been providing to the Prosecutor's Office was false. Law enforcement officers concluded that defendant had actually orchestrated a scheme whereby marijuana was to be placed in storage by individuals using various disguises and fictitious identification. Defendant would then provide the Prosecutor's Office with "tips" regarding the location of drugs in order to receive consideration on his sentence. According to the Prosecutor, these false "tips" caused the arrest of Cruson and the three men from Mexico. No other arrests were made as a result of defendant's tips.
As a result of defendant's false cooperation, the Somerset County grand jury returned another indictment against defendant alleging distribution of marijuana to the Prosecutor's Office, as part of defendant's fraudulent scheme. Defendant also pleaded guilty to this charge.
On July 1, 1994, Judge Robert Guterl merged the conspiracy, possession and distribution convictions and sentenced defendant to concurrent seven-year terms. On the kingpin conviction, the judge imposed a statutorily mandated*fn1 life term with a twenty- five year parole disqualifier to run concurrent with the other sentences. Defendant was fined $500,000. We affirmed on direct appeal. State v. Kadonsky, 288 N.J. Super. 41 (App. Div.), certif. denied, 144 N.J. 589 (1996).
In June 1996, defendant filed a first PCR petition. The petition was denied on November 8, 1996, by Judge Guterl. We affirmed. State v. Kadonsky, A-3753-96T5 (App. Div. July 30, 1998), certif. denied, 160 N.J. 477 (1999).
Defendant filed pro se a second PCR petition, alleging:
I. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED (U.S. CONST. -- AMEND. VI).
II. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WAS VIOLATED (U.S. CONST. AMEND. VI).
III. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF [PCR] WAS VIOLATED (U.S. CONST. AMEND. VI).
IV. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED DUE TO COUNSEL'S CONFLICT OF INTEREST (U.S. CONST. AMENDS. V & XIV).
V. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED DUE TO PROSECUTORIAL MISCONDUCT (U.S. CONST. AMENDS. V & XIV).
VI. PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT NOT TO BE SUBJECTED TO EXCESSIVE FINES WAS VIOLATED (U.S. CONST. AMEND. VIII).
He also moved to: vacate the $500,000 fine; recuse the Somerset County Prosecutor's Office from participating in the PCR hearing; and change venue from Somerset County to Mercer County.
John P. Pieroni, Esq. represented defendant and filed two briefs.
Judge Yolanda Ciccone denied the three motions and, in a written opinion issued on May 8, 2007, denied the PCR petition.
The judge noted that defendant's second PCR petition was premised on an alleged criminal conspiracy among defendant, his attorneys and Bissell. The judge found no evidence of such conspiracy. Defendant alleged that his attorneys were under investigation by the Somerset County Prosecutor's Office, the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS) as co-conspirators in the illegal activities of defendant. Specifically, defendant alleged that Bissell entered into an illegal agreement with defendant with the help of defendant's attorneys so that Bissell would receive cash from defendant. The investigation into the Weinthal organization was merely a front used to facilitate cash payments to Bissell. In exchange for the cash payments, Bissell would dismiss the charges. Defendant alleged that Bissell, who committed suicide in November 1996, along with the FBI and the IRS, commenced an investigation of the law firm representing defendant.
As stated above, Judge Ciccone found that these allegations by defendant were uncorroborated. Other than defendant's own allegation, there was a reference to a conversation between Williams and an investigator. Williams was in jail while awaiting trial on unrelated narcotics charges. Allegedly, Williams informed the Somerset County Prosecutor's Office that defendant's attorneys "were involved in the orchestration of the seizures of marijuana and cash" by Bissell. Defendant also submitted a certification by Taylor stating her supposition that the Somerset County Prosecutor was investigating defendant's attorneys.
Defendant's attorneys denied being investigated by the FBI, IRS or the Somerset County Prosecutor and denied the alleged conspiracy to provide Bissell with cash. This was corroborated by investigations conducted by the Somerset County Prosecutor's Office, long after Bissell's death, as well as statements by Assistant Prosecutor Head-Melillo and Deputy Chief of Detectives Norman Cullen.
The judge rejected defendant's allegations, finding that:
[d]efendant's mere allegations and the affidavits of Williams and Taylor are not enough to establish that [d]efendant's attorneys were under investigation. Defendant fails to put forth any substantive evidence indicating that, indeed, there was an investigation of his attorneys. Moreover, the State strongly denies the allegations. As such, this contention must fail under Strickland*fn2 and Fritz.*fn3
The judge also rejected allegations of ineffective assistance of counsel due to dual representation by the same law firm of defendant and George Kadonsky. The judge noted that this argument was procedurally barred by virtue of R. 3:22-4, Bar of Grounds Not Raised in Prior Proceedings. However, even if considered on the merits, the argument of dual representation*fn4 must also fail because:
It is completely disingenuous for the
[d]efendant to enter into a plea agreement in concert with, and for the benefit of, his co-defendant, George Kadonsky, and now allege a conflict of interest as a result of dual representation between himself and George Kadonsky. The defendant brings forth not a scintilla of evidence as to how this potential dual representation prejudiced him in the least. Thus, here too, the Defendant's allegations must fail.
Finally, the judge rejected any improper conduct by Assistant Prosecutor Head-Melillo. The judge reiterated that there was no proof of defendant's allegations. Defendant filed a motion for reconsideration. Judge Ciccone denied this application on August 13, 2007.
On appeal, defendant contends:
I. SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL, AND FIRST [PCR] COUNSEL, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [PCR] WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING.
A. Trial Counsel Rendered Ineffective Assistance Of Counsel.
B. Appellate and (First) [PCR] Counsel Rendered Ineffective Assistance Of Counsel.
C. The Defendant's Petition For [PCR] Was Not Procedurally Barred By R. 3:22-4 Because The Issues Presented Could Not Have Been Reasonably Raised Below.
II. THE COURT'S RULING DENYING [PCR] VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10, OF THE NEW JERSEY CONSTITUTION.
III. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN THE DEFENDANT'S PRO SE PETITION FOR [PCR] AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF [PCR].
Defendant filed pro se a supplemental brief contending:
I. DEFENDANT, STEVEN J. KADONSKY, WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, [PARA.] 10 OF THE NEW JERSEY CONSTITUTION
A. The Per Se Conflict of Interest Created by the Dual Representation of Defendant, Steven Kadonsky, and Co-Defendant, George Kadonsky, by Alan Bowman at the Trial Level Mandates a Reversal of Conviction In This Matter.
B. The Investigation of Defendant's Trial, Appellate and First [PCR] Attorneys Created a Conflict of Interest Mandating a Reversal of Defendant's Convictions.
C. Counsel Failed to Challenge the Imposition of a $500,000 Fine.
D. Trial Counsel Failed to Move to Have Kadonsky Given An Opportunity to Withdraw the Plea After the Court Sentenced Him to a Term Greater Than the Recommended Sentence Without Giving Him an Opportunity [sic] to Withdraw the Plea.
E. Trial Counsel Failed to Seek to Have In Camera Plea Agreement Enforced Or In the Alternative Move to Withdraw the Plea.
II. DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND FIRST [PCR] COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, [PARA.] 10, OF THE NEW JERSEY CONSTITUTION
III. THE CONSTITUTIONAL RIGHT OF DEFENDANT TO DUE PROCESS OF LAW WAS VIOLATED BY THE MISCONDUCT OF SOMERSET COUNTY PROSECUTOR BISSELL
IV. SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL, APPELLATE COUNSEL, AND FIRST [PCR] WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING
V. REVOCATION OF DEFENDANT'S FINE IS APPROPRIATE PURSUANT TO N.J.S.A. 2C:46-3
VI. THE LEGAL ERRORS COMMITTED IN THIS MATTER WHEN VIEWED EITHER INDIVIDUALLY OR CUMULATIVELY ARE OF SUCH MAGNITUDE TO HAVE DENIED DEFENDANT OF A FAIR AND IMPARTIAL DISPOSITION OF HIS CRIMINAL CHARGES, MANDATING A REVERSAL OF HIS CONVICTIONS AND A REMAND FOR TRIAL
We reject all of these contentions and affirm substantially for the reasons expressed by Judge Ciccone in her May 8, 2007 written opinion.
In short, defendant dredges up allegations that are unsupported by any competent evidence, which were not previously raised and are therefore barred. From our thorough review of the PCR record, we conclude that Judge Ciccone correctly applied the Strickland/Fritz standard, with respect to the claim of ineffective assistance of trial, appellate and first PCR counsels. Moreover, we agree with her conclusion that defendant failed to meet his burden of making a prima facie showing of his attorneys' deficiency. State v. Preciose, 129 N.J. 451, 462-63 (1992). With respect to allegations of improper conduct by defendant's trial attorney and Bissell, defendant has also failed to make a showing based on competent evidence. Rather, he has presented self-serving, uncorroborated allegations.