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State v. Dellisanti


March 19, 2010


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-05-1133.

Per curiam.


Submitted February 4, 2010

Before Judges Skillman and Simonelli.

Defendant Frank Dellisanti appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of counsel. We affirm.

A grand jury indicted defendant for third-degree shoplifting, N.J.S.A. 2C:20-11; third-degree falsifying a record (a New Jersey driver's license), N.J.S.A. 2C:21-4a; second-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(7); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree falsifying records, N.J.S.A. 2C:21-4a.

The charges against defendant stem from an incident on January 28, 2002, at the Lowe's Home Improvement store located in North Bergen (North Bergen Lowe's). According to the trial testimony of Seth Carey, North Bergen Lowe's loss prevention and safety manager, while monitoring the store's closed-circuit television he saw defendant place an object into his sock, later identified as a baggie containing Universal Product Code (UPC) labels. Defendant then placed numerous items into his shopping cart, removed the UPC labels from the items, and replaced those labels with UPC labels from the baggie. Defendant placed the baggie in his waistband, proceeded to the checkout area, and entered a line to the registers.

When defendant arrived at a register, the closed-circuit television zoomed in, enabling Carey to see the items defendant was purchasing. After noticing "a very substantial difference" between the actual cost of the items and "what was ringing up in the system[,]" Carey accessed the store's electronic journal system, which recorded the transaction, to check the numbers, descriptions, quantity and prices of the items. Defendant then paid for the items with a merchandise credit and exited the store.

Carey confronted defendant outside the store and escorted him back into the loss prevention office, where a pat down search revealed the baggie containing the UPC labels. During questioning, defendant gave a false name and fraudulent driver's license. When advised the police would be called, defendant became defensive and "completely unresponsive." He then lunged from his seat, pushed Carey, and fled. Carey caught defendant, and the two began wrestling. Defendant pushed Carey against a wall, causing injury to Carey's head. Another employee subdued defendant and handcuffed him. The entire incident was captured on videotape. It was later determined that defendant paid $255.41 for the items he had purchased, which actually cost $1093.70.

The trial began on May 7, 2003, and ended in a mistrial. Prior to the second trial, defendant, represented by a new attorney (hereinafter referred to as plea counsel), pled guilty to third-degree shoplifting and simple assault, a disorderly persons offense. At the plea hearing, defendant established the following factual basis for his plea to shoplifting:

[PLEA COUNSEL]: Calling your attention to on or about January 29th or 28th of 2002, were you in Lowe's Store in North Bergen?


[PLEA COUNSEL]: And did you have occasion to shop?


[PLEA COUNSEL]: And did you pick out certain items?


[PLEA COUNSEL]: Did you pay for those items?

THE DEFENDANT: Some of them. Some I didn't.

[PLEA COUNSEL]: And you left the store without paying for those items?


[PLEA COUNSEL]: The items that you did not pay for exceeded a value of $500?

THE DEFENDANT: Yes, they did.

[PLEA COUNSEL]: And you had no intention of paying for those items?


At sentencing, defendant was represented by another new attorney (hereinafter referred to as sentencing counsel). In accordance with the plea agreement, Judge Tolentino sentenced defendant to concurrent five-year probationary terms and to one hundred hours of community service on each charge. The judge also imposed the appropriate assessments and penalties.

Defendant filed a PCR petition, contending that he received ineffective assistance from his three attorneys. Defendant claimed that trial counsel failed to obtain sales records from the Lowe's store located in Piscataway (Piscataway Lowe's), which allegedly would have established that earlier on January 28, 2002, he used a gift card there to purchase three items he was accused of stealing from the North Bergen Lowe's.

Defendant claimed that plea counsel "sat on" the sales records and, as a result, he pled guilty "out of an obvious sense of desperation and exhaustion with the entire process and armed with the inescapable conclusion that there was nothing he could do." Thus, his plea was not entered into knowingly, intelligently and voluntarily. Defendant also claimed that plea counsel failed to establish an adequate factual basis for his guilty plea to shoplifting.

In a supplemental certification, defendant claimed that sentencing counsel improperly advised him not to file a direct appeal because he had pled guilty, and thus, would not succeed on appeal. Defendant also submitted to the court the Piscataway Lowe's sales records and a letter, dated November 7, 2005, explaining why he pled guilty.

Judge Venable denied the PCR petition without a hearing, concluding that defendant failed "to assert the facts that the investigation would have revealed, supported by any affidavits or certifications." The judge also found that the sales records failed to show that defendant did not steal items from the North Bergen Lowe's, that defendant had purchased any items from the Piscataway Lowe's, or that defendant used a gift card to make such purchase. The judge concluded that "there is no evidence, including the sales records, to show that [defendant] would have been found innocent of any of the charges."

The judge also concluded that defendant received the effective assistance of counsel, that defendant entered the plea knowingly, intelligently and voluntarily, and that a sufficient factual basis for the plea to shoplifting existed because defendant admitted leaving the North Bergen Lowe's without paying for some of the items.

On appeal, defendant contends that Judge Venable erred in denying his PCR petition without an evidentiary hearing. He also contends that PCR counsel was ineffective in failing to submit a certification from defendant supporting his claims of ineffective assistance of trial, plea and sentencing counsel, and in failing to specify to Judge Venable which items in the sales records supported his claim that he purchased certain items at the Piscataway Lowe's.

Based upon our review of the record, in light of the applicable legal standards and arguments presented, we conclude that defendant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venable in her oral opinion, rendered May 31, 2006.



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