On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
Defendant Thomas D'Amico appeals from the March 24, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.
On October 24, 1999, defendant, while off duty as a full- time police officer for the Elizabeth Police Department, along with co-defendants Jean Morales, Josephine Castagna, Violet Arias, Carmine Perrotti, Alvin Baez, and Edward Gentile violently beat and caused the death of Bennett Grant.
In July 2000, a Union County Grand Jury charged defendant and co-defendants in an eleven count indictment. The Grand Jury charged defendant with murder by purposely or knowingly causing serious bodily injury to Grant, resulting in his death, N.J.S.A. 2C:11-3a(1), or (2) (count one); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count two); two counts of official misconduct, N.J.S.A. 2C:30-2a (counts three and four); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count eleven). Because the trial facts were discussed at length in our prior consolidated opinion, State v. Castagna, 376 N.J. Super. 323 (App. Div. 2005), and in the Supreme Court's subsequent opinion, 187 N.J. 293 (2006), it is unnecessary for us to detail the evidence against defendant for these crimes.
Prior to trial, Arias, Perrotti, Baez, and Gentile pled guilty to second-degree reckless manslaughter, with the State agreeing to recommend a seven-year term of imprisonment.
Defendant, Morales, and Castagna proceeded to trial.
The jury acquitted defendant of count one, but convicted him on all remaining counts. The jury convicted Morales of murder, first-degree aggravated manslaughter and related weapon offenses. The jury convicted Castagna of the lesser-included offense of second-degree aggravated assault by attempting to cause serious bodily injury to Grant.
On March 22, 2002, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(1), (3), and (9), and mitigating sentencing factors N.J.S.A. 2C:44-1b(8) and (11), the court sentenced defendant on count two to a twenty-year term of imprisonment, with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year period of parole supervision upon release.
On count three, the court sentenced defendant to a seven-year term of imprisonment, consecutive to the sentence imposed on count two, and merged the convictions on counts four and eleven with the conviction on count three. Defendant, Morales, and Castagna appealed.
In a consolidated opinion, we reversed, determining that defendant and co-defendants were denied their Sixth Amendment right to confront witnesses "when the trial court precluded defense counsel from cross-examining a key prosecution witness on the results of a stipulated polygraph examination, because these defendants were not parties to the stipulation."
Castagna, supra, 376 N.J. Super. at 330. We also determined that as to Morales, the trial court erred by not sua sponte providing the jury with a passion/provocation manslaughter instruction as a lesser-included offense of the crime of murder. Id. at 331. Lastly, we concluded that defendant was denied effective assistance of trial counsel because his attorney's "performance fell far below the standard of competence expected of a criminal trial lawyer in this State," ibid, because during his opening statement, the attorney referred to defendant as a criminal, told the jury that defendant was guilty of certain charges, and would testify in his own defense during the trial. Id. at 359.
On certification granted, the Supreme Court reversed our judgment as to defendant and Castagna, and reinstated their convictions and sentences. Castagna, supra, 187 N.J. at 316. The Court determined that the trial court erred in denying defendant and co-defendants the right to cross-examine Arias concerning her polygraph test results, but because of other evidence in the case, the error was "harmless beyond a reasonable doubt." Id. at 312-13. The Court also reversed our determination that defendant was denied effective assistance of trial counsel. In so doing, the Court stated:
Although defense counsel could have used less strident language in admitting D'Amico's involvement in the incident, on this record we do not conclude that defense counsel's high-risk strategy of admitting D'Amico's guilt to lesser-included offenses in the hope that it would enhance D'Amico's credibility, eventually leading to a not guilty verdict of the most serious offense, was prima facie evidence of ineffective assistance of counsel.
Beyond that, we cannot determine whether D'Amico had agreed in advance with defense counsel's trial strategy to admit D'Amico's guilt to certain offenses to gain credibility with the jury in an attempt to earn a not guilty finding on the first-degree murder charge, and whether D'Amico agreed that counsel should inform the jury that he would testify. If D'Amico had agreed in advance with defense counsel's strategy, then defense counsel's conduct was not plainly ineffective. The answers to these questions lie outside the record and must await a post-conviction relief petition. It was error to conclude that D'Amico satisfied the Strickland[*fn1 ] test to establish that he was denied effective assistance of counsel.
On March 22, 2007, defendant filed a petition for PCR. In so ...