August 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEBBIE MOORE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-06-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2010
Before Judges Wefing and LeWinn.
Defendant appeals from the December 3, 2007 order of the trial court denying her petition for post-conviction relief (PCR). We affirm.
Tried to a jury in May 2000, defendant was convicted of first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(10)(a); second-degree conspiracy/possession with intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-5(b)(10)(a); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3). On August 25, 2000, defendant was sentenced to an aggregate term of thirty years with a ten-year period of parole ineligibility.
Defendant appealed her convictions and sentence, and we affirmed. State v. Moore, No. A-1177-00 (October 8, 2002), certif. denied, 176 N.J. 73 (2003).
The trial evidence was discussed in our opinion (slip op. at 2-4), and we summarize it here. Defendant, along with co-defendants Jesus "Fernando" Zamudio and Patrick Huntley Pearce, drove a vehicle to a hotel parking lot which was under surveillance by members of the Bergen County Narcotics Task Force as the site of an imminent transaction involving the transfer of 273 pounds of marijuana. Defendant parked the car next to the vehicle known to contain the marijuana. "Fernando" obtained the keys to that vehicle and gave them to defendant who "unlocked the driver's door . . . and got into the driver's seat . . . while one of her children got into the passenger's seat." Id. at 3-4. The task force surveillance team then arrested defendant and the two men.
At trial, the State produced an expert who testified that "children are often put in cars containing 'huge' loads of marijuana to avoid suspicion." Id. at 12. Among defendant's contentions on appeal was her claim that her trial counsel rendered ineffective assistance by failing to "present expert testimony to rebut the State's expert." Ibid. Noting that "[o]rdinarily, this issue is reserved for a [PCR] petition where defendant may develop evidence outside the record[,]" we nonetheless addressed the claim on the merits and rejected it because defendant did not proffer any expert who would have been available to testify on her behalf on this issue; nor did she "illuminate the subject matter of such testimony." Id. at 12-13.
On April 15, 2005, defendant filed a pro se PCR petition essentially raising challenges to the sufficiency of evidence at trial. Counsel was assigned and filed an amended PCR petition on or about March 23, 2007, raising claims of ineffective assistance of counsel for failure to investigate witnesses and to consult with defendant in preparation of her case. For the first time, defendant asserted a claim of ineffective assistance based on counsel's failure "to retain and or consult an expert psychologist to conduct an evaluation of [defendant] and have the psychologist testify at trial." Counsel appended a report by Gerard A. Figurelli, Ph.D., dated March 5, 2007, which contained the doctor's evaluation of defendant, including an interview in which defendant report[ed] that in her relationship with . . . Pierce, [sic] her co-defendant, she was subjected to intimidation, coercion, emotional abuse and physical abuse[,] . . . [and] that . . . Pierce [sic] . . . threatened to withdraw financial support he provided her, and threatened to have her children removed from her care and custody . . . if she did not do as he instructed/demanded of her in various matters.
Based on his evaluation, psychological testing and interview, Figurelli opined "within a reasonable degree of psychological certainty[,]" that defendant "was emotionally co-dependent and financially dependent upon . . . Pierce [sic]"; and that "Pierce [sic] emotionally and physically abused [defendant]; manipulated her fears and her dependence; and threatened and intimidated her to control her behavior and coerce her compliance with his needs, wants and demands." Figurelli described defendant's history as "[c]onsistent with the dynamics of battered women's [sic] syndrome," and opined that "it would have been appropriate and helpful for a jury, at the time of [defendant's] trial, to have been made aware of the dynamics of [defendant's] relationship to her co-defendant, and the nature of the influence of those dynamics exerted on her judgment and behavior at the time of her offending behavior."
PCR counsel also raised claims of excessive sentence, ineffective assistance of appellate counsel and cumulative error. Counsel submitted no certification by defendant in support of her battered woman syndrome claim.
On December 3, 2007, the PCR judge heard argument on defendant's petition. At the conclusion, the judge rendered his decision from the bench, denying relief for the following reasons:
I find that although [PCR counsel] makes a very strong argument I don't come to the conclusion that the result of this jury finding would have been different. I do find that trial counsel did extensive . . . examination and cross examination based on the transcript. There is no reason for me to find differently.
There are allegations of appellate counsel. I find that they do not go beyond the two-prong test, either, which leaves me to just address whether or not there should or should not be an evidentiary hearing.
I don't feel that this defendant has established a prima facie claim of ineffective assistance of counsel both at the trial and at the appellate level. I am impressed with Dr. Zigarelli's [sic] report, but it's not enough to get over the hurdle. It has to be more than conclusory . . . .
I find that there was at the trial level meaningful cross examination of the State's witnesses. The trial strategy or tactics of defense counsel cannot be second-guessed after the fact. Speculation . . . does not rise to the level of warranting an evidentiary hearing, so accordingly based upon a thorough reading of the transcripts, despite the analysis of [PCR counsel] and the report of Dr. Zigarelli [sic] and his submission I am going to deny this post-conviction relief without . . . an evidentiary hearing.
On appeal, defendant raises the following contentions for our consideration:
POINT ONE TRIAL COUNSEL'S FAILURE TO CONSULT AN EXPERT IN SUPPORT OF A BATTERED WOMEN'S [sic] SYNDROME DEFENSE DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL
POINT TWO DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HER PCR CLAIMS
POINT THREE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL
Having reviewed these contentions in light of the record and controlling legal principles, we are satisfied they are without merit. We affirm substantially for the reasons stated by Judge Eugene H. Austin in his decision rendered from the bench on December 3, 2007. We add only the following comments.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that her attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced her defense. Ibid.
We are satisfied that defendant failed to meet these standards. The PCR judge's finding that Figurelli's report was "conclusory" is clearly supported by the record. The opinions in his report are largely based on information "report[ed]" by defendant. While Figurelli did report that the "results of the psychological measures that" he administered to defendant "indicate that she continues to experience various neurovegetative and cognitive-affective symptoms of depression [,] . . . as well as . . . symptoms of anxiety[,]" the doctor did not connect these "results" to his conclusion that defendant's reported history was "[c]onsistent with the dynamics of" the battered woman syndrome.*fn1
"[T]he experience of being battered" has been recognized "as a potential triggering event for Post Traumatic Stress Disorder (PTSD)." State v. B.H., 183 N.J. 171, 183 (2005) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 453-68 (4th ed. text rev. 2000)). The battered woman syndrome has been "referred to . . . as a 'sub-category' or 'subclass' of PTSD." Ibid. Nowhere in his report does Figurelli opine that defendant suffers from PTSD. Moreover, Figurelli examined and interviewed defendant seven years into her thirty-year prison sentence. Nowhere does he specify that his test results support a finding of battered woman syndrome as opposed to a psychological pattern engendered by years of incarceration.
Defendant has failed to make a prima facie showing that she exhibited symptoms of the battered woman syndrome at or before the time of her trial in 2000. She has, therefore, failed to make a prima facie showing of ineffective assistance of counsel and was not entitled to a plenary hearing on this issue. State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant's claim that she was entitled to an evidentiary hearing based on the "remaining arguments" advanced in her PCR petition, is "without sufficient merit to warrant discussion in" this opinion. R. 2:11-3(e)(2).