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State of New Jersey v. Brian Paladino

December 16, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN PALADINO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-05-1197.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010 Before Judges Ashrafi and Nugent.

Defendant Brian Paladino appeals the June 5, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

On May 3, 2001, a Bergen County Grand Jury indicted defendant on charges of first degree murder, N.J.S.A. 2C:11-3a(1)(2); fourth degree credit card theft, N.J.S.A. 2C:21-6c; third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h; third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3; and third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d.

The charges arose out of the stabbing death of defendant's roommate, Nicholas Frega, and defendant's use three days later of a credit card owned by a different victim. After killing Frega by stabbing him in the back of his neck near the base of his skull, defendant and a co-defendant dumped Frega's body into the Passaic River, disposed of the murder weapon, and disposed of other evidence. When arrested, defendant confessed to killing Frega and told police where he disposed of the evidence.

On April 13, 2004, defendant entered an unconditional guilty plea to all counts of the indictment except the count involving the co-defendant. In return for the plea and defendant's agreement to testify truthfully against the co-defendant, the State recommended a maximum sentence of thirty years without parole, the sentence on each count of the indictment to run concurrently. Following a plea colloquy, the trial court found defendant had pled guilty freely, voluntarily,

and without any duress or coercion. The trial court also found that defendant understood the nature and consequences of the plea. Finally, the trial court found that despite long-term medical treatment, defendant was "lucid, cognitive of the surroundings, and was fully aware of the words being spoken today." The trial court commented that defendant was pleasant and articulate when he spoke. When asked by the court if he was satisfied with his attorney, defendant responded that his attorney had been excellent.

On May 27, 2004, the trial court sentenced defendant. After appropriate merger of charges, the court sentenced defendant to the term recommended by the State, namely, thirty years imprisonment without parole for first degree murder. The court sentenced defendant to concurrent terms of four years imprisonment on the remaining charges of hindering apprehension and fraudulent use of a credit card.

Defendant filed an untimely notice of appeal on September 20, 2006. He also filed a motion to file the appeal as within time. On December 18, 2006, the motion was denied without prejudice because defendant had not certified he had advised his pool attorney about his desire to appeal. Defendant did not refile the appeal, but instead filed a PCR petition on December 10, 2007.

Defendant alleged his trial counsel was ineffective and the trial court erred in denying his pre-trial motions. PCR counsel was assigned and submitted a supplemental brief. Defendant asserted in the supplemental brief that his guilty plea was not voluntary and that his trial counsel was ineffective because counsel pressured defendant into accepting a plea agreement, did not share or meaningfully discuss discovery with defendant, did not investigate information that may have led to development of defenses or mitigating factors at sentencing, and did not explore with defendant the option of proceeding to trial.

On June 5, 2009, after oral argument on defendant's petition, the PCR judge found that defendant's plea was voluntary, knowing, and intelligent. The PCR judge noted that defense counsel had pursued a psychiatric defense and obtained at least one expert who issued a report. Additionally, the PCR judge noted that defense counsel filed numerous motions to suppress physical and testimonial evidence. Finally, the PCR judge found that even if defense counsel's performance was ineffective, it would not have changed the outcome due to the overwhelming evidence, including defendant's confession. Consequently, the PCR judge denied the PCR petition in an order dated June 5, 2009. On November 5, 2009, defendant filed this appeal.

Defendant raises one issue on appeal:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a ...


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