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State of New Jersey v. Frank Maltese

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK MALTESE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-08-0961.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2010

Before Judges Rodriguez and Miniman.

Defendant Frank Maltese appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

On January 8, 2007, pursuant to an agreement, defendant pleaded guilty to first degree aggravated manslaughter pursuant to N.J.S.A. 2C:11-4a. In exchange, the State agreed to dismiss related charges and recommend a maximum eleven-year term with a NERA*fn1 parole disqualifier, to run concurrent with any sentence imposed on a violation of probation. Defendant gave the following factual basis:

BY [DEFENSE COUNSEL]:

Q. And although the judge has discretion, I guess, to come down to 10, basically you should be pretty well set in your mind that that's what you would get, 11 years. Do you understand that?

A. Yes, sir. Yes, sir.

Q. And you have to serve 85 percent of that, which is close to 10 years, between nine and 10 years, --

A. Yes.

Q. -- do you understand that, before you're eligible for parole? And when you do get paroled, you're on parole for a five year period of time. And if you violate parole during that time, you're not just subject to the remaining time up to 11 years but five additional years. And if you violate during that time, you could go to prison for up to five years if it happens in the beginning of that period. Do you understand that?

A. Yes.

Q. Okay. And this would run concurrent to any sentence you get out of Newark Municipal Court in violation of probation. Do you understand that?

A. Yes.

Now, other than what I've just said here, has anything else been promised to you to get you to plead guilty?

A. No.

Q. You are a U.S. Citizen, is that correct?

A. Yes.

Q. Okay. Have you had enough time to discuss this with me?

A. Yes.

Q. Do you feel you understand everything that's going on here?

A. Uh-huh. Yes.

Q. Do you have any questions?

A. No.

Q. Do you understand that if the judge does not want to accept this plea agreement, she doesn't have to? However, if she wanted to give you a greater amount of time, she would first give you an opportunity to take back your guilty plea, let you plead not guilty and anything you said admitting your guilt here today in court could not be used against you if you went to trial under those circumstances?

A. Right. I understand.

Q. Okay. So, knowing the charges you're facing, the penalties for those charges, knowing about your right to a trial and knowing what the plea bargain offer is, do you want to go to trial or do you want to plead guilty under these terms?

A. I plead guilty.

Q. Okay. It charges that on May 4th, 2006 in Passaic, you killed Nuclus -- Nicholas Luciano under the doctrine of aggravated manslaughter recklessly under circumstances manifesting extreme indifference to the value of human life. We discussed the particular charge and what -- what the elements of that are, ----

A. Right.

Q. -- is that correct?

A. Yes.

Q. And do you feel that you are guilty of that offense?

A. Yes.

Q. Did you know Nicholas Luciano?

A. Yes.

Q. And were you, in fact, friends from childhood?

A. Yes.

Q. And were you working with him that day?

A. Yes.

A-4844-08T4

Q. What kind of work?

A. Roofing.

Q. And he was, in effect, your -- your boss or supervisor that day?

A. Yes.

Q. And did you get into an argument with him?

A. Yes.

Q. And over what?

A. It was getting into the truck -- into the back of the truck or the inside.

THE COURT: Sir, would you look this way and just keep your voice up? You're now -- I mean, every part is important but you're now talking about what happened.

THE COURT: On May 4th, this -- gentleman was your boss?

[DEFENDANT]: Yes.

THE COURT: All right. And were you at work?

[DEFENDANT]: Yes.

THE COURT: And was -- what time of the day or night was this?

[DEFENDANT]: We were just finishing coming off the roof into the parking lot of the building.

THE COURT: All right. And approximately how -- what time of the day or night was this?

[DEFENDANT]: 4:30, quarter to 5.

THE COURT: In the afternoon, correct?

[DEFENDANT]: Yes.

THE COURT: All right. If your attorney wishes to continue, go ahead.

BY [DEFENSE COUNSEL]:

Q. And so you said the argument started that he wanted you to drive, what, back to his office in the back of the truck, the open area --

A. Yes.

Q. -- of the pickup truck?

A. Yes.

Q. And you wanted to drive in the cab, --

A. Right.

Q. -- is that correct?

A. Uh-huh.

Q. And as a result of that, you got into an argument with him?

A. Yes.

Q. Okay. Had you been drinking?

A. Yes.

Q. And had he been drinking?

A. Yes.

Q. Okay. But you still knew what you were doing, is that correct?

A. Uh-huh. Yes.

Q. Okay. And at that time, did you get into -- did he -- did you and he get into a physical fight?

A. Yes. He got out of the truck and pushed --

THE COURT: Sir, would you keep your voice up and just look this way?

BY [DEFENSE COUNSEL]:

A. He got out of the truck and just pushed me on the ground.

Q. Okay. And what did you do in return?

A. When I got up and there was a knife of the dashboard on the truck. The door was still open. I grabbed it and then we started going at each other and the knife went into him.

Q. And when you say --

THE COURT: All right. Now, what do you mean when you say, "We started going at each other"?

[DEFENDANT]: Like physically, we were going to put like -- I guess we were going to grab each other in a headlock.

THE COURT: All right. Did he have any type of weapon?

[DEFENDANT]: No.

THE COURT: All right. Go ahead, Mr. --

BY [DEFENSE COUNSEL]:

Q. And so you took the weapon -- the knife to use as a weapon in your fight against him, is that correct?

A. Yes.

Q. And you, in fact, stabbed him with it, is that correct, --

A. Yes.

Q. -- one time in the chest?

A. Yes. Yes.

Q. And you understand that that could -- that would probably cause his death --

A. Yes.

Q. -- by doing that, by stabbing someone in the chest with a knife?

A. Yes.

Q. So, knowing the elements of aggravated manslaughter, do you believe you are guilty of that offense?

A. Yes, I am.

Judge Marilyn Clark accepted the plea agreement and, in accordance with the State's sentencing recommendation, sentenced defendant to an eleven-year term with a NERA parole disqualifier and five years of parole supervision upon his release. The judge also ordered defendant to submit a DNA sample and imposed the mandatory fines and penalties.

Defendant did not file an appeal. Instead, in April 2008, he filed pro se a PCR petition contending that: (a) he received ineffective assistance of counsel; and (b) he provided an inadequate factual basis to support the plea. He submitted a brief. Shepard K. Kays, Esq., prepared and submitted defendant's certification in support of the petition, and argued at oral argument.

Judge Clark determined that an evidentiary hearing was unnecessary and denied the petition.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For [PCR] Relief.

B. Since The Defendant Presented A Prima Facie Case Of Ineffective Assistance Of Counsel, The Trial Court Erred In Denying The Defendant's Petition For [PCR] Without Affording Him An Evidentiary Hearing To Fully Address This Contention.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] SINCE AN ADEQUATE FACTUAL BASIS WAS NOT PROVIDED AT THE TIME THE GUILTY PLEA TO AGGRAVATED MANSLAUGHTER WAS ENTERED.

THE DEFENDANT'S CONTENTIONS CONTAINED IN HIS PETITION FOR [PCR] WERE NOT PROCEDURALLY

BARRED AND COULD PROPERLY HAVE BEEN ADJUDICATED ON THEIR SUBSTANTIVE MERITS.

We disagree.

Essentially, defendant argues that "he was not properly represented since his meetings with his attorney were relatively infrequent and short" and that "counsel never presented a potential defense strategy." However, it is clear from his factual basis that his version of the facts precluded a defense.

It is axiomatic that a defense arises from the facts of the criminal episode, not the creative ingenuity of trial counsel.

Here, defendant's testimony and the eyewitnesses' statements did not give rise to a "potential defense."

The standard for assessing an attorney's performance is well-known. See Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The New Jersey Supreme Court has adopted this standard for deciding claims of ineffective assistance arising under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 51 (1987). The first requirement is that defendant show that counsel's performance was deficient by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "Judicial scrutiny of counsel's performance must be highly deferential."

Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Here, judged against that standard, we conclude that defendant has failed to establish the first requirement. From our careful review of the record, we do not perceive that trial counsel provided ineffective assistance in any way.

With respect to defendant's claim of entitlement to an evidentiary hearing, we are mindful that when making such a decision, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of- counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Id. at 462. However, "[i]f the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citing State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); Preciose, supra, 129 N.J. at 462-64; State v. Odom, 113 N.J.

Super. 186, 192 (App. Div. 1971)). We conclude that such is the case here.

Affirmed.


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