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State of New Jersey v. John Donato

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN DONATO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-05-0478.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011

Before Judges Parrillo and Espinosa.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of the aggravated manslaughter of his wife and sentenced to seventeen and one-half years incarceration and five years parole supervision.

Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Donato, No. A-5059-02 (App.

Div. June 14, 2006). The Supreme Court denied his petition for certification. State v. Donato, 188 N.J. 358 (2006). The facts underlying defendant's convictions are set forth in our opinion on direct appeal and need not be repeated here.

Defendant filed a PCR petition on February 26, 2008, in which he argued he was denied the effective assistance of counsel because his counsel failed to investigate and present an expert in neurology/pharmacology to show that his wife had used alcohol and prescription drugs. Defendant filed an amended petition on September 2, 2008. In this brief, defendant raised additional claims of prosecutorial misconduct and ineffective assistance of appellate counsel. Defendant also filed a pro se memorandum in support of his petition in which he advanced more new claims: ineffective assistance of trial counsel in failing to present a defense; the trial court's failure to determine the reliability of defendant's three and one-half year old son as a witness; prosecutorial misconduct; ineffective assistance of appellate counsel; and a challenge to pretrial discovery. The PCR court denied defendant's petition by order dated January 8, 2009.

Defendant presents the following issues for our consideration in his appeal.

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. TRIAL COUNSEL FAILED TO CONSULT AND RETAIN NEEDED EXPERTS AND FAILED TO PROPERLY PREPARE FOR THE TESTIMONY OF DR. BADEN

B. TRIAL COUNSEL FAILED TO DEVELOP A DEFENSE STRATEGY, FAILED TO TEST THE STATE'S CASE AND WAS NOT PREPARED FOR TRIAL

C. TRIAL COUNSEL FAILED TO PROPERLY ATTACK THE CREDIBILITY OF THE VICTIM'S PSYCHIATRIST, DR. BEHZAD AHKAMI

D. TRIAL COUNSEL FAILED TO PRESENT ESSENTIAL WITNESSES AT TRIAL. CONSEQUENTLY, COUNSEL FAILED TO DEVELOP A DEFENSE BASED ON THE VICTIM'S ALCOHOLISM AND FAILED TO ESTABLISH THE AMOUNT OF TIME DEFENDANT SPENT WALKING HIS DOG PRIOR TO FINDING HIS WIFE'S BODY

E. TRIAL COUNSEL FAILED TO PRESENT CRUCIAL EVIDENCE

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-4

POINT VII

THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

We are not persuaded by any of these arguments and affirm.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

None of defendant's arguments meet this standard. He has presented no facts or expert opinions to elevate his arguments beyond vague, conclusory allegations. As we stated in our decision affirming his convictions and sentence, the evidence of defendant's guilt was "voluminous." He has failed to explain or demonstrate why, if particular evidence was admitted or excluded, there would have been a different result.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. To the contrary, the record reveals that defense counsel, whom we described as "[e]xperienced and skillful[,]" in our decision affirming defendant's convictions and sentence, presented a vigorous defense on his behalf. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 449, 462-63 (1992).

Affirmed.

20110407

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