October 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CRISTIAN VASILE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-02255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Graves and J. N. Harris.
Defendant Cristian Vasile appeals from the April 30, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He argues entitlement to PCR based upon the following eight points:
POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A SPRUILL CHARGE.
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CROSS-EXAMINE MS. VANDUYSEN CONCERNING THE LETTER SHE WROTE.
C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADMIT INTO EVIDENCE MS. VANDUYSEN'S LETTER.
D. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR DISMISSAL OF THREE COUNTS OF BURGLARY CONTAINED IN THE INDICTMENT.
E. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO COMPEL DISCOVERY.
F. TRIAL COUNSEL WAS INEFFECTIVE DURING PLEA NEGOTIATIONS.
G. TRIAL COUNSEL WAS INEFFECTIVE DURING SENTENCING.
POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III: THE PROSECUTOR ENGAGED IN MISCONDUCT DURING ENTRY OF THE PLEA. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT IV: THE PROSECUTOR ENGAGED IN MISCONDUCT THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT V: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL, PLEA, AND APPEAL UNFAIR.
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 ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5.
POINT VIII: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Vasile was charged by a Monmouth County grand jury*fn1 with third-degree conspiracy, N.J.S.A. 2C:5-2 (count one); third-degree burglary, N.J.S.A. 2C:18-2 (counts two, four, and six); third-degree theft, N.J.S.A. 2C:20-3(a) (counts three, five, seven, and nine); second-degree burglary, N.J.S.A. 2C:18-2 (count eight); and second-degree possession of a weapon by certain persons not to have a weapon, N.J.S.A. 2C:39-7(b) (count ten). After his 2005 jury trial, which was limited to only one of the four burglaries, Vasile was found guilty of one count of third-degree conspiracy and one count of third-degree theft. Vasile was acquitted of second-degree burglary, and the weapons charge was dismissed.
In January 2006, Vasile entered a negotiated plea of guilty to amended counts three, five, and seven, which charged third-degree receiving stolen property. The State agreed to dismiss counts two, four, and six. The State also agreed (1) to withdraw its motion for an extended term and (2) to recommend a maximum sentence not to exceed seven years.
The trial judge sentenced Vasile to an aggregate term of imprisonment of seven years. For the conviction of conspiracy, Vasile received four years. For the theft charge, Vasile received a concurrent four years and on counts three, five, and seven -- receiving stolen property -- Vasile was sentenced to three years to run concurrent with each other, but consecutive with the four years on the other counts.
On appeal, we affirmed Vasile's conviction and sentence. State v. Vasile, No. A-3877-05 (App. Div. Feb. 28, 2008). The Supreme Court denied further review. State v. Vasile, 195 N.J. 521 (2008).
On August 18, 2008, Vasile filed a pro se petition for PCR. After PCR counsel was assigned, the matter was considered by the Law Division on April 29, 2010, and the PCR court rendered an oral decision denying relief. This appeal followed.
Vasile's first point asserts that he received ineffective assistance of trial counsel, was prejudiced thereby, and is therefore entitled to PCR. He contends that trial counsel was ineffective in virtually every stage of the matter as it progressed from indictment to sentencing. We disagree.
It is well-established that our review of claims of ineffective assistance of counsel requires that we conform to the principle that a defendant must prove not only that counsel's performance was objectively lacking, but that the identified deficiencies unduly prejudiced the defense and adversely affected the outcome. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Allah, 170 N.J. 269, 283 (2002). This two-pronged test, as first enunciated by the United States Supreme Court in Strickland, and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), requires a defendant to show:
First, . . . that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Vasile contends that trial counsel was ineffective by failing to request a jury charge on accomplice testimony pursuant to State v. Spruill, 16 N.J. 73 (1954). The New Jersey Supreme Court "has 'consistently recognized that the status of a witness as an accomplice or co-defendant invites special consideration' with respect to that witness's credibility." State v. Harris, 156 N.J. 122, 179 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). In Spruill, the Court held "that there cannot be an arbitrary refusal to instruct the jury in specific terms that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his special interest in the proceeding." Id. at 80.
At trial, VanDuysen testified to her complicity in the crime committed by Vasile in Keansberg. She also admitted to a history of drug use, including at the time of her arrest, and explained that she had been offered a plea in exchange for her testimony. Trial counsel further highlighted VanDuysen's lack of trustworthiness at length during closing arguments.
We have held that a judge may instruct jurors about an accomplice or co-defendant "sua sponte if he or she thinks it is advisable under the circumstances," State v. Shelton, 344 N.J. Super. 505, 520 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). Our Supreme Court, however, has confirmed that it is "not error, let alone plain error," for a trial judge to fail to give this charge when not requested. See State v. Artis, 57 N.J. 24, 33 (1970).
The trial court's charge on credibility provided the jury with factors upon which to assess VanDuysen's credibility. This instructed that the jury could look to a witness's interest in the outcome of the trial, possible bias, and any other matters in evidence which would serve to support or discredit testimony. That charge adequately informed the jury as to the appropriate factors that it could look to in assessing VanDuysen's testimony.
Under these circumstances, it was reasonable for trial counsel to determine that the risk of prejudice to Vasile outweighed any potential benefit from the Spruill charge. Moreover, Vasile cannot show prejudice because the jury was offered ample reasons to question VanDuysen's credibility, both during cross-examination and closing arguments.
"Our legal system has long recognized that cross-examination is the 'greatest legal engine ever invented for the discovery of truth.'" State v. Basil, 202 N.J. 570, 591 (2010) (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970)). From this principle, Vasile asserts that his trial counsel's failure to cross-examine VanDuysen regarding three exculpatory letters she had written to Vasile constituted ineffective assistance of counsel.
As noted by the PCR court, however, trial counsel was limited to cross-examining VanDuysen concerning only one of the three letters, asking whether the letter's contents were true or whether she had "made it up." VanDuysen responded that the letter was largely untrue. We are left to speculate, for the most part, exactly how trial counsel was supposed to utilize the correspondence, other than, as Vasile's brief argues, "these letters were fertile grounds for cross-examination."
Unsupported assertions -- without any factual support -- are not sufficient to establish an ineffective assistance of counsel claim. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Vasile's broad-strokes assertion that trial counsel could have better utilized the letters lacks merit. The outcome would not have been different even if we assume counsel failed to perform according to Vasile's exalted standards.
Under the Strickland test, trial counsel's constrained cross-examination did not rise to the level of ineffective assistance. He used the letter to impeach VanDuysen's truthfulness, forcing her to admit that she had lied. Moreover, the contents of the letter, which stated that VanDuysen had been intoxicated ("high") and felt pressured by police when she gave her statement, were presented to the jury at other points during VanDuysen's cross-examination.
Coupled with the foregoing contention is Vasile's assertion that trial counsel was ineffective for failing to admit the October 18, 2004 letter into evidence. He claims the letter was admissible as a statement against interest under N.J.R.E. 803(c)(25).
We recently stated the following:
N.J.R.E. 803(c)(25) permits the introduction of [a] statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true.
The statement-against-interest exception "is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably." State v. White, supra, 158 N.J. at 238. "[T]he declarant of a statement against interest does not have to be a party in order for the statement to be admissible," Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(25) (2010) but the statement must have been against the declarant's interest at the time of its utterance, e.g., State v. Norman, 151 N.J. 5, 31 (1997). [One Step Up, Ltd. v. Sam Logistic, Inc., 419 N.J. Super. 500, 508 (App. Div. 2011).]
In this matter, the October 18, 2004 letter may have qualified as a statement against interest. Nevertheless, Vasile was not prejudiced by the letter's exclusion. Given VanDuysen's testimony that her statements in the letter were untrue, its introduction could only have served to discredit her testimony. As the PCR court noted, "counsel elicited testimony which suggested the contents of the letter on cross-examination," including that VanDuysen was high when arrested and felt pressured by the police. Therefore, the PCR court correctly concluded that "VanDuysen's credibility was already damaged and any effect of the letter would have been cumulative at best and was not likely to affect the outcome of the case."
Vasile next asserts that trial counsel was ineffective for failing to seek dismissal of the three burglary counts contained in the indictment. He claims that based on the evidence presented to the grand jury, he "could only be indicted based on . . . receiving stolen property." For an indictment to be valid, "[t]he grand jury must be presented with sufficient evidence to justify [its] issuance." State v. Morrison, 188 N.J. 2, 12 (2006). Nevertheless, "[o]nce the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted). A trial court "should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." Morrison, supra, 188 N.J. at 12. Accordingly, an indictment may only be dismissed where, "viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could [not] reasonably believe that a crime occurred and that the defendant committed it." Id. at 13.
N.J.S.A. 2C:18-2(a) defines burglary, in pertinent part, as follows:
A person is guilty of burglary if, with purpose to commit an offense therein he:
(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or
(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.
In this case, the State presented sufficient evidence to support the indictment. The PCR court analyzed the evidence underlying each burglary count and found that "the State provided at least some evidence that a burglary occurred at each residence as well as some evidence linking petitioner to those burglaries through various stolen items." It is particularly noteworthy that at least a portion of the goods stolen from each residence was found either in Vasile's home or on his person at the time of his arrest. Trial counsel was not ineffective by not moving to dismiss those counts of the indictment.
Vasile asserts that trial counsel was ineffective for failing to file a motion to compel discovery of "a photograph showing the location of Ms. VanDuysen's fingerprint recovered from the scene." He claims that "this discovery was needed in order to test the credibility of the police and the State's forensic experts." We disagree.
Rule 3:22-5 states:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
This bar applies "'only if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal.'" State v. Marshall, 173 N.J. 343, 351 (2002) (quoting State v. Marshall, 148 N.J. 89, 150, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).
On direct appeal, Vasile argued that his conviction should be reversed because "the State withheld a photograph of the scene where the fingerprint was pulled from the window." Vasile, supra, slip op. at 22. He alleged that this governmental misconduct prevented him from mounting an effective defense. Ibid. In response, we noted that Vasile had presented no evidence that the photograph, in fact, existed; rather, we observed that Vasile had misinterpreted Detective Kronenberger's testimony that "[t]he scene was photographed." Id. at 23.
As the PCR court determined, Vasile's current argument is substantially identical to that raised on appeal and is therefore barred by Rule 3:22-5. Even if this bar were not applied, trial counsel explicitly asked the prosecutor on the record whether there was any evidence of the fingerprint's location, besides Detective Kronenberger's testimony. The prosecutor replied that there was not and, as the trial judge stated, "[t]he prosecutor is only required to give [the defense] the information that they have." It is pure speculation to assume the contrary. Under these circumstances, trial counsel's actions did not constitute ineffective assistance to Vasile's defense.
Vasile asserts that trial counsel was ineffective during plea negotiations by assuring Vasile that "under the plea agreement, he would be sentenced to no more than five years." He also claims that counsel was ineffective at sentencing by not objecting to the imposition of consecutive terms. These contentions are not persuasive.
Our Supreme Court has stated the following:
A guilty plea is the final relinquishment of the most cherished right -- to be presumed innocent of crime until a jury of one's peers has determined guilt beyond a reasonable doubt. Defendants who plead guilty also waive other guarantees like the right against self-incrimination and the right to confront one's accusers.
Because of the overriding importance of those protections, the court rules are designed to ensure that pleas are supported by a factual basis and are entered voluntarily and knowingly, that is, with a full understanding of the charge and the consequences of the plea.
[State v. Slater, 198 N.J. 145, 154-155 (2009) (citations, editing marks, and internal quotation marks omitted).]
Here, Vasile has offered no evidence to establish that trial counsel was ineffective during either plea negotiations or sentencing. Even if he could show that counsel was deficient, Vasile was not prejudiced by his attorney's actions. The plea form stated that the "maximum sentence on all outstanding charges including convictions at prior trial [would] not exceed seven (7) years in the aggregate." Moreover, Vasile stated at his plea allocution that he understood the terms of the arrangement, including the seven-year aggregate sentence. He cannot now mount a successful challenge to his sentence based upon the argument that his counsel was deficient.
Vasile also takes aim at his designated appellate counsel, accusing him of constitutionally faulty representation. Specifically, Vasile argues that appellate counsel was ineffective during his direct appeal by neglecting to raise meritorious issues and not challenging the validity of the indictment. We disagree.
The effectiveness of appellate counsel is assessed under the same standard as trial counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). As discussed, the Strickland/Fritz rule employs a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. An appellate attorney's decision to forego claims that are clearly without merit does not constitute deficient performance under the Strickland/Fritz standard. See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues."). Often, as the United States Supreme Court has recognized, "'[t]he effect of adding weak arguments will be to dilute the force of stronger ones.'" Id. at 752, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994 (quoting R. Stern, Appellate Practice in the United States 266 (1981)).
Vasile's appellate counsel raised four points on appeal, challenging the denials of Vasile's motion to suppress and motion for acquittal; the court's decision to forego a Spruill instruction to the jury; and the sentence. Counsel did not raise claims that Vasile was denied effective assistance of counsel at trial, although Vasile's pro se supplemental brief did raise the latter issue.
However, claims for ineffective assistance of counsel are rarely considered on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding."). Moreover, as we have already discussed, Vasile has failed to present any meritorious issues warranting relief. Therefore, the decision to omit these claims on direct appeal "falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Vasile's remaining points lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We comment briefly, however, on only one: whether the PCR court erred in not conducting an evidentiary hearing before denying PCR. A defendant making a prima facie showing of entitlement to such relief, that is, "demonstrat[ing] a reasonable likelihood that his or her claim will ultimately succeed on the merits[,]" is generally entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997) (citing Preciose, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Absent such a showing, however, no evidentiary hearing is required. See Cummings, supra, 321 N.J. Super. at 170. Since Vasile has presented neither material factual disputes that require an evidentiary forum to resolve nor any other basis to warrant the collection of evidence and examination of witnesses, the PCR court rightly resolved the petition without an evidentiary hearing.