January 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH POLIZZI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-08-0774.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Cuff and Waugh.
Defendant Joseph Polizzi appeals from the Law Division's April 30, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm.
We discern the following facts and procedural history from the record on appeal.
On July 13, 2002, nine-year-old K.H. was attending a family party in Vineland. There were approximately seventy-five to one hundred guests at the party. During the party, K.H.'s uncle became ill and was taken to the hospital.
K.H. related the following facts during an interview with State Police Detective Kevin Milbourne. While K.H.'s uncle was being treated, a man later identified as Polizzi "grabbed her out of the pool, stuffed a red bandana in her mouth and threw her into a gray car, got into the car and drove away." Polizzi, who told K.H. he was "Uncle Dave," said he would take her to the hospital to see her uncle. Polizzi subsequently denied that he forced K.H. to go with him.
After they left the party, Polizzi drove to his house. He went inside to get a pack of cigarettes and beer, while K.H. remained in the car. He then drove K.H. to a wooded area. Polizzi pulled K.H. from the car, after which he "smoked a cigarette and drank the beer." Polizzi then took K.H.'s bathing suit off, put her on the ground, restrained her arms and legs, and poured baby oil on her body.
Polizzi rubbed the baby oil on K.H.'s "chest and vaginal area." K.H. was unable to pry herself away. When K.H. called for help, Polizzi told her "no one is going to hear you" and threatened to kill her if she told anyone. Because K.H. thought she was going to die, she stopped screaming. After K.H. was assaulted, she wiped herself off and put her clothes on. Polizzi then drove K.H. to a gas station and he left her there. The incident lasted approximately an hour.
Someone at the gas station contacted K.H.'s parents. He told the police that K.H. was "hysterical" and "crying" after she was left at the gas station. K.H.'s parents picked her up and took her to the Port Norris State Police Barracks.
Marks found on K.H.'s back were characterized as "consistent with someone who had been lying on sticks," and a piece of male pubic hair was "recovered from her groin area." DNA analysis linked Polizzi to the pubic hair. K.H. was subsequently examined at Newcomb Hospital. The examination revealed "abrasions on the outer lobe of her vagina resulting in a break in the skin."
K.H. told the police that she was driven in a car with a gray interior and exterior. The police took K.H. to the wooded area, but she became upset going down the path which led to the area and they turned back. K.H. then directed Milbourne to Polizzi's house. The next day, the police searched the woods and found a grassy area with signs that something had been resting on it. The police also found an empty bottle of baby oil, an empty beer can, and cigarette butts. A fingerprint, later identified as Polizzi's, was lifted from the beer can. DNA analysis also linked Polizzi to the cigarette butts.
K.H.'s family suspected that someone they knew as "Joe," a man from a local tavern who had been invited to the party by K.H.'s uncle, had committed the crime. The uncle identified Polizzi during a photo array as the person he had invited to the party. The police conducted interviews at the tavern, where patrons stated that "Joe" worked in Vineland at Asselta Mechanical.
When questioned, Asselta Mechanical's owner identified "Joe" as Joseph Jaglowski. The police went to Jaglowski's home, and determined that he owned a gray Buick Elantra. However, Jaglowski did not match K.H.'s description of her assailant, nor did he match the description of the man observed on a videotape of the party. After further investigation, the police determined that Polizzi, who was Jaglowski's roommate, was the assailant. K.H. subsequently identified Polizzi as the man on the videotape. She also positively identified Polizzi as her assailant during a photo array.
Jaglowski's car matched the description given by K.H. Jaglowski told the police that he had lent his car to Polizzi around 3:00 p.m. on the day of the crime. According to Jaglowski, at approximately 7:00 p.m., Polizzi came home, took a pack of cigarettes and a beer, and left. When Polizzi returned home, Jaglowski described him as "really frantic" and "out of his mind." Jaglowski also told the police that Polizzi said, "I'm in trouble, I have to get out of here." Polizzi then changed his clothes and left again. Jaglowski told police that Polizzi "had a problem with children and if he saw a young girl on television he would express interest in having sexual intercourse with her."
During a search of Jaglowski's car, police obtained three long, blonde hairs from the front passenger seat. After analysis, they were determined to be K.H.'s hairs. Police also found cigarette butts in the car and plant material stuck underneath the car.
The police spoke with Jaglowski four days later to determine whether he had been in contact with Polizzi. Jaglowski told them that he had spoken to Polizzi over the phone. He related that Polizzi told him that K.H. had asked him to drive her to the hospital on the day in question. Polizzi told Jaglowski that, although he had agreed to drive K.H. to the hospital, he dropped her off at the gas station instead when he realized it was inappropriate for him to be alone with her.
Polizzi turned himself into the police on July 18, 2002. On August 28, Polizzi was indicted on four counts of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1), (b)(2), (c)(2)(a), and (c)(2)(b); one count of first-degree aggravated-sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1); one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b); one count of third-degree endangering the welfare of the child, contrary to N.J.S.A. 2C:24-4; one count of criminal restraint, contrary to N.J.S.A. 2C:13-2(a); and one count of third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b).
Polizzi filed a motion to suppress the identification evidence. Following an evidentiary hearing in November 2003, the motion judge determined that the photo array in which K.H. identified Polizzi as her assailant was properly conducted and produced a valid identification.
On February 3, 2004, after the start of trial, Polizzi entered a plea to one count of second-degree sexual assault and one count of first-degree kidnapping. The plea agreement did not include any recommendation concerning the sentence. Although the plea subjected Polizzi to a maximum sentence of forty years with an eighty-five-percent period of parole ineligibility, the trial judge advised Polizzi that he was considering a twenty-year sentence with the same percentage of parole ineligibility. Defense counsel noted at the time of the plea that, by pleading to the two counts, Polizzi was avoiding exposure to a life sentence on the counts to be dismissed.
During the plea colloquy, Polizzi supplied the following factual basis for the plea.
Q. Mr. Polizzi, on July 13th, 2002 you were, in fact, in the City of Vineland; is that correct?
Q. You were actually at this barbeque at the . . . house; correct?
Q. And during the course of this barbeque [one] of the family members had some kind of heart attack or some kind of fit and needed medical attention; is that correct?
A. Yes, sir.
Q. And after that period of time you approached [K.H.] and asked her to come with you to go for a ride to see her uncle in the hospital; is that right?
A. Oh, yea, that's true, yes.
Q. Okay. And she went with . . . [you] under that pretense initially?
A. She went . . . with me on her own free will, yes.
Q. But . . . you weren't really going to see her uncle, you ended taking her out in the woods; right?
A. I stopped at my house. I picked up some cigarettes and some beer and we then --I then stopped on the side of the road in the wooded area --
Q. Okay. But that was your purpose in taking her from the party so that you could --
A. Well the purpose was to go see her uncle but it changed by the time I got to my house. Things got hectic, things changed --
Q. And the purpose at that point --after that point in time was for you to commit an offense against her; correct?
Q. Okay. And you held her basically against her will because she didn't agree to go with you . . . so that you could commit some type of sexual act to her; right?
Q. Okay. And you held her for a . . . substantial period with a purpose to commit that sexual assault?
Q. Okay. And you drove around to a secluded area in the woods; is that correct?
Q. And when you [were] out in the woods, you took her out of the car and either had her or took her bathing suit off of her; correct?
Q. And just so there's no misunderstanding this K.H. in the indictment, [is she] . . . the girl that you took from the party?
Q. And she was 9 years old at that time; correct?
Q. And when you took her bathing suit off you rubbed baby oil on her; correct?
A. I inappropriately touched her with my hands.
Q. Okay. And when you say you inappropriately did that, you touched her in her vaginal area; correct?
Q. And that was for the purpose of sexually gratifying yourself; correct?
A. Yes. [PROSECUTOR]: Mr. Polizzi, you did not bring her back to her family or to the party; did you not, sir?
[DEFENDANT]: I brought her to that gas station and I dropped her off at the gas station where I thought she would be safe.
[DEFENSE COUNSEL]: I just want to follow up on that and -- you realized that you didn't drop her off unharmed, she was harmed by your actions; correct?
DEFENDANT: I inappropriately touched her and what I did was wrong.
[DEFENSE COUNSEL]: Right. And you understand that that caused her harm whether or not it was physical harm, it was certainly emotional harm?
DEFENDANT: I emotionally harmed her and I'm sorry for it.
On July 19, 2004, Polizzi filed a motion to withdraw his guilty plea, "maintaining that he had been coerced and misled into entering the plea by his trial counsel." The motion was heard and denied on July 30, the date scheduled for sentencing.
After denying the motion, the trial judge sentenced Polizzi to twenty years incarceration with an eighty-five-percent parole disqualifier. He was sentenced pursuant to the Sexual Offender Act, N.J.S.A. 2C:47-1 to -10, as a consequence of which he will eventually be eligible for treatment at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. In addition to the required fines and penalties, the judge ordered Polizzi comply with "all of the Megan's Law requirements including community supervision for life."*fn1
Polizzi requested the Public Defender to file a plenary appeal of all issues. A notice of appeal was duly filed in December 2004. However, on February 9, 2005, the Public Defender requested that the appeal be transferred to the excessive-sentence calendar because "it appear[ed] that [Polizzi's] appeal contain[ed] issues of sentencing only."
In January 2006, we remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). The resentence hearing on February 10, 2006, resulted in the same sentence. Jaglowski appeared at the hearing and spoke on behalf of Polizzi. Polizzi appealed and we affirmed in June 2006.
Polizzi filed his PCR petition in May 2009. His petition included a notarized letter from Jaglowski to the Public Defender's Appellate Section. There were two jurats at the foot of the letter. One is dated February 28, 2006, just a few weeks after Jaglowski spoke on Polizzi's behalf at the resentencing. The other is dated May 13, 2009, at the time Polizzi was filing his PCR petition.
Although Jaglowski's letter generally asserted that statements attributed to him in the presentence and ADTC reports were "half-truths and in some cases completely false," he only disavowed one specific statement: "I wish to now state on [the] record that I never said that Mr. Polizzi expressed a desire to have sex with children he met or [saw] on TV." He attributed the false statements to Milbourne, whom he accused of threatening him. He further asserted that he told the assistant prosecutor handling the trial that he "would recant these lies in their entirety if [he] were to take the stand at any future trial," adding that "these lies added to my statement would have been recanted with vigor had [a trial] occurred." (Emphasis added.)
In his PCR petition, Polizzi argued that the State had engaged in misconduct with respect to Jaglowski's statement and that his trial counsel had been ineffective. Following oral argument on March 12, 2010, the PCR judge denied relief in a comprehensive written decision dated April 30, 2010. An order dismissing the petition was entered on the same day.
This appeal followed.
Polizzi raises the following issues on appeal:
POINT I: THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO PREPARE FOR TRIAL, LEAVING DEFENDANT WITH NO OPTION BUT TO ACCEPT AN OPEN PLEA AGREEMENT WITH THE STATE.
POINT II: THE PCR COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR PCR TO ALLOW DEFENDANT TO ESTABLISH THAT HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.
POINT III: THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS ATTORNEY'S FAILURE TO BRING A SPEEDY TRIAL MOTION DESPITE THE STATE'S EXCESSIVE DELAY IN BRINGING DEFENDANT'S CASE TO TRIAL.
POINT IV: DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WAS VIOLATED BY APPELLATE COUNSEL'S FAILURE TO PURSUE A PLENARY APPEAL FROM THE JUDGMENT OF CONVICTION (Not Raised Below).
POINT V: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE SUPPLEMENTAL BRIEF.*fn2
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
Polizzi argues that there were three instances of ineffective assistance of counsel entitling him to relief: (1) the failure of trial counsel adequately to prepare for trial resulting in Polizzi having to plead guilty; (2) the failure of trial counsel to bring a motion to dismiss the indictment on speedy-trial grounds; and (3) the failure of his appellate counsel to file a plenary appeal raising the denial of his motion to withdraw his guilty plea, which was not raised in the PCR petition. We find none of those arguments to be persuasive.
Assuming, without finding, that counsel's performance in preparing for trial was constitutionally deficient, Polizzi's contentions must be viewed in the light of the facts the State would have been able to offer at trial to determine whether there is "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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
K.H. identified Polizzi as her assailant in both a photo array and from a videotape taken during the party that preceded the sexual assault. Her description of the car used by her assailant matched Jaglowski's car, to which Polizzi had access. Three strands of K.H.'s hair were found in that car. K.H. led police to Polizzi's house, where she asserted they had stopped before going to the woods. She also led them toward the location in the woods where the assault occurred. Police located an empty bottle of baby oil, cigarette butts, and a beer can at the scene of the assault. Testing determined that Polizzi's DNA was on the cigarette butts and that his fingerprint was on the beer can. A strand of Polizzi's pubic hair was found on K.H. during a physical examination. Further examination revealed that K.H. suffered "abrasions on [the] outer lobe of her vagina causing a break of the skin" and "that K.H. suffered bruising in the area of her right upper thigh and abrasions on her back, left torso, buttocks and labia."
Although Polizzi argues in general terms that his trial counsel would have discovered exculpatory evidence had he been more thorough, he does not, nor could he, explain what evidence would have been found to support a finding that there is a reasonable probability of a different result had counsel been more effective. Even assuming that further investigation would have revealed Jaglowski's recantation of a portion of his statement, we are unable to find a reasonable probability that there would have been a different result had the case gone to trial. The State had ample proof of Polizzi's guilt without Jaglowski's testimony. In addition, Polizzi received a favorable plea agreement and avoided the possibility of a life sentence.
Polizzi further contends that his trial counsel was derelict for failing to seek dismissal of the indictment on speedy-trial grounds because there were approximately nineteen months between the date of his arrest and the start of the trial. We see no basis for a meritorious speedy-trial motion.
In determining the merits of a speedy-trial motion, the Supreme Court has adopted the balancing test of the United States Supreme Court. State v. Szima, 70 N.J. 196, 199-201 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972)), cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). The four factors courts should consider are the "length of delay, the reason for the delay, the defendant's assertion of the right and prejudice to the defendant." Id. at 201.
The nineteen-month delay in this case does not implicate Polizzi's right to a speedy trial. In Szima, id. at 202, the Supreme Court held that an unexplained delay of twenty-two months between defendant's arrest and indictment did not violate defendant's speedy-trial rights, although the fact that defendant had not raised the right factored into its decision. See also State v. Douglas, 322 N.J. Super. 156 (App. Div.), certif. denied, 162 N.J. 197 (1999) (three year delay between arrest and jury selection in capital case did not violate right).
The delay in this case was "reasonably explained and justified." See State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983). As the PCR judge noted, the indictment contained serious charges and "[a] significant portion of delay was attributable to a backlog in DNA testing. . . . [T]he delay also resulted, in large part, from the numerous motions filed by the defense, including discovery motions and two suppression motions, one of which required a testimonial Wade hearing to be conducted." There was also a "backlog of criminal cases in [Cumberland] [C]county which cause[d] motion hearing and trial delays."
In our opinion, the delay was not excessive under the circumstances. In addition, Polizzi has failed to articulate any specific prejudice, and we see none. Had Polizzi asserted his right to a speedy trial, he would not have been successful.
Polizzi argues for the first time in this appeal that his initial appellate counsel was constitutionally ineffective because he declined to appeal the denial of Polizzi's motion to withdraw his guilty plea at the time of sentencing. Although this issue is not properly before us, Rule 2:10-2, we address it in order to dispose of all PCR issues.
We assume, again without deciding, that appellate counsel should have raised the issue of the denial of Polizzi's motion to withdraw the guilty plea on appeal, rather than confining the appeal to sentencing issues. Nevertheless, we note that appellate counsel is not required to "raise every non-frivolous issue that defendant requests on appeal." State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007) (citing Jones v. Barnes, 463 U.S. 745, 753-54, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987, 996 (1983)), certif. denied, 194 N.J. 444 (2008).
The Supreme Court has provided four factors a trial court should consider and balance when evaluating a motion to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009) (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002)). When making such a motion prior to sentencing, as Polizzi did in this case, we evaluate the motion under the "'interests of justice' standard" of Rule 3:9-3(3), as opposed to the "'manifest injustice' standard" of Rule 3:21-1. Id. at 158.
Under the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Ibid. In evaluating a claim of innocence, a court may look at evidence available to the State and defendant at the time of the plea. Ibid. (quoting State v. Smullen, 118 N.J. 408, 418 (1990)).
Polizzi's claim of innocence rests primarily on the argument that he was not guilty of first-degree kidnapping because he released K.H. unharmed. See N.J.S.A. 2C:13-1(c) ("If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree."). We are satisfied that the facts, as outlined above, would have supported a jury finding, beyond a reasonable doubt, that Polizzi did not release K.H. unharmed and that he "knowingly" harmed her. State v. Sherman, 367 N.J. Super. 324, 342-48 (App. Div.), certif. denied, 180 N.J. 356 (2004), overruled on other grounds by State v. Dalziel, 182 N.J. 494 (2005). K.H.'s medical examination reflected that she "suffered psychological injuries, bruising of her right upper thigh, multiple abrasions on her back, left torso and buttocks. She suffered various vaginal injuries including abrasions, redness, [and] painful urination." See id. at 342-47 (suggesting that the harm to the victim must exceed the inherent level of harm associated with kidnapping in order to elevate the crime to first degree).
Under the second factor, the nature and reason for defendant's motion to withdraw should be considered.
In assessing the nature and strength of the reasons for withdrawal, courts should not approach them with skepticism. At the same time, trial judges must act with great care and realism because defendants often have little to lose in challenging a guilty plea. A court's ruling may rest, of course, on its view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion. [Slater, supra, 198 N.J. at 160 (citations and internal quotation marks omitted).]
Misinformation or misunderstanding pertaining to the nature, extent, or consequences of the plea or sentence, have been held sufficient grounds to withdraw a plea. Id. at 159-60 (citing State v. Nichols, 71 N.J. 358, 361 (1976); State v. Johnson, 182 N.J. 232, 241 (2005); State v. Kiett, 121 N.J. 483, 499 (1990); State v. Howard, 110 N.J. 113, 118 (1988); State v. Heitzman, 107 N.J. 603, 604 (1987); State v. Kovack, 91 N.J. 476, 483 (1982); State v. Marzolf, 79 N.J. 167, 183 (1979)). Polizzi's assertion that he was pressured by his attorney and did not fully understand the consequence of the plea is not supported by the record or the transcript of the plea itself.
Without sufficient support for the first two factors, the withdrawal of Polizzi's plea, which resulted from a plea bargain intended to spare a young child the trauma of testifying at trial, would prejudice the State, thereby implicating the last two factors. Consequently, we find that an appeal of the denial of Polizzi's motion to withdraw his guilty plea would have been unsuccessful.
In summary, we find no merit in any of Polizzi's ineffective assistance of counsel arguments.
Finally, we address Polizzi's contention that the State engaged in improper conduct with respect to Jaglowski's statement.
As noted above, Jaglowski specifically disavowed only having "said that Mr. Polizzi expressed a desire to have sex with children he met or [saw] on TV." Despite Jaglowski's assertion that "these lies added to my statement would have been recanted with vigor had [a trial] occurred," he never retracted those words or any other portion of his statements during the resentencing hearing at which he appeared on Polizzi's behalf.
To establish a claim of prosecutorial misconduct, a defendant must show "(1) the prosecution suppressed evidence;
(2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (discussing the test necessary to establish a Brady*fn3 violation) (citing Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972)). Evidence is material "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1976)). This standard is applicable to the present context. See id. at 456 (quoting State v. Sturgeon, 605 N.W.2d 589, 596 (Wis. Ct. App. 1999)) (citing United States v. Nagra, 147 F.3d 875, 882 (9th Cir. 1998); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995)).
For the purposes of our analysis, we will assume the truth of Jaglowski's recantation with respect to Polizzi's interest in young girls. As a result, we will further assume that the first Martini prong has been satisfied, although we note that the State denies Jaglowski's allegations.
The information conveyed by Jaglowski would have been of help to the defense. Nevertheless, the fact remains that Jaglowski did not recant significant portions of his statement that were and remain damaging to Polizzi. Jaglowski's credibility with respect to those aspects of his statement could, however, have been undermined.
In determining whether the undisclosed evidence is material, such that it would have been likely to influence Polizzi's decision to plead guilty or the result of a jury trial, we recognized in Parsons, supra, 341 N.J. Super. at 456, that reviewing courts should consider such factors as
(1) the relative strength and weakness of the State's and the defendant's case, (2) the persuasiveness of the withheld evidence, (3) the reasons, if any, expressed by the defendant for choosing to plead guilty, (4) the benefits obtained by the defendant in exchange for the plea, and (5) the thoroughness of the plea colloquy.
We conclude that Polizzi has failed to demonstrate a reasonable probability that he would not have pled guilty had the evidence been disclosed prior to the plea or that he would not have been convicted had the case gone to trial. As we have discussed above, the evidence against Polizzi, particularly K.H.'s testimony and the physical evidence, is very strong. In addition, we have already observed that the State had sufficient evidence to convict Polizzi without Jaglowski's testimony. We also note that Polizzi was facing charges that could have resulted in a life sentence and the plea bargain was quite favorable, especially in light of the judge's intent to impose a twenty-year sentence.
Consequently, because Polizzi has failed to satisfy the third element of prima facie claim of prosecutorial misconduct, we affirm the trial judge's decision denying relief on that basis.*fn4
Because we have concluded that Polizzi failed to make out a prima facie case for relief on any of his claims, we find no error in the trial judge's disposition of the case without a plenary hearing.