February 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM ENGEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 85-04-0570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012
Before Judges Carchman and Baxter.
Following a jury trial, defendant William Engel and his brother Herbert Engel were convicted of the murder of defendant's former wife, Xiomara Engel. Defendant, along with his brother and the hired murderer, James McFadden, were convicted of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1), as well as capital murder by procuring its commission through the payment of money to McFadden, N.J.S.A. 2C:11-3a(1). During the penalty phase, the jury found that the aggravating factors did not outweigh the mitigating factors, and defendant was sentenced on June 23, 1986, to a term of life imprisonment with a thirty-year period of parole ineligibility.
Defendant appealed, and we affirmed. State v. Engel, 249 N.J. Super. 336 (App. Div. 1991). Defendant's petition for certification was denied by the Supreme Court. State v. Engel, 130 N.J. 393 (1991).
On March 29, 1995, nine years after the judgment of conviction, defendant filed a petition for Post-Conviction Relief (PCR) alleging, among other claims, that trial counsel, Miles Feinstein, Esq., had a conflict of interest because he had allegedly coerced a witness Robin Furer to lie to the grand jury. At the time of trial, the Bergen County Prosecutor's Office investigated the perjury subornation allegation against Feinstein and concluded that it was without merit. The petition also alleged that the State suppressed evidence of Feinstein's misconduct.
Judge Jonathan M. Harris, then sitting in the Law Division, issued a
comprehensive opinion denying defendant's petition.*fn1
We affirmed. State v. Engel, No.A-5451-95T4 (App. Div. April
5, 1999), and defendant's petition for certification was denied. State
v. Engel, 161 N.J. 335 (1999).
On November 18, 2010, defendant filed a second PCR petition. Judge Jerejian dismissed the petition, concluding that: it was not timely; it did not rely on a new rule of constitutional law; there was no probability that the relief sought would be granted; and defendant's claim of ineffective assistance of counsel had been previously adjudicated. Both in the Law Division and now on appeal, defendant argued for the retroactive application of State v. Cottle, 194 N.J. 449, 473 (2008), where the Court held that defense counsel, who has been indicted in the same county where defendant had been charged, is constitutionally ineffective counsel as a result of counsel's per se conflict of interest, unless the client waives the conflict.
Defendant appeals, and we affirm.
We need not repeat all of the facts related to the crime as they were more specifically set forth in Judge Harris's opinion. These are the facts relevant to the second PCR. After conspiring with defendant and Herbert Engel, McFadden murdered Xiomara Engel on December 13, 1984. On January 18, 1985, McFadden gave a detailed confession implicating defendant and Herbert, alleging that they had hired him to murder the victim and that he had done so by strangling her. In his confession, McFadden revealed the alleged financial arrangements, including the amount of money Herbert Engel had agreed to pay McFadden for the murder and the money that Herbert gave him when the murder was accomplished. McFadden alleged in his confession that on the evening of January 11, 1985, Herbert called him and told him to come to his house the following morning. The next morning, McFadden went to Herbert's house. Herbert's girlfriend, Robin Furer, was present at the house. Herbert allegedly gave McFadden $1000 in hundred-dollar bills, which Herbert retrieved from his bedroom.
As part of the grand jury investigation of the murder, Furer received a subpoena, and in response, she contacted and met with Feinstein. During this meeting, Furer allegedly told Feinstein that she had met McFadden at Herbert's house on January 12, 1985, but did not witness the exchange of money between the two men. According to a statement Furer gave to the police about her interactions with Feinstein, he instructed her that she was to testify that Herbert had asked her "to take $200.00 off his dresser and that there were . . . twenties, a stack of twenties on the dresser and that [she] counted out $200.00 and brought it to Herb." In her statement to the police, Furer contended that Feinstein told her to give that testimony because "the police wanted to see some kind of big money exchange and he was trying to prove in fact that there wasn't. . . . [T]he reason for this was that it had come up that not enough money was paid to McFadden."
When Furer appeared before the grand jury, she testified that she had seen Herbert give McFadden money when McFadden came to Herbert's house, and Herbert asked her to get $200 from the top of the dresser for McFadden because McFadden had asked for an advance. Furer believed McFadden was a truck driver. Furer testified that she retrieved ten $20 bills from the dresser.
In March 1986, Furer's boyfriend, Rocco Esposito, encouraged her to see a lawyer so the lawyer could arrange for her to tell the authorities that the testimony she had provided to the grand jury was false. Furer told Anita Nimberger that Feinstein had her lie to the grand jury and that she did not want to continue lying. Subsequently, Nimberger told Furer that Feinstein wanted to speak with her and that he could help her to avoid testifying at trial. Later that month, Furer and Nimberger met Feinstein. When discussing Furer's desire to change her testimony, Feinstein allegedly did the following:
He told me that he was having me followed[,] and Anita and he in fact knew that I was dating Rocky Esposito, who was married and that it [sic] would be ashamed [sic] if that had gotten into the newspapers. He never once brought up the fact that I would not have to testify. He started talking about people that [sic] . . . had been know [sic] to at one point in their life, even if it was ten years ago[,] [sic] used cocaine that they could be brought up on charges that they in fact did so. Then he started to talk about people that [sic] were electrocuted. Stories about that, how sometimes it takes five times . . . .or there used to be a law that where if you were electrocuted and it didn't kill you within a certain amount of times [sic] then you were set free.
On April 8, 1986, members of the Bergen County Prosecutor's Office interviewed Furer about her alleged perjury before the grand jury, and she gave a sixty-six page tape-recorded statement. The Bergen County Prosecutor's Office investigated the matter but determined that Furer's allegations were without merit and had no bearing on the prosecution of defendant and his co-defendants. Feinstein was also advised of that conclusion.
In his current PCR, defendant alluded to another incident involving Feinstein and the Prosecutor. On May 30, 1986, a "summons and complaint" issued from the Bergen County Prosecutor's Office that sought the "forfeiture" of Feinstein's 1982 Jaguar because it had been illegally parked in a County Employees' parking space at the Bergen County Courthouse. Defendant maintained that the complaint was a veiled threat by Prosecutor McClure to Feinstein. According to Feinstein, the "summons and complaint" were a "joke" issued to break the tension after he had a heated in-chambers argument with the Prosecutor. Feinstein's characterization is supported by the complaint, which contains hyperbolic language, such as "Bergen County Prosecutor, Larry J. McClure, has graciously determined that no additional summons should issue to Mr. Feinstein despite his shocking lack of compliance with the New Jersey State Motor Vehicle Code," and "[s]aid vehicle is property which has been utilized in the unlawful activity of illegal parking and as such is a conveyance which facilitated an illegal act." In the concluding paragraph of the complaint, "the State of New Jersey prays the Court to order the forfeiture of the 1982 Jaguar to the Funding Agency of the Bergen County Prosecutor's Office . . . for the personal use of LARRY J. McCLURE." The foregoing language indicates that the "summons and complaint" were nothing more than a joke between opposing counsel.
In his first PCR petition, defendant maintained he did not know about Furer's allegations regarding Feinstein's conduct and her grand jury testimony, but Judge Harris found to the contrary. he concluded that "Engel knew everything. . . . [N]o one, including Engel, took the situation seriously" and that "Engel was not independently entitled . . . to have received the Furer material. His attorney, and Herbert Engel's attorney were aware of Furer's statements, and the attorneys acted accordingly." Although the trial judge was never informed of the allegations, and defendant never provided an on-the-record waiver of the conflict-of-interest issue, Judge Harris concluded that those failures did not undermine the fundamental fairness of the proceedings because of the patent incredibility of Furer's testimony.
In his first PCR petition, defendant argued the prosecution's investigation of Furer's allegations created a conflict of interest for Feinstein. Judge Harris concluded, "I find no evidence whatsoever that Feinstein was in any way affected by the allegation of [subornation of] perjury against him in his representation . . . ." In support of this conclusion, Judge Harris noted that "McClure did not believe Furer's recantation [and] viewed as absurd the possibility that Feinstein had told Furer to lie to an inculpatory fact."
In his second PCR petition, defendant larded the record with details about Feinstein's conduct in other cases as well as details about tax liens and various civil judgments entered against Feinstein and his wife together with various malpractice actions that had been filed against Feinstein. Defendant also included details of McClure's legal problems, which arose after leaving his position as prosecutor and ultimately resulted in his disbarrment in 2005. According to defendant, McClure's subsequent conduct was relevant to his credibility when he testified during defendant's first PCR hearing in 1995.
In his second PCR, defendant alleged that counsel who represented him for his first PCR was ineffective in failing to produce the proofs to establish excusable neglect as to why defendant's first PCR petition was filed more than five years after entry of his judgment of conviction. Defendant further contended that PCR counsel was ineffective in failing to argue that Feinstein deliberately withheld evidence of his conflict until 1994, when he turned over to defendant his case file containing Furer's April 8, 1986, statement and the "joke" complaint that sought forfeiture of Feinstein's Jaguar motor vehicle.
Defendant also contended in his second PCR that in June 2007, he contacted and subsequently retained Bruce Cassidy, Esq., to file a second PCR petition, paying him $25,000 and $15,000 to cover investigators' fees. Cassidy failed to uncover the aforementioned new evidence about McClure and Feinstein. Cassidy returned the case file two years later without filing a second PCR petition. Defendant alleged that Cassidy caused further delay in defendant's ability to uncover relevant evidence, which explained defendant's delay in filing his second PCR.
As we have noted, the thrust of defendant's argument on appeal is the application and, more specifically, the retroactivity of Cottle. However, before addressing that issue, we consider other issues that are relevant to the PCR.
Rule 3:22-4(b)(2)(A) provides that a second or subsequent PCR petition be dismissed unless:
(2) it alleges on its face . . . : (A) that the petition relies on a new rule of constitutional law, made retroactive to the defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any other proceeding[.]
Rule 3:22-12(a)(2)(A) provides:
Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review.
As we have noted, defendant asserts that the new constitutional right was recognized in Cottle, and Cottle should be applied retroactively. We do note that Cottle was decided two years before defendant filed the second PCR. To counter rejection of this facially belated filing, defendant asserts that the cited rules are unconstitutional because they restrict his right to challenge the retroactive application of the new constitutional rule. We conclude that we need not address the constitutionality of the challenged rules or the retroactive application of Cottle as we are satisfied that, on its facts, Cottle does not apply here.
As we previously noted, in Cottle, supra, 194 N.J. at 473, the Court created a per se rule that, where a defense counsel has been indicted in the same county as the represented defendant, counsel is constitutionally ineffective as a result of counsel's conflict of interest.
Defendant alleges that a per se conflict of interest arose here on two grounds. First, Feinstein received a joke complaint from Prosecutor McClure. Defendant claims that the joke complaint acted as a threat, but nothing in the record supports any such inference or conclusion. Alternatively, defendant references judicial criticism of Feinstein in civil matters, tax liens filed against Feinstein and Feinstein's alleged subornation of perjury, all of which occurred concurrent to Feinstein's representation of defendant, as the underlying conduct to which the Cottle rule applies.
More specifically, defendant alludes to the fact that, roughly contemporaneously with defendant's trial, Feinstein was criticized by judges in other cases, see, e.g., State v. Conway, 193 N.J. Super. 133, 172 (App. Div.), certif. denied, 97 N.J. 650 (1984). A few years later, Feinstein defaulted on a mortgage, resulting in various state and federal tax liens being filed against him in the late 1980s and early 1990s. During the same time period, Feinstein not only was a defendant in various malpractice actions, but also was the subject of ethics violations.
Despite these recorded lapses, Feinstein was not under indictment in the same county as defendant during Feinstein's representation. Cottle's per se rule has not been extended by the Court or any other court beyond its facts to factual scenarios wherein defense counsel was criticized in a judge's opinion, engaged in unrelated ethics violations, or was sued in civil court for malpractice.
The doubt that was cast on counsel's ability to provide zealous advocacy on his client's behalf in Cottle was premised on the supposition that counsel wanted to curry favor with the prosecutor for counsel's own personal ends. Feinstein had no personal motivation to seek personal advantage in the tribunals, or among the authorities involved in defendant's case, to advance his interests in other extant but irrelevant matters.
Defendant argues that, although not indicted, Feinstein was under investigation by the Bergen County Prosecutor's Office for his alleged misconduct concerning Furer's grand jury testimony, and this investigation created a per se conflict of interest, warranting application of Cottle. The facts of the investigation belie the argument. Prosecutor McClure found Furer to be an incredible witness, concluded that there was no merit to the Furer's claim, determined not to pursue any action against Feinstein, and informed Feinstein of that decision. Feinstein was neither indicted nor seriously suspected of subornation. Neither the letter nor the logic of Cottle applies to defendant's case.
Our conclusion that Cottle does not apply obviates the necessity of considering the issue of retroactivity or whether Rule 3:22-4(b)(2)(A) and Rule 3:22-12(a)(2)(A) are unconstitutional. Finally, we are satisfied that the PCR judge made adequate findings of fact and conclusions of law, and defendant's argument in that regard is without merit.
In sum, we conclude that the judge properly dismissed defendant's second PCR, and accordingly, we affirm.