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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...