May 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH ARUANNO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 97-01-0016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Fisher and Nugent.
Defendant Joseph Aruanno appeals from the November 30, 2009 order denying his post-conviction relief (PCR) petition. Defendant was convicted by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He alleged in his PCR petition that his trial counsel was ineffective for failing to file pre- trial motions challenging the minor victim's identification of him at a showup and the trustworthiness of the victim's videotaped statement to police. Following a hearing, Judge Albert J. Garofolo determined that, though the showup was inherently suggestive, the identification was reliable. Judge Garofolo also determined that the victim's videotaped statement to police was reliable and had properly been admitted into evidence at trial. In view of those determinations, trial counsel's failure to challenge the showup identification and the victim's statement does not require a new trial. We affirm.
Following his conviction, defendant was sentenced to a ten-year term of imprisonment with five years of parole ineligibility, and to community supervision for life under Megan's law, N.J.S.A. 2C:43-6.4. Defendant was also ordered to pay penalties and assessments. We affirmed defendant's conviction and sentence on direct appeal, but remanded to the trial court to vacate one of the assessments. State v. Aruanno, No. A-4188-98 (App. Div. October 9, 2001). The Supreme Court denied certification on February 11, 2002. State v. Aruanno, 171 N.J. 338 (2002). Thereafter, on June 25, 2002, defendant filed a petition for habeas corpus in the United States District Court for the District of New Jersey, which was denied. Aruanno v. Sherrer, No. 02-2446 (D.N.J. December 27, 2005). On May 12, 2008, the United States Court of Appeals affirmed. Aruanno v. Sherrer, 277 Fed. Appx. 155 (3d Cir. 2008).
Meanwhile, on September 5, 2003, defendant filed a PCR petition, which the trial court denied in an order entered on May 3, 2007. Defendant appealed, and we remanded for an evidentiary hearing. State v. Aruanno, No. A-5509-06 (App. Div. April 21, 2009) (slip op. at 11). On remand, Judge Garofolo conducted an evidentiary hearing and, on November 30, 2009, denied defendant's PCR petition in a written decision. The judge entered a confirming order the same day.
The facts resulting in defendant's arrest and conviction are set forth in our opinion affirming his conviction on direct appeal, and again in our opinion on defendant's appeal from the first denial of his PCR petition, so we need only briefly summarize them. On December 10, 1996, at approximately 5:30 p.m., the victim, then eight years old, was playing with her younger sister on a porch near the Wildwood apartment where she lived, when a man came up to her and "put his hand down [her] pants." The victim yelled, the man ran toward the bay, and the victim ran to her mother and reported what had happened. The victim gave her mother a description of the perpetrator.
The police arrived within minutes and the victim described the perpetrator to them. Officer James Nanos remained with the victim while Officer Steven McShaffry left to patrol the surrounding area. McShaffry stopped defendant, who fit the victim's description of the perpetrator. When McShaffry radioed Nanos, the victim heard McShaffry say "they caught him -- they think they have him." The police then transported the victim and her mother to the Wawa store where defendant had been detained. When the victim arrived, defendant was not facing her. She was initially unsure about whether defendant was the perpetrator, so the police had defendant say something over the radio, and the victim identified his voice as that of the perpetrator. When defendant turned around, the victim could "see his whole face" and was then "sure" that he was the perpetrator.
As Nanos began to drive away with the victim and her mother still in the car, defendant attempted to flee from McShaffry. Nanos stopped the car and joined the pursuit. When the officers caught defendant, he resisted, and the officers subdued him. The next day, when the victim gave a videotaped statement to Investigator William Kirkbride of the Cape May County Prosecutor's Office, she said a policeman "came up to her and was happy and told her that the guy that they arrested had gotten a beating."
Defendant raises the following points on appeal:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL PURSUANT TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
A. Trial Counsel's Failure To Pursue A Wade Hearing Mandates That His Convictions Be Reversed
B. Trial Counsel's Failure to Pursue A Michaels Hearing Mandates That His Convictions Be reversed
We previously held that by failing to move for a Wade*fn1
hearing to challenge the showup identification, trial counsel was ineffective under the Strickland/Fritz*fn2 test. Aruanno, supra, No. A-5509-06 (slip op. at 26-27). We remanded this matter to the trial court to conduct a Wade hearing and determine whether defendant was entitled to a new trial. Ibid. We also suggested "that the [trial] judge permit further development of the Michaels*fn3 issue and, if necessary, conduct all appropriate additional proceedings thereby warranted." Id., slip op. at 30. On remand, the trial judge determined that the identification and victim's statement were properly admitted at trial. Defendant now challenges that decision.
Defendant argues that the victim's visual identification was tainted by her having heard the police broadcast, and by her identification of defendant's voice, which defendant asserts was also untrustworthy. Defendant also argues that the judge "grossly underestimated the impact of defendant's struggle with the police in the context of the Michaels holding," and that the judge's decision that the victim's statement was reliable was therefore erroneous. We affirm, substantially for the reasons explained by Judge Garofolo in his November 30, 2009 opinion.
Judge Garofolo evaluated the victim's opportunity to observe defendant, the detailed nature of her description of defendant, the degree of attention she gave to observing defendant, the relatively short time between the assault and her identification of defendant, her emotional reaction to hearing defendant's voice, and the degree of certainty of her identification of defendant as the perpetrator. The judge also considered that the victim made both voice and facial identifications. After considering the totality of the circumstances, Judge Garofolo determined that the inherent suggestiveness of the showup procedure was substantially overcome by the "sum of factors which support the reliability of [the victim's] identification." See State v. Herrera, 187 N.J. 493, 506-07 (2006).*fn4 Having considered the record in light of the applicable legal principles, we find no reason to disturb that determination.
As to the victim's statement, defendant's argument that the judge "grossly underestimated the impact of defendant's struggle with the police" amounts to nothing more than second-guessing in conclusory fashion the weight the judge gave to the evidence. The argument also disregards our standard of review of "a trial judge's finding that a child's statement meets the trustworthiness requirement of N.J.R.E. 803(c)(27)," under which we "affirm unless the judge's determination amounted to an abuse of discretion." State v. P.S., 202 N.J. 232, 250 (2010). The record demonstrates nothing to suggest such an abuse of discretion.