June 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KEVIN P. CASEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-22-12.
Stephen M. Pascarella argued the cause for appellant (Pascarella & Associates, P.C., attorneys; Laura M. Majewski, on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the brief).
Before Judges Yannotti and Harris.
Defendant Kevin P. Casey appeals from an order entered by the Law Division on May 23, 2012, denying his petition for post- conviction relief (PCR), and an order entered on June 4, 2012, denying his motion for reconsideration. We affirm.
On May 30, 2009, the Bergen County Police Department issued summonses to defendant for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to take a breath test, N.J.S.A. 39:4-50.2; failure to maintain motor vehicle insurance coverage, N.J.S.A. 39:6B-2; failure to have vehicle inspected, N.J.S.A. 39:8-1; and for cracked safety glass, N.J.S.A. 39:3-75. Defendant appeared on September 22, 2009, in Bergen County's Central Municipal Court. He was represented by Joseph S. DiMaria (DiMaria).
Defendant pled guilty to DWI, and the State agreed to dismiss the other summonses. He stated that, on the date in question, at 3:26 a.m., he was intoxicated. Defendant said he had been drinking at a bar in Hackensack, where he had three or four beers. The police stopped defendant at a DWI checkpoint. The judge sentenced defendant to 180 days in the county jail, and imposed a ten-year suspension of defendant's driving privileges, a two-year suspension of his vehicle registration, and various monetary sanctions.
In September 2011, defendant filed a PCR petition in the municipal court, alleging that he had been denied the effective assistance of counsel. Defendant claimed that his attorney had an impermissible conflict of interest because DiMaria's son and law partner, Mark DiMaria is a municipal prosecutor in several Bergen County municipalities. Defendant also claimed that DiMaria misinformed him concerning the penalties that could be imposed and failed to tell him he had a right to appeal. The municipal court judge considered the matter on February 9, 2012, and denied the petition.
Defendant sought de novo review by the Law Division. The judge considered the petition on May 11, 2012. The judge found that DiMaria did not have a conflict of interest which precluded him from representing defendant. The judge also found that defendant had not been denied the effective assistance of counsel. The judge entered an order dated May 23, 2012 denying PCR. Thereafter, defendant filed a motion for reconsideration, which the judge denied by order entered on June 4, 2012. This appeal followed.
Defendant argues that DiMaria had a conflict of interest, which denied him of his constitutional right to effective assistance of counsel. We do not agree.
Defendant contends that the court rules precluded DiMaria from representing him in this matter because DiMaria's son and partner was a municipal prosecutor in several Bergen County municipalities when defendant entered his plea. Rule 1:15-3(b) states in pertinent part that
[a] municipal attorney of any municipality shall not represent any defendant in the municipal court thereof, except to perform official duties, but may represent a defendant in a joint municipal court if the defendant resides and the offense was allegedly committed in a municipality for which the attorney is not the municipal attorney. A municipal prosecutor shall not represent a defendant in any other municipal court in that county or in a criminal proceeding in the Superior Court in that county but may represent a defendant in a municipal court or in a criminal proceeding in the Superior Court in a county other than the one in which he or she serves as a municipal prosecutor.
In addition, Rule 1:15-4(a) provides that, except as otherwise provided in subsections (b) and (c) of the rule, the limitations imposed by Rule 1:15 upon the practice of law by an attorney shall extend to the attorney's "partners, employers, employees, office associates, shareholders in a professional corporation or members in a limited liability entity in which the attorney practices." Rule 1:15-4(c) states:
As applied to partners, employers, employees, office associates, shareholders, and members, the limitations imposed on the practice of law by municipal prosecutors by R. 1:15-3(b) shall extend only to matters that have occurred in the municipality in which the prosecutor serves and any matters that involve law enforcement personnel or other material witnesses from that municipality.
Thus, Rule 1:15-4(c) did not preclude DiMaria from representing defendant in this case. Mark DiMaria is DiMaria's partner but he is not a municipal prosecutor in the Central Municipal Court for Bergen County. Furthermore, the charges at issue did not arise in a municipality in which Mark DiMaria serves, and the case did not involve any law enforcement personnel or witnesses from any such municipality.
Defendant contends that, because Rule 1:15-4(c) only provides an exception for partners of municipal prosecutors, the limitations imposed by Rule 1:15 extend to family members of municipal prosecutors. As we have explained, however, Rule 1:15-4(a) extends the limitations on practice in Rule 1:15 to the municipal prosecutor's partners, employers, employees and associates. The rule does not extend those limitations to a municipal prosecutor's family members. Thus, the absence of an exception for family members of municipal prosecutors in Rule 1:15-4(c) did not preclude DiMaria from representing defendant.
Defendant further argues that, even if DiMaria's representation was not barred by Rule 1:15-4, DiMaria had a conflict of interest which impeded his ability to render constitutionally effective assistance of counsel. Again, we disagree.
The courts employ a two-tiered approach when analyzing "whether a conflict of interest has deprived a defendant of his state constitutional right to effective assistance of counsel." State v. Cottle, 194 N.J. 449, 467 (2008) (citing State v. Norman, 151 N.J. 5, 24-25 (1997)). If the case involves a per se conflict of interest, prejudice is presumed in the absence of a valid waiver by the client, and reversal of the conviction is required. Ibid. (citing Norman, supra, 151 N.J. at 24-25; State v. Bellucci, 81 N.J. 531, 543 (1980)).
Per se conflicts generally involve private attorneys who simultaneously represent co-defendants. Ibid. citing (Norman, supra, 151 N.J. at 24-25). A per se conflict of interest was also found where an attorney and his client were contemporaneously under indictment in the same county, and the client had not waived the conflict. Id. at 473. In the absence of such a conflict, "'the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel.'" Id. at 467-68 (quoting Norman, supra, 151 N.J. at 25).
The courts consider three factors when determining whether a conflict of interest arises from any attorney's relationship with another attorney. Bellucci, supra, 81 N.J. at 541. The first factor is whether there is ready access to confidential information among the attorneys. Ibid. The second factor is whether the attorneys share a financial interest. Ibid. The third factor is whether "public confidence in the integrity of the Bar would be eroded if" the representation were permitted. Ibid.
Defendant contends that when family members are partners, there is a likelihood that they would share confidential information; however, there is no indication that DiMaria's son had access to confidential information pertaining to defendant. He was not involved with the Central Municipal Court in Bergen County. Moreover, as the trial court noted here, municipal prosecutors operate independently and there is no reason to assume they will share confidential information concerning defendants with other municipal prosecutors.
Defendant next contends that DiMaria and his son had a shared economic interest. DiMaria and his son have a shared interest in the success of their partnership but that interest would not affect DiMaria's representation of defendant. DiMaria's son serves the public as municipal prosecutor. He does not obtain any particular financial benefit if he secures a conviction in the Central Municipal Court. Similarly, DiMaria has no financial incentive in acting contrary to his client's interests.
Lastly, DiMaria's representation of defendant did not threaten the public's confidence in the integrity of the legal profession. The representation is permitted by the court rules, and DiMaria's relationship with his son does not involve the possible sharing of confidential information or a financial incentive that might compromise DiMaria's duty to his client.
Defendant also contends that DiMaria's representation presented a sufficient conflict of interest in this matter to require an evidentiary hearing. In support of this argument, defendant relies upon State v. Sheika, 337 N.J.Super. 228 (App. Div.), certif. denied, 169 N.J. 609 (2001). In Sheika, trial counsel's daughter was an assistant prosecutor in the same county in which the defendant was charged. Id. at 244. We held that, under the Bellucci three-factor analysis, counsel did not have a disqualifying conflict of interest. Id. at 245-46.
Nevertheless, we remanded the matter to the trial court for a hearing to determine whether the defendant might be unduly prejudiced by the representation. Id. at 247-48. We stated the trial court should consider whether counsel and his daughter ever practiced together, and whether they resided in different households at the time of the trial. Id. at 247.
We are satisfied that defendant's reliance upon Sheika is misplaced. In that case, trial counsel's daughter was employed as an assistant prosecutor in the same county in which the defendant was being prosecuted. Here, DiMaria's son was a municipal prosecutor in three Bergen County municipalities and this matter was prosecuted in Bergen County's Central Municipal Court. The concerns that warranted the remand for a hearing in Sheika are not present in this case.
Defendant additionally argues that he was denied the effective assistance of counsel because his attorney (1) failed to seek discovery regarding the DWI roadblock and did not challenge its constitutionality; (2) misinformed him regarding the potential penalties that could be imposed on the charges; and (3) did not inform him of his right to appeal.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). First, the defendant must show that his attorney "'made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693).
Second, the defendant must show that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). The defendant must establish that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698).
Defendant claims his attorney failed to seek discovery regarding the DWI roadblock, but he has not provided an affidavit or certification indicating that counsel did not seek such discovery. Moreover, defendant has not shown that such discovery would have provided information that would have supported a successful challenge to the constitutionality of the roadblock.
Defendant also claims his attorney misinformed him regarding the maximum penalties he faced. He alleges that his attorney erroneously told him he would be eligible for the Sheriff's Labor Assistance Program. However, defendant has not provided an affidavit or certification supporting this claim, nor has he established that there is a reasonable likelihood that, but for this alleged misinformation, he would not have pled guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985).
Defendant additionally claims his attorney failed to inform him of his right to appeal. We note that defendant did not raise this claim in his PCR petition, or in the verification in support of that petition. In any event, assuming counsel failed to inform defendant of his right to appeal, defendant has not shown that the result here would have been different if such advice had been given.
Defendant further argues he was prejudiced by the manner in which the municipal court judge handled the PCR petition. He claims that the arguments were presented at sidebar and he was not able to hear what was being said. He contends that the municipal court judge treated the petition dismissively and failed to render a decision on certain issues.
Defendant also claims that DiMaria did not seek leave to file an amicus curiae brief, in which he argued that his representation of defendant was permitted by Rule 1:15-4(c). Defendant additionally says he was denied his right to confront statements in a certification submitted by DiMaria in which he noted that he and Mark DiMaria were partners and stated that his son had not resided in his home since 1980
Defendant's arguments are without sufficient merit to warrant extended discussion R 2:11-3(e)(2) We briefly note however that defendant was not prejudiced by the manner in which the municipal court judge handled the petition Defendant's attorney was permitted to present his arguments in support of the petition and also availed himself of the opportunity for de novo review by the Law Division