NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-01-0018.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Hayden.
Defendant Thomas Domke appeals from the October 25, 2011 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that, following a jury trial, defendant was convicted of one count of second-degree aggravated arson, N.J.S.A. 2C:17-1a; three counts of third-degree criminal mischief, N.J.S.A. 2C:17-3a; and one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5). The charges were based on an incident where defendant set his girlfriend's home on fire after causing assorted property damage. We set forth the factual background to defendant's convictions in an earlier opinion:
Following a day-long argument with his girlfriend of nine years and commission of acts of domestic violence on her and property damage to her van, defendant returned to the apartment he shared with the girlfriend and her mother, ran the vehicle he was driving into a van that he owned, smashed various personal possessions in the apartment, and set fire to the mother's box springs and a living room love seat. As the fire swelled, defendant escaped from a window onto a first-floor roof, and after the police approached him, jumped from the roof to the ground, where he was tackled by police who were on the scene as the result of reports of the domestic violence and the auto collision. During the course of defendant's apprehension, a patrol officer received a laceration from a knife in defendant's pocket.
[State v. Domke, No. A-2918-04 (App. Div. July 25, 2006) (slip op. at 2).]
Defendant was sentenced to six years imprisonment with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act ("NERA") on the aggravated arson charge, and received concurrent four-year terms on the remaining charges. He appealed the conviction, arguing that the judge erred in failing to suppress the second statement he gave to police, and his sentence, claiming it was excessive. We rejected these arguments and affirmed defendant's conviction and sentence. Domke, supra, (slip op. at 16-17). Our Supreme Court denied defendant's petition for certification. State v. Domke, 189 N.J. 429 (2007).
On April 4, 2008, defendant filed a petition for PCR, contending that he received ineffective assistance of counsel. He claimed that his attorney "said nothing" about his ten successful polygraph tests and did not investigate witnesses to corroborate his allegations of excessive force by the police. Defendant asserted that, prior to the trial, the Public Defender's Office administered ten polygraph tests over the course of six months, and defendant was told "by the lady" who administered the polygraph that he "passed" all tests. According to defendant, his trial counsel was ineffective by not attempting to have the results of the polygraph tests admitted into evidence. Additionally, defendant claimed that he was severely beaten by the police in front of witnesses, whom his attorney failed to call to testify. The excessive force used by the officers, defendant asserted, caused him to feel coerced into giving a false confession, and his trial counsel did not pursue this issue.
Defendant's first PCR attorney chose not to file a brief in support of defendant's contentions, stating that he found nothing "that would add anything, to make a difference in this case." When the judge offered counsel an opportunity to prepare a brief, he refused, stating that he was ready to resolve the matter. Counsel referred to the results of the polygraph tests as "very dubious, " explaining that defendant's trial counsel had considered the test results and determined not to request that the prosecution enter into a stipulated polygraph. On the issue of excessive force resulting in a ...