July 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SPYRIDON GIZAS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0249.
Edward J. Bilinkas, attorney for appellant.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Ostrer.
Following a jury trial, defendant Spyridon Gizas was found guilty of two counts of third-degree conspiracy to fraudulently use a credit card and commit theft by deception, N.J.S.A. 2C:5-2, 2C:21-6(h), and 2C:20-4; four counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h); and four counts of third-degree theft by deception, N.J.S.A. 2C:20-4. After merging the conspiracy convictions with those for the substantive offenses, the judge sentenced defendant to an aggregate term of five years imprisonment.
On appeal, defendant raises the following issues:
DEFENDANT'S APPEAL SHOULD BE GRANTED AND THE CONVICTION SHOULD BE OVERTURNED BECAUSE THE STATE FAILED TO TURN OVER DISCOVERABLE EVIDENCE AS REQUIRED PURSUANT TO R. 3:13-3(b) AND (c) WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL
TRIAL COUNSEL'S FAILURE TO ASCERTAIN THE EXISTENCE OF TEN ADDITIONAL CODEFENDANT[S] AND PROPERLY CROSS EXAMINE KEY WITNESS [MUSLAY] REGARDING HIS INVOLVEMENT IN THE GREATER CRIMINAL ENTERPRISE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND [DEFENDANT'S] CONVICTION SHOULD BE OVERTURNED
Having considered these arguments in light of the record and applicable legal standards, we affirm defendant's conviction. We do not consider the argument raised in his second point, preserving the right to present the claim in a petition for post-conviction relief (PCR) should he so choose.
Defendant was indicted by the Morris County grand jury, but the case was tried in the Law Division, Essex County. Immediately before trial, the Assistant Prosecutor explained:
Prosecutor: At . . . one point this was a . . . much larger case. It had I believe 12 . . . defendants. So Mr. Gizas is here as just the lone defendant that needs to be resolved in this matter. It's . . . not the State's intent to . . . try the other 11 matters in this case. . . . [O]ne of the witnesses that is coming in and testifying was involved in the other . . . separate defendants' cases prior to being presented to the grand jury.
So I'm saying that because there may be a question as to how this case got to Essex County. And the way it got to Essex County is that the co-defendant Muslay,  who is also testifying, had cases open in Essex, and there's another case in our office, took this case from Morris. I don't intend to go into the facts and circumstances surrounding the --
-- the other matters.
So just if I ask a question and [defense counsel] may object, I'm not going into the . . . facts of the other matters. That's not an issue here. It's just what happened between the defendant and the co-defendant.
[Defense counsel], any response to that?
Defense counsel: No.
Defendant owned Harold's Deli in Parsippany. The State contended that Muslay supplied defendant with fraudulent American Express credit cards, defendant submitted charges to American Express and shared the proceeds with Muslay. In his opening statement, defense counsel acknowledged fraud was committed; however, he asserted that defendant was "a victim of this fraudulent transaction." Counsel told the jury:
Not just my client's business, but some other businesses were involved as well. Several thousands of dollars are involved in this. More than just the amount of money that is in dispute in my client's business.
Counsel continued by claiming, "[Muslay] is lying about my client's involvement to help himself out. Because it's not just one case he's charged with, it's numerous charges he's trying to get himself a better deal."
The testimony at trial revealed that on November 7, 2009, Parsippany police officer Anthony Morelli was dispatched to Harold's Deli on the report of a possible credit card fraud. Morelli testified that he met with defendant and Delane Sherico, Harold's Deli's banquet manager. Defendant complained of dealings in October with a "suspicious" gentleman, who Morelli later identified as Muslay. According to defendant, Muslay expressed interest in booking his daughter's wedding at Harold's Deli. He paid nearly $40, 000 giving defendant three different American Express credit cards on two different days. According to defendant, Muslay abruptly cancelled the wedding five days later. Defendant told Morelli that he returned $18, 000 in cash to Muslay as a result of the cancellation, but he could produce no receipt.
Defendant supplied Morelli with four credit card receipts from the transaction, as well as the license plate of Muslay's car. Morelli testified that the Essex County Prosecutor's Office ultimately arrested Muslay, who had "other charges in other jurisdictions."
Investigator Alfred Cabuda from American Express told the jury that after four credit cards had been "swiped" at Harold's Deli for a total of $39, 370, and the charges were disputed by the cardholders, the company made inquiries. On November 9, 2009, defendant responded by faxing copies of the credit card receipts from Harold's Deli.
Cabuda explained that the merchant generally is paid between forty-eight and seventy-two hours after the charge is recorded, "[a]nd so it's very likely that the merchant has been paid while we're waiting for our card member to pay us." Cabuda explained that in this case, "the merchant" was actually paid for one of the charges, but funds for the other three, although initially deposited in his account, were later "charged back, " i.e., withdrawn by American Express.
During cross-examination, Cabuda acknowledged that nine or ten other merchants were involved with similar fraudulent transactions with a person known as "Baba, " an alias Muslay later acknowledged using. Cabuda further acknowledged on cross-examination that the total fraud involved more than $100, 000.
Muslay testified, and it suffices to say he explained the fraudulent scheme, as well as defendant's agreement and participation therein. Muslay claimed that he was introduced to defendant by a friend, and defendant agreed to split the money "50/50." He claimed defendant gave him "something under" $10, 000 in cash.
Muslay acknowledged that he was arrested and charged "in Essex, and Morris, and Passaic County." He pled guilty to multiple charges and received a four-year probationary sentence. On cross-examination, Muslay admitted he committed credit card fraud in the same manner between four and six times at various restaurants and businesses.
Defendant did not testify but called two witnesses. George Koulis was a long-time friend of defendant who, through a friend, referred "Baba, " who wanted to book his daughter's wedding, to defendant. Sergeant Richard Scrivani of the Parsippany police department received a text message from defendant, who he knew. Scrivani contacted defendant who provided him with a license plate number. Scrivani ran the information through the department's database and obtained Muslay's photograph. Defendant identified Muslay, and Scrivani dispatched Morelli to follow through in the investigation.
After the notice of appeal was filed, we granted defendant's motion to supplement the record. The supplemental material included a certification from trial counsel, to which was attached a letter from the assistant prosecutor detailing discovery she provided. Trial counsel certified that "[o]ther than the documents . . . listed in [the assistant prosecutor's] letter, no other discovery or names of potential witnesses or defendants, other than [Muslay], was ever turned over to me prior to the trial . . . ." The documents accompanying the assistant prosecutor's letter were limited to the investigation at Harold's Deli.
The assistant prosecutor who tried the case filed a certification in opposition to defendant's motion to supplement the record. In it, she summarized the involvement of Muslay in other illegal credit card operations. She also stated that defendant and the "other defendants" were present in court on multiple occasions for various pre-trial proceedings.
Defendant argues that the State violated Rule 3:13(b) and (c) "by failing to provide information pertaining to the codefendants." Specifically, defendant contends that "the extent of leniency extended to [Muslay] is an apparent factor in determining his credibility[, ]" and the jury was "entitled to know what [he] ha[d] to gain by fabricating testimony." While acknowledging that the jury knew of the beneficial plea bargain Muslay received, defendant claims he was "unaware of the extent of [Muslay's] involvement in the major criminal enterprise." Defendant further argues that he had the "right to interview witnesses, review police reports and investigate the circumstances regarding" the other fraud cases, and "compare the facts of the co-defendant[']s cases . . . ."
The State counters by arguing that defendant was "clearly aware of the other cases in which . . . Muslay was involved" because the discovery provided included information regarding his arrests for charges in other counties. It notes that defendant was provided with Muslay's complete criminal history, and trial counsel effectively used this, as well as the lenient plea bargain extended to Muslay, effectively in summation to attack the witness's credibility. Lastly, the State notes that trial counsel's certification does not assert he was unaware of the scope of Muslay's crimes.
Although the Rule has since been amended, at the time of trial, Rule 3:13-3(b) governed post-indictment discovery, and subsection (c) provided that the State must provide a defendant with the opportunity to inspect and copy a variety of "relevant material" if otherwise not furnished as part of the prosecutor's "discovery package." That list of discoverable material includes the "names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information, " "record of statements . . . by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons[, ]" and "police reports" in "the possession, custody, or control" of the prosecutor. R. 3:13-3(c)(6), (7), and (8) (2012).
The "pretrial discovery process and procedure in criminal matters is framed out through a broad governing court rule. Once an indictment has issued, a defendant has a right to automatic and broad discovery of the evidence the State has gathered in support of its charges." State v. Scoles, N.J. __, __ (2013) (slip op. at 14). We have said, however, that "'criminal discovery has its limits.'" State v. Gilchrist, 381 N.J.Super. 145-46 (App. Div. 2005) (quoting State v. D.R.H., 127 N.J. 249, 256 (1992)), certif. denied, 203 N.J. 96 (2010). "Discovery is appropriate if it will lead to relevant and material information." State v. Ballard, 331 N.J.Super. 529, 538 (App. Div. 2000).
"[T]he State's obligation to disclose is 'not limited to evidence that affirmatively tends to establish a defendant's innocence but would include any information material and favorable to a defendant's cause even where the evidence concerns only the credibility of a State's witness.'" State v. Williams, 403 N.J.Super. 39, 46-47 (App. Div. 2008) (quoting State v. Carter, 91 N.J. 86, 111 (1982)), aff'd in part and modified in part, 197 N.J. 538 (2009). Thus, we long ago held that "at the time of trial the prosecution is under a duty to reveal the existence of a promise or agreement of immunity or a recommendation of leniency made to a material witness or accomplice who may be incriminated in the offense with defendants, although not himself indicted." State v. Satkin, 127 N.J.Super. 306, 309 (App. Div. 1974) (citation omitted). And, a defendant is clearly entitled to, and routinely supplied with, the criminal history of any witness produced by the State.
In this case, it is undisputed that the State supplied defendant with Muslay's criminal history, and the contours of Muslay's plea bargain were first exposed on direct examination by the prosecutor. Thereafter, defense counsel explored the agreement in greater detail and vigorously attacked Muslay's credibility in summation. Therefore, the record belies any contention that the State failed to provide sufficient information in discovery in this regard.
Although he does not so expressly argue, we discern that defendant contends he was entitled in discovery to the police reports and related information regarding multiple credit card frauds committed by Muslay with individuals at other business establishments and restaurants. We reject that argument.
First, it is clear from the record that defendant in fact knew about some of these other frauds either through discovery or attendance at various conferences involving Muslay and defendants in the other cases. The extent of that knowledge is unclear but, as noted, trial counsel's certification sheds no particular light on the subject. Second, defendant was charged only with conspiracy and related fraud involving Harold's Deli; the State never contended that defendant was part of a broader criminal conspiracy. See e.g., State v. DeCree, 343 N.J.Super. 410, 415-17 (App. Div. 2001) (discussing the difference between "distinct and disconnected" conspiracies versus "a single, overall comprehensive plan") (citation omitted), certif. denied, 170 N.J. 388 (2001).
Lastly, defendant has not suggested, and we cannot speculate, how having the police reports or other information from the various investigations would have actually been used at trial. Indeed, as noted, defendant's argument to the jury was that he was victimized by Muslay. Evidence of specific instances in which Muslay and other business owners utilized the same modus operandi to commit credit card fraud strikes us as hardly being helpful to the assertion of such a defense. In sum, we conclude that defendant failed to demonstrate a discovery violation by the State.
In his second point, defendant contends that trial counsel provided ineffective assistance because he failed to ascertain the identity of additional "codefendants" and his cross-examination of Muslay was inadequate as a result. Although defendant asserts trial counsel's certification acknowledges his failure to gather information regarding Muslay's other crimes, that simply is not so.
In any event, "we routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). To the extent trial counsel's limited cross-examination might implicate strategic considerations not available from review of the trial record, consideration of defendant's claims are more appropriately left for PCR review.
We affirm defendant's conviction. Defendant's claims that trial counsel provided ineffective assistance are preserved for future review if a timely PCR petition is indeed filed.