Opinion
DOCKET NO. A-2097-13T1
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN GEROW, Defendant-Appellant.
Robert Carter Pierce argued the cause for appellant. Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Maven. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-0093. Robert Carter Pierce argued the cause for appellant. Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief). PER CURIAM
Defendant Kevin Gerow appeals from a trial court order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing the record in light of his contentions advanced on appeal, we reverse and remand.
We derive the facts from the record on appeal. In furtherance of an ongoing racketeering investigation, the State Police executed a search warrant on the home of co-defendant Donald Cicetti on October 11, 2002, and recovered weapons and evidence of illegal gambling and violations of criminal usury laws. Cicetti agreed to cooperate with the State in its investigation of a group of individuals known to be associated with an organized crime family. Cicetti agreed to provide testimony implicating defendant and other individuals in the racketeering scheme.
On May 22, 2003, Cicetti entered into a plea agreement in which he pled guilty to second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2(d) and N.J.S.A. 2C:5-2. In exchange for his plea, the State agreed to recommend that Cicetti be sentenced as a third-degree offender, to a term of imprisonment not to exceed five years. Cicetti was to be sentenced after all of the charges against the other co-defendants were resolved. At the plea hearing, Cicetti testified that he had been employed as a Newark firefighter until October 2002, and that he was on disability. He did not elaborate on the nature of his disability or whether he had begun to receive pension benefits.
On that same day, the State requested that the trial court seal Cicetti's guilty plea for his protection and transfer the matter to Monmouth County for sentencing. The trial court granted the State's requests.
On May 30, 2003, Cicetti testified before a state grand jury implicating defendant and others in a statewide racketeering ring. Detective John Pizzuro testified that no agreements or promises were made to Cicetti with respect to his cooperation other than that he would be sentenced as a third-degree offender to a prison term not to exceed five years.
On June 10, 2003, the state grand jury returned Indictment Number 03-06-0093, charging defendant with second-degree conspiracy to commit criminal usury, N.J.S.A. 2C:5-2 (count one); second-degree business of criminal usury, N.J.S.A. 2C:21-19(b) (count two); and second-degree criminal usury, N.J.S.A. 2C:21-19(a) (count three). On March 1, 2004, defendant pled guilty to amended count three, third-degree criminal usury. On May 7, 2004, defendant was sentenced to a five-year term of probation conditioned upon him serving 364 days in county jail. Prior to entering his guilty plea, defendant had been provided the grand jury transcripts, which included Cicetti's testimony against him, and reflected that the only promise the State made to him would be to sentence him as a third-degree offender.
Sometime in 2010, after defendant had completed his sentence, he learned that Cicetti had been collecting a pension from the State Police and Firefighters Pension System since March 2003, despite having pled guilty to conspiracy to commit racketeering. Defendant also learned that Cicetti had never been sentenced for his 2003 guilty plea. In May 2010, defendant's father, who was also a Newark firefighter, notified the Division of Pension and Benefits (Division) that Cicetti may be receiving mental health disability benefits by "perpetrating [a] fraud" upon the system. In June 2010, the Division requested information from the Attorney General's Office but did not receive a response. The Division suspended Cicetti's pension payments.
Though the Division considers the effect of an employee's misconduct on his pension under N.J.S.A. 43:1-3 and N.J.A.C. 17:1-6.2, the record on appeal does not contain any information with respect to the Division's basis for suspending Cicetti's pension payment, e.g. because he plead guilty to an indictable offense, or because of the nature of the offense. Nor does the record include the Division's final determination on Cicetti's pension.
In April 2012, defendant filed a petition for PCR seeking to reverse his conviction and for a new trial based upon the State's failure to disclose all of the terms of the plea agreement with Cicetti, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and State v. Carter, 69 N.J. 420 (1976). Defendant alleged the State entered into an undisclosed side deal with Cicetti that allowed him to avoid being sentenced and to collect a mental health disability pension. Defendant certified that had the State informed him of the undisclosed promises made to Cicetti, he would not have pled guilty and would have gone to trial.
Defendant hired a private investigator to conduct his own investigation. In February 2012, defendant filed a motion to compel discovery of Cicetti's criminal history and plea agreement, however, the State was unable to locate its file or any information on Cicetti. In August, defendant filed a motion to compel Cicetti's deposition. The court denied the motion but suggested it might grant an evidentiary hearing.
In the following months, the State unsealed Cicetti's guilty plea and the court sentenced him on September 25, 2013. During the Cicetti sentencing, the State acknowledged that defendant's PCR petition alerted them to unseal Cicetti's file, reconstruct the file, and sentence Cicetti. The State claimed the delay in sentencing was an oversight and offered reasons contributing to the delay: notably, (1) the retirement of the deputy attorneys general who coordinated the investigation and indictments; (2) the failure of Mercer County to forward Cicetti's file to Monmouth County as required by the Cicetti venue transfer order; and (3) Monmouth County's lack of awareness of Cicetti or his plea because the file was sealed. The State argued the delay was only since November 2006, the earliest date Cicetti could have been sentenced following the resolution of the last co-defendant's case.
The State changed its sentence recommendation from a custodial term to one-year probation in consideration of the passage of ten years during which Cicetti remained law-abiding, and Cicetti's failing health. The court imposed the State's recommended probationary sentence.
On November 21, 2013, during oral argument on the PCR petition, defendant contended that an evidentiary hearing was necessary to explore what the State knew about the status of Cicetti's mental health and his then-pending disability pension application at the time of defendant's plea in 2004. Defendant maintained that Cicetti's mental health may have affected his ability to perceive, recall, or relate facts during the grand jury hearings. When defense counsel argued that one of the reasons the judge denied defendant's motion to compel Cicetti's deposition was because the judge indicated an evidentiary hearing would be held, the following colloquy ensued:
THE COURT: [T]o make the record clear that [was] before we had Mr. Cicetti sentenced. That's before we got an explanation of what happened.
Early on in this case I was as flabbergasted as you as to how this could happen. Now it's become a little clearer what happened, in my mind anyway. But whatever I said at that motion that we had, let's understand it was in a context of something.
[DEFENSE COUNSEL]: I do understand that, but I'm still making that application now.
THE COURT: I understand that.
[DEFENSE COUNSEL]: If Mr. Cicetti went out on disability for a mental disability, the State would have known that and they would have -- that was Brady material which would have been required to [have] been produced to defense counsel. The issue -
THE COURT: If the State was aware of it.
[DEFENSE COUNSEL]: If the State was aware of it. Clearly [the DAG] was aware.
THE COURT: Well, he knew he was taking Paxil for [stress] and depression. Many people take those types of drugs for stress and depression and that doesn't equate in my mind to a mental illness.
[DEFENSE COUNSEL]: No, it wouldn't. But, you know, why did he receive the pension? It's the State that gave him the pension and that's your Honor --
THE COURT: It's not the Attorney General that gave him the pension.
[DEFENSE COUNSEL]: No, but they work for the same people. It's all from the State. And that question, that issue that Mr. Cicetti had a pension that's worth, you know, depending on how long he lived, upwards of $1 million, 30 some $5,000 a
year[.] [T]hat would have been a question for a jury in [defendant's] trial.
. . . .
THE COURT: But [defendant] and trial counsel knew he had at least applied for a pension.
. . . .
[DEFENSE COUNSEL]: Well, your Honor, we're left in a cloud of uncertainty. And I would like to refer to a letter from [the DAG] way back in April of 2003. He's writing to the pension board requesting all documentation, records, communications between the Division of Pensions and the Division of Criminal Justice of New Jersey, either prior to granting [] Cicetti['s] pension through the present.
. . . .
THE COURT: I believe I have that attached to your papers.
[DEFENSE COUNSEL]: I am not privileged to that information and that would be the purpose of an evidentiary hearing, to subpoena the custodian of records in the Division of Pensions. Where's the information? Let's see it. What was it?
The court found that defendant's petition was time-barred pursuant to Rule 3:22-12. Nonetheless, the judge addressed defendant's substantive argument. The judge rejected defendant's claim that he would not have pled guilty if the State had informed him that the charges against Cicetti would be dismissed, Cicetti would not receive a custodial prison term, and that Cicetti would be permitted to receive a pension. This appeal followed.
On appeal, defendant raises the following issues:
I. THE PCR COURT ERRED BY NOT GRANTING [DEFENDANT'S] PCR BECAUSE THE ALLEGATIONS MADE BY [DEFENDANT] THAT THE STATE VIOLATED BRADY V. MARYLAND AND THERE WAS A REASONABLE PROBABILITY THAT, BUT FOR THE STATE'S FAILURE TO DISCLOSE THE PROMISES MADE TO CICETTI, [DEFENDANT] WOULD NOT HAVE PLEADED GUILTY WERE NOT DISPUTED BY THE STATE IN ANY FASHION. THEREFORE, [DEFENDANT'S] PCR WAS "UNOPPOSED" REQUIRING THE PCR COURT TO GRANT THE PCR.
II. THE FIVE-YEAR TIME BAR SET FORTH IN R[ULE] 3:22-12 MUST BE RELAXED IN THE "INTERESTS OF JUSTICE."
III. THE PCR COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.
IV. THE PCR COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO COMPEL THE DEPOSITION TESTIMONY OF CICETTI.
Defendant's PCR application arises from Rule 3:22-2(a), which permits a collateral attack of a conviction based upon a claim of a "substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" His PCR petition was based on a claim of a Brady violation. See Brady, supra, 373 U.S. at 83, 83 S. Ct. at 1194, 10 L. Ed. 2d at 215; (see also R. 3:13-3; Carter, supra, 69 N.J. at 420.
"In order to establish a Brady violation, defendant must show that: (1) the prosecution suppressed the evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Nelson, 330 N.J. Super. 206, 212 (App. Div. 2000); (citing State v. Martini, 160 N.J. 248, 268-69 (1999)). "Evidence is considered material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. J.J., 397 N.J. Super. 91, 101 (App. Div. 2007) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)), appeal dismissed, 196 N.J. 459 (2008).
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. See ibid.
Thus, the question is whether the State suppressed any terms of Cicetti's plea agreement or any information regarding Cicetti's mental status or pension. The "newly discovered evidence" only became known to defendant because of his efforts that prompted Cicetti's records to be unsealed. The State's explanation for its failure to sentence Cicetti raises questions of fact that are outside the record. For example, the factual record with respect to what occurred after defendant's sentence is largely developed from the arguments of counsel rather than from persons who were involved in the investigation, the plea agreements, or the pension determinations. As to the second and third elements, if found to be true, defendant's claim that the State knew that Cicetti suffered from a mental health condition and received a pension on that basis, could be favorable and material to defendant's request to set aside the conviction.
"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). However, in the exercise of discretion, "[p]etitions for post-conviction relief cannot be disposed of out of hand." State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971). Under the unique circumstances of this case, an evidentiary hearing is required to resolve the factual dispute as to what the State knew at the time of defendant's plea and whether it had advised defendant of all the terms of Cicetti's plea agreement, and his mental health issues. The court must also determine whether defendant's knowledge of all the facts would have led to a different result.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION