Opinion
DOCKET NO. A-0448-10T3
03-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL TILELLI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2195.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Tilelli appeals from the denial of his petition for post-conviction relief (PCR) contending that he was denied his right to a fair trial, and due process, and that he established a prima facie case of ineffective assistance of counsel that required an evidentiary hearing. We affirm.
A jury convicted defendant of third degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10a(1) (count one); second degree eluding, contrary to N.J.S.A. 2C:29-2b (count two); second degree aggravated assault while fleeing or attempting to elude a police officer, contrary to N.J.S.A. 2C:12-1b(6) (count three); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count four); third degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1b(5) (count five); fourth degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1) (count six); and fourth degree tampering with or fabricating physical evidence, contrary to N.J.S.A. 2C:28-6(1) (count seven). The jury acquitted defendant of third degree resisting arrest/physical force, but convicted him of the lesser-included offense of fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count eight). As to count two, the jury found that defendant's flight to attempt to elude a police officer created a risk of death or injury.
Judge Linda G. Baxter imposed an aggregate sentence of ten years, with an eighty-five percent period of parole ineligibility on the seven-year term imposed on the aggravated assault charge of count four. We affirmed defendant's conviction and sentence on direct appeal, State v. Tilelli, No. A-3135-05 (App. Div. Mar. 31, 2008), and the Supreme Court denied certification, 196 N.J. 599 (2008).
Defendant's arrest and conviction arose out of his purchase of heroin in a drug transaction in Camden. Several officers affiliated with the High Intensity Drug Trafficking Area (HIDTA) Task Force were participating in an undercover surveillance operation when they observed a man get into the front-passenger seat of the car defendant had just driven into the area. The officers watched as the two men handed items back and forth while looking around nervously. Having concluded that their behavior was consistent with narcotics activity, the police moved in. The officers identified themselves and ordered defendant to shut off the car, and both men to put their hands up.
Instead of obeying, defendant gunned the engine and sped away, swerving around one officer but striking another as he fled the police. The officer struck, Investigator Thomas Grieco of the Camden County Prosecutor's Office, was propelled onto the hood and windshield of defendant's car. Defendant continued on, speeding through a residential neighborhood and ignoring several stop signs. He stopped briefly to let the drug dealer out of the car and threw several bags of heroin out his window before being blocked in by patrol cars approaching from different directions. Defendant jumped out of his car and ran about ten feet before being tackled by the arriving officers. The officers subdued defendant after a brief struggle, and he was arrested.
Defendant raised several different sorts of error in his PCR petition. He alleged that he had been wrongly convicted of second degree aggravated assault, exposing him to a period of parole ineligibility, because the State had exaggerated the extent of Grieco's injuries. He claimed his trial counsel did not request copies of Grieco's medical records and failed to learn that Grieco had filed a negligence action against defendant. Defendant contended that this inadequate pre-trial investigation hampered counsel's ability to conduct adequate cross-examination of the State's witnesses. He also claimed that the State's failure to reveal Grieco's lawsuit constituted a Brady violation.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Defendant further complained that he was denied due process and a fair trial based on the jury having been tainted by outside influences. Among his claims of jury taint, defendant noted that several days after the verdict, an alternate juror telephoned Judge Baxter's chambers. The judge did not speak to the juror, and instead directed her team leader to return the call. The judge then wrote promptly to both counsel advising them of the substance of the communication. Defendant contended that the judge's handling of the call was inconsistent with State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006), a case in which we were critical of a judge's ex parte communication with a juror post verdict, decided the year after this incident while defendant's direct appeal was pending.
Defendant also alleged prosecutorial misconduct. He contended that the prosecutor had improperly cross-examined him by asking whether the officers who had testified differently from defendant had been lying to the jury. Finally, defendant contended that the trial judge had improperly employed a presumptive seven-year term in imposing sentence and relied on facts not found by the jury.
In a comprehensive and well-reasoned opinion, Judge Edward J. McBride, Jr. denied the petition in its entirety. He determined that defendant's claims of improper jury deliberations and external influence, as well as defendant's claims of improper cross-examination by the prosecutor had been raised and decided on direct appeal and were thus procedurally barred by Rule 3:22-5. The judge further rejected defendant's claim under Walkings. Finding no indication that the case was to be applied retroactively, he nonetheless determined it was plainly distinguishable on its facts as the trial judge had not spoken to the juror herself and wrote promptly to counsel advising them of the substance of the contact.
The judge also determined that defendant's claims as to the State's exaggeration of Grieco's injuries and his sentencing issues could have been raised on direct appeal. Because defendant failed to raise those issues on appeal, none involved a new rule of law, and barring their consideration would not result in fundamental injustice, as defendant had failed to allege specific facts demonstrating the likelihood of any injustice, the court concluded that they were procedurally barred by Rule 3:22-4(a).
Judge McBride considered and rejected defendant's claims of ineffective assistance of counsel on the merits. He rejected as "flatly contradicted by the record" defendant's claim that his counsel failed to investigate Grieco's medical records. Discovery transmittal sheets revealed that defense counsel received almost fifty pages of the investigator's medical records months before trial. Further, Grieco had not filed his negligence suit against defendant until after the criminal trial, so there was nothing to discover and no basis to suggest that Grieco had exaggerated his injuries for monetary gain.,
The judge rejected defendant's claimed Brady violation for the same reason.
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The judge found no basis to conclude that Grieco's injuries, which necessitated two surgeries to repair his knees, were insufficient to trigger liability on the "serious bodily injury" second degree aggravated assault charge in count four. Moreover, the degree of Grieco's injuries was ultimately of no moment because defendant also faced a No Early Release Act sentence for second degree aggravated assault under count three of the indictment which only required proof of bodily injury.
Finding no merit to any of defendant's claims, Judge McBride dismissed the petition in its entirety.
On appeal, defendant raises the following issues:
POINT I:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF.
POINT II:
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE WITHHELD EVIDENCE REGARDING A CIVIL LAWSUIT WHICH ALLEGED FACTS IN CONTRADICTION TO THE ELEMENTS OUTLINED IN THE CRIMINAL INDICTMENT.
POINT III:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO TRIAL BEFORE A FAIR AND IMPARTIAL JURY AND IS THEREFORE ENTITLED TO POST-CONVICTION RELIEF.
POINT IV:
REMAND FOR AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge McBride in his written decision of March 29, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION