Opinion
DOCKET NO. A-4742-13T1
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER TIRADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/ Acting Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-1673. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/ Acting Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Christopher Tirado appeals from an order entered October 18, 2013, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted on first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon, a .380 caliber semi-automatic pistol, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count six); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count seven); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count eight); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count nine); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count ten); and fourth-degree possession of a switchblade knife without any explainable lawful purposes, N.J.S.A. 2C:39-3(e) (count eleven).
On June 25 and 26, 2003, while defendant was originally self-represented, a testimonial hearing was conducted regarding defendant's motion seeking to suppress his prior statements and physical evidence, sever counts five, six and seven of the indictment, and challenge the State's motion to admit N.J.R.E. 404(b) evidence. The motion judge denied each of defendant's motions and granted the State's evidentiary motion.
In October 2003, the same judge entered an order declaring defendant indigent and capable of requesting ancillary services from the Office of the Public Defender (OPD). From October 2003 to December 2004, defendant made several requests to the OPD. Specifically, defendant sought the services of Captain Edward Mamet, a retired New York City Police Officer, to "show how much of a substandard investigation was done" by the police and investigators involved with his case. Defendant also sought the services of a ballistics investigator and an arson expert. After reviewing defendant's requests and the State's evidence against defendant, the OPD agreed to authorize the hiring of a ballistics investigator, but denied defendant's request for the services of Captain Mamet and an arson expert.
Following a jury trial conducted between June 2 and July 7, 2005, defendant was found guilty of counts one through nine of the indictment. At sentencing, the trial judge merged counts three and four into count one and sentenced defendant to life imprisonment with eighty-five percent (sixty-three-and-three-quarters years) to be served without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one. The judge further imposed consecutive terms of ten years with five years of parole ineligibility on count five, five years with two-and-one-half years of parole ineligibility on count six, and five years with two-and-one-half years of parole ineligibility on count eight. The judge also imposed concurrent terms of twenty years imprisonment with ten years of parole ineligibility on count three, five years with two-and-one-half years of parole ineligibility on count seven, and eighteen months with nine months of parole ineligibility on count nine. The aggregate sentence was life in prison plus twenty years, with seventy-three-and-three-quarter years of parole ineligibility. In addition, defendant was ordered to pay $700 to the Victims of Crime Compensation Board (VCCB), $525 to the Safe Neighborhoods Services Fund, and $430 to the Law Enforcement Officers Training Fund.
Prior to trial, the State's motion to dismiss counts ten and eleven was granted. --------
Defendant filed a notice of appeal on January 19, 2006. On February 5, 2009, this court affirmed defendant's convictions, but remanded the matter for correction of the monetary penalty imposed for the VCCB. State v. Tirado, No. A-2541-05 (App. Div. Feb. 5, 2009). Our Supreme Court denied certification on May 7, 2009. State v. Tirado, 199 N.J. 515 (2009).
On July 22, 2009, defendant filed a pro se petition for PCR. Defendant argued the OPD's refusal to retain experts deprived him of a fair trial and due process. Moreover, defendant alleged the OPD, his trial counsel, and appellate counsel provided ineffective assistance, and he was entitled to an evidentiary hearing to argue his counsels' deficient performance. Following several postponements, defendant's petition for PCR was argued and thereafter denied by the PCR judge. This appeal followed.
The pertinent facts are derived from the testimony at the hearings on defendant's motion to suppress evidence and at the trial. At approximately 3:00 a.m. on October 2, 2001, Lieutenant Luke Guglielmo of the Fort Lee Police Department received a radio call from dispatch about shots fired and "a person down" on Slocum Way. Upon his arrival at the scene, Guglielmo saw a body lying on the ground with three gunshot wounds to his cheek and temple area. The officer retrieved the victim's wallet, which contained a New York driver's license bearing the name of Alex Rosen. The deceased was subsequently identified as Isai Alex or "Sasha" Rozenblit, (Alex). According to Guglielmo, from the condition of the deceased's clothing and from the position of the deceased's arms, it appeared the body had been dragged or pulled to the sidewalk. Guglielmo testified that three spent .380 shell casings, and one spent .380 caliber bullet were found on the ground near the body. There were no signs that a struggle had taken place in the immediate vicinity.
The medical examiner, Dr. Mary Ann Clayton, pronounced the victim dead at 4:36 a.m. At trial, the doctor testified that the position of the body suggested that someone had dragged or pulled the body to where it lay, and that the evidence was consistent with someone who had been shot while sitting upright. Dr. Clayton performed an autopsy that revealed five entry wounds on the left side of the victim's body and two exit wounds. Two of the three wounds to the side of the face disclosed evidence of stippling, caused by fine flicks of gunpowder deposited on the skin when shots are fired from close range, six-to-twelve inches away. Partial bullets and fragments were recovered on a wedge of bone at the base of the skull and at the back of the neck. There was no evidence of any defensive wounds.
In an attempt to reconstruct Alex's activities, the police interviewed his mother, as well as the friends and business associates who had assisted Alex the preceding evening in picking up used cars that he purchased in New Jersey. Among those interviewed were Vitaly Fargesen, Igor Katsman, and defendant. Fargesen and Alex were business associates. They were both in the used car dealer business and both had an interest in the Rallye Used Car Lot in Avenel, New Jersey. On the evening of October 1, 2001, Fargesen and Alex had arranged to pick up several cars from an auction in New Jersey and bring them to the Rallye car lot in Avenel. Fargesen drove from his home in Brooklyn to the car lot with Katsman. When they arrived at the car lot, Alex and defendant were already there. The four men then went in a truck to the auction where two Mercedes vehicles were purchased. According to Fargesen, he and Alex drove the two purchased vehicles, and defendant drove the truck back to the Rallye lot.
Upon completion of their business, Fargesen testified he and Katsman drove back to Brooklyn in his black Corvette. They went over the Goethals Bridge into Staten Island on the way home. Fargesen recalled that Alex left the car lot with defendant in a 1998 green Lincoln Navigator. They did not travel in tandem.
On October 3, 2001, Detective Steven Kearney of the Bergen County Prosecutor's Office went to defendant's apartment and asked for permission to question him at the Prosecutor's Office. After Kearney read the Miranda warnings to defendant, the interview was conducted in an "interview room." Kearney testified that the police wanted to determine if defendant was in possession of certain items that were missing from Alex's body, including a cell phone and a Rolex watch.
On October 4, 2001, defendant, of his own accord, went to a prearranged meeting place where he entered the back seat of the detectives' car. The detectives took defendant home so he could change his clothes. After defendant returned to the car, and after being read the Miranda warnings, defendant rode with the detectives for several hours, showing them the route he alleged he took with Alex on the night of the murder. Defendant agreed to return with the detectives to the Prosecutor's Office to give a statement. At the office, defendant gave a recorded statement of his account of the night Alex disappeared. During the statement, defendant denied any involvement in Alex's homicide.
On October 5, 2001, the New York Fire Department responded to an alarm for an automobile fire at 74th Street in Brooklyn. New York City Fire Marshall Joseph Mazzarella determined that the vehicle was a Lincoln Navigator and that the fire was intentionally set. Eventually, Mazzarella learned that the Fort Lee Police Department was looking for a Navigator in connection with a homicide investigation. Several days later, Mazzarella went to the scene of the fire to brief Detective Dennis Suarez of the Bergen County Prosecutor's Office and others. The vehicle was taken to the Bergen County Sheriff's Department for a more in-depth crime scene investigation. Among the items of interest found in the vehicle were a bottle of flammable Isopropyl rubbing alcohol, and a single .380 shell casing under the right rear passenger's seat.
On October 20, 2001, at approximately 12:44 a.m., Officer Michael Giampietro of the Cliffside Park Police Department observed a 2001 silver BMW with four-way flashers attempt to go the wrong way on a one-way street. When the officer began to follow, the driver led him on a high-speed chase until the driver lost control of his vehicle and crashed into a house. Giampietro observed a male climb out of the passenger side window and run down the block. Giampietro pursued on foot and tackled the male, who was identified as defendant. Giampietro read defendant his Miranda rights and inquired whether there were other occupants in the vehicle. Defendant shook his head no. The officer then accompanied defendant to the hospital.
Jeremy Fondi was the tow truck driver who removed the BMW from the accident site. In the course of transporting the BMW to the impound lot, another car sideswiped him, prompting Fondi to call the Fairview Police Department. Officer Dennis Englese responded to the scene. Englese gave Fondi permission to unload the BMW and put it inside a fenced area. Following company policy, Fondi entered the BMW to secure it. When Fondi exited the vehicle, he felt something inside the driver's side door pocket. Upon examining the pocket, Fondi found a handgun in a black holster. Fondi contacted the Cliffside Park Police Department and also advised Englese, who was in his patrol vehicle at the time of the discovery. After walking to the BMW and putting on gloves, Englese removed the gun, dropped the magazine, unloaded a bullet from the chamber, and kept the weapon until he released it to Officer Joseph Davis, who turned over the gun, a Walther PPK, along with a magazine, bullets, holster and temporary Connecticut license sticker to Detective Sergeant Albert Badrow of the Cliffside Park Police Department. There was no serial number on the weapon. Two days later, Badrow released the weapon and the other items to Kearney.
Defendant was arrested for possession of the weapon and possession of the BMW which was determined to be stolen. Defendant was later released on bail.
Kearney took the handgun, four discharged bullets, and four discharged shells to the Bergen County Sheriff's Department's Bureau of Criminal Investigation (BCI) where Lieutenant Charles Mason conducted ballistics tests. Upon completion of those tests, Mason prepared a report stating that the four bullets and four shells recovered in connection with the shooting of Alex were discharged from the .380 caliber gun recovered in the BMW. He confirmed the gun was operable and that its serial number was "ground off or sanded off."
On October 29, 2001, Mason advised Kearney and Detective Gregory Kohles that the gun found inside the BMW was the same weapon used to shoot Alex, and that all of the discharged projectiles and shell casings came from that weapon. Other evidence implicating defendant consisted of an E-ZPass record from October 2, 2001, showing that Fargesen and Katsman returned to Brooklyn using a different route than the one defendant claimed, and cell phone records indicating that someone had used Alex's cell phone after the homicide took place. Arrest warrants were issued for defendant.
At 2:00 a.m. on October 29, 2001, a Cliffside Park Police Officer stopped defendant for a traffic violation, found him in possession of a knife and a bag of drugs, and arrested him. Immediately after defendant was released in connection with those charges, two detectives from New York took him to the Brooklyn District Attorney's Office for questioning. Later that evening, Kearney, Kohles, and Lieutenant Callanan drove to New York and arrested defendant.
Defendant raises the following point on appeal:
POINT I
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO PER SE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE OPD FAILED TO PROVIDE FULL ANCILLARY SERVICES; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant contends the OPD rendered per se ineffective assistance of counsel because it failed to provide full ancillary services. Moreover, defendant argues that he was entitled to an evidentiary hearing, as he established a prima facie claim of ineffective assistance of counsel. We disagree.
As noted above, defendant initially represented himself in his murder proceedings and was judicially authorized in October 2003, to seek ancillary services. On October 17, 2013, the OPD, via Deputy Public Defender (DPD) Louis Acevedo, sent a letter to defendant informing him that he may apply for payment of ancillary services. The letter also noted,
[P]lease be advised that the judge's order finding you indigent does not mean the . . . [OPD] will automatically pay for the ancillary services you request. You must support your application with pertinent discovery and set forth your defense theory. . . . The issue is whether the requested services are "necessary."
When defendant sought clarification from the OPD regarding the procedure for applying for ancillary services, the OPD, via Assistant Public Defender (APD) Dale Jones, responded with a letter dated October 28, 2003. The OPD apprised defendant that he "should send [] a letter which briefly state[d] what evidence the State ha[d] against [him] and how [he] intend[ed] to refute it. Then tell [the OPD] what services [he] believe[d] [were] necessary in order . . . to defend [himself]." The OPD also informed defendant that if he desired expert services, he should then forward to the OPD the name of the expert sought, an explanation of how the expert's services will assist his defense, and the expert's fee schedule. The letter further indicated that if defendant required investigative services, the OPD would provide a "staff investigator."
In his February 10, 2004 letter, defendant requested the services of Captain Mamet in order to demonstrate that law enforcement's investigation of his case was "substandard." Captain Mamet required a $5,000 retainer and a fee of $250/hour and $2,500/day for trial. Defendant also sought the services of a "ballistics investigator, an arson investigator, and a translator to go with the investigator." In response, the OPD informed defendant he had already been provided an OPD staff investigator. As to the other services requested, the OPD noted that defendant failed to provide "'what evidence the State [had] against [him] and how [he] intend[ed] to refute it.'" Accordingly, the OPD could not make "a reasoned determination as to whether or not the other services . . . requested [were] necessary in order [for defendant] to properly defend [himself]." In addition, the OPD informed defendant that even if Captain Mamet's services were determined to be necessary, they would not be able to afford his $5,000 retainer fee or $250 hourly rate.
Soon thereafter, defendant requested the autopsy and crime scene photographs in connection with his case. On February 24, 2004, the OPD, via DPD Acevedo, noted that it was in the process of obtaining such photographs on defendant's behalf. Defendant then sent the OPD another letter on February 26, 2004, reiterating his earlier requests. The OPD responded in a letter dated March 2, 2004. The OPD, wanting to more thoroughly analyze the validity of defendant's requests for ancillary services, asked defendant to deliver a copy of the State's discovery evidence in the case.
After reviewing the State's evidence, the OPD advised defendant of the services it would authorize on April 2, 2004. The OPD first indicated that it would provide defendant with a ballistics expert; however, defendant was tasked with seeking the expert and providing his or her fee schedule to the OPD. Concerning Captain Mamet's services, the OPD opined that "he (or any similar expert) would be of little real value to the defense when weighed against the fiscal constraints of the . . . [OPD]." The OPD then noted it could not
say that such an expert might not be able to criticize some aspects of the investigation[,] but . . . nothing in the materials . . . would demonstrate an investigation that was[, as defendant contended,] "indifferent and slipshod." Indeed, the contrary appears to be true. For example, the canvasses that were done by various law enforcement personnel in the neighborhood of the crime scene in an attempt to identify and question potential witnesses (several of which were produced)
as well as the recording of the identity of the vehicles in the vicinity, argue strongly against your position. Your identification of issues as demonstrated by your handwritten notes in the margins reveals an ability to bring into question certain aspects of the investigation which you should be able to bring to the jury's attention through cross-examination as well as in your summation. In [the OPD's] view, what you have identified as areas of concern are peripheral and not capable of seriously calling into question the adequacy of the investigation[.]
The OPD also denied defendant's request for an arson expert in the April 2, 2004 letter. The OPD reasoned that contrary to defendant's assertion that the Navigator was completely burned, and the fire all consuming,
the materials [presented] . . . indicate that "the fire originated inside the subject vehicle, in the passenger compartment, in combustible materials (paper and rubbish). Fire extended to the entire passenger compartment and the contents thereof. Fire further extended to the engine compartment. Fire was thereto confined and extinguished." That the fire was not as all-consuming as you suggest is further borne out by Det. Suarez's [June 13, 2002] crime scene report. . . . There is nothing in the materials . . . that would suggest that an arson expert would be necessary in order to properly conduct your defense.
Our review of an order granting or denying a petition for PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR judge's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR judge's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
When rejecting defendant's ineffective assistance of counsel claim as to the OPD, the PCR judge opined concerning the OPD's refusal to retain a crime scene investigator and an arson expert on defendant's behalf:
While [defendant] established his eligibility for legal services from the . . . [OPD], it is unreasonable to anticipate all requests made by the [defendant] for experts should be accommodated. . . .
In the present case, [defendant] requested on several occasions by way of letter to the . . . [OPD] the services of expert witnesses. After reviewing numerous discovery materials and [defendant's] requests, [DPD] Louis Acevedo and [ADP] Dale Jones determined that the ancillary services were not necessary in his defense. . . .
As the [April 2, 2004] letter from Dale Jones demonstrates, the . . . [OPD] considered in detail every aspect of [defendant's] case. Consistent with the case law, the . . . [OPD] exercised its discretion and determined, after reviewing the [defendant's] requests and voluminous discovery, that the retention of experts was not necessary. Thus, the Public Defender's refusal to retain the experts requested by [defendant] did not constitute an abuse of discretion and therefore did not deprive defendant of a fair trial or due process.
. . . .
. . . According to the [defendant], had the . . . [OPD] retained the two experts, [defendant] would have been acquitted of the charges against him. Considering these allegations in a light most favorable to the [defendant], the [c]ourt finds that the [defendant] has not demonstrated a reasonable probability that the results of the proceedings would have been different given the overwhelming evidence against [defendant] at trial.
As to defendant's request for an evidentiary hearing, the PCR judge held, "An evidentiary hearing is not necessary to the resolution of [defendant's] claims. The [c]ourt has already established that [defendant's] claim of ineffective assistance of counsel [was] without merit since his request for ancillary services was properly denied."
Defendant now argues that the OPD erred in rejecting his requests for ancillary services. Specifically, defendant cites to the OPD's statement in the April 2, 2004 letter, concerning the services of Captain Mamet and how the OPD could not "say that such an expert might not be able to criticize some aspects of the investigation [. . . .]" Relying on this language, defendant argues that he was entitled to a "similar expert at a reduced cost" at trial.
Defendant further asserts that the OPD's refusal to retain a crime scene investigator and an arson expert on his behalf constituted per se ineffective assistance of counsel. A similar argument was made by defendant at the July 22, 2013 PCR hearing. Notably, defendant acknowledges in his brief that he cannot satisfy the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). However, defendant contends that prejudice must be presumed in this case because the OPD's actions were analogous to a complete denial of representation. Moreover, defendant argues that he also established a prima facie case of ineffective assistance of counsel, and was therefore entitled to an evidentiary hearing.
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); State v. Preciose, 129 N.J. 451, 460 (1992). In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland and Cronic, and adopted by our Supreme Court in Fritz. To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework.
Under Strickland's first prong, a defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "[A] defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment . . . .'" State v. Gaitan, 209 N.J. 339, 349-50 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
Pursuant to Strickland's second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "'[T]he defendant must show that the deficient performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
The Strickland Court went on to note, however, that in certain instances prejudice can be presumed, such as when there is "[a]ctual or constructive denial of the assistance of counsel altogether . . . ." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. The Supreme Court elaborated on this reasoning in Cronic, decided the same day as Strickland, and held that when counsel's errors are of such a magnitude that "no amount of showing of want of prejudice would cure it," it is unnecessary for a defendant to demonstrate prejudice. Cronic, supra, 466 U.S. at 659, 104 S. Ct. at 2046, 80 L. Ed. 2d at 668 (internal citations and quotations omitted); see also State v. Savage, 120 N.J. 594, 614-15 (1990).
A court reviewing a petition for PCR based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if the defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. "The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are insufficient to sustain a claim for PCR. Ibid. When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).
An indigent defendant is entitled to counsel, as well as other ancillary services, as may be necessary to prepare an adequate defense. See State v. DiFrisco, 174 N.J. 195, 243-44 (2002). Included in the right to receive these necessary services is the right to the assistance of expert witnesses. Id. at 244. Funding for experts is required pursuant to the State Constitution and the Public Defender Act, N.J.S.A. 2A:158A-1 to -25. Ibid.; see also In re Cannady, 126 N.J. 486, 492 (1991). But before such ancillary services are funded, the OPD has "discretionary authority to determine what services and facilities shall be provided to an indigent defendant, [and must] weigh the factors of need and real value to the defense against the financial constraints inherent in the OPD's budget." Cannady, supra, 126 N.J. at 493 (citing N.J.S.A. 2A:158A-5). That discretion is necessary because, "in the real world of public funding of state agencies, . . . resources are not unlimited but rather are subject to budgetary limitations." Ibid; State v. Cantalupo, 187 N.J. Super. 113, 121 (App. Div. 1982), certif. denied, 93 N.J. 274 (1983).
Here, defendant and the OPD engaged in extensive correspondence following the October 2003 order which authorized defendant to seek ancillary services. The OPD's first letter to defendant provided notice that it would not provide a blanket approval for all services defendant requested. Rather, the OPD would consider defendant's requests and determine whether the services were necessary for his defense. When defendant expressed confusion regarding the application process, the OPD provided a detailed explanation of what information defendant needed to submit in order for his requests to be properly considered.
In response to the OPD, defendant requested the services of Captain Mamet to demonstrate that the investigation of his case was "substandard[,]" a ballistics investigator to analyze the shell casings uncovered at the crime scene and in the burned Navigator, and an arson expert to determine whether the fire in the Navigator was all consuming. In a letter dated March 2, 2004, the OPD requested a copy of the State's discovery in order to fully assess the validity of defendant's requests for ancillary services. On April 2, 2004, the OPD advised defendant of the services it would authorize and those services it would not.
The April 2, 2004 letter indicated that defendant was authorized to retain a ballistics expert as requested. Regarding Captain Mamet's services, however, the OPD concluded that the investigation was not in fact substandard, and that Captain Mamet, or any other similarly qualified expert, "would be of little real value to the defense when weighed against the fiscal constraints of the . . . [OPD]." Moreover, when denying defendant's request for an arson expert, the OPD cited to the crime scene report and noted that defendant's allegations that the fire in the Navigator was all consuming were without merit; the OPD therefore concluded that "[t]here [was] nothing in the materials . . . that would suggest that an arson expert would be necessary in order to properly conduct [his] defense."
The OPD thoroughly reviewed the State's extensive and voluminous discovery prior to determining that the retention of experts on defendant's behalf was not necessary. The OPD provided a detailed analysis of that discovery in rejecting defendant's requests. In Cannady, supra, the Court held that the OPD has the "discretionary authority to determine what services and facilities shall be provided to an indigent defendant[.]" 126 N.J. at 493. From our review of the record, we find no basis to disturb the PCR judge's finding that the OPD did not abuse its discretion in refusing to retain the two experts sought by defendant.
Since we find the OPD properly rejected defendant's requests for ancillary services, defendant's per se ineffective assistance of counsel claim fails as well. As noted, defendant has failed to demonstrate that the OPD's conduct in denying the ancillary services was deficient, and that such deficiency prejudiced his defense. Moreover, we are unpersuaded that the OPD's behavior constituted an "[a]ctual or constructive denial of the assistance of counsel altogether[,]" whereby prejudice can be presumed. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696.
Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION