Opinion
DOCKET NO. A-0402-14T1
11-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BORIS BORETSKY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-05-0642. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Boris Boretsky appeals from an order entered by the Law Division on June 27, 2014, which denied his petition for post-conviction relief (PCR). We affirm.
I.
A Middlesex County grand jury charged defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count two); fourth-degree contempt, N.J.S.A. 2C:29-9(b) (count three); second-degree burglary, N.J.S.A. 2C:18-2 (count four); fourth-degree contempt, N.J.S.A. 2C:29-9(b) (count five); first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count six); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eight); fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1) (count nine).
Defendant was tried before a jury, and evidence was presented which indicated that in February 1999, defendant's wife, Saoule Moukhametova, attempted suicide. At the hospital, Moukhametova told a nurse that defendant beat her and she attempted suicide because she could not take it any longer. In January 2002, in the presence of others, defendant punched Moukhametova in the face and head-butted her. The police were called to the matrimonial residence in South Brunswick Township (SBT) and defendant was charged with aggravated assault. Thereafter, Moukhametova obtained a temporary domestic violence restraining order. The following day, defendant threatened Moukhametova.
On January 31, 2002, the court issued a final restraining order, which required defendant to provide support to Moukhametova on a temporary basis, and to pay the mortgage and bills associated with the marital residence. On February 28, 2002, Moukhametova filed a complaint for divorce. Moukhametova's attorney told Linda Craig, a paralegal in the offices of defendant's attorney, Andre Gruber, that Moukhametova would vacate the marital home by March 1, 2002, but only if defendant provided a check for $1,000. She said defendant should wait until March 4 to reclaim the house.
On March 1, 2002, defendant appeared at the office of Moukhametova's attorney. He told her that he wanted her to sign a letter stating that Moukhametova would be vacating the house immediately and he would be moving back in. According to the attorney, defendant backed her against a wall. Counsel demanded that defendant leave and threatened to call the police. Defendant departed.
About an hour later, Moukhametova arrived at her attorney's office. The attorney told her not to return to the marital home, but if she chose to stay there, she should have a friend stay with her. The attorney instructed Moukhametova not to sign any document without her permission. Counsel faxed a letter to Gruber's office, stating that she had advised Moukhametova not to vacate the home until the court had approved an agreement between the parties.
Several hours later, defendant appeared at Gruber's office. He expressed anger over his inability to force Moukhametova to leave the house immediately. He stated that Moukhametova was "ruining" him and he had "to get in that house." Later, as he was leaving, defendant told Joseph Bilal, an associate in the firm, "I hope I live through this weekend."
On March 3, 2002, defendant had a conversation with a colleague in his business, and stated that he intended to visit Moukhametova at the marital home. The colleague told defendant not to go to the home because he would be violating the restraining order. Defendant said he only wanted to talk. Later that evening, defendant went to the home, arriving there between 9:00 p.m. and 9:30 p.m.
Defendant parked his truck on the far side of the garage where it could not be seen by someone approaching the house. Defendant wanted Moukhametova to sign an agreement stating that she would leave the house immediately. Moukhametova arrived sometime later. At 11:37 p.m., the SBT police received a call reporting a suicide attempt at the marital home. When Officer John Penney arrived at the home, defendant directed him to the living room.
There, Penney observed Moukhametova on the couch, with her head propped up on two pillows, and a large kitchen knife on a table nearby. She appeared to be dead. Penney observed blood on the floor around the body, and blood coming into the room from the kitchen. The knife was clean except for a few drops of blood at the tip. It appeared to have been carefully placed on the table. Penney called for a first-aid squad and medical help. He told defendant to retreat.
Other SBT police officers arrived at the house. One officer was unable to find a pulse. Paramedics arrived and they could not find a heartbeat. The officers secured defendant and told him to lie on the floor. He was handcuffed and searched. When he was escorted out of the house, another officer read defendant his Miranda rights. Defendant was asked how long he waited to call 9-1-1. He replied that he waited about forty-five minutes after the stabbing.
Defendant was taken to police headquarters. There, defendant complained of chest pains, and he was transported to a hospital. He was interviewed in his hospital room, after again being informed of his Miranda rights and acknowledging those rights. Defendant told the officers that when Moukhametova arrived home and drove into the garage, he followed her. When Moukhametova saw him, she started to run into the house, and he ran after her. Defendant said Moukhametova had a knife, and said she would kill him or herself. She told him not to come near her, and then stabbed herself in the chest. According to defendant, Moukhametova tried to run upstairs, but he stopped her. He claimed that, at some point, he blacked out.
The jury found defendant guilty on all counts, but could not reach a unanimous verdict on imposing the death penalty. After merging the convictions for felony murder and possession of a weapon for an unlawful purpose with the murder conviction, the judge sentenced defendant to life imprisonment, without the possibility of parole, for the murder.
The judge also sentenced defendant to consecutive sentences of ten years for the burglary and seven years for the aggravated assault, both with periods of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, the judge imposed consecutive sentences of five years for the terroristic threats, and eighteen months for tampering. The judge also imposed two concurrent sentences of eighteen months for the contempt charges.
Defendant appealed and we affirmed his convictions. State v. Boretsky, No. A-6607-05 (App. Div. Aug. 28, 2008). The Supreme Court denied defendant's petition for certification. State v. Boretsky, 197 N.J. 14 (2008). Thereafter, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. On February 29, 2012, the court dismissed the petition, and denied a certificate of appealability. Boretsky v. Ricci, No. 09-0771, 2011 U.S. Dist. LEXIS 80512 (D.N.J. Feb. 29, 2012). The court later denied defendant's motion for reconsideration.
On April 21, 2011, defendant filed a pro se petition for PCR, alleging that he was denied the effective assistance of trial and appellate counsel. On August 25, 2011, defendant filed an amended petition. The PCR court thereafter filed a lengthy opinion, in which it concluded that many of defendant's claims were barred by Rule 3:22-5 because they had been adjudicated in his direct appeal. The court also found that defendant had not presented a prima facie case of ineffective assistance of counsel. The court entered an order dated June 27, 2014, denying PCR, and this appeal followed.
On appeal, defendant raises the following arguments:
POINT ONE
THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE
DIFFERENCE IN INTERESTS BETWEEN THE DEFENDANT AND HIS ATTORNEY MATERIALLY INTERFERED WITH THE ATTORNEY'S REPRESENTATION. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947).
POINT TWO
THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF.
Defendant filed a supplemental pro se brief in which he argues:
POINT I
THE TRIAL COUNSEL LABORED UNDER [A] POTENTIAL CONFLICT OF INTEREST WHICH LATER EVOLVED INTO AN ACTUAL CONFLICT VIOLATING DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. U.S. Const. Amend. VI, N.J. Const. Par. 9, Art. 10.
POINT II
DESTRUCTION OF CONTEMPORANEOUS NOTES OF DEFENDANT'S UNRECORDED PRE AND FOLLOW-UP INTERVIEWS BY [THE] PROSECUTOR'S OFFICE INVESTIGATOR JOHN MASLAK VIOLATED NEW JERSEY DISCOVERY RULE R. 3:13-3, BRADY RULE, DEFEDNANT'S CONFRONTATION AND DUE PROCESS RIGHTS. U.S. Const. Amend. VI, XIV, NEW JERSEY Const. Art. I par. 10.
POINT III
FAILURE OF THE TRIAL, OR DIRECT APPEAL COUNSEL TO RAISE ISSUES REGARDING THE ASSISTANT MIDDLESEX COUNTY MEDICAL EXAMINER DR. FALZON, FABRICATING PHYSICAL EVIDENCE AND MAKING HIS CONCLUSIONS IN THE AUTOPSY REPORT TO FIT THE STATE'S THEORY, AND LATER FALSELY TESTIFYING TO FABRICATED EVIDENCE UTTERLY DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, AND TO A FAIR TRIAL[.] U.S. Const.
Amend. V, VI and XIV. N.J. Const. Art. I par. 10.
POINT IV
FAILURE OF THE TRIAL COUNSEL TO CALL AND CROSS-EXAMINE DETECTIVE JAMES RYAN, THE LEAD DETECTIVE ON THE CASE, CONSTITUTE[S] INEFFECTIVE ASSISTANCE OF COUNSEL AND DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, TO DUE PROCESS, AND TO A FAIR TRIAL. U.S. Const. Amend. V, VI and XIV. N.J. Const. Art. I par. 10.
POINT V
BOTH ATTORNEYS, THE PCR ATTORNEY [] AND THE APPEAL ATTORNEY [] WERE INEFFECTIVE BECAUSE THEY FAILED TO RECOGNIZE IN THEIR ARGUMENTS THAT THE ACTUAL CONFLICT OF INTEREST RESTS ON NEWLY DISCOVERED EVIDENCE.
II.
We turn first to defendant's argument that he was denied the effective assistance of trial counsel because his attorney had a conflict of interest with regard to four of the State's witnesses, Karl Berkuta, Linda Craig, Joseph Bilal, and Michael Gruber.
The following facts inform our decision on this claim. After defendant was indicted, he retained Joseph Benedict of the firm Benedict and Altman to represent him on the charges. The retainer agreement provided that Benedict would be paid a $150,000 fee. At the time, however, defendant was unable to pay the fee, and Benedict began to work on the case without receiving any upfront payment.
To pay Benedict, on September 5, 2002, defendant entered into an agreement with Kingston Hill Homes, LLC (Kingston), Andre Gruber, Berkuta, and Benedict's law firm. The agreement noted that defendant, Andre Gruber, and Berkuta each had one-third ownership and profit interests in Kingston. Among other things, defendant agreed to sell his ownership share of Kingston's profits to Gruber, Berkuta, and Benedict's firm, and to withdraw as a member of the company. Defendant assigned to Benedict's firm a maximum of $250,000 from his share of Kingston's profits for payment of legal fees and other costs in defendant's criminal action. In addition, defendant assigned from his share of Kingston's profits $100,000 to Berkuta, and $30,000 to Andre Gruber for monies owed to them.
According to the agreement, any profits owed to defendant above the amounts assigned to Benedict's firm, Andre Gruber and Berkuta, would be split among the remaining members. The agreement was prepared by independent counsel, and defendant was independently represented by another attorney with regard to the agreement.
On December 23, 2004, the agreement was amended. Benedict's firm allowed Gruber and Berkuta to buy out its interest in Kingston for $160,000, in addition to the $57,000 the firm had previously been paid. The parties to the agreement signed mutual releases, releasing all claims they may have against each other. After the agreement was amended, Benedict and his firm had no further business relationship with Kingston, Andre Gruber or Berkuta.
Defendant's trial began on December 6, 2005. Among other witnesses, the State called Berkuta, who testified as to his relationship with defendant, as well as conversations he had with defendant concerning his divorce, financial difficulties, and plan to move back to the residence in SBT. Linda Craig testified about her interactions with defendant and his angry demeanor, when he came to Gruber's office on March 1, 2002. Michael Gruber and Bilal also testified as to defendant's demeanor on March 1, 2002. Benedict or his associate cross-examined these witnesses.
Defendant argues that Benedict had a conflict of interest resulting from the manner in which his fees were to be paid. He contends that, because of the conflict, Benedict did not adequately cross-examine Berkuta, Craig, Michael Gruber, or Bilal for fear the conflict would be exposed. We are convinced these arguments are without merit.
Under both the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution, a defendant has the right to the assistance of counsel. This right includes the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Court established a two-prong test to determine whether a defendant has been deprived of the effective assistance of counsel. Id. at 687, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This same test was later adopted by the Supreme Court of New Jersey in State v. Fritz, 105 N.J. 42, 49 (1987).
First, a defendant must show that counsel's performance was deficient, and, in doing so, must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 687-89, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. Second, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Furthermore, ineffective-assistance-of-counsel claims based upon a conflict of interest are governed by the test set forth in State v. Cottle, 194 N.J. 449, 467 (2008). The court first must consider whether the alleged conflict amounted to a per se conflict, where "prejudice is presumed," and reversal of the conviction required. Ibid. In the absence of such a conflict, the court examines whether there is both a potential for conflict and a significant likelihood of prejudice. Cottle, supra, 194 N.J. at 467-68.
Defendant argues that Benedict's agreement with Kingston, Berkuta, and Andre Gruber violated Rule of Professional Conduct (RPC) 1.7(a), which provides in part that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." Here, Benedict never represented anyone other than defendant. The PCR court correctly found that there was no conflict of interest arising from concurrent representation of clients.
The court also correctly found that Benedict's agreement to have the fees for defendant's representation paid from Kingston's profits was not a violation of RPC 1.8(a), which states that
(a) [a] lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel of the client's choice concerning the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
As the PCR court noted, when defendant entered the agreement, he was represented by another attorney and defendant gave his informed consent to the agreement. The agreement was in writing and its essential terms are set forth in a clearly understandable manner. Moreover, there is no showing that the transaction and terms of the agreement are not fair and reasonable. Thus, the agreement does not violate RPC 1.8(a).
In addition, the agreement did not give rise to the potential for conflict or the substantial likelihood of prejudice. As the PCR court noted, neither Kingston nor any of its members had the ability to direct or interfere with Benedict's independent professional judgment or the attorney-client relationship. Furthermore, the agreement was terminated about a year before defendant's trial began, and there is no indication it had any bearing upon the manner in which Benedict represented defendant during the course of the proceedings.
Defendant nevertheless advances the theory that Benedict did not rigorously cross-examine Berkuta, Craig, Michael Gruber, and Bilal about how they would benefit if defendant was not part of the business. The PCR court noted that only Berkuta had a membership interest in Kingston, and he had no interest in keeping defendant out of the business during the trial because when defendant had previously entered the agreement, transferring his interest in the company and thereafter had no further involvement with the company. As the PCR court observed, any claim that defendant's business partners and their associates had a motive to frame him for the murder of his wife in order to take his share of the business is little more than a "a wild conspiracy."
The PCR court also noted that, even if counsel was deficient in cross-examining the aforementioned witnesses, defendant had not shown that it rose to the level of ineffective assistance of counsel under the Strickland test. The court pointed out that even if counsel had cross-examined the four witnesses about their possible motivations for testifying or impeached them for bias because Berkuta and Andre Gruber may have wanted defendant out of the business, it would not have changed the verdict in this case. The court stated:
The evidence against the [defendant] was overwhelming and the testimony of these four witnesses was simply inconsequential in the grand scheme of the trial. Even if none of these witnesses had testified for the State, the likelihood that [defendant] would still have been convicted is vast. This likelihood is based not simply on the testimony of other witnesses, but also on the overwhelming physical evidence, the [defendant's] physical presence in the home as well as his untenable explanations.
We note that in his supplemental pro se brief, defendant also argues that his appellate attorney and PCR counsel were ineffective because they failed to recognize that an actual conflict of interest rests on newly-discovered evidence. The contention is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We therefore reject defendant's contention that he was denied the effective assistance of counsel due to a conflict of interest on the part of his trial attorney.
III.
As noted, defendant's attorney has incorporated and advanced defendant's pro se claims for consideration on appeal. The PCR court correctly determined that those claims were either procedurally barred or were without merit.
A. Testimony of the State's Medical Examiner
Defendant claims that his trial counsel did not properly question Dr. Andrew L. Falzon, the medical examiner who testified for the State, because of his failure to conduct a proper investigation. Defendant alleges that Dr. Falzon fabricated the autopsy report, the report was inaccurate, and the report impossibly found that the knife entered the victim's body a full eight inches. He contends Dr. Falzon failed to provide autopsy photos to support his opinion regarding the stab wounds, tampered with evidence, and signed the report before conducting the autopsy.
The PCR court correctly found that defendant had not presented a prima facie case of ineffective assistance on this claim. As the court found, defendant failed to establish that counsel did not adequately investigate Dr. Falzon's report. The court pointed out that trial counsel thoroughly cross-examined Dr. Falzon regarding his report and the "points of weakness" therein. Moreover, trial counsel had presented his own medical expert to contradict Dr. Falzon's findings. The record supports the court's determination that defendant failed to make a prima facie showing that trial counsel's investigation of Dr. Falzon's report was in any way deficient.
B. Motion to Suppress
Defendant claims that his trial counsel failed to take adequate measures to suppress the evidence regarding a deed to the marital residence. Defendant alleges that the deed was in his truck, not in the house, as claimed by the State. The PCR court correctly found, however, that where the deed was found was irrelevant to the central issue in the case, which was whether defendant stabbed and killed his wife.
The court noted that valid search warrants had been issued to search the home and defendant's vehicle immediately after the victim was found. Proper procedures were followed, and there was sufficient probable cause for the search. The PCR court correctly found that there was no legal basis for a motion to suppress, and counsel was not deficient in failing to file such a motion.
C. Municipal Court Judge's Interview with Victim
Defendant alleges that appellate counsel was deficient because he did not raise the issue regarding introduction of the municipal court judge's interview with Moukhametova, when she sought a domestic violence temporary restraining order. In that interview, Moukhametova said she was not suicidal, but she had injured herself in an attempt to get away from defendant, who beats her. However, as the PCR court pointed out, appellate counsel did raise this issue, and it was addressed in defendant's direct appeal. Boretsky, supra, A-6607-05 (slip op. at 15). The court correctly determined that the claim was barred by Rule 3:22-5, because it had been previously adjudicated and was, in any event, without merit.
D. Jury Charge on Passion/Provocation Manslaughter
Defendant alleges that his trial counsel was ineffective because he failed to object to the jury charge on passion/provocation manslaughter, which defendant claims implied he had the burden to prove provocation. As the PCR court noted, defense counsel raised this issue at the initial charge conference, and later at the post-summation charge conference. The court also found that the trial court's charge was based on the model jury instructions, and it was not erroneous. The PCR court correctly found that defense counsel's handling of this issue was not deficient.
E. Jury Charge on Burglary
Defendant claims that his trial attorney erred by failing to object to the jury instructions on burglary. He contends that the jury was confused because the burglary charge was given immediately after the charge on contempt for violating the restraining order. The PCR court noted that this issue had been raised in defendant's direct appeal, and found to be without merit. Boretsky, supra, No. A-6607-05 (slip op. at 12). The court correctly determined that the claim was barred by Rule 3:22-5 and was also without merit.
F. Severance of Contempt Charge
Defendant alleges his appellate counsel was deficient because he did not raise the issue of severance of the contempt charge. The PCR court noted that trial counsel had made a motion to sever this charge and the trial court had denied the motion. Trial counsel also filed a motion for reconsideration, which was denied. Furthermore, appellate counsel had raised the issue on appeal, and it had been addressed by the court. Boretsky, supra, No. A-6607-05 (slip op. at 11). The court correctly determined that the claim was barred by Rule 3:22-5 and was also without merit.
G. Tape of 9-1-1 Call
Defendant claims his trial counsel was deficient because he did not object to the admission of the 9-1-1 tape, which contained a statement by Moukhametova that defendant had threatened her. Defendant admits that counsel raised a Confrontation Clause objection to the tape, but he alleges that counsel should have objected to the tape on the ground that it was incomplete and partially inaudible. The PCR court correctly determined that defendant had not presented a prima facie case of ineffective assistance of counsel with regard to the admission of the tape.
H. Evidence Supporting Charge of Aggravated Assault
Defendant alleges that appellate counsel erred by failing to argue on appeal that the State's evidence was insufficient to show that in January 2002, Moukhametova had sustained "serious bodily injury" as defined in N.J.S.A. 2C:11-1(b). The PCR court noted that the evidence presented established that defendant struck Moukhametova, which caused extensive bleeding, a laceration over the left eye, and a broken nose. The issue had been raised on appeal, and the court determined that the evidence was sufficient to support the charge. Boretsky, supra, No. A-6607-05 (slip op. at 14). Thus, as the PCR court found, the issue was barred by Rule 3:22-5, and the claim was without merit.
I. Objection to Testimony of Emergency Room Doctor
Defendant alleges that his trial counsel erred by failing to object to testimony of Dr. Mark Utkewitz, the emergency room doctor who responded when Moukhametova attempted suicide in February 1999. The doctor testified that Moukhametova told a nurse that she was in an abusive relationship with defendant.
Defendant contends that his trial attorney should have objected to this hearsay on Confrontation Clause grounds, and appellate counsel was deficient for failing to raise the issue on appeal. However, as the PCR court noted, trial counsel objected to the testimony and sought a mistrial, which was denied. The issue had been raised on appeal and addressed by the court. Boretsky, supra, No. A-6607-05 (slip op. at 15). The PCR court correctly found that the claim was barred by Rule 3:22-5, and the claim lacked merit.
J. Failure to Investigate Intoxication
Defendant claims that his trial counsel did not adequately investigate the level of his intoxication on January 19, 2002, the night he assaulted his wife. The PCR court noted that defense counsel had cross-examined all of the witnesses to that incident, and the court had provided the jury with an intoxication charge. The PCR court correctly determined that defendant failed to present a prima facie claim of ineffective assistance of counsel regarding counsel's alleged failure to investigate.
K. Testimony of the Emergency Medical Technician
Defendant alleges that trial counsel was deficient in failing to object to testimony by the emergency medical technician (EMT) who responded in February 1999 to Moukhametova's suicide attempt. According to the EMT, Moukhametova said she tried to kill herself because defendant beat her and she could not stand it anymore.
The PCR court noted that this issue had been raised on direct appeal, and found to be of insufficient merit to warrant discussion. Boretsky, supra, No. A-6607-05 (slip op. at 14). The court also noted that the issue had been raised in the federal habeas proceedings and rejected by the court. Thus, the PCR court correctly found that the issue had been previously litigated and was barred by Rule 3:22-5.
L. Severance of Charges
Defendant claims he was denied the effective assistance of counsel because his trial attorney should have sought severance of the aggravated assault charge because trying it with the murder charges indicated he had a violent character, which increased the chances of conviction. The PCR court noted that if the motion had been made, it would have been denied. The court correctly found that this claim had no merit.
Defendant further claims his trial counsel should have sought severance of the burglary and felony murder charges. However, the PCR court noted that if these charges had been severed, the jury's only "option would be to convict on the first degree murder charge" for which defendant could be sentenced to the death penalty. The PCR court correctly found that counsel's failure to seek severance of these charges was reasonable trial strategy and did not constitute ineffective assistance of counsel.
M. Investigator's
Defendant claims that his trial counsel was ineffective because counsel did not seek an adverse inference charge. Defendant asserts that the charge was required because the detectives who interviewed him at the hospital did not retain their notes of the interview. Defendant alleges that the notes would have shown that he told the detectives he tried to take the knife away from his wife.
However, as the PCR court noted, the loss of the notes did not adversely affect defendant's defense, which was that Moukhametova stabbed herself. Therefore, as the court found, defendant suffered no prejudice from counsel's failure to seek an adverse inference charge, and counsel's handling of this issue did not constitute the ineffective assistance of counsel.
N. Testimony of Craig, Bilal and Michael Gruber
Defendant alleges that he was denied the effective assistance of counsel because his trial attorney failed to object to the testimony of Craig, Bilal and Michael Gruber, who were employees in the office of his attorney, Andre Gruber. Defendant claims his attorney should have asserted the attorney-client privilege.
The PCR court noted that these witnesses had testified as to defendant's demeanor, his angry and intimidating nature, and his statements. That testimony was permissible. The court also noted that these witnesses testified as to letters and communications between defendant and the law firm regarding the divorce, but defendant had not shown that he was prejudiced by the admission of such testimony.
The court found that, even if defense counsel had objected to the testimony, or these witnesses did not testify at all, it was "highly probable" that the outcome of the proceeding would have been the same. The record supports the court's findings and its conclusion that, on this claim, defendant did not present a prima facie case of ineffective assistance of counsel.
O. Other Claims
The PCR court noted that defendant also alleges that his trial counsel deliberately withheld relevant and favorable evidence, specifically an X-ray that purportedly would have refuted Dr. Falzon's testimony that the knife penetrated eight inches into the victim's body. The court found that defendant had not shown that he was prejudiced by counsel's failure to present that X-ray.
The court noted that, at trial, numerous autopsy photos had been presented, and Dr. Falzon had been extensively questioned on this issue, on direct and cross-examination. Moreover, as noted previously, defendant's trial counsel had presented his own expert to dispute Dr. Falzon's testimony on this point. Thus, the court correctly determined that counsel's failure to present the X-ray did not constitute ineffective assistance of counsel.
In addition, defendant claims that trial counsel erred by failing to seek a limiting instruction regarding the admission of Moukhametova's statement to the municipal court judge. Defendant also claims that appellate counsel should have raised the issue on direct appeal. The PCR court noted that defense counsel had requested the instruction, and the trial court had provided it. Moreover, on appeal, the court found that, while the admission of the evidence may have been erroneous, the error was harmless in part because of the limiting instruction that the trial court provided. Boretsky, supra, No. A-6607-05 (slip op. at 17). The record therefore supports the PCR court's finding that, on this issue, defendant has not presented a prima facie claim of ineffective assistance of counsel.
In his supplemental pro se brief, defendant also argues that: (1) his rights were violated by the loss of the notes of his interviews by the detectives; (2) trial and appellate counsel were deficient because they failed to raise issues regarding Dr. Falzon's testimony. These arguments are without sufficient merit to warrant further comment. R. 2:11-3(e)(2).
IV.
Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his PCR petition. Such a hearing is only required if defendant presents a prima facie case in support of the petition, the court has determined that there are material issues of fact that cannot be resolved based on the existing record, and an evidentiary hearing is required to resolve the claims presented. State v. Porter, 216 N.J. 343, 355 (2013) (citing R. 3:22-10(b)). Because defendant failed to establish a prima facie case for PCR, and the existing record was sufficient to resolve his claims, an evidentiary hearing was not 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
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).