Opinion
DOCKET NO. A-4270-12T2
07-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR VILLANUEVA, Defendant-Appellant.
Joseph S. Murphy argued the cause for appellant (Murphy and Woyce, attorneys; Michael C. Woyce on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi, and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-05-1307.
Joseph S. Murphy argued the cause for appellant (Murphy and Woyce, attorneys; Michael C. Woyce on the brief).
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). PER CURIAM
This appeal from denial of a petition for post-conviction relief (PCR) returns after our prior remand directing the trial court to permit defendant to present his proofs of alleged ineffective assistance of counsel at an evidentiary hearing. State v. Villanueva, No. A-3209-09 (App. Div. July 19, 2011). The trial court conducted an evidentiary hearing and again denied the petition. We affirm.
We will not repeat all the facts of the case that were recited in our 2011 decision. See id. at 1-9. To summarize, defendant pleaded guilty in 2002 to one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), pursuant to a plea agreement with the Bergen County Prosecutor's Office. He admitted that, when he was a basketball and conditioning coach of middle school boys aged twelve to fourteen, he had weighed the boys in the nude in the school nurse's office. In addition, he stipulated that the nude weighing constituted sexual conduct.
In exchange for his guilty plea, the State dismissed eight other counts of an indictment and recommended a sentence of five years' probation with sex offender counseling. Defendant was sentenced in accordance with the plea agreement, which included the sex offender registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2 to -11, and community supervision for life (CSL), N.J.S.A. 2C:43-6.4.
After successfully completing his sentence of probation, defendant found the conditions of CSL to be unduly restrictive. He consulted counsel and filed his PCR petition in 2008. He alleged that he was in fact innocent of the crime to which he pleaded guilty because he had not weighed the boys in the nude for the purpose of his own sexual stimulation or gratification. He alleged that his plea counsel in 2002 provided ineffective assistance because he advised defendant wrongly that weighing the boys in the nude, without more, was a violation of the endangering statute.
In addition, defendant alleged ineffective assistance of counsel and error committed by the trial court in failing to advise him of restrictions that would apply to his freedom under a sentence of CSL. The trial court rejected these contentions without holding an evidentiary hearing and denied defendant's PCR petition.
In the prior appeal, we discussed the pertinent law as applied to defendant's contentions and concluded that defendant was entitled to an evidentiary hearing. Villanueva, supra, slip op. at 13-25. Our remand directed the trial court to hear evidence as to what advice defendant had received from his attorney at the time of his guilty plea and related testimony relevant to his claims of ineffective assistance of counsel. Id. at 21-22, 24-25.
We also noted that defendant had raised contentions regarding his pretrial rights to discovery, in particular of exculpatory information that the prosecutor's office had failed to disclose as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Villanueva, supra, slip op. at 24. We stated that the Brady and discovery issues were "not a separate claim entitling defendant to PCR review" but part of his claim that he received ineffective assistance of counsel. Ibid. Although we did not say so explicitly, the implication of the latter statement was that defendant claimed his attorney did not advise him accurately and effectively in part because evidence was withheld that would have refuted some of the prosecution's allegations of misconduct. We stated that the trial court could determine in its discretion "the scope of appropriate discovery consistent with the issues on remand." Id. at 24-25.
On remand, the trial court reviewed in camera the file prepared by the Division of Youth and Family Services (DYFS) at the time of the underlying allegations and granted defendant discovery of certain reports and notes from the file.
The evidentiary hearing on remand was conducted over several months and included five days of testimony. In addition to defendant, his prior defense counsel, and a lead police investigator, Detective Stephen Cucciniello, PCR counsel named twenty-eight other witnesses that he might call at the remand hearing. Many of the witnesses on counsel's list were the boys who were participants on defendant's basketball teams and conditioning programs. The judge resisted defendant's attempts to expand the hearing and to include victims of the alleged offenses. He ruled that the PCR evidentiary hearing was not a trial of the charges in the original indictment, but a limited hearing to determine whether defendant had knowingly and voluntarily entered a guilty plea to a single third-degree charge and whether he had received ineffective assistance of counsel in entering the plea.
Also, during the course of the remand hearing, the prosecutor's office accused PCR counsel and his investigator of attempting to influence testimony and manufacture evidence, specifically by urging one of the victims to change his version of what had occurred at the time of the charged offenses and to provide a false certification recanting his prior statements. On one hearing date, the trial court took evidence to determine whether PCR counsel had a conflict of interest as a result of the accusations or could continue to represent defendant. For that part of the hearing, the court directed PCR counsel to consult with an attorney and to have that attorney conduct the examination of witnesses and to present argument on the issue of PCR counsel's potential disqualification. With the other attorney present and participating, the court heard testimony from the victim, a prosecutor's detective, and PCR counsel. The court did not disqualify PCR counsel, and he resumed representation of defendant for the continuation of the PCR issues.
PCR counsel then moved to disqualify both the Assistant Prosecutor and the trial judge, which motions the judge denied by means of a written decision and order dated March 6, 2013. At the conclusion of the hearing, the judge issued a detailed written decision and order denying defendant's PCR petition.
On appeal, defendant argues:
POINT I
THE FAILURE OF THE STATE TO HAND OVER BRADY MATERIAL WAS SO SEVERE AS TO REQUIRE THE
COURT TO ALLOW THE DEFENDANT TO WITHDRAW HIS PLEA UNDER THE CIRCUMSTANCES.
POINT II
VILLANUEVA WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL IN THAT HIS ATTORNEY MISADVISED HIM AS TO WHAT THE LAW WAS AS WELL AS THE CONSEQUENCES OF HIS PLEA AND EQUALLY AS IMPORTANT DID NO
INVESTIGATION NOR INTERVIEW ANY WITNESSES THAT COUNSEL KNEW OR SHOULD HAVE KNOWN ABOUT OR SEEK ANY DISCOVERY OF DYFS STATEMENTS.
POINT III
VILLANUEVA WAS DEPRIVED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE POST CONVICTION EVIDENTIAL HEARING.
POINT IV
THE TRIAL COURT FUNDAMENTALLY MISUNDERSTOOD THE APPELLATE DIVISION'S INSTRUCTIONS ON REMAND RESULTING IN A TOTAL FAILURE TO CONSIDER INNOCENCE RELEVANT ON ANY ISSUE BEFORE IT WHEN INNOCENCE IS THE FULCRUM OF EXCUSABLE NEGLECT AS WELL AS WHETHER THE COURT SHOULD HAVE ANY CONFIDENCE IN THE RELIABILITY OF THE OUTCOME, NAMELY A GUILTY PLEA.
POINT V
ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE BECAUSE THE BRADY VIOLATIONS AND THE INEFFECTIVE ASSISTANCE OF COUNSEL CAUSED AN INNOCENT MAN TO PLEAD GUILTY.
POINT VI
THE COURT SHOULD HAVE RECUSED ITSELF PURSUANT TO RULE 1:12 BECAUSE OF BIAS, AND THIS MATTER IF REMANDED SHOULD BE REMANDED TO A DIFFERENT JUDGE.
We find no merit in any of these arguments. There is no need for us to write a full opinion to address all of defendant's arguments. See R. 2:11-3(e)(2). The trial judge issued two detailed written decisions explaining his reasons for denying the motion to disqualify him and to deny the PCR petition. We affirm the trial court's rulings essentially for the reasons contained in the orders and written decisions, dated March 6, 2013, and April 2, 2013. We add the following discussion to supplement the PCR judge's rulings and the issues we addressed in our prior decision.
Defendant argues the PCR judge erred in preventing him from proving that he was innocent of the crimes. Contrary to defendant's contention, our prior decision and remand did not contemplate that the PCR evidentiary hearing would include the testimony of the boys who were weighed in the nude, or otherwise were the alleged victims of the offenses charged in the nine-count indictment. Defendant's efforts to prove his "innocence" were focused on charges that were not the basis of his guilty plea and conviction.
When the allegation of the nude weighing first surfaced in 2000, prosecutor's investigators obtained statements from the boys in the conditioning program and current and former members of defendant's basketball teams. Some of the boys alleged sexual and other inappropriate conduct by defendant on out-of-state trips to Florida and Pennsylvania, while others denied any misconduct had occurred. Investigators also recovered photographs that defendant had privately taken of one of the boys posing in tight Speedo-type trunks.
The Bergen County indictment did not allege offenses arising from the allegations of out-of-state conduct. It was confined to defendant's activities in New Jersey. At the PCR evidentiary hearing, defendant sought to prove that the alleged sexual touching of the boys and other inappropriate conduct on the out-of-state trips did not occur, that he was innocent of those charges. But neither those allegations nor other New Jersey charges in the indictment were tried, and defendant was not convicted of the other charges of misconduct. His conviction only related to his admitted weighing of adolescent and teenage boys in the nude in the nurse's office at the middle school. Whether or not he was innocent of the other charges is not relevant to the limited issues of ineffective assistance of counsel which our remand directed the trial court to determine. We reject defendant's contention that the trial court violated his due process rights by erroneously limiting the scope of the remand hearing.
For similar reasons, defendant's allegations that the prosecutor's office committed Brady violations, thus depriving him of exculpatory evidence, relate to matters that did not directly affect the charge to which he pleaded guilty. In 2000, DYFS had conducted an investigation alongside the Bergen County investigators, but DYFS ultimately determined the allegations of abuse were unfounded. Defendant contends the State violated Brady by failing to produce the notes and reports of DYFS caseworker Alan Trez, who was present with the Bergen County investigators when they interviewed some of the boys. According to Trez's notes and reports, the boys did not accuse defendant of touching their private parts or asking them to do anything sexual.
A Brady violation occurs when the prosecution fails to produce material exculpatory evidence in its possession or under its control. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; State v. Nash, 212 N.J. 518, 544 (2013); State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). The prosecution's Brady obligation extends to evidence within the prosecution's possession and "evidence known only to police investigators and not to the prosecutor." Strickler v. Greene, 527 U.S. 263, 280-81, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 301 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490, 508 (1995)); Nash, supra, 212 N.J. at 544; see also Nelson, supra, 155 N.J. at 497-98 (obligation extends to evidence "actually or constructively possessed" by the prosecutor).
Citing Strickler, supra, 527 U.S. at 280, 119 S. Ct. at 1948, 144 L. Ed. 2d at 301, defendant argues knowledge of the Trez evidence is imputed to the prosecutor because Trez prepared his notes and reports after interviewing witnesses together with the prosecutor's investigators. The trial court found "no evidence that [the DYFS] reports were in the control of the prosecutor's office . . . or that the prosecutor's office had any knowledge of what the reports contained."
A prosecutor is deemed to know of exculpatory evidence when that evidence is known to "law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture." Nelson, supra, 155 N.J. at 499 (quoting Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 824 (10th Cir.), cert. denied sub nom. Mondragon v. Smith, 516 U.S. 905, 116 S. Ct. 272, 133 L. Ed. 2d 193 (1995)). In other words, a prosecutor is deemed to know of evidence if that evidence is known to "members of the 'prosecution team.'" United States v. Risha, 445 F.3d 298, 304 (3d Cir. 2006) (quoting United States v. Pelullo, 399 F.3d 197, 218 (3d Cir. 2005), cert. denied, 546 U.S. 1137, 126 S. Ct. 1141, 163 L. Ed. 2d 999 (2006)). While there is no clear rule for determining when personnel of an investigative agency are members of the prosecution team, United States v. Zagari, 111 F.3d 307, 320 n.13 (2d Cir.), cert. denied, 522 U.S. 988, 118 S Ct. 455, 139 L. Ed. 2d 390 (1997), courts analyze the totality of the circumstances, "includ[ing] whether the [investigative agency] actively investigates the case, acts under the direction of the prosecutor, or aids the prosecution in crafting trial strategy." United States v. Meregildo, 920 F. Supp. 2d 434, 442 (S.D.N.Y. 2013); see also Risha, supra, 445 F.3d at 304 (discussing similar factors).
Here, Trez was not a member of the prosecution team. He conducted a separate investigation for DYFS and did not aid and was not controlled by the prosecutor's office. Detective Cucciniello testified that he never compared notes with Trez. DYFS's investigation was separate from the police investigation. Neither DYFS nor the evidence it obtained played any role in the prosecutor's decision to charge defendant. Based on these facts, the trial court did not err in crediting the prosecutor's assertion that it never had possession or control of the DYFS documents and in refusing to impute knowledge of Trez's notes and reports to the prosecutor's office.
Also, as we have stated, the alleged exculpatory information did not relate directly to the nude weighing charge. It pertained to the more serious allegations of sexual touching and other misconduct, which were either not charged in the New Jersey indictment or were dismissed as part of the plea agreement. Defendant is not entitled to vacate his guilty plea and conviction on the ground that the prosecutor's office withheld exculpatory denials of sexual and inappropriate conduct contained in the DYFS materials.
Next, we address defendant's allegations that his plea counsel gave him incorrect legal advice about the elements of the charge to which he pleaded guilty. Defendant testified at the hearing that the attorney led him to believe he was guilty of endangering the welfare of the boys simply because he weighed them in the nude.
The attorney testified at the hearing that he did not give that advice. He explained the context in which defendant agreed to stipulate that the weighing constituted sexual conduct. Defendant and his wife were adamant that the charges should be resolved without risking a prison sentence for defendant. Counsel negotiated at length with the prosecutor's office to obtain a non-custodial plea offer for defendant. When the plea offer was extended, the attorney discussed the charge with defendant. Defendant refused to admit that the nude weighing was motivated by a desire for sexual gratification. But because defendant did not want to lose the opportunity to accept the non-custodial plea offer, counsel suggested that the court might accept a guilty plea by means of a stipulation that the weighing was sexual conduct. Since the court had already ruled on a pretrial motion that the jury could infer sexual motivation from the evidence and find defendant guilty of the charge, counsel suggested use of the court's ruling as the basis for a stipulation. Defendant acceded to that suggestion and the guilty plea was presented and accepted with a stipulation that the nude weighing constituted sexual conduct instead of a direct admission by defendant. See Villanueva, supra, slip op. at 3-5.
The PCR court credited the testimony of prior counsel that he had not advised defendant the nude weighings alone would result in defendant's conviction. The fact that the stipulation of sexual conduct was included in the plea colloquy corroborated counsel's testimony that the issue had in fact been discussed with defendant.
In addition, at defendant's sentencing, the judge raised the issue again when counsel attempted to minimize the seriousness of defendant's offense. As we explained in our prior decision, the sentencing judge reminded counsel and defendant that the offense required proof of sexual conduct, and gave defendant the opportunity to profess his innocence and withdraw his guilty plea. Id. at 5-6. Through defense counsel, defendant chose to proceed with the sentencing rather than pursue the issue of his alleged innocence.
In our prior decision, we noted that subsection (a) of the endangering statute, N.J.S.A. 2C:24-4, requires proof of "sexual conduct which would impair or debauch the morals of a child," while subsection (b) requires proof of a "prohibited sexual act." The definition of the latter phrase includes "[n]udity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction." N.J.S.A. 2C:24-4(b)(1)(i); see Villanueva, supra, slip op. at 16-20. But the quoted definition of nudity applies only to subsection (b), which prohibits visual or similar depiction of sexual acts by children, in other words, child pornography. N.J.S.A. 2C:24-4(b)(1).
Defendant did not plead guilty under subsection (b) of the endangering statute. As we stated in our prior decision, the offense to which defendant pleaded guilty, a violation of subsection (a), "focuses on the effect of defendant's conduct on children" rather than on his specific motivation for nudity as "sexual conduct." Id. at 18 (citing State v. Hackett, 166 N.J. 66, 7677 (2001)).
In our prior decision, we cited Rule 3:22-4(a) as barring defendant's PCR claim that his plea was accepted without a sufficient factual basis. Id. at 21. That rule bars any ground for relief that could have been raised in a prior proceeding in the case. Here, defendant was put on notice at his sentencing that he could raise an issue regarding his alleged innocence and be granted his right to be tried by a jury. Not only did he decline the court's offer but he did not appeal his conviction on that ground.
We did not apply Rule 3:22-4(a) in our prior decision because defendant also alleged that his proceeding with the sentencing was prompted by faulty advice from his plea counsel. Villanueva, supra, slip op. at 21-22. Since the remand hearing established that plea counsel did not give faulty advice as defendant alleges, we now conclude that defendant is barred from alleging there was an inadequate factual basis for his guilty plea. Defendant had the opportunity to pursue that issue before and after he was sentenced, and he chose to maintain his guilty plea and abide by the terms of a favorable plea agreement.
Finally, with respect to counsel's advice regarding the restrictions imposed by CSL, plea counsel admitted at the remand hearing that he had not engaged in a detailed discussion with defendant of the nature of such restrictions. He testified that he told defendant that CSL "was basically . . . like being on probation," and he discussed restrictions that would apply to defendant under Megan's Law.
In State v. Jamgochian, 363 N.J. Super. 220, 222-24 (App. Div. 2003), we held that the defendant was entitled to withdraw his guilty plea because his attorney had misinformed him about the consequences of CSL, in particular, the travel restrictions that would be imposed. We also stated "by way of dictum that we do not . . . hold that a trial court has the obligation to inform a defendant of all the details of community supervision for life." Id. at 227. But we added that "the court should at least assure itself that defense counsel has discussed the matter with his client and [the] defendant understands the nature of [CSL] as the functional equivalent of life-time parole." Ibid.; see also State v. J.J., 397 N.J. Super. 91, 99 (App. Div. 2007) (failure to advise defendant of consequences of CSL provided grounds to withdraw guilty plea before sentencing), appeal dism., 196 N.J. 459 (2008); State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004) (same).
Here, the PCR court found that defense counsel's general description of CSL was deficient advice, thus satisfying the first prong of the test of ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The court concluded, however, that the second prong of Strickland, prejudice to defendant, ibid., was not proven. The court referred to the prosecutor's recitation of CSL restrictions at the time of defendant's sentencing. See Villanueva, supra, slip op. at 6. It concluded that "defendant had both a general understanding [of CSL], and an understanding that the terms of CSL are quite restrictive prior to the sentencing."
Our standard of review requires that we defer to the PCR court's factual findings derived through an evidentiary hearing if they are supported by adequate, substantial, and credible evidence. Nash, supra, 212 N.J. at 540; State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). There was ample evidence in the record to support the court's finding that defendant had sufficient information about CSL to know that strict limitations would be placed on his activities. He knew it was a lifetime sentence, that it resembled probation, and that requirements similar to Megan's Law would be part of that sentence. The fact that neither his attorney nor the court advised him of every specific restriction does not entitle him to withdraw his guilty plea. See Jamgochian, supra, 363 N.J. Super. at 227 (court is not required to cover the specific restrictions of CSL "[c]hapter and verse"). The PCR court did not err in finding that defendant had an understanding of CSL and accepted the terms of the plea agreement and sentence knowingly and voluntarily.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION