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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JOHN MOSCATELLO, Defendant–Appellant.

DOCKET NO. A–5234–11T2

    Decided: March 14, 2014

Before Judges Reisner and Carroll.Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Defendant John Moscatello appeals from a February 3, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

Pursuant to a plea agreement, on December 2, 2005, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15–1a(1) (count one);  second-degree burglary, N.J.S.A. 2C:18–2a(1) (count three);  and second-degree aggravated assault, N.J.S.A. 2C:12–1b(1) (count six).   The State agreed to dismiss the remaining counts of the indictment, charging second-degree conspiracy to commit robbery and/or burglary, N.J.S.A. 2C:5–2a(1) (count two);  third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4d (count four);  and third-degree theft, N.J.S.A. 2C:20–3a (count five).

During the plea hearing on December 2, 2005, defendant confirmed that he understood the plea agreement, and that he was not under the influence of any substance that would affect his ability to understand the agreement, which he entered into voluntarily.   In response to questioning from the court, defendant testified that he had sufficient time to confer and review discovery with his attorney, that his attorney reviewed potential defenses with him, and advised him of “the strength or weakness of those defenses.”   Defendant admitted that on January 28, 2005, he committed a residential burglary, during which he struck the victim over the head with a crowbar.

Consistent with the plea agreement, on January 27, 2006, the court sentenced defendant to an aggregate thirteen-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Defendant was also terminated from a probationary term that he was then serving.   Pursuant to an Excessive Sentence Oral Argument (ESOA) calendar under Rule 2:9–11, we affirmed defendant's sentence.  State v. Moscatello, No. A–0438–06 (App.Div. March 27, 2007).

Defendant filed a pro se application for PCR on December 7, 2009.   In it, defendant asserted that counsel was ineffective because he “did not use the best of his abilities in securing a reasonable plea agreement.   Specifically [,] he did not argue a defense of insanity on my behalf, which was against my wishes.”   In a supporting certification, defendant averred that when he gave his confession he was “coming off cocaine and alcohol” and was “under mental and physical fatigue.”   Similarly, defendant claimed that he “was on heavy psychotropic medications during my entire court process[ ],” and, “[l]ooking back on things ․ I don't believe I would have accepted my plea deal.”

PCR counsel was appointed, and filed a brief arguing that plea counsel was ineffective for (1) failing to file a Miranda 1 motion because defendant's confession was coerced and not voluntary;  and (2) failing to have defendant examined for a possible mental competency defense.   PCR counsel further sought to vacate defendant's guilty plea, arguing that it was not knowingly, voluntarily and intelligently given.

Judge Thomas V. Manahan heard argument from counsel on January 12, 2012, and on February 3, 2012 issued a comprehensive written decision denying PCR. In his opinion, Judge Manahan considered the PCR as a claim of ineffective assistance of counsel and as an application to withdraw defendant's guilty plea.   Considering the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Manahan found no basis to allow defendant to withdraw his guilty plea.   He found that defendant made no claim that he was innocent of the charges.   He further found that “the State would be prejudiced if defendant were allowed to withdraw his guilty plea because the case is over five years old and his co-defendants have been sentenced.”

The judge rejected defendant's argument that his plea was not entered knowingly, voluntarily, and intelligently because he was heavily medicated at the time.   Rather, a review of the plea transcript demonstrated that defendant had no difficulty understanding the questions asked of him, and that there was no hesitation in his admission of guilt.   The judge further noted that defendant had stated that he was not under the influence of any drugs or alcohol that would affect his ability to understand what he was doing.

The judge also rejected defendant's contention that plea counsel was ineffective for failing to file a Miranda motion, reasoning:

Here, petitioner is unable to demonstrate that there is a reasonable likelihood of success on the merits.   Even if a Miranda hearing had been conducted and the statements were deemed involuntary, the State had very strong proofs.   All four defendants pled.   The State had statements inculpating the petitioner from the other defendants and the victim's grandson.

Judge Manahan concluded that defendant failed to meet either part of the two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), which was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

On appeal from the denial of his petition, defendant presents the following argument:


Based on our review of the record and the applicable law, we conclude this argument lacks sufficient merit to warrant extended discussion in a written decision.   Rule 2:11–3(e)(2).   We affirm, substantially for the reasons stated in Judge Manahan's cogent opinion.   We add only the following brief comments.

To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland /Fritz two-prong test.   Under the first prong, defendant “must do more than make bald assertions that he was denied the effective assistance of counsel.   He must allege facts sufficient to demonstrate counsel's alleged substandard performance.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999);  see also State v. Rountree, 388 N.J.Super. 190, 206 (App.Div.2006), certif. denied, 192 N.J. 66 (2007).   Under the second prong, defendant must show “ ‘there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  State v. Nuñez–Valdéz, 200 N.J. 129, 138–39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463–64 (1992)).   In the context of a guilty plea, a defendant must demonstrate that he would not have pled guilty but for his counsel's defective representation.  Nuñez–Valdéz, supra, 200 N.J. at 139 (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

In this case, the PCR court concluded that defendant failed to meet both prongs of the Strickland /Fritz test, and the record fully supports that determination.   Moreover, there are no affidavits or reports from a psychiatrist, medical records, or other legally competent evidence to support defendant's self-serving claim that he lacked the requisite mental capacity, either at the time of the offense or the entry of his plea.   Defendant failed to establish a prima facie case of ineffective assistance of counsel.   As a result, there was no basis to hold an evidentiary hearing on his claims.   Preciose, supra, 129 N.J. at 462–63 (1992).



FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).


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