Opinion
DOCKET NO. A-5265-13T4
08-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL R. SPITZLI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Whipple. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-04-0730. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Daniel Spitzli appeals from the May 30, 2014 Law Division order denying this petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
After he was found in a Garden State Parkway restroom with sixty wax paper bags containing heroin by an undercover State Police detective, defendant was indicted by a Monmouth County grand jury for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). Facing a potential five-year sentence due to his extensive criminal record, defendant pled guilty to this offense on February 15, 2011, in exchange for a recommended three-year prison term and the dismissal of a disorderly persons charge of possession of a hypodermic needle, N.J.S.A. 2C:36-6.
At sentencing on May 20, 2011, defendant's attorney asked that defendant be sentenced to probation, rather than to prison, and that this term run concurrently to a probationary sentence defendant was serving in Ocean County on an unrelated charge. In response to counsel's arguments, Judge Anthony J. Mellaci, Jr. "deviated from the plea agreement" and sentenced defendant to three years of probation, concurrent to a probationary term defendant was serving in Ocean County on an unrelated offense. The judge conditioned defendant's probationary term on the requirement that defendant enter "a long-term inpatient treatment facility."
Defendant subsequently violated the terms of his probation by failing "to successfully complete long-term substance abuse counseling." On January 6, 2012, Judge Mellaci sentenced defendant to five years in prison for the violation of probation. Defendant did not file a direct appeal from his conviction or sentence.
The Ocean County judge later sentenced defendant to a three-year prison term for violating the terms of his probation in that county.
On January 31, 2013, defendant filed a PCR petition, contending that his attorney was ineffective because he failed to file a motion to suppress the heroin. Following oral argument, Judge Mellaci rejected this argument and, in a very thorough oral opinion, found that such a motion, had it been filed, would not have been successful.
In so ruling, the judge reviewed the State Trooper's report concerning defendant's arrest for heroin possession. The report indicated that, on January 2, 2010, Detective Stafyleras and other officers were conducting an undercover investigation of "robbery, criminal mischief complaints, thefts, burglaries, distribution and possession of CDS, loitering and lewdness complaints" at a Garden State Parkway service area. At approximately 12:00 noon, Detective Stafyleras positioned himself in the men's restroom near a bank of nine urinals. About a minute later, defendant "hurried into" the restroom, looking "disheveled . . . and walked back to the area where the toilet stalls [were] located."
There were five stalls in the restroom.
Defendant went into stall number four and closed the door. From his position near the urinals, Detective Stafyleras "heard noises coming from" defendant's stall, which the detective believed were indicative of "suspicious behavior . . . ." The detective walked over to the stall and looked "between the crevices in the toilet stall door." The detective saw that defendant's "back was to the door" and he was not using the toilet to "urinat[e] and/or defecat[e.]" Defendant then began "scurrying about the toilet stall in a suspicious manner."
Detective Stafyleras went into an adjoining stall, stood on the toilet bowl, and saw defendant holding "several bags of CDS heroin that were held together by a rubber band." As defendant was opening the rubber band, the detective "yelled 'State Police,'" and grabbed the hood of defendant's sweat shirt. Detective Stafyleras instructed defendant not to move or throw the heroin into the toilet and he complied. Another detective came to assist in defendant's arrest. A search incident to the arrest disclosed that defendant had sixty bags of heroin and two hypodermic needles.
After his arrest, defendant was taken to the police station, where Detective Stafyleras gave him his Miranda warnings. Defendant told the detective he purchased the heroin at another location and had gone to the service area "so he could shoot up the heroin with his needles" in the public restroom.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
Based upon the totality of circumstances outlined in Detective Stafyleras' report, Judge Mellaci concluded that defendant's attorney provided effective legal assistance to defendant. Relying on our decision in State v. Boynton, 297 N.J. Super. 382 (App. Div.), certif. denied, 149 N.J. 410 (1997), the judge found that, because defendant was using the bathroom stall for illegal activity, he had no reasonable expectation of privacy that would require the detective to obtain a warrant prior to looking over the wall of the stall. The judge noted that the detective could see defendant acting suspiciously inside the stall from his vantage point in the public portion of the restroom. Based upon his observations of defendant making suspicious noises while scurrying around the stall, the judge found that the detective had a reasonable basis "to continue his investigation" by looking over the wall.
Judge Mellaci stated that Detective Stafyleras' report
confirms that he saw the defendant acting suspicious in one of the bathroom stalls while looking through the cracks that are in all bathroom stalls, and that when he observed in plain view that the defendant appeared to be engaging in illegal activity, he investigated further. . . . He was in an area he had a right to be when he saw and observed the suspicious activity.
This [c]ourt is far from convinced that the detective was not in a lawful viewing area at the time that he made the observation. Based on the facts submitted to this [c]ourt[,] it appears that the defendant was in a lawful viewing area at the time of the incident. Ultimately this [c]ourt is of the opinion that in the event a motion to suppress had been filed by [defendant's attorney] that it would not have succeeded on its merits.
Judge Mellaci noted that defendant stated at the plea hearing that his attorney had explained the charge to him, and had reviewed all of the State's proofs concerning the offense. The judge also observed that defendant had seven prior convictions and a prior violation of probation and,
[b]ased on the plea bargain that was struck and [his] knowledge of the criminal justice system, . . . defendant knew that had he been unsuccessful with a motion to suppress he was most likely looking at . . . extended jail time.Thus, Judge Mellaci denied defendant's petition for PCR and this appeal followed.
[Defendant] took advantage of a plea after [his attorney] explained the chances of being successful, it would appear, and taking the plea that was offered. He took the route of least resist[a]nce and in fact
realized probation. It was only after he violated that probation that he then received a jail term. Therefore the defendant is not entitled to an evidentiary hearing on his ineffective assistance of counsel claim as it pertains to this issue.
On appeal, defendant raises the following contention:
THE PETITION FOR [PCR] SHOULD HAVE BEEN GRANTED, OR, AT A MINIMUM, AN EVIDENTIARY HEARING SHOULD HAVE BEEN ORDERED. DEFENSE COUNSEL'S PERFORMANCE FELL FAR BELOW THAT GUARANTEED BY THE CONSTITUTION WHEN HE FAILED TO FILE A SUPPRESSION MOTION CHALLENGING THE CLEAR INFRINGEMENT OF DEFENDANT'S SEARCH-AND-SEIZURE RIGHTS. THE STATE TROOPER IN THIS CASE ACTED IMPROPERLY WHEN HE PEERED OVER THE TOP OF A MEN'S ROOM STALL TO OBSERVE THE DEFENDANT AND A MOTION TO SUPPRESS THE SEIZED EVIDENCE WOULD HAVE BEEN GRANTED.We have considered defendant's contention in light of the record and applicable legal principles and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mellaci in his well-reasoned oral opinion. We add the following brief comments.
When petitioning for PCR based on a claim of ineffective assistance of counsel, a defendant must meet both prongs of the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a defendant must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A defendant is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the defendant's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Where, as here, a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, where a defendant complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998).
Here, Judge Mellaci properly relied upon our decision in Boynton, supra, in determining that a motion to suppress the sixty bags of heroin seized from defendant would not have been successful. In Boynton, a police officer went into a single-occupancy restroom in a bar looking for a fugitive who was wanted on an arrest warrant. Supra, 297 N.J. Super. at 385. The restroom door was not locked and, when the officer opened it, he saw defendant and another individual engaged in "narcotic activity[.]" Ibid.
We rejected defendant's contention that the police officer needed a warrant in order to enter the restroom because it was an unlocked, public facility and there was no indication that it was occupied at the time the officer opened the door. Id. at 392-93. In rendering our decision, we noted that
[t]he use of a stall in a public restroom affords a greater degree of privacy but not an absolute one. When a stall is equipped with a door, the general rule seems to be that individuals in the stall are accorded a reasonable expectation of
privacy, unless they are engaged in illegal activity that is apparent to the casual observer who is rightfully in a common area of the restroom.
[Id. at 389.]
Here, Detective Stafyleras was standing in the public area of the restroom when he observed defendant enter a stall. It was obvious to the detective that defendant was not using the stall for its intended purposes. Ibid. He was not relieving himself or changing clothes. Instead, the detective heard defendant making unusual noises and observed him "scurrying about the toilet stall in a suspicious manner." Under these circumstances, we agree with Judge Mellaci's conclusion that defendant was not entitled to a reasonable expectation of privacy and, therefore, no warrant was required before the detective looked over the stall wall. Ibid. Thus, defendant's attorney was not ineffective by failing to file a motion to suppress.
We also agree with the judge's observation that, had defendant filed a motion to suppress, which was unlikely to succeed, he risked losing the benefit of the highly favorable plea agreement negotiated by his attorney. Under the terms of that agreement, and due to the persuasive arguments of his attorney, defendant received a probationary sentence even though he had a total of eight prior convictions. Thus, it would not have been rational for defendant to refuse a guilty plea and insist on filing a meritless motion that would have jeopardized the plea agreement. O'Neal, supra, 190 N.J. at 619.
Finally, defendant was not entitled to an evidentiary hearing because he did not present a prima facie case that his attorney rendered ineffective assistance. Preciose, supra, 129 N.J. at 462-63. As previously noted, we affirm for the reasons stated in Judge Mellaci's oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION