Opinion
DOCKET NO. A-4876-13T3
03-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOUIS P. URCINOLI, Defendant-Appellant.
Louis P. Urcinoli, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 95-10-1008. Louis P. Urcinoli, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Louis P. Urcinoli appeals from an order entered by the Law Division on April 15, 2014, denying his fifth petition for post-conviction relief (PCR). We affirm.
I.
Defendant was charged in Ocean County Indictment No. 95-10-1008, with first-degree murder (count one); second-degree conspiracy to commit murder (count two); and two counts of first-degree attempted murder (counts three and four). Defendant was tried before a jury. At the trial, the State presented evidence which indicated that on March 12, 1995, defendant murdered Nicole Russo in his apartment. According to the State, defendant bludgeoned Russo with a crowbar, slit her throat, and dismembered her body. Russo's body was never recovered.
Defendant confessed the murder to his uncle, who notified law enforcement. Defendant was apprehended in Los Angeles and transported back to New Jersey. While in jail awaiting trial for Russo's murder, defendant conspired with an inmate to murder his uncle and members of his family for reporting the crime and his confession, and to keep his uncle from testifying.
The jury found defendant guilty on all four counts. Defendant was sentenced to an aggregate term of life imprisonment plus twenty years, with forty years of parole ineligibility.
Defendant appealed from the judgment of conviction dated December 13, 1996, and raised the following issues:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS TWO, THREE AND FOUR OF THE INDICTMENT.
A. WITH RESPECT TO THE ATTEMPTED MURDER CHARGES ON COUNTS THREE AND FOUR THE EVIDENCE IN THE STATE'S CASE WAS SO SCANT THAT NO REASONABLE JURY COULD HAVE CONVICTED HIM.
B. WITH RESPECT TO THE CONSPIRACY CHARGE IN COUNT TWO AT MOST THE DEFENDANT ONLY HAD A CRIMINAL STATE OF MIND BUT WAS NOT PART OF ANY AGREEMENT TO KILL HIS UNCLE OR ANY MEMBERS OF HIS UNCLE'S IMMEDIATE FAMILY.
POINT II
DETECTIVE BENDER'S WARRANTLESS ENTRY INTO THE DEFENDANT'S APARTMENT ON MARCH 15, 1995 WAS ILLEGAL AND ALL SUBSEQUENT POLICE SEARCHES WERE TAINTED AS THE FRUIT OF UNLAWFUL POLICE CONDUCT.
A. THE "SPECIAL NEEDS" EXCEPTION TO THE FOURTH AMENDMENT WAS INAPPROPRIATELY APPLIED TO THE CASE.
B. THE COURT ERRED IN DETERMINING THAT DEFENDANT HAD ABANDONED HIS PRIVACY RIGHTS TO HIS APARTMENT.
POINT III
EVIDENCE THAT THE DEFENDANT STOLE A USED CAR WAS IMPROPERLY ADMITTED AS OTHER CRIMES EVIDENCE BECAUSE THE ACT OF THEFT WAS IRRELEVANT TO THE ISSUE OF FLIGHT AND WAS SO UNDULY PREJUDICIAL THAT IT SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.
POINT IV
THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO SEVER COUNTS TWO, THREE AND FOUR BECAUSE THE PREJUDICE OF THE
JOINDER OUTWEIGHED THE INTERESTS OF JUDICIAL ECONOMY.
POINT V
THE COURT ABUSED ITS DISCRETION IN ALLOWING DR. FORMAN TO TESTIFY THAT THE "DONOR'S" DNA WAS CONSISTENT WITH THE DNA OF MR. AND MRS. RUSSO.
POINT VI
IMPOSITION OF AN AGGREGATE SENTENCE OF LIFE PLUS TWENTY (20) YEARS WITH A PAROLE INELIGIBILITY PERIOD OF FORTY (40) YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
A. THE COURT ABUSED ITS DISCRETION IN FINDING THAT AGGRAVATING FACTOR N.J.S.A. 2C:44-1(A)(2) WAS PRESENT.
B. RUNNING THE SENTENCE IMPOSED ON COUNT THREE CONSECUTIVE TO COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
C. THE COURT FAILED TO SET FORTH ITS REASONS FOR IMPOSING THE TEN (10) YEAR PERIOD OF PAROLE INELIGIBILITY ON COUNT THREE.
Defendant filed a pro se supplemental brief, in which he raised the following contentions:
POINT I
THE TRIAL JUDGE'S JURY CHARGE WAS DEFECTIVE, AND PLAIN ERROR, (R. 2:10-2); THUS DENYING THE JURY THE OPPORUTNITY TO RENDER A JUST AND TRUE VERDICT, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL, AND DUE PROCESS OF LAW: AS GUARANTEED UNDER THE UNITED STATES CONSTITUTION (AMENDMENTS VI AND XIV), AND THE CONSTITUTION OF THE STATE OF NEW JERSEY [1947], (ARTICLE I, PARAGRAPH 1, 9).
A. THE TRIAL JUDGE FAILED TO INCORPORATE SPECIFIC EVIDENTIARY FACTS INTO THE JURY CHARGE.
B. THE TRIAL JUDGE FAILED TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER, SEVERELY LIMITING THE JURY'S OPTIONS IN RENDERING OF [ITS] VERDICT.
C. THE TRIAL JUDGE FAILED TO CHARGE THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER, EVEN THOUGH THE EVIDENCE ADDUCED AT TRIAL REQUIRED SAME.
D. THE TRIAL JUDGE FAILED TO CHARGE THE JURY ON PASSION-PROVOCATION MANSLAUGHTER, EVEN THOUGH THE EVIDENCE ADDUCED AT TRIAL REQUIRED SAME.
POINT II
THE EVIDENCE SEIZED AT THE DEFENDANT'S HOME WAS THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE, IN VIOLATION OF DEFENDANT'S RIGHTS AS PROTECTED UNDER THE UNITED STATES CONSTITUTION (AMENDMENT IV), AND THE CONSTITUTION OF THE STATE OF NEW JERSEY [1947], (ARTICLE I, PARAGRAPH 7).
We affirmed defendant's convictions and the sentences imposed. State v. Urcinoli, 321 N.J. Super. 519, 543 (App. Div. 1999), certif. denied, 162 N.J. 132 (1999).
II.
In October 1999, defendant filed his first petition for PCR, which was denied by the Law Division. Defendant appealed and raised the following arguments:
POINT I
THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL MUST BE REVERSED.
A. Counsel failed to provide effective assistance by failing to assert defendant's conduct amounted to passion/provocation manslaughter.
B. Trial counsel was ineffective because he erroneously advised the defendant not to testify.
C. Trial counsel was ineffective because he pursued an erroneous trial strategy.
D. Trial counsel was ineffective in other respects.
POINT II
THE LOWER COURT ERRED IN REFUSING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIM.
POINT III
DEFENDANT'S PRO SE CLAIMS SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
We affirmed the denial of PCR in an unpublished opinion. State v. Urcinoli, No. A-6329-99 (App. Div. Dec. 10, 2001) (slip op. at 6), certif. denied, 172 N.J. 359 (2002). In our opinion, we noted that although defendant argued his counsel was remiss in failing to pursue a strategy based on passion/provocation manslaughter, defendant continued to assert his innocence and also stated that this matter involved "'a classic love triangle murder situation.'" Id. at 3. We also noted that defendant claimed his trial counsel essentially forced him to forgo exercising his right to testify, but when questioned by the trial judge, "defendant indicated that he chose not to testify." Id. at 3-4.
We pointed out that defendant had asserted that if he had been permitted to testify, "'he could have explained to the jury that he found [Russo] dead in this apartment after she committed suicide.'" Id. at 4. We stated:
With respect to this point, defendant claims that he "would have testified that he panicked and that he did not report this suicide to the police." In support of his contention that [Russo] committed suicide, he points to the evidence that [Russo] had psychiatric problems, and had been hospitalized and treated for depression. Moreover, he claims that in a pre-trial interview, [S.C.], [Russo's] best friend, revealed to defendant's counsel that [Russo] had an obsession with suicide. [S.C.] testified at trial. Defendant argues, however, that "trial counsel failed to properly examine [S.C.] about all her discussions with [Russo] and about [her] suicide ideations."
Obviously, defendant's claims are contradictory and we would have to suspend common sense and credibility to accept his argument here. While a defendant can assert a defense based on factual innocence and simultaneously seek instructions on a different legal theory based on the evidence (such as passion/provocation if the jury concluded he was involved), cf. [State v. Powell, 84 N.J. 305, 320-21 (1980)], this defendant's arguments are so inconsistent that they cannot even be discussed in a logical, lineal fashion. He wants us to believe (1) he is totally innocent; (2) the
murder was provoked by a classic love triangle; (3) [Russo] committed suicide; (4) he panicked; and (5) had he testified, he would have persuaded the jury of his innocence.
[Id. at 4-5.]
We concluded that defendant's claims were "so obviously without merit" that there was no need to discuss them at length. Id. at 5. We determined that defendant had not presented a prima facie case of ineffective assistance of counsel, under the standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Ibid. We held that the PCR court had correctly found that an evidentiary hearing was not required on the petition. Id. at 5-6. We also noted that we had considered all of defendant's pro se claims and found "no merit in any of them." Id. at 6.
In August 2002, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The District Court dismissed the petition without prejudice because defendant had not presented five of his eight claims to the New Jersey courts. The District Court declined to issue a certificate of appealability.
III.
On December 13, 2003, defendant submitted a second PCR petition to the Law Division. The court denied the petition pursuant to Rule 3:22-5 because the claims had been adjudicated previously on the merits. Defendant appealed and raised the following arguments:
POINT I
DENIAL OF THE DEFENDANT'S PCR PETITION WAS A FUNDAMENTAL INJUSTICE.
POINT II
THERE ARE NO ISSUES WHICH ARE PRECLUDED FROM BEING RAISED IN A POST-CONVICTION RELIEF HEARING.
POINT III
THE LOWER COURT ERRED IN REFUSING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
We affirmed the denial of defendant's second PCR petition in an unpublished opinion. State v. Urcinoli, No. A-4432-03 (App. Div. March 1, 2005) (slip op. at 7), certif. denied, 185 N.J. 264 (2005). In our opinion, we stated:
While defendant's point headings in [his] brief are not illustrative of his arguments, his arguments are totally lacking in substance. He claims, as he did in [his] first PCR petition, that trial counsel failed to properly investigate and prepare the case for trial, but does not articulate any specifics with respect to what could have or should have been investigated and presented, nor does he proffer any evidence that would change the outcome of the trial. He claims that trial counsel was totally unprepared for trial and that counsel's cross-examination was "entirely unfocused and irrelevant." Again, defendant fails to present specifics as to what counsel could have or should have done, or how it would have changed the outcome of the trial. He
argues that appellate counsel was also unprepared and inadequately represented him. [A]gain, [he has not provided] specifics.We concluded that defendant had not established a prima facie case for an evidentiary hearing, and that defendant's arguments were without sufficient merit to warrant discussion. Ibid.
[Id. at 7].
Defendant then filed another petition for habeas corpus in the United States District Court. On August 4, 2006, the District Court dismissed the petition as time barred and refused to issue a certificate of appealablity. On January 29, 2010, the Court of Appeals for the Third Circuit reversed and remanded the matter to the District Court for consideration of defendant's claims on the merits.
The District Court filed a lengthy opinion dated December 17, 2010, which addressed defendant's claims in detail. Urcinoli v. Cathel, No. 05-4776 (D.N.J. Dec. 17, 2010) (slip op. at 6-24). The District Court dismissed the petition and declined to issue a certificate of appealability. Ibid.
IV.
On April 13, 2012, defendant filed a third petition for PCR in the Law Division. The court denied the petition on June 19, 2013. Defendant did not appeal from the denial of PCR. On September 10, 2013, defendant filed a fourth PCR petition, alleging that trial counsel was ineffective because he failed to inform him of a plea offer that the State had extended before defendant decided to proceed to trial. Defendant claimed that had he known of the plea offer, he would have accepted the offer and would not have proceeded to trial. He alleged that, if he had accepted the plea offer, he would have received a shorter sentence.
Judge Joseph L. Foster filed a letter opinion dated December 24, 2013. The judge noted that the petition was governed by Rule 3:22-4(b), which provides that a second or subsequent PCR petition must be dismissed unless: it is timely filed under Rule 3:22-12(a)(2) and alleges: it is based on a new rule of constitutional law made retroactive to the petition by the Supreme Court of the United States or the Supreme Court of New Jersey; the factual predicate for the claims could not have been discovered earlier through the exercise of reasonable diligence; or the petition asserts a prima facie case of ineffective assistance of counsel in the the first or prior PCR proceeding.
Judge Foster wrote that the claim defendant asserted in his fourth petition was not based on a new constitutional rule. The new allegation of ineffective assistance of counsel "could have been discovered earlier" and raised in one of the three prior PCR petitions. Furthermore, defendant had not established a prima facie case of ineffective assistance of counsel. The judge concluded that defendant's petition was barred by Rule 3:22-4(b). The judge entered an order dated December 24, 2013, denying PCR. Defendant did not appeal from the denial of PCR.
On March 31, 2014, defendant filed his fifth PCR petition. He alleged that:
POINT I
PCR COUNSEL WAS INEFFECTIVE DURING PETITIONER'S THIRD PETITION FOR PCR UNDER STATE v. RUE[, 175 N.J. 1 (2002)] AND STATE v. WEBSTER[, 187 N.J. 254 (2006)] FOR FAILING TO ALERT THE COURT TO ALL OF THE DUE PROCESS CLAIMS THAT [DEFENDANT] HAD DESIRED TO HAVE CONSIDERED BEFORE THE COURT, INCLUDING INEFFECTIVE COUNSEL ON [DEFENDANT'S] FIRST PCR, AS [DEFENDANT] HAD DESIRED AT ALL TIMES TO HAVE COUNSEL ALERT THE COURT TO THE APPROPRIATE DUE PROCESS CLAIM REGARDING THE FAILURE TO INFORM HIM OF THE FAVORABLE PLEA OFFER
POINT II
BECAUSE THE FAVORABLE PLEA OFFER HAD EITHER LAPSED OR EXPIRED AND WAS NEVER PRESENTED TO [DEFENDANT], [DEFENDANT] WAS DEPRIVED OF THE BENEFIT OF IT, THUS BEING SUBJECTED TO AND RECEIVING ADDITIONAL INCARCERATION OF A TERM OF LIFE IMPRISONMENT INSTEAD OF THE MORE FAVORABLE 30 YEARS. FURTHER, BY WAY OF RECORD, [DEFENDANT] WOULD HAVE WANTED TO ACCEPT THE UNRELAYED PLEA IF INFORMED BECAUSE HE WAS ALREADY COOPERATING ACTING ON HIS OWN VOLITION AND MEETING THE TERMS OF SAID PLEA OFFER AT THE TIME OF HIS ARREST BEFORE SUCH AN OFFER COULD HAVE BEEN MADE AND ABSENT THE REQUEST OR PROMISE OF ANY BENEFIT OR CONSIDERATION.
Judge James M. Blaney entered an order dated April 15, 2014, denying the petition. In a June 13, 2014 letter, the judge stated that the petition was denied essentially for the same reasons stated by Judge Foster in his letter opinion of December 24, 2013, denying defendant's third PCR petition. This appeal followed.
On appeal, defendant argues:
POINT I
THE LOWER COURT ERRED IN DISMISSING THE PETITION FOR POST-CONVICTION RELIEF.
POINT II
DENIAL OF DEFENDANT'S PCR PETITION WAS A FUNDAMENTAL INJUSTICE.
We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we add the following brief comments.
The Law Division correctly determined that defendant's fifth PCR petition must be dismissed pursuant to Rule 3:22-4(b). The record supports the court's findings that (1) the petition did not rely upon any new rule of constitutional law; (2) defendant failed to show that the factual predicate for his claims could not have been discovered earlier through the exercise of reasonable diligence; and (3) defendant had not established a prima facie case of ineffective assistance of counsel on the first or subsequent PCR petition.
The record shows that the State had extended a plea offer to defendant prior to trial, and defendant was present in court when the plea offer was discussed. The following colloquy between defendant and the court ensued:
THE COURT: Okay. Mr. Urcinoli, you understand that the State is offering you, in exchange for your guilty plea to count one, the purposeful and knowing murder, to dismiss counts two, three, and four of this indictment, and to recommend to the [c]ourt a sentence of life over [thirty] years, and then if the [c]ourt gave you such a sentence, you would have to serve at least [thirty] years of that? Do you understand that?
THE DEFENDANT: Judge, I didn't commit the crime and I don't know where Nicole Russo is and I'm not interested in any plea offer, and if it was probation, I would turn it down.
THE COURT: Thank you. Mr. Urcinoli, do you know what the offer the Prosecutor is —
THE DEFENDANT: I understand the offer, but I'm not interested in any offer.
THE COURT: Do you understand that you can accept or reject that offer, and that if you reject that offer and go to trial and if you are convicted on all counts of this indictment, you would face a sentencing for two separate criminal events, one being the murder of Nicole Russo and the second being a conspiracy to commit the murder of [B.M.] and attempted murder of [B.M.] and his family . . . .
Thus, the record shows that prior to trial defendant was well aware of the State's plea offer and he told the court in no uncertain terms that he had no interest in accepting that offer. The record shows that defendant was informed that if he refused the State's offer, proceeded to trial, and was convicted on all counts, he could face a sentence less favorable than that which the State offered to recommend.
Furthermore, the record shows that in his fifth PCR petition, defendant failed to raise a prima facie case of ineffective assistance in the handling of his first or subsequent PCR petitions. PCR counsel cannot be faulted for failing to raise a claim that had absolutely no factual support.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION