STATE OF NEW JERSEY VS. TROY BUNERO (14-02-0010, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1896-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY BUNERO,
Defendant-Appellant.
_________________________
Submitted February 24, 2021 – Decided May 3, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-02-0010.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
On June 30, 2015, a jury found defendant Troy Bunero guilty of second-
degree conspiracy, N.J.S.A. 2C:5-2; two counts of second-degree official
misconduct, N.J.S.A. 2C:30-2; second-degree pattern of official misconduct,
N.J.S.A. 2C:30-7(a); third-degree theft by unlawful taking or disposition,
N.J.S.A. 2C:20-3(a); third-degree misapplication of entrusted government
property, N.J.S.A. 2C:21-15; third-degree tampering with public records,
N.J.S.A. 2C:28-7(a)(1) and (2); and fourth-degree tampering with records,
N.J.S.A. 2C:21-4(a).1 Defendant was sentenced to an aggregate five-year prison
term. His direct appeal of his convictions was unsuccessful. State v. Bunero,
No. A-2126-15 (App. Div. Apr. 2) (slip op. at 3), certif. denied, 235 N.J. 464(2018).
Defendant then filed a post-conviction relief (PCR) petition alleging trial
counsel
was ineffective for presenting a non-viable "economic
duress" defense, failing to conduct an investigation
about physical actions by [his supervisor] which could
have supported an actual duress defense, and failing to
communicate with him adequately, all of which led to
an uninformed decision about exercising his right to
testify in order to support a viable duress defense.
1
Co-defendant Francis Longo was tried with defendant and convicted of the
same offenses except third-degree tampering with public records and fourth
degree tampering with records. State v. Longo, No. A-1769-15 (Apr. 2, 2018)
(slip op. at 3).
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The PCR judge dismissed the petition without an evidentiary hearing.
In his appeal, defendant argues:
POINT I
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE REGARDING A DURESS DEFENSE,
WHICH LED TO A FUNDAMENTALLY UNFAIR
TRIAL.
POINT II
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON [DEFENDANT'S] CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO OBJECT TO A
JURY CHARGE ON THEFT OF SERVICES.
(RAISED BELOW BUT NOT RULED ON)
Having considered these arguments, the record, and the applicable law, we
affirm.
I
The State presented evidence that defendant, supervisor of the North
Bergen Department of Public Works (DPW) sweeper program, authorized
regular and overtime salary payments of DPW employees for performing private
work outside the scope of their employment, i.e., working on homes owned by
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defendants and his supervisor DPW Superintendent James Wiley, clearing snow
at defendant's home, and working on various elections in November 2008, May
2009, and November 2010. The State also presented video evidence that, during
work, defendant removed election campaign literature off the doorknob of a
home, hid it behind his back, and drove away in a DPW truck. Wiley, who
reached a plea bargain with the State requiring his testimony against defendant
and Longo, testified that, on his orders, defendant removed campaign literature
from homes many times.
Defendant did not testify but presented witnesses' testimony that DPW
workers did not work on his home or Wiley's home while on the DPW payroll.
His counsel argued that Wiley was the wrongdoer, not defendant, for ordering
and authorizing the payment of DPW workers for working at Wiley's home and
on elections.
The State objected to the trial judge's sua sponte ruling to instruct the jury
on the affirmative defense of duress, N.J.S.A. 2C:2-9(a). The judge denied the
State's request to stay the trial pending its emergent motion to file an
interlocutory appeal. In a letter opinion, the judge stated:
Several witnesses in this matter have testified
that employees of the North Bergen Public Works
Department, similarly situated with these defendants,
were routinely required to perform illegal acts under
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threat of termination. They have uniformly testified
that the source of these threats came from persons
holding positions of authority superior to these
defendants, most frequently from the state's
cooperating witness, James Wiley.
In addition to the termination threats, there is
testimony before this jury that Mr. Wiley, the
Superintendent of the Department, imposed serious
economic penalties upon workers who refused to
comply with his demands – even in a social context
. . . . The political environment then existing in North
Bergen left [them] no avenue of appeal.
Finally, there is testimony in the case that even
political opponents of the administration believed that
resort[ing] to the police department or higher officials
would be fruitless insofar as the corruption of the
government was rampant and unchecked.
After allowing the State to file an emergent motion for leave to appeal and
staying the trial, this court granted the State's motion. We summarily reversed
"[t]he decision of the trial court to charge the jury on the affirmative defense of
duress under N.J.S.A. 2C:2-9(a)." We reasoned that "[a] plain reading of our
duress statute requires a defendant to have acted due to the threat, or actual use,
of physical force; the text of the statute does not support use of this affirmative
defense in response to 'economic duress.'" Because there was no evidence of a
threat or use of physical force against defendant, the charge was not appropriate.
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II
Defendant reiterates the arguments he made before the PCR judge. He
argues trial counsel provided ineffective assistance by failing to perfect an
affirmative defense of economic duress through an investigation of Wiley's
threats and use of physical force, and in turn kept him from exercising his right
to testify. He also argues counsel never provided any legal support to the trial
judge to present the defense of duress, which the judge brought up at "the
beginning" of the trial. Defendant further asserts the State was able to
undermine his defense because counsel emphasized duress, which this court
decided was not viable given the evidence presented. We are unpersuaded.
The record fully substantiates that the PCR judge did not abuse his
discretion in denying relief without an evidentiary hearing pertaining to the
duress defense. The judge properly applied the well-settled two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), that a defendant must
first show "that counsel made errors so serious that counsel was not functioning
as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52(quoting Strickland, 466 U.S. at 687); and second, he must prove that he suffered
prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687,
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691-92. The judge found that under State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999), some of defendant's contentions were nothing more than
bald assertions without any factual support, and he thereby failed to establish a
prima facie case of ineffective assistance of counsel warranting an evidentiary
hearing. See also State v. Preciose, 129 N.J. 451, 462 (1992); State v. Porter,
216 N.J. 343, 354 (2013) (holding an evidentiary hearing need only be
conducted if there are disputed issues as to material facts regarding entitlement
to PCR that cannot be resolved based on the existing record).
Defendant's claim that counsel's trial strategy of trying to convince the
jury he was not guilty because his conduct was ordered by Wiley does not
demonstrate ineffective assistance. Our courts apply a strong presumption that
a defense counsel "rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland, 466
U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will not serve to
ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (quoting
State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Echols, 199 N.J.
344, 358 (2009). "As a general rule, strategic miscalculations or trial mistakes
are insufficient to warrant reversal 'except in those rare instances where they are
of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State
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v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122
N.J. 22, 42 (1991)).
Defendant has not shown that counsel presented a non-viable defense of
duress before the trial judge intervened to tell the parties he would charge the
jury the affirmative defense of duress. In fact, we pointedly addressed this issue
on direct appeal, stating:
Both defendants [2] argue that they were unfairly
surprised when the State filed its interlocutory appeal
on the duress issue, and that the timing of that appeal
prejudiced the defense. We cannot agree. Neither
defendant filed the required pre-trial notice that he
would present a duress defense. See R. 3:12-1.
Moreover, in their opening statements, which offered a
window into their trial strategy, the defense attorneys
never stated or even suggested a legally cognizable
theory of duress.
In addressing the jury, defense counsel made no
mention of any physical threats or physical coercion
against either defendant. Rather, they told the jury that
defendants were merely following orders from their
politically-motivated superior, Wiley, in order to avoid
losing their jobs. Defense counsel also sought to
minimize the seriousness of the charges against
defendants, and to portray them as ordinary workers
rather than as supervisors. They contended that the
prosecution was unfair and politically motivated and
that the State's witnesses were biased. They criticized
the State for giving Wiley a lenient plea deal in return
for his cooperation in prosecuting his low-level
2
Defendant and Longo.
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subordinates. Nothing in the defense attorneys'
opening statements suggested that defendants might
have a viable duress defense.
Moreover, there was no trial testimony that
defendants were subjected to physical coercion. For
example, Wiley's brother-in-law, who was also a DPW
laborer, testified that Wiley could be "violent" and
"vicious." However, the concrete examples the witness
gave were that Wiley cursed at his subordinates,
including defendants, and would fire or reassign
employees who displeased him.
At oral argument of this appeal, the attorneys
advised us that shortly after the trial started, on June 2,
2015, the judge sua sponte raised the duress issue off
the record in chambers. Apparently, the attorneys and
the judge continued to informally discuss a possible
duress charge off the record, as the trial was
proceeding.
The issue was first mentioned on the record on
June 16, 2015, after all parties rested. The prosecutor
stated that, based on his legal research, economic
coercion would not support a duress defense. The judge
disagreed, but noted that he had asked the attorneys to
submit proposed charge language "two weeks ago," and
none of them did so. Thereafter, the State asked the
judge to sign an order so that it could move for leave to
appeal on the duress issue. The motion was filed on
June 17, 2015. We granted the motion, stayed the trial,
and summarily reversed the trial court's order on June
22, 2015.
Defense counsel presented their summations on
June 23, 2015, without first seeking any further relief
from the trial court. They did not raise the issue of
surprise, request a mistrial, or ask for leave to reopen
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the evidentiary portion of the trial in order to present
testimony from their clients. From the record we have,
we infer that the latter course was not an option because
their clients could not truthfully testify about any
physical threats. To be blunt, nothing presented to us
remotely suggests that defendants had a viable duress
defense that they refrained from presenting, in reliance
on the trial court's sua sponte off-the-record comments
about giving a duress charge.
The trial court's mistaken comments raised defendants'
hopes for a duress charge–to which they were not
entitled – and this court's interlocutory opinion dashed
those hopes. However, on this record, we find no unfair
surprise or prejudice.
[Bunero, slip. op. at 12-14 (emphasis added) (footnote
omitted).]
In addition, the record this court considered on the State's emergent motion and
this PCR appeal does not support defendant's contention that counsel provided
ineffective representation by arguing the non-viable affirmative defense of
duress.
Defendant also fails to show that he was prejudiced by counsel's
performance. He maintains he would have testified had counsel researched the
duress defense and investigated to obtain evidence of threats and use of physical
harm in order to present the defense. Yet defendant's certification in support of
PCR fails to set forth any facts that Wiley threatened him with or used physical
harm to force him to order DPW workers to perform private work and to
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authorize public funds to compensate them for that work. Because the
certification does not contend defendant's conduct was due to threats or use of
physical harm, there is no factual basis to find a reasonable probability of a
different outcome, had he testified. Moreover, defendant has not presented any
indication that counsel's investigation would have revealed Wiley made threats
of or used physical harm to compel defendant's misconduct. In short,
defendant's bald assertions do not support PCR relief.
III
Defendant's last claim is "that counsel was ineffective for failing to object
to the court's [jury] charge on theft of services when the indictment charged theft
by [unlawful] taking." Defendant contends the PCR judge failed to comply with
Rules 1:7-4(a) and 3:22-11 by not setting forth his findings of fact and
conclusions of law regarding defendant's claim. Because the judge did not
address the contention, we remand this issue so that he can submit an opinion or
memorandum in compliance with our rules.
Affirmed in part and remanded in part for proceedings consistent with this
opinion. We do not retain jurisdiction.
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