STATE OF NEW JERSEY VS. PHILIP J. IANUALE (15-06-1163, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-5352-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHILIP J. IANUALE,
Defendant-Appellant.
________________________
Submitted November 30, 2020 – Decided August 25, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No.
15-06-1163.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kimmo Abbasi, Designated Counsel, on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Carey Huff,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Philip J. Ianuale appeals from the April 11, 2019 order of the
Law Division denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
In the early morning hours of December 13, 2014, defendant went to the
third-floor office of his brother Robert Ianuale to confront him about his
drinking habits. The brothers engaged in a physical altercation, which caused
Robert1 to call police.
Three officers responded to the scene: Patrolman Kevin Bennett,
Patrolman Gregory Johnson, and Sergeant Michael Ferm. While climbing the
stairs, the officers heard yelling from Robert's office. When they entered the
office, they saw defendant had cuts on the left side of his face, a small laceration
under his left eye, and severe swelling with bruising around his left eye. Robert
was shirtless. Officers saw small, bloody cuts on his body. There were broken
vodka bottles and liquor on the floor.
Defendant was "very excited" and pacing back and forth. He attempted
to leave but was rebuffed by Bennett, who told defendant to remain on the
1
Because defendant and his brother share a surname, we refer to Robert Ianuale
by his first name. No disrespect is intended.
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premises. Defendant again attempted to leave. Bennett "grabbed" defendant
and told him that he could not leave until "everything was sort[ed] out." The
officer shut the door "to reinforce the fact that [defendant] could not leave."
Ferm instructed Bennett to arrest defendant and to not let him leave the
office. Bennett told defendant to turn around to be placed under arrest. In
response, defendant yelled, "I'm out of here" and "made a break for the door" by
"bull rush[ing]" Bennett. As defendant tried to force his way past the officer,
Bennett wrapped his arms around him to prevent his escape. Defendant's
momentum carried the officer out the door and down one flight of stairs.
Defendant and Bennett struck a wall and came to a momentary stop on the
landing at the bottom of the first flight of stairs. Bennett's back was toward the
second flight of stairs. Defendant "put his shoulder down" and "pushed through"
Bennett, causing the officer to fall down the second flight of stairs backward.
Bennett landed on his head and shoulders with defendant on top of him.
Defendant then "sprung up right away" and ran down the third flight of stairs.
Bennett stood up and attempted to give chase, but paused because he felt dizzy.
Johnson ran downstairs past Bennett and pursued defendant as he left the
building. Bennett regained his bearings, continued down the stairs, and exited
to the sidewalk. He saw Johnson chasing defendant. Bennett caught up with
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Johnson, who was trying to wrestle defendant to the ground. Bennett assisted
Johnson in subduing and arresting defendant. A search of defendant uncovered
marijuana and drug paraphernalia. Bennett was later treated at a hospital for a
cut on his head, sore neck and shoulders, and several chipped teeth.
A grand jury indicted defendant, charging him with: (1) third-degree
aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a); (2) third-
degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); and (3) fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2). Defendant was also charged by summons with
disorderly persons possession of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1), and disorderly persons possession of drug
paraphernalia, N.J.S.A. 2C:36-2.2
Prior to trial, defendant and the State entered into two stipulations. The
first provided: "On December 13, 2014, between 4:50 and 5:00 a.m. Robert
Ianuale called the Keyport Police Department and requested assistance at the
third floor [of address of Robert's office]." The second provided: "On or about
December 16, 2016, defendant filed a civil lawsuit in federal court against
multiple defendants, including Kevin Bennett, Greg Johnson, [and] Michael
2
Defendant also was charged with the disorderly persons simple assault of
Robert, N.J.S.A. 2C:12-1(a). That charge was dismissed after trial.
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Ferm, requesting monetary damages." Both stipulations were read to the jury,
the first at the State's request and the second at defendant's counsel's request.
During Johnson's testimony, defense counsel questioned the officer about
whether, as stated in his police report, he took photographs of defendant, Robert,
and Bennett depicting their injuries:
Q: Did you take a picture of those injuries?
A: [O]nly in booking. Booking photos.
Q: So you never took photos of my client, Phil, or
Robert as evidence of their injuries?
A: I did not. . . . I don't believe we did.
Q. You never provided any photos of my client's
(sic) or [his] brother displaying injuries to the
prosecutor?
A: No, not that I recall.
Q: Did you ever take any photos of Officer Bennett
and his injuries?
A: I don't recall if we did or didn't.
Q: Do you recall writing a police report for this
incident?
A: Yes, I do.
....
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Q: Do you recall indicating in that police report that
you took photos of both Mr. – Phil, Robert and Officer
Bennett?
A: No I don't believe that's in there.
....
Q: Does reading [the police report] refresh your
memory as to whether you took photos of both parties?
A: Yes, it does.
Q: Did you take photos of all the parties?
A: Yes, I did.
Q: Do you know where those photos are?
A: I do not.
Q: Did you ever give those photos to the prosecutor?
A: I didn't. I myself didn't give anything to the
prosecutor.
At the conclusion of the State's case, defendant's counsel moved for an
adverse inference charge based on the State's spoliation of the photographs. He
argued Johnson testified it was possible the photographs were lost. The trial
court denied the motion, finding that while Johnson gave inconsistent testimony
about the photographs, he did not testify that they were lost.
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On January 13, 2017, the court notified counsel that on the previous day
of trial, a sheriff's officer informed the court that Juror No. 1 had thanked him
for stopping observers in the courtroom from talking during the trial. The juror
told the officer that the talking had been distracting.
On January 17, 2017, the court informed counsel that "[a]pparently, Juror
[No. 1] heard talking again from the people behind him." Defendant's counsel
informed the court that defendant's family was seated in the front row of the
gallery behind Juror No. 1. With the agreement of both counsel, the court did
not voir dire Juror No. 1 or the other jurors, noting that Juror No. 1 told the
officer that the comments he heard were just "chitter chatter" and "not anything
specific." The court then blocked off the first two rows of the gallery and
instructed all observers in the courtroom to remain quiet during the trial.
The jury found defendant guilty of third-degree aggravated assault on a
police officer, and fourth-degree resisting arrest. The jury acquitted defendant
of third-degree resisting arrest, but found him guilty of the lesser-included
disorderly persons offense of preventing an officer from effecting an arrest ,
N.J.S.A. 2C:29-2(a)(1). The court subsequently found defendant guilty of the
disorderly persons offenses of CDS possession and possession of drug
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paraphernalia and sentenced him to an aggregate term of three years of
noncustodial probation. Defendant did not file a direct appeal.
On December 5, 2017, defendant filed a petition for PCR. 3 He alleged his
trial counsel was ineffective for: (1) entering into the two stipulations over
defendant's objections; (2) failing to move for a mistrial based on the State's
failure to turn over the photographs; (3) failing to call Robert and an investigator
hired by defendant's counsel as witnesses; and (4) failing to seek a voir dire of
Juror No. 1 and the remaining jurors. In addition, defendant argued that the trial
court erred when it denied his motion for an adverse inference charge.
Alternatively, defendant argued that if the photographs had not been lost the
State's failure to produce them warranted reversal of his convictions.
The trial court issued an oral opinion denying defendant's petition without
an evidentiary hearing. The court held that defendant's claims regarding the trial
court's denial of his motion for an adverse inference (if the photographs were
lost) and the State's failure to produce the photographs (if the photographs were
not lost) are barred by Rule 3:22-4(a)(2) because defendant could have raised
those issues in a direct appeal. In addition, the court found that application of
3
Defendant's certification in support of his petition was not filed until January
14, 2019.
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the bar to these claims is not a fundamental injustice because defendant could
not establish that either the absence of an adverse inference instruction or the
failure to produce the photographs played a role in the jury's verdict. The court
found defendant could not establish the photographs were lost or, if not lost,
exculpatory or material to the charges he faced.
The court also rejected defendant's attempt to cloak the photographs
arguments in allegations of ineffective assistance of counsel because it is
undisputed that his trial counsel moved for an adverse inference charge. In
addition, the court found that although trial counsel did not move to dismiss the
charges because of the State's failure to produce the photographs, defendant did
not make a prima facie showing that the photographs were exculpatory or
material and that counsel's alleged ineffective assistance, if true, was prejudicial.
The court also found defendant's claims relating to the voir dire of Juror
No. 1 and the remaining jurors are barred by Rule 3:22-4(a)(2). Defendant's
trial counsel was notified of the juror's report of hearing "chitter chatter" from
observers in the front row. With the consent of both the State and defendant's
counsel, the court did not voir dire Juror No. 1 or the remaining jurors. If
defendant disagreed with the court's decision, he could have raised the issue in
a direct appeal. In addition, the court found application of the bar to these claims
A-5352-18
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is not a fundamental injustice because defendant cannot establish that Juror No.
1 heard any substantive comments, shared those comments with other jurors, or
that the comments had the potential to influence the jury's verdict.
The court also concluded defendant did not make a prima facie showing
of ineffective assistance of counsel. The court found counsel's agreement to the
stipulations was a sound strategic decision. In addition, the court concluded
defendant could not show how the stipulations prejudiced him, as they did not
directly relate to elements of the charges he faced. The court found the
stipulation regarding defendant's civil suit may have benefitted him, as it may
have suggested the officers acted inappropriately during defendant's arrest.
The court concluded counsel's decision not to call Robert as a witness was
also a sound strategic decision because at the time of trial Robert was facing
criminal charges and was likely to assert his Fifth Amendment right against self-
incrimination. With respect to the investigator not called as a witness, the court
found that defendant did not identify testimony the investigator would have
provided that could have affected the verdict. As a result, the court concluded
defendant did not establish a prima facie claim that the failure to call the
investigator constituted ineffective assistance of counsel.
An April 11, 2019 order memorializes the court's decision.
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This appeal follows. Defendant raises the following arguments.
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
DESPITE THE FACT THAT HE DEMONSTRATED
A PRIMA FACIE CASE OF THE INEFFECTIVE
ASSISTANCE [OF] COUNSEL AS DEFENSE
COUNSEL ENTERED INTO STIPULATIONS
WITHOUT DEFENDANT'S CONSENT, FAILED TO
MOVE FOR A MISTRIAL BASED ON LOST
EVIDENCE BY THE POLICE AND FAILED TO
CALL WITNESSES AT TRIAL.
POINT TWO
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF DESPITE THE FACT THAT
DEFENDANT'S DUE PROCESS RIGHTS WERE
VIOLATED WHEN THE TRIAL COURT FAILED
TO GIVE THE JURY A SPO[LI]ATION OF
EVIDENCE INSTRUCTION.
POINT THREE
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF DESPITE THE FACT THAT
DEFENDANT WAS DENIED A FAIR TRIAL BY AN
IMPARTIAL JURY.
POINT FOUR
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF ON PROCEDURAL
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GROUNDS BECAUSE THE ISSUES SET FORTH IN
DEFENDANT'S PCR WERE PREMISED ON
INTERESTS OF JUSTICE, FUNDAMENTAL
INJUSTICE, AND INEFFECTIVE ASSISTANCE OF
COUNSEL THAT COULD NOT HAVE BEEN
RAISED ON DIRECT APPEAL.
II.
We begin with the claims found by the trial court to be barred because
defendant did not raise them in a direct appeal of his conviction. Rule 3:22-3
provides that a PCR petition "is the exclusive means of challenging a judgment
rendered upon conviction of a crime. It is not, however, a substitute for appeal
from conviction or for motion incident to the proceedings in the trial court
. . . ." In addition, Rule 3:22-4 provides, in relevant part:
(a) First Petition for Post-Conviction Relief. Any
ground for relief not raised in the proceedings resulting
in the conviction . . . or in any appeal taken in any such
proceedings is barred from assertion in a proceeding
under this rule unless the court on motion or at a hearing
finds:
(1) that the ground for relief not previously asserted
could not reasonably have been raised in any prior
proceeding; or
(2) that enforcement of the bar to preclude claims,
including one for ineffective assistance of counsel,
would result in fundamental injustice . . . .
....
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A ground could not reasonably have been raised in a
prior proceeding only if defendant shows that the
factual predicate for that ground could not have been
discovered earlier through the exercise of reasonable
diligence.
"The first exception is only available to a petitioner if he can show that
the facts that form the basis for the requested relief could not have been
discovered earlier through the exercise of reasonable diligence." State v. Nash,
212 N.J. 518, 546 (2013) (quoting R. 3:22-4(a)). To succeed under the second
exception, the petitioner "must show that the error 'played a role in the
determination of guilt.'" Id. at 547 (internal quotations omitted). "[D]efendant
bears the burden to 'allege specific facts, which, if believed, would demonstrate
the likelihood of injustice by a preponderance of the evidence.'" State v.
Martini, 187 N.J. 469, 482 (2006) (quoting State v. Mitchell, 126 N.J. 565, 589
(1992)).
Having carefully reviewed the record, we agree with the trial court's
conclusion that defendant's claims relating to: (1) the denial of his motion for an
adverse inference charge; (2) the State's failure to produce the photographs taken
by Johnson, if they were not lost; and (3) the trial court's decision not to voir
dire Juror No. 1 or the other jurors are barred by Rule 3:22-4(a). Each of those
claims could have been, but were not, raised by defendant in a direct appeal.
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Defendant does not allege that any facts supporting these arguments were
recently discovered or were unavailable to him during the period in which he
could have filed a direct appeal of his convictions.
We also agree with the trial court's determination that application of the
bar in Rule 3:22-4(a) to these claims does not constitute a fundamental injustice.
When determining whether the spoliation of evidence resulted in denial of a
criminal defendant's due process rights, the court must consider: (1) whether
there was bad faith or connivance on the part of the government; (2) whether the
evidence was sufficiently material to the defense; and (3) whether defendant was
prejudiced by the loss or destruction of evidence. State v. Hollander, 201 N.J.
Super. 453, 479 (App. Div. 1985); see also United States v. Wise, 221 F.3d 140,
156 (5th Cir. 2000) (holding that an adverse inference charge requires finding
of bad faith conduct by the government).
Evidence is material if it possessed an exculpatory value that was apparent
before it was destroyed. California v. Trombetta, 467 U.S. 479, 489 (1984).
The evidence must be expected to play a significant role in the defense and be
of such a nature that the defendant would be unable to obtain comparable
evidence by any other reasonably available means. Arizona v. Youngblood, 488
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U.S. 51, 58 (1988); Trombetta, 467 U.S. at 489; State v. Marshall, 123 N.J. 1,
109 (1991).
As the trial court correctly explained, defendant has not established that
the photographs were lost, that they were exculpatory or material, or that the
State acted in bad faith. There is nothing in the record suggesting defendant
would be granted PCR on these claims if he were permitted to assert them
despite not having raised them in a direct appeal.
Additionally, "[a] new trial . . . is not necessary in every instance where it
appears an individual juror has been exposed to outside influence." State v.
R.D., 169 N.J. 551, 559 (2001). "[A] new trial will be granted where jury
misconduct or intrusion of irregular influences into the jury deliberation 'could
have a tendency to influence the jury in arriving at its verdict in a manner
inconsistent with the legal proofs and the court's charge.'" State v. McGuire,
419 N.J. Super. 88, 154 (App. Div. 2011) (quoting State v. Grant, 254 N.J.
Super. 571, 583 (App. Div. 1992)). "The test is 'not whether the irregular matter
actually influenced the result but whether it had the capacity of doing so.'" State
v. Tindell, 417 N.J. Super. 530, 563 (App. Div. 2011) (quoting State v. Scherzer,
301 N.J. Super. 363, 486 (App. Div. 1997)).
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Defendant made no prima facie showing that Juror No. 1 heard specific
comments from observers, who appeared to be members of defendant's family,
shared those comments with other jurors, or that such comments had the
potential to influence the jury's verdict. The record demonstrates that the
sheriff's officer told the court that the juror heard only "chitter chatter" and
nothing of substance from the observers.
As for defendant's ineffective assistance of counsel claims, under Rule
3:22-2(a), a defendant is entitled to post-conviction relief if there was a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey[.]" "A petitioner must establish the right to such relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). "To sustain that burden, specific facts" which "would provide the court
with an adequate basis on which to rest its decision" must be articulated.
Mitchell, 126 N.J. at 579.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
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Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his attorney made
errors "so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense[,]" id. at 687, because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different[,]" id. at 694; accord State v. Nunez-Valdez, 200 N.J. 129,
138-39 (2009). "A reasonable probability is a probability sufficient to
undermine confidence in the outcome" of the trial. Strickland, 466 U.S. at 694.
"[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997).
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of
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sufficient prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697.
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing Marshall, 148 N.J. at 157-58). A hearing is
required only when: (1) a defendant establishes a prima facie case in support of
PCR; (2) the court determines that there are disputed issues of material fact that
cannot be resolved by review of the existing record; and (3) the court determines
that an evidentiary hearing is required to resolve the claims asserted. State v.
Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is
established when a defendant demonstrates 'a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
We have reviewed the record in light of these legal principles and agree
with the trial court's conclusion that defendant did not make a prima facie
showing of ineffective assistance of counsel warranting PCR or an evidentiary
hearing.
Trial counsel's decisions to sign the stipulations and to not call Robert and
the investigator as witnesses were sound strategic decisions. While defendant
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disagreed with those decisions, a lack of agreement between an attorney and his
client on trial strategy does not constitute ineffective assistance of counsel. We
"must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." State v. Allen, 398 N.J. Super. 247,
253-54 (App. Div. 2008) (quoting State v. Arthur, 184 N.J. 307, 319 (2005)).
Moreover, we agree with the trial court's conclusion defendant did not
make a prima facie showing he was prejudiced by the stipulations, which did
not contain facts damaging to his defense. Similarly, at the time of trial, Robert
was facing charges and likely would have invoked his Fifth Amendment right to
not testify. Defendant made no showing that the investigator would have
provided testimony that would have influenced the jury's verdict.
Finally, we agree defendant did not make a prima facie showing that his
counsel was ineffective because he did not move for dismissal of the charges
based on the State's failure to produce the photographs. There is nothing in the
record establishing that the photographs were exculpatory or material, or that
the State acted in bad faith by not producing them. There is, therefore, ample
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support for the trial court's conclusion defendant did not make a prima facie
showing that a motion for dismissal of the charges would have been successful.
We have carefully considered defendant's remaining arguments and
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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