STATE OF NEW JERSEY VS. STEVEN B. TRAINER (13-05-0504, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2378-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN B. TRAINER, a/k/a
STEVE JOHNSON, STEVEN
JOHNSON, STEVEN B. JOHNSON,
STEVEN TRAINOR, STEVEN B. TRAINOR,
BRUCE TURNER, BRUCE S. TURNER,
STEVEN GRAINOR, GREG TRAINER,
GREGORY TRAINER, GREGORY
ARTHUR TRAINER, STEPHEN
TRAINER, STEVEN TRAINERS,
and BOB TURNER,
Defendant-Appellant.
_____________________________
Submitted October 17, 2017 – Decided November 13, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court, Law Division,
Passaic County, Indictment No. 13-05-0504.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anderson D. Harkov, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial of his motion to dismiss the indictment,
defendant Steven B. Trainer pled guilty to second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A.
2C:15-1(a)(1). Pursuant to the plea agreement, he was sentenced
in the third-degree range, to three years in prison, subject to
the No Early Release Act, N.J.S.A. 2C:43-7.2. That sentence was
imposed concurrent to an aggregate nine-year sentence he was
currently serving. Defendant also received 774 days of jail credit
and 1036 days of gap time, which would subsume virtually the entire
three-year term.
Defendant now appeals from the judgment of conviction, and
from the September 25, 2014 order denying his motion to dismiss
the indictment. He raises the following arguments:
POINT ONE: THE FAILURE OF THE TRIAL COURT TO
ORDER THE OFFICE OF THE PUBLIC DEFENDER TO
ASSIGN COUNSEL TO CONFER WITH DEFENDANT ON
WHETHER IT WAS IN HIS BEST INTEREST TO FILE A
MOTION TO WITHDRAW HIS GUILTY PLEA, DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO: THE LAW DIVISION ERRED WHEN IT
DENIED DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT BECAUSE THE STATE MISLED THE GRAND
JURY BY PRESENTING TESTIMONY THAT ERRONEOUSLY
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CLAIMED DEFENDANT CONFESSED TO THE CHARGE IN
THE INDICTMENT.
Finding no merit in either argument, we affirm.
We begin by addressing defendant's motion to dismiss the
indictment, based on his assertion that the testifying police
officer misled the grand jury. A trial judge should not dismiss
an indictment except "on the 'clearest and plainest ground.'"
State v. Hogan, 144 N.J. 216, 228 (1996) (citation omitted). We
review the trial judge's decision for abuse of discretion. Id.
at 229. We affirm on this point substantially for the reasons
stated by Judge Donna Gallucio in her comprehensive written opinion
accompanying the September 25, 2014 order. We add these brief
comments.
Defendant was accused of driving a blue Hyundai Santa Fe
through the parking lot of a Target store, reaching his arm out
the window, and grabbing a purse off the shoulder of a woman who
was walking through the lot. The victim described the attack, in
which she fell to the ground and was injured. The incident was
also recorded by a store security camera. The video depicted a
distinctive-looking blue Hyundai Santa Fe with gray trim, a white
sticker in the window, and a large dent in the driver's side
fender. The police eventually determined that defendant had
probably been the driver. The arresting officer first observed
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defendant driving a Hyundai that matched the car in the video, and
then arrested defendant as he was about to enter the Hyundai on a
second occasion. Defendant waived his Miranda1 rights and gave
the police a statement.
Responding to leading questions from the prosecutor, the
arresting officer confirmed to the grand jury that defendant
"indicated that he was the operator of the Hyundai Santa Fe in
question." In response to the next question, the officer agreed
with the prosecutor that defendant "could not recall the details
of . . . being in the . . . Target parking lot on that day in
question." In his suppression motion, defendant argued that the
officer's testimony was misleading because it would have led the
jury to believe that defendant admitted driving the Hyundai in the
Target parking lot on the day of the robbery, when in fact he did
not make that admission.
In his statement to the police, defendant admitted, in
general, that he was the driver of the Hyundai, a vehicle he was
buying from a friend. He also stated that he could not recall
what occurred in the Target parking lot. However, he inferentially
admitted the robbery, telling the police that he did not mean to
hurt anyone: "All I'm thinking is that look, it was just safe.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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Nobody gets hurt." We agree with Judge Gallucio's conclusions
that: there was sufficient evidence to support the indictment,
each separate statement to which the officer testified was
accurate, and any ambiguity in the officer's testimony did not
"affect[] the grand jurors' ability to make an informed decision
whether to indict." State v. Hogan, 144 N.J. 216, 229-30 (1996).
Accordingly, we find no abuse of Judge Gallucio's discretion in
denying the motion to dismiss the indictment. See id. at 229.
Defendant's argument concerning the appointment of a second
attorney is without merit and warrants no discussion beyond the
following comments. R. 2:11-3(e)(2). Defendant pled guilty,
after many hours of consultation with his assigned Office of the
Public Defender (OPD) attorney. Defendant later asked the OPD to
assign another attorney to advise him as to whether he should file
a motion to withdraw his guilty plea. Defendant claimed that he
had done his own legal research, which caused him to question some
of the advice his attorney had given him.
The OPD declined to appoint a second attorney to advise
defendant, but his assigned attorney indicated that if defendant
decided to withdraw his guilty plea, the OPD would assign a
replacement attorney to file the motion for him. The sentencing
judge adjourned the sentencing for a month to give defendant more
time to decide whether he wanted to withdraw his guilty plea. When
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defendant had not yet made up his mind at the next scheduled
hearing, the judge proceeded with the sentencing.
In State v. Hayes, 205 N.J. 522 (2011), the Court held that
the defendant was entitled to an adjournment in order to have his
newly-retained attorney represent him in arguing a motion to
withdraw a guilty plea. Id. at 541-42. Hayes is not on point
here, because defendant never sought more than a second opinion
on whether to file such a motion. The OPD is not required to
replace a defendant's assigned attorney merely because the
defendant is dissatisfied with that attorney or would prefer a
different attorney. See State v. Miller, 216 N.J. 40, 62-65
(2013); State v. Williams, 404 N.J. Super. 147, 170 (App. Div.
2008), certif. denied, 201 N.J. 440 (2010). Likewise, the OPD is
not required to appoint an attorney to provide a second opinion
concerning advice given by defendant's assigned OPD counsel. The
OPD's refusal to assign a second attorney in this case did not
deprive defendant of his right to counsel.
We decline to address defendant's claim of ineffective
assistance of counsel, insofar as it may be directed at the
representation provided by his assigned OPD attorney. We affirm,
without prejudice to his right to file a petition for post-
conviction relief on that issue. See State v. Preciose, 129 N.J.
451, 460 (1992).
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Affirmed.
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