STATE OF NEW JERSEY VS. FLORENCE ACQUAIRE (03-10-0185, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1105-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FLORENCE ACQUAIRE,
Defendant-Appellant.
________________________
Submitted December 5, 2019 – Decided December 23, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 03-10-0185.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant, Florence Acquaire, appeals from an order that denied without
an evidentiary hearing her second petition for post-conviction relief (PCR). We
affirm.
At the conclusion of a bench trial, a judge convicted defendant of two
counts each of healthcare claims fraud, attempted theft by deception, and theft
by deception. For those crimes, the judge sentenced defendant to an aggregate
seven-year prison term and ordered her to pay restitution. Her conviction was
affirmed on appeal. State v. Acquaire, No. A-2932-05 (App. Div. Oct. 31,
2007), certif. denied, 194 N.J. 268 (2008). Defendant's first PCR petition was
denied. State v. Acquaire, No. A-1742-09 (App. Div. Jul. 13, 2011) (slip op. at
1), certif. denied, 209 N.J. 98 (2012).
Significantly, in her first PCR petition, defendant argued that "her trial
counsel was ineffective for recommending a non-jury trial [and] for not asking
the trial judge to recuse himself." Id. at 5. Defendant certified in support of her
first PCR petition that her trial counsel should have moved to have the trial judge
recuse himself. Defendant also certified that had she known of the judge's "legal
difficulties," she would not have consented to a bench trial.
In response, defendant's trial counsel filed a certification addressing her
claim that had she known the trial judge "was under investigation by the
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Advisory Committee on Judicial Conduct," she would not have agreed to a non-
jury trial. Trial counsel asserted the alleged conduct that was the subject of the
investigation was not "remotely related to the issues in [defendant]'s case and
those charges had no bearing on [the judge's] ability to fairly try [defendant's]
case." Moreover, counsel asserted there was nothing that occurred during the
trial that gave any indication the judge was prejudiced or biased against
defendant.
We affirmed the order that denied defendant's first PCR petition. In doing
so, we rejected defendant's arguments concerning waiver of a jury trial.
Four years after the Supreme Court denied certification with respect to her
first PCR petition, defendant filed her second PCR petition. This appeal is from
the trial court order that denied her second PCR petition. Defendant argues a
single point:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO ADVISE DEFENDANT NOT TO
WAIVE HER CONSTITUTIONAL RIGHT TO A
JURY TRIAL.
In a thorough, well-reasoned written decision that denied defendant's
second PCR petition, Judge Sohail Mohammed determined the trial record
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established defendant knowingly and voluntarily waived her right to a jury trial.
Judge Mohammed noted the argument defendant now raises was disposed of in
her first PCR petition. See R. 3:22-5 ("A prior adjudication upon the merits of
any ground for relief is conclusive . . . ."). The judge also determined defendant
failed in her second PCR petition to establish a prima facie case that her counsel
was ineffective for failing to advise her not to waive a jury trial and for not
informing her about the investigation pending against the trial judge.
We affirm, substantially for the reasons expressed by Judge Mohammed
in his written opinion. We add that, as the State argues, defendant's petition is
untimely, Rule 3:22-12(a)(2), yet another ground for denying it.
In short, defendant's second PCR petition is procedurally barred and
substantively devoid of merit.
Affirmed.
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