STATE OF NEW JERSEY VS. PATRICK J. D'ALESANDRO (15-04-0759, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-3247-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PATRICK J. D'ALESANDRO,
Defendant-Appellant.
___________________________
Submitted March 20, 2019 - Decided May 16, 2019
Before Judges Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-04-0759.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison S. Perrone, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Deputy
Executive Assistant Prosecutor, of counsel; Roberta
DiBiase, Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Patrick J. D'Alesandro appeals from the denial of his petition
for post-conviction relief (PCR), contending he established a prima facie case
of ineffective assistance of counsel requiring an evidentiary hearing. Because
the trial judge correctly determined the evidence insufficient to sustain
defendant's burden, we affirm.
The gas station attendant defendant robbed at knife-point on Christmas
Eve in 2014, memorized his license plate number and provided it to police, along
with the exact make, model and year of the car. That information, along with a
description of the robber, video from the gas station's surveillance camera and
E-ZPass records from the transponder the prior owner left in the car when he
sold it to defendant several months earlier, led police to him within two weeks.
Following Miranda1 warnings, defendant confessed.
Defendant was indicted on charges of first-degree robbery, N.J.S.A.
2C:15-1 and weapons offenses. His counsel negotiated an agreement with the
prosecutor to recommend defendant be sentenced on the first-degree robbery
charge within the second-degree range to an eight-year prison term, subject to
the periods of parole ineligibility and supervision required by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, with dismissal of the weapons
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3247-17T1
2
charges and defendant reserving the right to argue for a five-year NERA term.
The sentencing judge imposed a six-year NERA term, noting defendant was
thirty-nine years old facing his first Superior Court conviction, had a long
history of drug and alcohol problems, had relapsed and was under the influence
of both at the time of the offense, and that she received a letter from the jail
commending defendant for participating in every therapeutic support program
offered during the year he was confined awaiting trial.
Defendant did not appeal, but filed a timely petition for PCR, alleging his
counsel was ineffective in failing to pursue motions to suppress the gas station
attendant's identification evidence and defendant's confession. After hearing
argument by assigned counsel, Judge Blaney issued a comprehensive written
opinion denying the petition on the basis that defendant had failed to establish a
prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Following a lengthy review of the facts and a discussion of the controlling
law, the judge rejected defendant's claim his counsel was ineffective for failing
to suppress the victim's out-of-court identification because the gas station
attendant did not identify defendant in the photo array. Based on the victim's
failure to identify defendant's photo, the judge noted it was "highly likely" either
A-3247-17T1
3
the State would not have proffered it at trial or defendant would have used its
inconclusiveness to his benefit had it been introduced.
As Judge Blaney observed, "[e]ither way, the failure to file a motion to
suppress evidence that did not implicate [defendant] in the first place does not
amount to ineffective assistance of counsel." Even assuming defendant was
correct that the officer conducting the identification procedure attempted to
influence the victim's choice, the judge again noted "it did not result in the victim
identifying [defendant] as the perpetrator," and thus, defendant could not
establish prejudice under the second prong of the Strickland 2 test.
Judge Blaney also rejected defendant's claim his counsel was ineffective
for failure to move to suppress his confession based on counsel's assertion that
detectives promised to bring defendant his medication "and would try to get a
'better deal' for him by talking to a judge." The judge noted "[n]o citation has
been provided for this allegation and a scouring of the record reveals that
nothing exists to support this contention." He found the absence of any
statement by defendant that such conduct occurred, "signals that the claim is
unworthy of relief." He accordingly rejected the claim as nothing more than a
bald assertion unsupported by any certification attesting to the facts asserted.
2
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
A-3247-17T1
4
See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); see also
State v. Jones, 219 N.J. 298, 311-12 (2014).
Defendant appeals, raising a single issue:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS PLEA
COUNSEL WAS INEFFECTIVE IN FAILING TO
PURSUE MOTIONS TO SUPPRESS EYEWITNESS
IDENTIFICATION EVIDENCE AND
DEFENDANT'S CONFESSION.
We reject those arguments as without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(2), and affirm the denial of
defendant's petition substantially for the reasons set forth in Judge Blaney's
August 22, 2017 cogent and well-reasoned written opinion.
Affirmed.
A-3247-17T1
5