STATE OF NEW JERSEY VS. SAMUEL PATRIACO, JR. (14-12-2963, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4547-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL PATRIACO, JR., a/k/a
STEPANOV ALEKSANDR,
Defendant-Appellant.
_____________________________
Submitted November 4, 2021 – Decided December 6, 2021
Before Judges Fuentes and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 14-12-2963.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Dina R. Khajezadeh,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Samuel Patriaco, Jr., appeals from the Order of the Criminal
Part denying his post-conviction relief (PCR) petition without conducting an
evidentiary hearing. We affirm.
On December 2, 2014, defendant was indicted by an Ocean County grand
jury on charges of first-degree robbery, N.J.S.A. 2C:15-1, second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-degree hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b), third-degree resisting arrest,
N.J.S.A. 2C:29-2(a), fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d), third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d), third-degree possession of a controlled dangerous
substance, N.J.S.A. 2C:35-10(a)(1), and fourth-degree possession of a weapon
by a convicted person, N.J.S.A. 2C:39-7(a).
Defendant negotiated an agreement with the State through which he
agreed to plead guilty to first-degree robbery. In exchange, the State agreed to
dismiss the remaining counts in the indictment and recommend defendant be
sentenced to an eighteen-year term of imprisonment, subject to the parole
restrictions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant reserved the right to argue for a lesser sentence.
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At the plea hearing held on June 19, 2015, the judge questioned defendant
directly to ensure he understood the terms and consequences of the plea
agreement. The judge also confirmed defendant read and answered all the
questions in the standard plea form, as well as the supplemental form that
described the parole restrictions under NERA. In response to his attorney's
questions, defendant provided the following factual basis in support of his guilty
plea:
Q. Mr. Patriaco, isn't it true you were present in Brick
Township on [September 1, 2014]?
A. I was.
Q. At that date, you approached a Gulf gas station.
Correct?
A. I did.
Q. And you saw that one of the workers . . . was
actually counting money. Correct?
A. Yes.
Q. And you took the money away from him and tried
to remove yourself from . . . the location. Correct?
A. I did.
Q. So, by doing that, you committed a theft. Correct?
A. Correct.
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Q. But as you were trying to leave, [the gasoline station
attendant] tried to retrieve his property back. Correct?
A. Yes.
Q. As a result, an altercation took place and you pulled
out a knife and actually stabbed [the gasoline station
attendant] in an effort to get away from him. Correct?
A. Correct.
Q. And that caused a cut on his, I believe in his
abdomen, that was actually very close to a vital organ.
You understand that?
A. Yes.
Q. And certainly you agree that a knife could be a
deadly weapon. Correct?
A. I do.
Q. And that the injury to him . . . he was injured as a
result. Correct?
A. Yes.
Q. And that was through in the course of your theft.
Correct?
A. Yes.
[(Emphasis added).]
The judge presiding at the plea hearing found defendant voluntarily and
knowingly waived his constitutional rights and provided a sufficient factual
basis to find him guilty of first-degree robbery.
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At the sentencing hearing held on August 7, 2015, defendant made clear
he felt no remorse for committing the robbery or for the serious injury he
inflicted on the victim. In fact, he claimed the victim brought this near-death
experience on himself:
I snatched the money off the desk and I took off
running. He chased me. He started clubbing me in the
back of the head. So, yeah, I stabbed him. And feel
remorse? No, I don't feel fucking remorse.
....
THE COURT: I see. So it was the victim's fault that
he got stabbed.
DEFENDANT: When they tell you, when you start --
I worked at a Wawa, they tell you when you get robbed,
you just give up the money.
THE COURT: Well I guess he was a loyal employee
and this is what he got for his loyalty.
DEFENDANT: Whatever.
The judge found aggravating factor N.J.S.A. 2C:44-1(a)(3), "the risk of
another offense," which she viewed as weighing "extremely heavily given
[defendant's] lack of remorse," N.J.S.A. 2C:44-1(a)(9), the "need for
deterrence," and N.J.S.A. 2C:44-1(a)(2), "the extent of harm inflicted on the
victim." The judge found mitigating factor N.J.S.A. 2C:44-1(b)(6), restitution,
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but only gave it "slight weight." Defendant was sentenced to a fifteen-year term
of imprisonment, subject to NERA.
On March 28, 2019, defendant filed a pro se PCR petition arguing
"[n]ewly discovered evidence of [l]atent-adolescent brain development and
[premature] decision making must be considered, and [d]efendant must be
resentenced so the court can re-evaluate the aggravating and mitigating factors
in light of the . . . scientific evidence." At oral argument, defendant's attorney
argued there was evidence that had not been considered at the initial sentencing
hearing -- specifically "medical information" about his late adolescent brain
development -- because his attorney failed to present evidence defendant had
the condition. Judge Guy P. Ryan denied defendant's PCR petition because
defendant did "not elaborate how plea counsel failed to properly represent him
nor does he show it prejudiced his case." The judge found that there was no
evidence supporting defendant's claims that he has "late-adolescent brain
development disorder" or that his plea attorney knew about the condition at the
time of the sentencing hearing.
Defendant raises the following argument in this appeal:
THE PCR COURT ERRED IN DENYING
MR. PATRIACO'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
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TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO PRESENT MITIGATING EVIDENCE.
Defendant also submitted a pro se supplemental brief, in which he
ostensibly provided "evidence from medical and psychological experts that will
prove that before [age twenty-five] the brain isn't fully developed." This
evidence consisted of an article entitled "Adolescent Maturity and the Brain:
The Promise and Pitfalls of Neuroscience Research in Adolescent Health
Policy."1 We reject defendant's arguments and affirm.
We review a claim of ineffective assistance of counsel under the two-
prong test established by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must first demonstrate
defense counsel's performance was deficient. Strickland, 466 U.S. at 687.
Second, he must show there exists "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
1
Sara B. Johnson et al., Adolescent Maturity and the Brain: The Promise and
Pitfalls of Neuroscience Research in Adolescent Health Policy, 45 J. Adolescent
Health 216 (2009), https://www.jahonline.org/article/S1054-139X(09)00251-
1/fulltext.
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Here, defendant did not present any competent evidence to meet the
standard for a prima facie case under Strickland. Judge Ryan found defendant
"has not supplied any medical records or diagnostic studies to support his claim.
[Defendant] has not even supplied a certification claiming he suffers or suffered
from any condition. It appears that [defendant] simply learned about this
ailment online and is now accusing his counsel of failing to raise it." We agree.
Because defendant did not make out a prima facie case of ineffective assistance,
the PCR judge correctly denied the petition without conducting an evidentiary
hearing. State v. Preciose, 129 N.J. 451, 460 (1992); R. 3:22-10(e).
Judge Ryan noted the transcript of the sentencing hearing "clearly"
contradicted defendant's allegation that his "plea counsel failed to address his
extensive drug use." Defense counsel raised defendant's drug addiction at the
sentencing hearing and specifically argued it was the "driving force behind all
[defendant's] criminal activity." He also urged the sentencing judge to find
mitigating factor N.J.S.A. 2C:44-1(b)(6), based on defendant's willingness to
pay restitution to the gas station. Judge Ryan correctly found defendant's
assertion that his plea counsel was ineffective is not supported by the record.
Affirmed.
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