STATE OF NEW JERSEY VS. NICHOLAS W. CEREGHINI (11-12-2165, 13-01-0240, 13-02-0336 AND 14-05-1363, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5222-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS W. CEREGHINI,
Defendant-Appellant.
__________________________
Submitted October 17, 2018 – Decided October 31, 2018
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment Nos. 11-12-2165,
13-01-0240, 13-02-0336 and 14-05-1363.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta Di Biase,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Nicholas Cereghini appeals from a June 28, 2017 order denying
his petition for post-conviction relief (PCR). We affirm substantially for the
reasons stated by Judge James M. Blaney in a written opinion accompanying the
order. We add the following comments.
As the result of a comprehensive plea bargain resolving three indictments,
on October 29, 2013, defendant pled guilty to first-degree robbery, third-degree
possession of a controlled dangerous substance with intent to distribute, and
fourth-degree criminal trespass. Pursuant to an additional plea bargain, on June
23, 2014, he pled guilty to third-degree burglary and other offenses that he
committed after his October 29 guilty plea but before his scheduled sentencing
date. On September 19, 2014, the court sentenced defendant, as though he were
a second-degree offender, to nine years in prison subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2, for the first-degree robbery charge. The court also
imposed a consecutive term of three years for the burglary, and imposed
concurrent terms for all of the remaining charges. We affirmed the sentence on
direct appeal, but remanded to give defendant additional jail credits to which the
State agreed he was entitled. State v. Cereghini, No. A-1795-14 (App. Div. July
29, 2015).
A-5222-16T3
2
Defendant then filed a PCR petition, claiming that his trial counsel should
have pursued a Miranda1 motion, instead of withdrawing the motion. Judge
Blaney issued a cogent written opinion explaining his reasons for denying the
PCR petition. Significantly, the judge concluded that the State had strong
evidence against defendant even without his statement, and defendant's trial
counsel obtained a very favorable plea offer for him, which would not have been
available if he had insisted on pursuing the Miranda motion. In other words, it
would not have been rational for defendant to refuse the plea bargain and instead
insist on going ahead with the Miranda motion and the trial. See State v.
Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).
On this appeal, defendant presents the following points of argument:
POINT I: THE DEFENDANT WAS DENIED THE
RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I, PAR. 10 OF THE
NEW JERSEY CONSTITUTION.
POINT II: THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5222-16T3
3
Based on our review of the record, we conclude those arguments are
without sufficient merit to warrant discussion, beyond the following brief
comments. R. 2:11-3(e)(2).
Defendant contends that the Miranda motion would have been granted,
because the police questioned him first, and then administered the Miranda
warnings. However, defendant does not address whether it would have been
rational to pursue the motion instead of taking the plea bargain he was offered.
Additionally, defendant did not submit a certification or other legally competent
evidence explaining what allegedly ineffective advice his trial counsel gave him,
or attesting that defendant did not want to withdraw the motion. Further, the
plea transcripts disclose that defendant was well aware of his right to continue
the Miranda hearing, and he chose to abandon that course of action. At the
October 29, 2013 plea hearing, the judge stated that there was a pending Miranda
hearing but the motion would probably be withdrawn. At the June 23, 2014 plea
hearing, the judge reminded defendant that even if he confessed to the offenses,
he had a right to have hearings prior to trial. When asked, "Are you giving up
your right to those hearings?" defendant responded, "Yes."
To prevail on his PCR petition, defendant needed to demonstrate that, due
to his attorney's ineffective representation, he pled guilty when he otherwise
A-5222-16T3
4
would have insisted on going to trial. State v. DiFrisco, 137 N.J. 434, 457
(1994). Defendant also needed to establish that it would have been rational to
reject the plea offer and go to trial. Maldon, 422 N.J. Super. at 486. In his PCR
petition, defendant did not present evidence that his attorney was ineffective,
that it would have been rational to proceed with the Miranda hearing, or that
defendant did not want to waive the hearing and accept the plea deal.
Consequently, he did not present a prima facie case of ineffective assistance of
counsel, and Judge Blaney correctly decided the petition without an evidentiary
hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
A-5222-16T3
5