STATE OF NEW JERSEY VS. PETER N. RUSCH(10-03-0392, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4809-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER N. RUSCH,
Defendant-Appellant.
Submitted October 31, 2017 – Decided November 21, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 10-
03-0392.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Shiraz
Imran Deen, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Peter Rusch appeals from the denial of his petition
for post-conviction relief (PCR) without an evidentiary hearing.
For the reasons that follow, we affirm.
In a four-count indictment, defendant and co-defendant
Raymond Graziosi were jointly charged with first-degree robbery,
N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count
three). Graziosi was separately charged with third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10
(count four). Following a June 2011 jury trial, defendant was
acquitted of count two, but convicted of the remaining counts.
At sentencing on September 1, 2011, the court merged count
three with count one. The court then sentenced defendant to a
seventeen-year prison term on the robbery conviction, with an
eighty-five percent period of parole ineligibility under the No
Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and, in an unpublished opinion, we
affirmed his convictions and sentence. State v. Rusch, No. A-795-
11 (App. Div. Feb. 14, 2014). The Supreme Court denied defendant's
petition for certification. State v. Rusch, 219 N.J. 627 (2014).
The facts underlying defendant's convictions are set forth
in our earlier opinion and need not be repeated in the same level
2 A-4809-15T3
of detail here. Briefly summarizing, during the early morning
hours of July 24, 2009, the victim, George Murphy, was attacked
and robbed at knifepoint by two individuals, later identified as
defendant and Graziosi. The incident took place on the beach in
Seaside Heights. Murphy advised police that the men involved were
white, and one wore a tan hat, white tee shirt, and jean shorts,
and the other wore a red hat. The police apprehended Graziosi,
who was wearing a red hat, near the scene, and Murphy immediately
identified Graziosi as one of the perpetrators. Defendant was not
at the scene, but was arrested within a short time after police
spotted him jumping fences between houses. When questioned by
police, defendant admitted "hanging out all night" with Graziosi,
but denied any knowledge of the incident with Murphy on the beach.
Graziosi pled guilty and testified for the State at
defendant's trial. Graziosi stated he and defendant were
approached in a convenience store parking lot by Murphy, who asked
to buy drugs from them. The three men walked to the beach, where
defendant punched Murphy in the face. Graziosi then helped pin
Murphy down, while defendant held a knife to Murphy's throat and
removed cash and a wallet from Murphy's pockets. After police
apprehended Graziosi, he identified defendant as the other
individual involved in the robbery.
3 A-4809-15T3
Defendant filed a timely petition for PCR in February 2015.
PCR counsel was appointed and submitted a brief contending trial
counsel failed to: (1) object to the court's omission of a portion
of Model Jury Charge (Criminal), "Testimony of a Cooperating Co-
Defendant or Witness" (revised 2/6/06), when it was read to the
jury; (2) challenge Murphy's out-of-court identification of
defendant based on a faulty photo identification procedure; (3)
secure evidence that would have assisted in establishing a defense,
such as the convenience store surveillance video and fingerprint
evidence; and (4) pursue another altercation defendant was
involved in that evening with a female acquaintance, which could
have assisted in establishing an alibi defense. Defendant also
faulted counsel's request that defendant prepare a list of proposed
questions and anticipated answers for each witness to be called
at trial.
Judge James M. Blaney, who was not the trial judge, denied
defendant's petition by order filed on May 6, 2016. Judge Blaney
issued a comprehensive thirteen-page written opinion on the same
date setting forth his findings and reasons for denying defendant
any relief. The judge concluded defendant did not establish a
prima facie showing of ineffective assistance of counsel and,
therefore, no evidentiary hearing was required. This appeal
4 A-4809-15T3
followed, in which defendant presents the following issues for our
consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING []
DEFENDANT'S PETITION FOR POST[-]CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
POINT II
THE TRIAL COURT ERRED IN DENYING []
DEFENDANT'S PETITION FOR POST[-]CONVICTION
RELIEF, IN PART, ON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-4.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of
ineffective assistance of counsel, defendant must meet the
following two-prong test: (l) counsel's performance was deficient
and he or she made errors so egregious counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
5 A-4809-15T3
Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed.
2d at 698.
Here, defendant focuses his appeal on the statement Murphy
gave to police in which he indicated that one of the men who robbed
him wore a tan hat and the other a red hat. Murphy elaborated
that he identified Graziosi at the scene as the man with the red
hat, and it was the man wearing the tan hat who held the knife to
his throat during the robbery. When asked about the specific
features of the man wearing the tan hat, Murphy replied he had
"identified him in the pictures already."
Defendant asserts there was no mention in discovery of a
photo array or the photo identification procedure the police
utilized. He submits this implies "that in fact no photo array
was used at all and that single photos were used." Defendant
argues trial counsel was ineffective in failing to challenge this
"faulty identification procedure," and he was prejudiced because,
other than Graziosi, no other witness identified him as one of the
robbers. Defendant further contends the PCR court erred in finding
this argument was procedurally barred under Rule 3:22-4(a) because
it could have been raised on direct appeal. Defendant also argues
appellate counsel was ineffective in failing to raise the
6 A-4809-15T3
identification issue on appeal.1 After reviewing the record, we
do not find these arguments persuasive.
On direct examination by the prosecutor, Murphy was not asked
to identify defendant in the courtroom as one of the men who robbed
him, nor was he questioned about any prior out-of-court
identification he made of defendant. However, on cross-
examination, Murphy referenced the word "picture," and he was then
asked by defense counsel, "Didn't they show that person to you?"
The State sought a sidebar, during which the identification issue
was discussed. The following colloquy ensued:
[PROSECUTOR]: Judge, we discussed this at
length in chambers. The State has made every
confession on the [identification]. [Defense
counsel] has just opened that door by directly
asking him, didn't they show you pictures to
[identify] the guy with the knife. I am going
to get up there on redirect and have [Murphy]
[identify] [defendant] in court.
. . . .
[DEFENSE COUNSEL]: I did not ask him about
any pictures. I was asking him the person who
was apprehended, was he shown that person.
[THE COURT]: I think it's been pretty well
established there's a prior inconsistent
1
We decline to consider defendant's new claim of ineffective
assistance of appellate counsel because it was not previously
raised in defendant's PCR petition, was not argued before the PCR
court, and does not involve jurisdictional or public interest
concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v.
Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
7 A-4809-15T3
statement so you made your point, but now you
are going a little far afield and I do not
want anything that is going to lead to opening
the door and giving an out[-]of[-]court
identification because the State . . .
attempted not to do an out[-]of[-]court or
in[-]court identification and it will remain
such.
. . . .
I will tell this jury to disregard any
question about pictures or any answer about
pictures, okay. We will move on from there.
The judge then instructed the jury:
You are to totally and completely disregard
the question and answer that you just heard
regarding pictures. It is not to enter into
your discussions or deliberations at any time.
It is not evidence.
It is clear from the record the State had conceded the
identification issue and did not introduce an out-of-court or in-
court identification of defendant before the jury. Defendant's
contention that trial counsel should have somehow challenged an
identification that was not used at trial lacks merit. Had defense
counsel done so, the trial judge would have precluded the
questioning or, alternatively, counsel would have risked opening
the door to allow Murphy's identification testimony.
Moreover, defendant has failed to demonstrate prejudice. As
Judge Blaney aptly concluded:
Defense counsel's attempts to cross-examine
about the pictures did not fall below the
8 A-4809-15T3
standard of what a reasonable attorney should
do, and his failure to continue to do so after
the [c]ourt warned him to stop discussing the
pictures was proper. If trial counsel had
more firmly objected and eventually brought
the issue of the picture being used to
identify [defendant] at the police station,
it does not seem likely that this small bit
of evidence, in comparison with the remainder
of the evidence against him, would have caused
a different result.
The record also supports Judge Blaney's findings on
defendant's other claims. Accordingly, we are satisfied from our
review of the record that defendant failed to make a prima facie
showing of ineffectiveness of trial counsel under the Strickland-
Fritz test. The judge correctly concluded an evidentiary hearing
was not warranted. See State v. Preciose, 129 N.J. 452, 462-63
(1992).
Affirmed.
9 A-4809-15T3