State of New Jersey v. Troy Bunero ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3112-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY BUNERO,
Defendant-Appellant.
_________________________
Submitted January 9, 2024 – Decided April 15, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-02-0010.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Adam David Klein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Troy Bunero, a former supervisor in the North Bergen
Department of Public Works (DPW), was indicted on February 20, 2014, for his
role in a scheme diverting DPW resources for private use. The nine-count
indictment included a count for third-degree theft by unlawful taking or
disposition, N.J.S.A. 2C:20-3(a) and 2C:2-6, alleging defendant "knowingly did
unlawfully take or exercise unlawful control over the movable property of
[DPW], including tools, equipment, vehicles, and employee services, including,
but not limited to" by directing DPW employees to "work on one or more
election campaigns" and perform work on defendant's home, his co-defendant's
car, and another DPW supervisor's home, "for which they were paid for regular
or overtime hours by [DPW]."
Defendant pled not guilty to all counts. At trial, the court indicated it
planned to instruct the jury on theft of services, N.J.S.A. 2C:20-8(b), instead of
theft by unlawful taking, pursuant to the theft consolidation statute, N.J.S.A.
2C:20-2(a). A week later,1 the court issued the jury instructions, quoting the
theft of services statute and describing the crime as "theft as a third[-]degree
1
We briefly stayed the trial, allowing the State to file an emergent motion for
leave to appeal the trial court's order to charge the jury on the affirmative defense
of duress, N.J.S.A. 2C:2-9(a). The State's leave to appeal was granted and the
trial court's order was summarily reversed.
A-3112-21
2
offense." The jury found defendant guilty on all counts, and he was
subsequently sentenced to a five-year prison term. The conviction was affirmed
on direct appeal. State v. Bunero, No. A-2126-15 (App. Div. Apr. 2, 2018),
certif. denied, 235 N.J. 464 (2018). 2
Following his unsuccessful direct appeal, defendant petitioned for post-
conviction relief (PCR), alleging ineffective assistance of counsel. The petition
was denied without an evidentiary hearing on December 5, 2019. We affirmed
in part but remanded for the PCR judge to address defendant's claim that his trial
counsel rendered ineffective assistance by failing to object to the trial court's
jury instruction on theft of services. State v. Bunero, No. A-1896-19 (App. Div.
May 3, 2021) (slip op. at 11).
On February 28, 2022, PCR Judge Angelo Servidio, who replaced the
retired initial PCR judge, issued an order denying defendant's claim without an
evidentiary hearing and a written opinion supplementing the initial PCR judge's
decision. Judge Servidio reasoned the indictment alleged defendant used
township workers' services for private use, giving him sufficient "notice that
theft of services was within the four corners of his [i]ndictment." State v. Talley,
2
Separately, we reversed a trial court order granting defendant's bail pending
appeal. State v. Bunero, No. A-1848-15 (App. Div. June 21, 2016).
A-3112-21
3
94 N.J. 385, 390-93 (1983); Cannel, New Jersey Criminal Code Annotated, cmt.
2 on N.J.S.A. 2C:20-2 (2020) (observing "the common unifying conception in
all theft offenses is the 'involuntary transfer of property'" without the owner's
consent). Thus, the theft consolidation statute allowed the trial court "to charge
the jury on theft of services" and trial counsel was not ineffective when trial
counsel failed to oppose this instruction.
In a single point, defendant argues before us:
MR. BUNERO IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT COUNSEL
RENDERED INEFFECTIVE ASSISTANCE BY
FAILING TO OBJECT TO A JURY CHARGE ON
THEFT OF SERVICES.
PCR is appropriate when a criminal defendant was substantially denied a
constitutional right, such as the right to effective assistance of counsel. R. 3:22-
2(a); State v. Gideon, 244 N.J. 538, 550 (2021). To establish ineffective
assistance of counsel, the defendant must show: 1) "counsel's performance was
deficient," and 2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). The failure to file a meritless motion is not ineffective assistance of
counsel. State v. O'Neal, 190 N.J. 601, 619 (2007).
A-3112-21
4
An evidentiary hearing is held "only upon the establishment of a prima
facie case in support of post-conviction relief." R. 3:22-10(b). A "prima facie
case" requires a defendant "demonstrate a reasonable likelihood that his or her
claim, viewing the facts alleged in the light most favorable to the defendant, will
ultimately succeed on the merits," ibid., and must be supported by "specific facts
and evidence supporting his allegations," State v. Porter, 216 N.J. 343, 355
(2013). "We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion." State v. Peoples, 446 N.J. Super.
245, 255 (App. Div. 2016) (citing State v. Preciose, 129 N.J. 451, 462 (1992)).
Applying these principles, we conclude defendant's contentions lack
sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and
affirm substantially for the reasons expressed in Judge Servidio's thorough and
cogent thirteen-page written decision. We add these brief remarks.
The theft consolidation statute provides, in pertinent part:
Conduct denominated theft . . . constitutes a single
offense . . . . A charge of theft . . . may be supported
by evidence that it was committed in any manner that
would be theft . . . under this chapter, notwithstanding
the specification of a different manner in the indictment
. . . [unless] the defense would be prejudiced by lack of
fair notice or by surprise.
[N.J.S.A. 2C:20-2(a) (emphasis added).]
A-3112-21
5
Considering the charges against defendant, the statute allowed the trial
court to instruct the jury on theft of services. The indictment alleged defendant
had DPW employees renovate homes, repaint his co-defendant's car, and work
on external election campaigns, all at DPW's expense. Theft of services requires
showing the defendant, "having control over the disposition of services of
another, to which he is not entitled, . . . knowingly divert[ed] such services to
his own benefit or to the benefit of another not entitled thereto." N.J.S.A. 2C:20-
8(b). Because "defendant was provided with adequate notice of the charges"
that were ultimately given to the jury, State v. Dorn, 233 N.J. 81, 96 (2018),
there is no merit to his claim that counsel was ineffective for not objecting to
the trial court's theft of services jury instruction. In failing to make a prima facie
showing of ineffective assistance of counsel under Strickland, defendant was
not entitled to an evidentiary hearing.
Affirmed.
A-3112-21
6