State of New Jersey v. Daniele G. Romeodisantillo ( 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NOT FOR PUBLICATION WITHOUT THE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-0209-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIELE G.
ROMEODISANTILLO,
Defendant-Appellant.
__________________________
Submitted January 29, 2024 — Decided February 7, 2024
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-12-2378.
The Pope and Hascup Law Group, PC (Anthony J.
Pope, of counsel and on the briefs).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; William Kyle Meighan,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Daniele G. RomeoDiSantillo appeals from an August 15, 2022
order denying his petition for post-conviction relief (PCR). We affirm.
In State v. RomeoDiSantillo, No. A-4457-16 (App. Div. July 5, 2019) (slip
op. at 53), we affirmed defendant's convictions on several offenses, including
the first-degree murder of the victim, Peyman Sanandaji. "Defendant managed
Romeo's Pizza and Pasta Factory, a restaurant located on Romeo's Plaza in
Jackson. His father owned the pizza parlor and several other businesses,
including Casanova's, a restaurant business closed for renovations located next
door to the pizza parlor where defendant worked." Id. at 3.
Sanandaji went into business with defendant, and over the course of
several months during 2014, transferred money to defendant without receiving
returns from their business ventures. This caused a financial strain on
Sanandaji's lifestyle and drained funds he and his girlfriend, Kadia Tavarez,
relied upon to meet their needs. The situation soon came to a head between
Sanandaji and defendant, which we described as follows:
On April 7, 2015, Sanandaji sent a text message
to Tavarez, which read: "In [forty-eight] hours we will
be okay again," with a dollar sign. She responded
"[g]ood," to which he replied: "$$Very Good$$."
At 5:44 p.m. the previous day, however,
defendant had sent a text message from his phone to an
unidentified individual, saying: "But. He thinks. This.
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Big. Payday is coming and it's not." [1] Ocean County
Prosecutor's Office Detective David Brubaker reviewed
defendant's cell phone data and testified that the entire
text thread referred to Sanandaji.
[Id. at 7 (alterations in original).]
Two days later Sanandaji met defendant and co-defendant, Hector
Calderon, at Casanova's for dinner and Calderon shot and killed Sanandaji.
Based on the physical and circumstantial evidence the State gathered after the
shooting, a grand jury indicted defendant and Calderon for the murder and other
offenses.
Among the witnesses presented on behalf of the defense at trial was
defendant's father, who testified he was unaware of any business relationship
between defendant and Sanandaji, but "[h]e understood that defendant and
Sanandaji were going to help Calderon with the purchase of the pizzeria." Id.
at 23-24. Defendant's father also testified he owned five strip malls and had an
estimated worth of $42 million. He stated Casanova's was being remodeled at
the time of the incident and confirmed the workers and defendant would wear
latex gloves on site, which police found following the murder. He testified
Calderon entered a contract with him to buy a pizzeria in Spotswood. However,
1
For the purposes of this opinion, we will refer to defendant's text to the
unknown individual as the "payday text."
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on cross-examination he admitted he told police he was not "aware of any
business relationship between [Calderon] and [defendant]" and was not "aware
of any business relationship between [Sanandaji] and defendant." This
testimony countered the defense's theory defendant, Calderon, and Sanandaji
had a bona fide interest in purchasing two of his pizzerias.
Defendant's PCR petition argued the court should grant him a new trial.
Alternatively, he sought an evidentiary hearing to address his claims of
ineffective assistance of trial counsel based on evidence outside the trial record.
Relevant to this appeal, defendant claimed trial counsel's failure to prepare
for trial by reviewing all the text message evidence—including the payday
text—and calling defendant's father to testify, prejudiced the case. Counsel also
erred by not calling defendant as a witness to explain the text messages and
clarify his father's testimony. Additionally, counsel should have accepted the
trial court's proposal to give the jury a limiting instruction that it should not
speculate what the payday text was about.
Defendant argued trial counsel was ineffective for calling his father as a
witness without preparing him to testify. He asserted his father's testimony
regarding whether defendant, Sanandaji, and Calderon had business dealings
was contradictory and hurt the defense. Further, trial counsel was ineffective
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for failing to have the court instruct the jury not to draw an adverse inference
regarding his decision not to testify.
Judge Guy P. Ryan heard defendant's petition and issued a detailed written
opinion denying it. He found trial counsel was not ineffective for calling
defendant's father because he rebutted the State's theory that defendant paid
Calderon $8,000 to murder Sanandaji. Defendant's father testified he received
$8,000 from Calderon in installments of $5,000 and $3,000, which Calderon told
police he received from defendant as a down payment to purchase the
Spotswood pizzeria. As a result, the judge noted: "Ultimately, the jury found
the State did not prove the aggravating factor of paying Calderon for the
murder," and "trial counsel succeeded in preventing the State from obtaining a
mandatory life sentence without the possibility of parole."
Moreover, defendant's father "testified to the considerable financial
resources owned by the family and defendant's future as the owner of his father's
many businesses." This rebutted the State's theory that defendant needed
Sanandaji's money.
The judge concluded the decision to call defendant's father was strategic
and "designed to bolster certain key aspects of defendant's case-in-chief." Even
if defendant's assertion regarding the father's cross-examination was correct,
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counsel was not ineffective because the father's testimony "appears . . . to be the
reason defendant has some prospect of being released on parole in his lifetime."
The judge rejected defendant's assertion trial counsel was ineffective for
not reviewing the text messages, noting that trial counsel advised the court he
received 15,000 text messages in discovery and performed a word search for
messages involving language relevant to the case. Further, defense counsel
opposed the admission of the payday text at the N.J.R.E. 104 hearing.
Indeed, the State sought to admit the payday text, which in its original
form read as follows: "But he thinks this big[ ]pay day is coming and it's not[.]
[T]hat's w[h]ere this mo f***er is gonna end up having to shoot himself. I ain't
going back to [two] years ago koto f*** that." Defense counsel opposed the
State's motion and, although he conceded he did not see these specific texts, he
convinced the trial judge to omit everything except the first portion, which read:
"But he thinks this big[ ]pay day is coming and it's not[.]"
Judge Ryan found trial counsel was not ineffective for stipulating to the
admissibility of the payday text because
[t]he record makes clear, after the text message was
admitted, trial counsel utilized it to support his theory
defendant was being pressured by [Sanandaji] to pay
back the money [Sanandaji] had invested in the
partnership. Yet, because the partnership agreement
did not allow for such a payment, [Sanandaji] got angry
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and started a fight before Calderon ultimately shot and
killed him.
The judge concluded defense counsel's stipulation of the text into evidence
"constituted trial strategy" and defendant's claim it was ineffective assistance of
counsel lacked merit.
As a result, the judge also rejected defendant's argument trial counsel was
ineffective for not accepting the trial judge's invitation for a limiting instruction
because "such an instruction would go against the defense's theory of the case
that [Sanandaji] was demanding money he was not entitled to . . . [and] would
have contradicted the idea that defendant rightfully did not owe [Sanandji]
money from the partnership . . . ." This too was a strategic decision by trial
counsel and defendant's assertion the "decision affected the jury's interpretation
of the evidence against defendant is speculative and irrelevant" to whether
counsel was ineffective.
The judge rejected defendant's assertion trial counsel was ineffective for
advising defendant not to testify. Defendant's certification in support of his PCR
petition noted counsel conducted a mock trial and ultimately advised him not to
testify. The judge also noted defendant had given police three separate
statements and "would have been subject to extensive cross-examination on
those statements as well as his peculiar behavior on the night of the shooting."
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We previously detailed defendant's behavior the night of the murder.
RomeoDiSantillo, slip op. at 9, 11-13, 15-21. The judge found if defendant
testified and even slightly deviated from the statements he gave police, it would
"cause a substantial impact on his credibility before the jury."
The judge concluded it was "abundantly clear trial counsel advised
defendant on the advantages and disadvantages of testifying." Moreover, he
noted the trial judge and trial counsel extensively voir dired defendant about his
right to testify and he clearly declined to do so.
The judge rejected defendant's assertion counsel was ineffective for not
having the court instruct the jury regarding his election not to testify. He noted
the jury had been instructed during jury selection that
[a] defendant in a criminal case has the absolute right
to remain silent and has the absolute right not to testify.
If a defendant chooses not to testify, the jury is
prohibited from drawing any negative conclusions from
that choice. The defendant is presumed innocent
whether he testifies or not.
Following summations, the trial judge instructed the jury as follows: "The
defendant in a criminal case has no obligation or duty to prove his or her
innocence or offer any proof relating to his or her innocence."
Judge Ryan further noted "defendant's extensive statements to the police
were played for the jury throughout trial and were summarized again by trial
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counsel during summation." Also, there was "no suggestion the State
improperly commented on defendant's decision not to testify."
The judge concluded the decision not to request the instruction was "sound
trial strategy" because "counsel did not wish to draw attention to defendant's
decision not to testify and instead wanted the jurors to focus on defendant 's
recorded statements to the police which were played in their entirety at trial ."
Defendant's statements to police following the murder were consistent with the
defense theory of the case "that Calderon shot [Sanandaji] after a disagreement
arose between Calderon and [Sanandaji]."
Defendant raises the following arguments on this appeal:
I. DEFENDANT IS ENTITLED TO A NEW
TRIAL BECAUSE HIS ATTORNEY'S ERRORS
THAT ARE EVIDENT IN THE RECORD
ESTABLISH THAT DEFENDANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL WHEN,
WITH RESPECT TO A CRITICAL PIECE OF
EVIDENCE, DEFENDANT'S ATTORNEY
DECLINED THE TRIAL JUDGE'S OFFER TO LIMIT
HOW THE JURY COULD CONSIDER THE
EVIDENCE AND HE SUBSEQUENTLY FAILED TO
REBUT THE PROSECUTION'S INTERPRETATION
OF THE EVIDENCE AND DEFENSE COUNSEL DID
NOT ENSURE THAT THE JURY WOULD RECEIVE
AN INSTRUCTION RELATING TO DEFENDANT'S
DECISION NOT TO TESTIFY.
A. Defense Counsel's Trial Performance Was
Deficient Based On His Errors That Are Clear
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From Evidence In The Record Because He Failed
To Rebut The Prosecution's Interpretation Of A
Critical Piece Of Evidence And He Failed To
Ensure That Jurors Would Be Instructed Not To
Draw Negative Inferences From Defendant's
Silence.
B. Defendant Suffered Substantial Prejudice
As A Result Of Defense Counsel's Deficient
Performance At Trial In Ways That Are Clear
From Evidence In The Record Because Of
Defense Counsel's Failure To Rebut A Critical
Piece Of Evidence And His Failure To Insist
Upon A Jury Charge Instructing Jurors Not To
Draw Negative Inferences From Defendant's
Silence.
II. ASSUMING[] ARGUENDO, THAT
DEFENDANT HAS NOT ESTABLISHED
ENTITLEMENT TO A NEW TRIAL, DEFENDANT
IS ENTITLED TO A FULL EVIDENTIARY
HEARING BECAUSE HIS CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL IS
BASED ON EVIDENCE THAT LIES OUTSIDE OF
THE RECORD SUCH AS DEFENSE COUNSEL'S
ALLEGED INADEQUATE PREPARATION FOR
TRIAL THAT RESULTED IN HIS FOOLISH
DECISION TO CALL A WITNESS, HIS FAILURE
TO PROPERLY DEAL WITH EVIDENCE
PRESENTED AT TRIAL, AND HIS POOR ADVICE
TO DEFENDANT REGARDING HIS RIGHT TO
TESTIFY.
A. Defense Counsel's Trial Performance Was
Deficient Because He Failed To Familiarize
Himself With A Critical Piece Of Evidence That
Had Been Provided In Discovery, He Failed To
Conduct The Necessary Preparation Prior To
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Calling A Key Witness, He Offered Faulty
Advice To Defendant Regarding His Right To
Testify, And He Failed To Request A Jury
Instruction Relating To The Defendant's Choice
To Exercise His Right To Remain Silent.
B. Defense Counsel's Deficiencies At Trial
Caused Defendant To Suffer Prejudice Because
Defense Counsel's Lack Of Adequate Preparation
And Poor Judgement Resulted In Testimony
From A Defense Witness Who Predictably
Supported The State's Theory Of The Case, The
Jury Hearing Only The State's Interpretation Of
The Significance Of A Key Piece Of Evidence,
And Defendant Not Receiving The Benefit Of A
Jury Instruction To Not Draw A Negative
Inference From Defendant's Decision Not To
Testify.
I.
Ineffective assistance of counsel claims must satisfy the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by
the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 57-58 (1987). The
Strickland test requires a petitioner to show: (1) the particular way counsel's
performance was deficient; and (2) that the deficiency prejudiced their right to
a fair trial. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.
This is because there is a strong presumption counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at 690. Therefore, counsel's errors
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"even if professionally unreasonable" will not require setting aside a judgment
if they had no effect on the judgment. Id. at 691. Prejudice is not presumed,
Fritz, 105 N.J. at 52, and a defendant must demonstrate "how specific errors of
counsel undermined the reliability" of the proceeding. United States v. Cronic,
466 U.S. 648, 659 n.26 (1984).
Further, "complaints 'merely of matters of trial strategy' will not serve to
ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (quoting
State v. Williams, 39 N.J. 471, 489 (1963)). "[A] defense attorney's decision
concerning which witnesses to call to the stand is 'an art[]' and a court's review
of such a decision should be 'highly deferential.'" State v. Arthur, 184 N.J. 307,
321 (2005) (internal citation omitted) (quoting Strickland, 466 U.S. at 689, 693).
The decision whether to call a witness is generally informed by the testimony
expected to be elicited and the possibility of impeachment. Ibid.A defendant is entitled to an evidentiary hearing if they present a prima
facie case supporting PCR, the court determines there are material issues of fact
that cannot be resolved based on the existing record, and the court finds an
evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);
see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). When
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a PCR court does not hold an evidentiary hearing, our review is de novo. State
v. Harris, 181 N.J. 391, 421 (2004).
Pursuant to these principles and having conducted a de novo review of the
record, we affirm substantially for the reasons expressed in Judge Ryan's
thorough and well-written opinion. We add the following comments.
Contrary to defendant's arguments on appeal, the record does not convince
us defense counsel was "blindsided" by the texts and simply acquiesced to their
admission. The opposite is true. Counsel opposed the State's motion and let in
evidence he could build the defense narrative around.
Counsel's declination of the trial judge's offer to give the jury a limiting
instruction also was not ineffective assistance of counsel, as the judge proposed
to tell the jury to treat the texts as evidence that defendant knew he owed
Sanandaji money. This would only favor the State by compounding its narrative
and dispel the defense narrative that the business venture was not making money
and therefore Sanandaji was not owed money.
To the extent we have not addressed an argument raised on this appeal, it
is because it lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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