STATE OF NEW JERSEY VS. ANTHONY GRANATA (10-05-0698, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3001-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY S. GRANATA a/k/a
TONY GRANATA, ANTHONY S.
GRANATA, JR., ANTHONY S.
GRANATO, ANTHONY GRANATO,
ANTHONY SAL GRANATA,
ANTHONY S. CAPUTO, ANTHONY S.
PANCONE, ANTHONY M. PANCONE,
ANTHONY S. BEUCCI, ANTHONY
NAVARRO, and TONY PANCONE,
Defendant-Appellant.
Submitted September 24, 2019 – Decided September 30, 2019
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 10-05-
0698.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Anthony Granata appeals from an order dismissing his petition
for post-conviction relief (PCR) following an evidentiary hearing. Defendant
claims his trial counsel was ineffective by failing to call two witnesses at trial.
Because the reasons expressed in the PCR judge's written opinion are supported
by sufficient credible evidence adduced at the hearing, we affirm.
The circumstances leading to defendant's arrest and conviction are more
fully described in our prior decision affirming the conviction and sentence on
direct appeal. State v. Granata, No. A-5962-11 (App. Div. Sept. 8, 2014) (slip
op. at 1-6), certif. denied, 221 N.J. 219 (2015). Relevant here, Woodbridge
Police Officers executed a search warrant at defendant's home. Defendant was
present in the living room at the time of the search. Another man – who was not
identified by police – was found at the top of the second floor stairs. Officers
seized a loaded 9mm handgun from a dresser in the back of a closet of the master
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bedroom. Drug paraphernalia, and small amounts of cocaine and marijuana
were seized from various locations throughout the house.
Prior to trial, defendant told his attorney that F.V.1 was the other man
present during execution of the search warrant. F.V., who had known defendant
for thirty years, provided a video-recorded statement to defense counsel's private
investigator confirming his presence in the home. F.V. said defendant was in
the process of renting a bedroom to someone, but F.V. did not know who that
"guy" was or which room he was renting. F.V. did not testify at trial.
The State's investigation revealed the handgun was registered to a
deceased Highland Park police officer. Police interviewed F.M., who was the
son-in-law of that officer. F.M. said his wife found "a bunch of guns" in her
father's house approximately twelve years after he died. F.M.'s wife and her
aunt "supposedly" turned over all of the firearms to the Highland Park Police
Department. F.M. had no idea how one of those guns made its way to
defendant's residence. Although F.M. acknowledged he knew F.V., F.M. told
police: he did not give the gun to F.V.; he would have turned over the gun to
police had he known about it; and he never introduced his wife to F.V. F.M. did
not testify at trial.
1
We use initials to protect the privacy of the witnesses.
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Following a jury trial, defendant was convicted of all five counts charged
in a Middlesex County indictment, including second-degree possession of a
firearm in the commission of a drug offense, N.J.S.A. 2C:39-4.1, pertaining to
the drugs and handgun seized from his residence. Defendant was sentenced to
an aggregate ten-year prison term with a six-year period of parole ineligibility.
After the Supreme Court denied certification, defendant filed a PCR
petition. Defendant raised several arguments challenging his counsel's
effectiveness. The PCR judge, who also had presided over the trial and
sentencing proceedings, conducted an evidentiary hearing. The judge limited
the hearing to defendant's contention that defense counsel's representation was
deficient for failing to "subpoena two witnesses with potentially exculpatory
evidence to testify, and did not even interview one of them." Those witnesses,
"may have had information that would have persuaded the jury to believe that
someone else may have been in possession of the handgun."
At the one-day hearing, defendant presented the testimony of his counsel.
Defendant also introduced in evidence the video-recorded statement of F.V. and
the transcript of F.M.'s recorded statement. Defendant did not testify at the
hearing.
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Having practiced law since 1969, defense counsel testified to his vast
experience as a county and municipal prosecutor, and criminal defense attorney.
Although the trial occurred five years before the hearing, counsel clearly
recalled discussing his strategy with defendant. That strategy focused on
defendant as "a user, as opposed to an individual who was possessing drugs
with the intent to distribute, even though there were certain indicia that w[ere]
found during the execution of the search warrant[] that would indicate that could
be a possibility."
Defense counsel acknowledged another aspect of his strategy involved the
"poorly executed investigation[] and search warrant[,]" so "that argument was
better served by not identifying [F.V.] to the jury." Counsel ultimately
concluded F.V. and F.M. "had utterly nothing to offer [the defense] as a witness
in this trial." Indeed, counsel and defendant discussed the "major concern" that
permeated the case, i.e., "[defendant] said it was not his gun; but, it was . . .
located[] in a part of the house[,] which he was residing in."
Following the hearing, the PCR judge issued an order and written decision
denying defendant's petition. This appeal followed.
On appeal, defendant raises a single point for our consideration:
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] BECAUSE
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DEFENDANT ESTABLISHED TWO OTHER MEN
HAD A CONNECTION TO THE RECOVERED GUN
WHICH WOULD HAVE RAISED REASONABLE
DOUBT WITH THE JURY.
Our review of a PCR claim after a court has held an evidentiary hearing
"is necessarily deferential to a PCR court's factual findings based on its review
of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an
evidentiary hearing has been held, we should not disturb "the PCR court's
findings that are supported by sufficient credible evidence in the record." State
v. Pierre, 223 N.J. 560, 576 (2015) (citation omitted). We review any legal
conclusions of the trial court de novo. Nash, 212 N.J. at 540-41.
In seeking post-conviction relief, a defendant must prove counsel was
ineffective by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339,
350 (2012). A defendant must prove counsel's performance was deficient; it
must be demonstrated that counsel's handling of the matter "fell below an
objective standard of reasonableness" and that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in
New Jersey).
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A defendant must also prove counsel's "deficient performance prejudiced
the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing
a "reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694. Thus, a defendant
must establish that counsel's performance was deficient and the defendant
suffered prejudice in order to obtain a reversal of the challenged conviction. Id.
at 687; Fritz, 105 N.J. at 52.
In the present matter, the PCR judge soundly recognized defendant failed
to satisfy either prong of the two-part Strickland test. As to the first prong, the
judge reasoned:
Counsel's decisions are afforded extraordinary
deference and the decision to call witnesses [is] part of
trial strategy. If trial strategy does not work, this itself
does not make counsel ineffective. It was counsel's
decision to suggest that calling [F.V.] or [F.M.] would
not have served [d]efendant because both men
disavowed ownership of the gun. Moreover, . . .
[d]efendant has failed to offer any additional evidence
that [F.V.] or [F.M.] would have testified any
differently than they did in their taped statements.
Regarding the second prong, the judge concluded defendant did not establish
that had F.V. and F.M. testified, "the outcome of the trial would have been
different."
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We have long recognized trial strategy is clearly within the presumptive
discretion of competent trial counsel. See State v. Coruzzi, 189 N.J. Super. 273,
321 (App. Div. 1983). Strategic decisions are presumed to fall "within the wide
range of reasonable professional assistance." State v. Arthur, 184 N.J. 307, 318-
19 (2005). "Determining which witnesses to call to the stand is one of the most
difficult strategic decisions that any trial attorney must confront." Id. at 320.
The decision is generally informed by the testimony expected to be elicited ; the
possibility of impeachment, both by prior inconsistencies or conflicting
testimony by other witnesses; and the witness's general credibility. Id. at 320-
21. Indeed, we must accord substantial deference to trial counsel's decisions on
which – if any – witnesses to present, which is overcome only if a defendant
shows a strategic decision was based upon a lack of trial preparation. Id. at 323.
Having reviewed the record, in view of the parties' arguments, we are
satisfied defense counsel properly considered, investigated, and ultimately
rejected – for perfectly valid strategic reasons – calling F.V. and F.M. as defense
witnesses. Counsel's investigator interviewed F.V., whose statements did not
advance defendant's arguments; F.M.'s statement to police clearly indicated he
had no knowledge of the weapon found in defendant's home. We accept the
PCR judge's determination that defendant failed to prove either prong of the
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Strickland standard. We therefore see no reason to disturb his findings, which
are fully supported by the record and are entitled to our deference. State v.
Robinson, 200 N.J. 1, 15 (2009).
Affirmed.
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