State of New Jersey v. Gary J. Passarelli

• Court: New Jersey Superior Court Appellate Division
• Decided: November 13, 2025
• Docket: A-0287-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0287-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY J. PASSARELLI, a/k/a JOSEPH J. POLLIN,

Defendant-Appellant. ___________________________

Submitted October 8, 2025 – Decided November 13, 2025

Before Judges Vanek and Jacobs.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 13-11- 0388.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Renee M. Robeson, Hunterdon County Prosecutor, attorney for respondent (Joseph Paravecchia, First Assistant Prosecutor, of counsel and on the brief; Georgia D. Reid, Assistant Prosecutor, on the brief). PER CURIAM

Defendant Gary J. Passarelli appeals from an order denying his petition

for post-conviction relief (PCR). The principal argument raised is that trial

counsel rendered ineffective assistance by failing to consult or retain a n

additional defense expert to support possible diminished capacity or intoxication

defenses at trial and suppression of defendant's custodial statement. The PCR

court denied relief. We affirm for substantially the reasons in Judge Angela

Borkowski's cogent sixty-four-page decision.

I.

On May 31, 2013, Raritan Township police conducted a welfare check on

John Niko. On arrival, officers found Niko dead on the living room floor of his

home with a kitchen knife embedded in his abdomen. A set of twenty-five-

pound dumbbells lay near Niko's feet, and a children's inflatable swimming pool

with a bloody footprint covered his face and chest. The post-mortem

examination and investigative findings revealed he had suffered approximately

forty stab wounds — including injuries to his feet, hands, chest, arms, and

genitals — sustained from the knife found lodged in his abdomen, as well as

multiple blunt force injuries to the head inflicted by a dumbbell, resulting in a

crushed skull.

A-0287-23 2 In the investigation that followed, defendant's connection to the scene was

supported by witness accounts, threatening voicemails, DNA testing which

indicated defendant could not be excluded as a contributor, and defendant's

statements to a third-party confessing his involvement. Defendant was arrested,

waived his Miranda1 rights after initially invoking them, and gave a videotaped

statement.

In his statement, defendant acknowledged his presence in Niko's home on

the date in question and admitted punching him three to five times before

leaving. He maintained Niko was not seriously injured but noted two African

American men entered the home as he left. This observation led to development

of a third-party defense raised at trial.

In November 2013, a Hunterdon County grand jury returned an indictment

charging defendant with first-degree murder, N.J.S.A. 2C:11-3a(1)(2); third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);

and third-degree unlawful possession of a controlled dangerous substance

(ketamine), N.J.S.A. 2C:35-10(a)(1).

1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0287-23 3 Defendant moved to suppress a statement he made to police after arrest.

The court denied defendant's motion in August 2014 and his motion for

reconsideration in October 2014.

Originally, defendant filed notice of affirmative defenses for intoxication,

self-defense, and diminished capacity. At the final charging conference,

however, defendant advised the court he did not wish to pursue those defenses

and waived his right to have the judge instruct the jury on those defenses.

Instead, consistent with his trial testimony, in which he denied killing Niko,

defendant confirmed he wished to proceed with a third-party guilt defense.

Following trial, the jury found defendant guilty on all counts. On

February 19, 2016, he was sentenced to an aggregate prison term of sixty years,

with an eighty-five percent parole ineligibility term pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

On direct appeal, we affirmed the convictions but remanded for

resentencing to consider aggravating factors three and nine, N.J.S.A. 2C:44-

1(a)(3) and (9). State v. Passarelli, No. A-2932-15T4, 2018 WL 6595928 (App.

Div. Dec. 17, 2018). The trial court, on remand, imposed an aggregate sentence

of thirty-five years imprisonment subject to NERA. The Supreme Court denied

A-0287-23 4 defendant's petition for certification on May 5, 2020. State v. Passarelli, 241

N.J. 387 (2020).

In July 2020, defendant filed a pro se PCR petition requesting assignment

of counsel. Counsel filed an amended PCR petition in June 2021. The PCR

judge heard oral argument on August 11, 2023.

Evaluating the substantive claims of ineffective assistance of counsel

under Strickland,2 Judge Borkowski, who was the trial judge, found defendant's

trial counsel investigated and made strategic decisions regarding the diminished

capacity and intoxication defenses in consultation with defendant. She

determined that expert review did not support pursuing either defense. The

judge found no evidence the failure to interview witnesses or retain additional

experts constituted deficient performance resulting in prejudice . Addressing

arguments raised in defendant's supplemental brief, she found no evidence that

defense counsel's handling of DNA evidence or cross-examination was

unreasonable or harmful. The judge also concluded references to defendant's

invocation of counsel during his police interview were fleeting and necessary

for context, and not unduly prejudicial considering the overwhelming evidence

of guilt.

2 Strickland v. Washington, 466 U.S. 668 (1984). A-0287-23 5 The judge concluded defendant failed to establish a prima facie case of

ineffective assistance or cumulative error sufficient to warrant an evidentiary

hearing or other relief. She issued an order and accompanying decision denying

defendant's PCR petition on August 29, 2023.

In denying the petition, the judge concluded none of the alleged

deficiencies or tactical decisions of defense counsel undermined confidence in

the outcome of the proceeding, nor deprived defendant of a fair trial.

Defendant filed a timely notice of appeal, raising the following arguments:

POINT I

THE PCR COURT ERRED IN RULING THAT DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF COMPETENT TRIAL COUNSEL WHERE COUNSEL FAILED TO CONSULT AND RETAIN AN EXPERT WITNESS TO SUPPORT DEFENDANT'S DEFENSES AFTER THE INITIAL PROSPECTIVE EXPERT COULD NOT RENDER AN OPINION IN SUPPORT OF DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT FROM THE CUSTODIAL INTERVIEW AND HIS DEFENSES AT TRIAL.

POINT II THE PCR COURT ABUSED ITS DISCRETION BY FAILING TO CONDUCT AN EVIDENTIARY HEARING TO ADDRESS THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CONCERNING COUNSEL'S FAILURE TO RETAIN AN EXPERT RELATING TO THE EFFECT OF

A-0287-23 6 DEFENDANT'S USE OF KETAMINE ON HIS ABILITY TO WAIVE HIS MIRANDA RIGHTS DURING THE CUSODIAL INTERVIEWAND HIS DEFENSE OF DIMINISHED CAPACITY AT THE TIME OF THE OFFENSE.

II.

In considering claims of ineffective assistance of counsel, we are guided

by Strickland, 466 U.S. 668, adopted by our Supreme Court in State v. Fritz,

105 N.J. 42 (1987). To prove ineffective assistance of counsel, a defendant must

first demonstrate that counsel's performance was deficient. Strickland, 466 U.S.

at 687. Performance is deficient when "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment." Ibid. "Judicial scrutiny of counsel's performance must be

highly deferential," and a reviewing "court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional

assistance." Id. at 689.

A claim that trial counsel was ineffective for failure to consult or retain

an expert witness requires, under the first prong, a demonstration that such a

decision was unreasonable in light of prevailing professional norms and the

circumstances of the case. Id. at 690. Mere disagreement with counsel's trial

strategy, or hindsight criticism, does not constitute constitutional deficiency.

A-0287-23 7 Ibid. "[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices

made after less than complete investigation are reasonable [only] to the extent

that reasonable professional judgments support the limitations on investigation. "

Id. at 690–91.

Next, to show prejudice, a "defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694. There is a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689.

In this context, the second prong mirrors the standard prejudice test. A

defendant must present more than bald assertions or conclusory statements.

State v. Porter, 216 N.J. 343, 355 (2013). Rather, there must be a proffer or

demonstration that the expert's testimony would probably have changed the

outcome. Strickland, 466 U.S. at 694.

"Although we must defer to the trial court respecting the factual findings

underpinning its determination, we owe no deference to the determination

itself." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div. 2004).

A-0287-23 8 "Whether the facts found by the trial court are sufficient to satisfy the applicable

legal standard is a question of law subject to plenary review on appeal. " Ibid.

Because the PCR court did not conduct an evidentiary hearing, we review

its legal and factual determinations de novo. State v. Jackson, 454 N.J. Super.

284, 291 (App. Div. 2018) (citing State v. Harris, 181 N.J. 391, 421 (2004)).

Defendant argues trial counsel's handling of potential diminished capacity

and intoxication defenses, and, in particular, trial counsel's alleged failure to

further retain a competent psychiatric or addiction expert, fell below

professional norms. The PCR record establishes that initial trial counsel

consulted with a forensic psychologist, Dr. Maureen Santina, who reviewed

available materials and interviewed defendant. Dr. Santina found no factual

basis to conclude defendant's ketamine use rendered him unable to knowingly

waive his Miranda rights or unable to act purposefully or knowingly at the time

of the offense. The record reflects trial counsel reviewed the discovery,

considered all potential defenses, and elected to focus on a third-party guilt

defense.

In denying PCR, Judge Borkowski observed that:

While it is true that before forgoing a diminished capacity defense an attorney should take investigatory steps, . . . the petitioner admits that his trial counsel did take certain investigatory steps relevant to a potential

A-0287-23 9 diminished capacity defense. Dr. Santina did appraise the defendant's mental condition and the effect of substances on his mental status so that counsel may make a competent strategy decision with respect to a diminished capacity defense. . . . The court is unable to find any caselaw which requires trial counsel to obtain several expert reports until an expert willing to support a diminished capacity defense is found.

We discern no constitutional deficiency in trial counsel's performance. As

explained in Savage, 120 N.J. at 617–18, trial counsel may be required to take

investigatory steps and, where potentially meritorious, seek and present expert

evidence. However, there is no authority requiring counsel to repeatedly seek

out experts until finding an expert willing to proffer a favorable opinion. See

Porter, 216 N.J. at 353. The record shows counsel reviewed the discovery,

consulted with a qualified expert, and made a reasonable, strategic

determination — after investigation — not to pursue the defense.

With respect to the prejudice prong, defendant proffered no affidavit or

report from any expert suggesting that, contrary to Dr. Santina's assessment,

expert testimony would have supported a diminished capacity defense or

negated his waiver of Miranda rights. The hospital records showed drug

dependency and episodic psychiatric illness but failed to demonstrate ketamine

intoxication or mental disease at the relevant time deprived defendant of the

capacity to act purposefully or knowingly or rendered his statement involuntary;

A-0287-23 10 nor was there evidence that expert testimony to this effect would likely have

altered the jury's verdict. See Porter, 216 N.J. at 353; Strickland, 466 U.S. at

694. In this context, we concur in Judge Borkowski's assessment that the records

in question "fall far short of the Baum standard, and do not support the

conclusion that [defendant]'s ketamine addiction interfered with his cognitive

ability sufficient to prevent or interfere with the formation of the requisite intent.

His thought process was intact." See State v. Baum, 224 N.J. 147 (2016).

Overall, Judge Borkowski's conclusion squares with authority

establishing that reasonable but ultimately unsuccessful trial strategy, including

tactical decisions about the utility and risks of seeking out further expert

testimony, will not support a PCR claim. See State v. Arthur, 184 N.J. 307, 320

(2005); State v. Chew, 179 N.J. 186, 217 (2004).

To obtain an evidentiary hearing on a PCR application alleging ineffective

assistance of counsel, a defendant must make a prima facie showing of deficient

performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462–63

(1992). "When determining the propriety of conducting an evidentiary hearing,

the PCR court should view the facts in the light most favorable to the defendant."

State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall, 148 N.J. 89,

158 (1997)); see also Preciose, 129 N.J. at 462–63. Based on the absence of

A-0287-23 11 such a prima facie showing, Judge Borkowski did not err in declining to conduct

an evidentiary hearing.

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0287-23 12