STATE OF NEW JERSEY v. PETER L. CARATINI (09-06-1118, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 22, 2022
• Docket: A-1708-20
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1708-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER L. CARATINI,

Defendant-Appellant.

Submitted March 16, 2022 – Decided March 22, 2022

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-06-1118.

Joseph E. Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief).

Appellant filed a pro se supplemental brief. PER CURIAM

Defendant Peter L. Caratini appeals from a June 16, 2020 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm because the petition was untimely filed and otherwise lacked merit.

Following a jury trial in 2010, defendant was convicted of multiple crimes

charged in a Bergen County indictment – including aggravated sexual assault

and endangering the welfare of a child – for sexually assaulting his live-in

girlfriend's daughter. The victim testified the abuse began when she was twelve

or thirteen years old, occurred twice weekly, and finally ceased when she

attended college after reporting the incidents to a college campus psychologist.

Defendant filmed some of the acts.

The State's proofs at trial also included defendant's post-arrest statement

to police, admitting he began sexual relations with the victim when she was

fifteen or sixteen years old. Testifying on his own behalf at trial, defendant

acknowledged he waived his Miranda1 rights, but contended he was still

intoxicated from the evening before and misspoke under the officers' rapid -fire

questioning. Defendant told the jury his romantic relationship with the victim

1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1708-20 2 commenced at her behest, when she was nearly eighteen years old, and it was

her idea to videotape their encounters.

Defendant was sentenced in October 2010 to an aggregate prison sentence

of forty years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We

affirmed defendant's convictions and sentence but remanded to correct certain

fines. State v. Caratini, No. A-5399-11 (App. Div. Aug. 21, 2015). The Court

denied certification. 224 N.J. 526 (2016).

More than eight years after the judgment of conviction (JOC) was entered,

defendant filed a pro se petition for PCR in March 2019. His accompanying

195-page pro se brief raised eight points, asserting a variety of overlapping trial

errors, and that his sentence was "manifestly excessive." Defendant also

claimed trial counsel was ineffective.

PCR counsel thereafter filed a supplemental brief, arguing an evidentiary

hearing was necessary to explore defendant's contentions that trial counsel failed

to properly investigate and prepare defendant's case. Acknowledging the

petition was untimely, PCR counsel contended defendant's "various illnesses"

excused his nearly three-and-a-half-year delay in filing for PCR.

Following argument, Judge James X. Sattely reserved decision. The

following month, the judge issued a cogent written opinion, denying PCR as

A-1708-20 3 time-barred and otherwise lacking in merit. Judge Sattely squarely addressed

the issues raised in view of the requirements set forth in Rule 3:22-12(a)(1)(A)

(prohibiting the filing of a PCR petition five years after entry of the JOC unless

the defendant demonstrates "excusable neglect" and "a reasonable probability

that if the defendant's factual assertions were found to be true[,] enforcement of

the time bar would result in a fundamental injustice").

Noting defendant's petition was devoid of "any documentation or medical

records" substantiating his reasons for the delay, the PCR judge determined

defendant failed to establish excusable neglect that would otherwise warrant

relaxation of the five-year time bar under the Rule. Id. Citing our Supreme

Court's decision in State v. Mitchell, 126 N.J. 565 (1992), the judge further

found the State would suffer "a great deal of prejudice" in this case, where the

trial had concluded about a decade ago, see id. at 575 ("Achieving 'justice' years

after the fact may be more an illusory temptation than a plausibly attainable goal

when memories have dimmed, witnesses have died or disappeared, and evidence

is lost or unattainable.").

Notwithstanding the time bar, the PCR judge denied defendant's petition

on the merits under the framework established in Strickland v. Washington, 466

U.S. 668, 687 (1984) (requiring a defendant seeking PCR on ineffective

A-1708-20 4 assistance of counsel grounds to demonstrate: (1) the particular manner in which

counsel's performance was deficient; and (2) that the deficiency prejudiced

defendant's right to a fair trial); see also State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland two-part test in New Jersey).

Following his searching review of defendant's pro se and counseled briefs,

the PCR judge concluded defendant's contentions "that trial counsel failed to

investigate, prepare, or litigate the case" were unsupported by any "concrete or

specific examples." In essence, defendant cited no instances demonstrating trial

counsel's performance was deficient, or his defense was prejudiced. Because

defendant failed to establish a prima facie case of ineffective assistance of

counsel, the PCR judge concluded defendant was not entitled to an evidentiary

hearing. See e.g., State v. Jones, 219 N.J. 298, 311 (2014); State v. Preciose,

129 N.J. 451, 462 (1992). This appeal followed.

On appeal, defendant raises the following points 2 for our consideration:

POINT I

THE PCR COURT ERRED IN FINDING THAT THE PETITION FOR [PCR] WAS TIME BARRED.

2 Defendant also filed a pro se supplemental brief. It is difficult to discern the arguments he raises, although they appear to involve allegations against PCR counsel. We decline to consider issues raised for the first time on appeal. See State v. Robinson, 200 N.J. 1, 21 (2009); see also R. 3:22-4. A-1708-20 5 POINT II

BECAUSE [DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT ERRED IN DENYING [DEFENDANT]'S PETITION FOR PCR

[A.] Defense Counsel was Ineffective, For Among Other Reasons, Failing to Move to Suppress Defendant's Statement to the Police from Trial.

POINT III

IN THE ALTERNATIVE, BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE, THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING.

We have considered defendant's renewed arguments in view of the

applicable law and the record, and conclude they lack sufficient merit to warrant

extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm

substantially for the reasons articulated by Judge Sattely in his well-reasoned

decision. We add only the following brief remarks.

Defendant belatedly argues his PCR petition was timely because he

asserted his sentence was "unjustly long" and "excessive" and contended trial

counsel was ineffective. See R. 3:22-2 (permitting challenges to the

excessiveness of a sentence to be raised with other cognizable PCR grounds).

A-1708-20 6 Defendant's argument is fatally flawed for two reasons: (1) defendant's PCR

petition did not assert the duration of his sentence was attributed in any respect

to trial counsel's representation; and (2) we rejected defendant's excessive

sentencing argument on direct appeal. See Caratini, No. A-5399-11 (slip op. at

11-13); see also R. 3:22-5 (barring PCR claims that were previously

adjudicated).

Affirmed.

A-1708-20 7