STATE OF NEW JERSEY VS. WALTER A. TORMASI (97-04-0234, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 31, 2018
• Docket: A-4261-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4261-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER A. TORMASI,

Defendant-Appellant. _________________________

Submitted October 16, 2018 – Decided October 31, 2018

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 97-04-0234.

Walter A. Tormasi, appellant pro se.

Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Anthony J. Parenti, Jr., of counsel; Lauren Martinez, Assistant Prosecutor, on the brief).

PER CURIAM In this appeal, we consider the denial of a post-conviction relief (PCR)

petition that followed our previous mandate. We summarized the unusual issues

presented and our disposition when these parties were last before us:

In this appeal of the denial of post-conviction relief, defendant argues that the judge erred in finding inadmissible a thirty-eight-page document which purports to be an affidavit – lacking its last page – authored by defendant's father in which he takes responsibility and proclaims defendant's innocence of the murder for which he was convicted. The judge excluded consideration of the document because the thirty-ninth page, which was alleged by witnesses to have contained the signature of defendant's father and the jurat of a notary public, was missing. We reverse because, if sufficiently authenticated, the document was admissible pursuant to N.J.R.E. 803(c)(25); we remand, however, for further proceedings because the judge never evaluated the sufficiency of defendant's effort to authenticate the document through extrinsic evidence pursuant to N.J.R.E. 901.

[State v. Tormasi, 443 N.J. Super. 146, 149 (App. Div. 2015).]

Following our remand, the PCR judge reconsidered the matter and concluded

that the document – the so-called "affidavit" – was sufficiently authenticated

and admissible and, after weighing it and the other evidence adduced at the

earlier PCR hearing, concluded that the document was "not believable and as

such . . . does not have 'sufficient weight' so as to 'probably alter the outcome of

the [original] verdict.'" We conclude that the PCR judge's findings are entit led

A-4261-16T4 2 to our deference and those findings justified a denial of post-conviction relief.

We, therefore, affirm.

We briefly recount this case's history. In 1998, defendant was tried and

convicted of the 1996 murder of his mother, Frances Tormasi. He was sentenced

to a term of life imprisonment subject to a thirty-year parole ineligibility period.

We affirmed his conviction and the sentence imposed, State v. Tormasi, No. A-

5530-97 (App. Div. July 20, 2001), certif. denied, 171 N.J. 42 (2002), and later

affirmed the denial of his first PCR petition, which included an ineffectiveness-

of-counsel argument, State v. Tormasi, No. A-2248-07 (App. Div. May 26,

2009), certif. denied, 200 N.J. 474 (2009).

In 2011, defendant filed the PCR petition in question. He argued that

newly-discovered evidence – the "affidavit" of his deceased father, Attila

Tormasi, Sr. – demonstrated his innocence. This so-called "affidavit" –

suspicious because it lacked a final page alleged to have contained Attila, Sr.'s

signature – expressed Attila, Sr.'s purported acknowledgement that he hired a

private detective to commit the murder for which defendant was convicted. At

an evidentiary hearing, the PCR judge mistakenly excluded the document and

ultimately ruled that "[s]ince [the document] is not evidence, it cannot be

newly[-]discovered evidence." As mentioned, we reversed that determination

A-4261-16T4 3 and remanded for the judge's reconsideration of whether the "affidavit" was

sufficiently authenticated by any of the methods described in our opinion. For

example, we held that the judge could have found authentication from the

testimony of defendant's siblings, Attila, Jr., and Sophia, who asserted that,

during Attila, Sr.'s lifetime, they saw the full document containing his signature.

See Tormasi, 443 N.J. Super. at 154-55. If the judge found the "affidavit"

authenticated, we then directed that he consider with that "affidavit" and all the

other evidence adduced at the hearing warranted post-conviction relief.

Following our remand, and based on the evidence previously adduced, the

judge found the "affidavit" sufficiently authenticated but that it and the other

evidence could not support the issuance of post-conviction relief. Among other

things, the judge explained in detail how the "affidavit" conflicted with a

certification Attila, Sr. filed in support of defendant's first PCR petition, how it

contradicted Attila, Sr.'s testimony at defendant's trial, and why he viewed these

attempts to nullify the prior accounts of criminal activity as "inherently suspect,"

quoting State v. Engel, 249 N.J. Super. 336, 386 (App. Div. 1991), and generally

"untrustworthy," quoting State v. Carter, 69 N.J. 420, 427 (1981). The judge

also found the testimony of Attila, Jr. and Sophia to be unworthy of credence

because they made no attempt to inform defendant – their own brother – of what

A-4261-16T4 4 they claimed to have learned about the "affidavit" until after their father's death.

As the judge determined, both siblings testified they confronted their father

about this evidence and claimed he admitted its contents were accurate but "they

sa[id] nothing to their brother for years, knowing that he has been vigorously

pursuing a theory for which they [then had] substantial evidence"; the judge

found this "behavior [to be] incredible and difficult to reconcile with their

testimony." And the judge found this evidence unconvincing in light of the

"overwhelming evidence" of defendant's guilt; this overwhelming evidence

included two eyewitnesses who "placed defendant in the driveway, wearing

white 'silken' gloves as he approached [his mother's] car, seconds before she was

shot," and testimony that defendant had earlier that day expressed an intent to

shoot his mother. Defendant also asked one witness about "how to remove gun

residue from his hands after firing a gun," and he asked another witness "how

he could shoot someone who was sitting in a car." Witnesses also testified at

trial that defendant was in possession of a handgun shortly before the murder.

For these and other reasons, the judge denied relief.

Defendant appeals, arguing:

I. ATTILA SR.'S SELF-INCRIMINATORY AFFIDAVIT CONSTITUTES NEWLY DISCOV- ERED EVIDENCE ENTITLING DEFENDANT TO

A-4261-16T4 5 THE REVERSAL OF HIS CONVICTIONS UNDER APPLICABLE LAW.

II. ATTILA SR.'S UNILATERAL FEE ARRANGE- MENT WITH DEFENSE COUNSEL CREATED AN IMPERMISSIBLE CONFLICT OF INTEREST AND DEPRIVED DEFENDANT OF EFFECTIVE ASSIS- TANCE OF COUNSEL. [1]

We find insufficient merit in these arguments to warrant further discussion in a

written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set

forth in the PCR judge's comprehensive and thoughtful opinion.

Affirmed.

1 For brevity's sake we have omitted the subheadings to these two points. A-4261-16T4 6