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(NOTE: The status of this decision is unpublished.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0603-03T10603-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH POST,

Defendant-Appellant.

______________________________________________________


Argued September 13, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 96-04-0488.

Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Sue E. Young on the brief).

Dorothy Hersh, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Hersh, on the brief).

PER CURIAM

Petitioner Joseph Post appeals from the denial of his petition for post conviction relief (PCR). In his appellate brief, petitioner advances the following arguments:

POINT I: INEFFECTIVE ASSISTANCE OF COUNSEL. THE TRIAL COURT ERRED WHEN IT FOUND EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL, NOTWITHSTANDING TRIAL COUNSEL'S TESTIMONY WHICH SUBSTANTIATED DEFENDANT'S CLAIMS THAT, INTER ALIA, CERTAIN CRITICAL DEFENSE WITNESSES WERE NEITHER INTERVIEWED IN ADVANCE OF TRIAL NOR CALLED AS TRIAL WITNESSES.

POINT II: TRIAL COURT ERRORS. THE TRIAL COURT ERRED WHEN IT FAILED TO REVIEW AND/OR CONSIDER THE MULTIPLE TRIAL COURT ERRORS UNDER THE "FUNDAMENTAL INJUSTICE" EXCEPTION OF R. 3:22-4 BEFORE DENYING RELIEF, BECAUSE SAID ISSUES WERE NOT RAISED ON DIRECT APPEAL.

We reject those arguments and affirm substantially for the reasons set forth in the sixteen page written Findings of Fact and Conclusions of Law rendered by Judge Mathesius.

Following a jury trial between May 13, 1997 and June 5, 1997, petitioner was found guilty of all three counts of the indictment charging him and three other defendants with first degree murder (count one), third degree unlawful possession of a weapon (a knife) (count two), and fourth degree unlawful possession of a weapon for an unlawful purpose. The three co-defendants entered into plea agreements and testified on behalf of the State in defendant's trial. As a result of his conviction, petitioner was sentenced to life imprisonment with a thirty year mandatory period of incarceration on counts one and two, which were merged. The court imposed a concurrent eighteen month term for count three. The judgment of conviction and sentence were affirmed in an unpublished opinion in Docket No. A-628-97 (App. Div. Jan. 29, 2001) and the Supreme Court denied the petition for certification at 169 N.J. 605 (2001).

Thereafter, petitioner filed a PCR petition on July 20, 2001, but that petition was withdrawn, with leave to re-file. The present PCR was filed on July 26, 2002 and was the subject of a hearing on July 1, 2003, before Judge Mathesius in Mercer County. As noted, the judge issued a sixteen page written opinion dated August 11, 2003, setting forth his findings of fact and conclusions of law on the petition for PCR. That opinion amply and appropriately addressed in detail the errors petitioner contends were committed by petitioner's counsel and the court at trial. To the extent specific assertions of error are not explicitly addressed in that opinion, we are convinced they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Essentially, petitioner contended, as he contends here, that he was denied effective assistance of trial counsel in that counsel failed to investigate, interview and call as trial witnesses certain persons who petitioner claims would have verified that Michael Levering and Nicholas Migliaccio, co-defendants who testified against him at trial, had made statements indicating they had killed the victim, Andrew Whited. Whited's body was not found until about a month after the actual fatal assault. The autopsy confirmed twenty-nine stab wounds. His neck had been sawed and tattoos had been cut away to hinder identification. Levering and Migliaccio testified at trial that petitioner, Joseph Post, and Whited were fighting and when Whited began to get the best of Post, Post resorted to use of a dagger. The third co-defendant, Post's brother Brus Post, initially gave a version similar to that of Levering and Migliaccio, but at trial, he stated that his brother Joseph resorted to the use of a weapon in self-defense.

The PCR judge carefully considered petitioner's contention that trial counsel's performance was deficient for his failure to call as witnesses Harry Washington and Curtis Jordan who had been incarcerated at the same time as co-defendant Levering and who could have testified as to hearsay statements made by Levering indicating that they (Migliaccio and Levering) came to the assistance of Post and were the ones who actually stabbed Whited. The court found, and the record supports its finding, that trial counsel regarded Washington as a "wild card" and had concerns that his testimony would be unpredictable and inconsistent with the defense theory of the case that challenged the State's ability to prove defendant guilty beyond a reasonable doubt. Trial counsel testified that he was unaware of Jordan as a potential witness. The judge found Post's mother, who said she told counsel about Jordan, was not credible. Counsel also testified, however, that petitioner was emphatic that he did not wish to point blame at any of the co-defendants and, overall, though it was eventually injected into the trial, the theory of self-defense was inconsistent with the trial strategy for the case.


Based upon our analysis of the record and the judge's Findings of Fact and Conclusions of Law, we are satisfied that the testimony presented by trial counsel at the evidentiary hearing provides substantial and credible support for the judge's conclusions that (1) Curtis Jordan's statement was "far from being such that it would have changed the outcome of defendant's trial" and (2) counsel's decision not to interview Harry Washington or to call him as a witness at trial was a matter of deliberate trial strategy that was reasonable and consistent with defendant's insistence that he "never wanted to be considered a rat." Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 2066, 80 L. Ed.2d 674, 695 (1984). The trial court, therefore, properly concluded that petitioner failed to demonstrate that counsel's performance was deficient and that such deficient performance prejudiced the defense. Ibid.; State v. Fritz, 105 N.J. 42, 54 (1987).

Affirmed.

(continued)

(continued)

5

A-0603-03T1

November 14, 2005




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