STATE OF NEW JERSEY VS. ROSARIO MIRAGLIA(05-02-0383, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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 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-0433-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROSARIO MIRAGLIA,

Defendant-Appellant.
_________________________________________________

Submitted October 11, 2017 – Decided October 18, 2017

Before Judges Fisher and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 05-02-0383.

Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendant was convicted by a jury of the first-degree murders

of Julia Miraglia, his grandmother, and Leigh L. Martinez, his

former girlfriend and the mother of his child, with knives and a
meat cleaver. After the murders, defendant called 9-1-1 and, as

police arrived, defendant, who was covered in blood, turned around,

put his hands behind his back, and said, "arrest me." When a police

officer asked "what's going on," defendant replied: "I killed her,

I killed that fucking bitch." The jury rejected defendant's

insanity defense, which was based on defendant's assertion that

he was Jesus Christ and on a mission from God.

Defendant was sentenced to two consecutive terms of

imprisonment for life without the possibility of parole. He filed

a direct appeal, arguing the trial judge erred in: finding him

competent to stand trial; denying his attorney's application,

which defendant opposed, for a bench trial; and instructing the

jury on the insanity defense. We rejected these arguments and

affirmed the judgment of conviction, State v. Miraglia, No. A-

0407-09 (App. Div. 2013), and the Supreme Court denied defendant's

petition for certification, 216 N.J. 8 (2013).

Defendant filed a pro se post-conviction relief (PCR)

petition five years and two-and-one-half months after entry of the

judgment of conviction, arguing he was denied the effective

assistance of trial counsel because, among other things, counsel

proceeded against his wishes in urging an insanity defense, in

opposing defendant's attempts to represent himself, in pursuing a

bench trial, and in failing to seek suppression of his statements

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to police. Defendant also asserted he was denied the effective

assistance of appellate counsel because that attorney did not

advocate defendant's arguments about self-representation and his

trial attorney's failure to pursue his wishes. The PCR judge1

denied relief without permitting an evidentiary hearing. He

determined that the PCR petition was time-barred because defendant

failed to file within five years of the judgment's entry, R. 3:22-

12(a)(1), and because defendant also failed to show excusable

neglect or other interest-of-justice grounds for permitting

consideration of the untimely PCR petition. Notwithstanding the

procedural bar, the PCR judge considered the merits of defendant's

arguments and rejected those assertions as well.

As for defendant's contentions about his trial counsel's

failure to pursue his insistence upon a jury trial and the exercise

of his right to testify, the judge correctly observed that

defendant received the trial of his choosing and testified on his

own behalf. In examining the trial transcript, the PCR judge also

found that counsel adequately communicated to the trial judge

defendant's desire to represent himself – a request the trial

judge rejected because of defendant's "delusional thinking." The

PCR judge also found no merit in the contention that trial counsel

1
By this time, the trial judge had retired.

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should have moved to suppress defendant's statements to police

because some statements were uttered during his 9-1-1 call and

others were made as police arrived and were attempting to ascertain

the nature of the disturbance. We agree that Miranda had no impact

at those times because its principles were not intended to hamper

or inhibit police in engaging in "on-the-scene questioning as to

facts surrounding a crime or general questioning of citizens in

the fact-finding process." Miranda v. Arizona, 384 U.S. 436, 477,

86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966). In responding

to the 9-1-1 dispatcher and in blurting out statements to the

police officer as he arrived on the scene, defendant was neither

under arrest nor undergoing custodial interrogation. State v.

Smith, 374 N.J. Super. 425, 430-31 (App. Div. 2005). A suppression

motion would not have been successful.

The record also reveals that counsel moved for suppression

but ultimately withdrew the motion because these statements and

others made by defendant were integral to the insanity defense,

the pursuit of which constituted a reasonable strategic approach

in this case.

Defendant appeals, arguing:

I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT

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 HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION IN HIS CASE.

II. THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING R. 3:22-4, R. 3:22-5 AND R. 3:22-12,
AS PROCEDURAL BARS AGAINST THE DEFENDANT'S
FILING FOR POST CONVICTION IN THIS CASE.

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 by Judge Joseph W. Oxley

in his thorough and well-reasoned written decision.

Affirmed.

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