STATE OF NEW JERSEY VS. MICHAEL TAFFARO (04-07-1501, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3776-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL TAFFARO,

Defendant-Appellant.

Argued December 5, 2018 – Decided February 8, 2019

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 04-07-1501.

Robert H. McGuigan, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Robert H. McGuigan, on the brief).

Tom Dominic Osadnik, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; William P. Miller, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM

Defendant Michael Taffaro appeals from a March 20, 2017 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

The circumstances underlying this offense date back to 2004. That year,

an order issued under the Prevention of Domestic Violence Act , N.J.S.A.

2C:25-17, restrained defendant from contact with his sister; the two were

embroiled in a probate dispute regarding their parents' estate. A few months

later, defendant's sister alleged he posted an ad on Craigslist purporting to be in

her name soliciting sexual encounters. The ad disclosed the sister's phone

number and address in violation of the order. As a result, defendant was charged

with fourth-degree contempt, N.J.S.A. 2C:29-9(a).

The matter was tried three times. The first trial resulted in a conviction

but was reversed by the Supreme Court. State v. Taffaro, 195 N.J. 442 (2008).

The second trial ended in a mistrial.

A jury convicted defendant at the third trial, presided over by now-retired

Judge Eugene H. Austin. We affirmed on appeal. State v. Taffaro, No. A-1911-

11 (App. Div. Apr. 14, 2014). The Supreme Court denied certification. State v.

Taffaro, 220 N.J. 40 (2014).

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 During in limine motions, defendant sought to move into evidence

recordings he had made of telephone conversations with two acquaintances he

claimed were the guilty parties. Judge Austin ruled that they would not be

admitted unless defendant testified because he was concerned about the

authentication of the recordings. Regardless, the judge allowed defense counsel

to fully cross-examine one of the men, who was a witness at the trial, about the

statements he made during the call which defendant claimed conflicted with his

testimony.

Defendant's PCR claim of ineffective assistance of counsel rests upon

appellate counsel's alleged failure, on the direct appeal, to properly address the

exclusion of the tape. Judge Christopher R. Kazlau decided the PCR petition,

and found that defendant's claim was barred by Rule 3:22-5, which bars

consideration of issues previously "expressly adjudicated." He further found

that defendant's contentions did not establish a prima facie case such that an

evidentiary hearing was warranted. See R. 3:22-10; State v. Porter, 216 N.J.

343, 347 (2013).

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

POINT I
THE ERROR OF THE PCR COURT COMPLAINED
OF IN THE INSTANT ACTION, STEMMED FROM
THE INITIAL ERROR OF THE TRIAL COURT IN

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 EXCLUDING, ON INVALID GROUNDS,
EVIDENCE WHICH SHOWS THE TESTIMONY OF
THE STATE'S SOLE WITNESS TO BE BRAZEN
PERJURY.

POINT II
APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL BY THE
FAILURE TO RAISE IN A WAY THAT WAS
EITHER COMPREHENSIVE OR SPECIFIC, THE
ISSUE OF THE TRIAL-COURT'S ERROR IN
EXCLUDING THE TRANSCRIPT OF THE TAPED
CONVERSATIONS.

POINT III
IN ITS DENIAL OF APPELLANT'S PCR PETITION,
WITHOUT EVIDENTIARY HEARING, THE PCR
COURT COMMITTED PLAIN ERROR BOTH IN ITS
APPLICATION OF RULE 3:22-5, FINDING THE
ISSUES RAISED HAD BEEN ADJUDICATED ON
APPEAL, AND IN ITS APPLICATION OF THE
STRICKLAND STANDARD, FINDING THAT THE
CORE ISSUE HAD BEEN EFFECTIVELY RAISED
BY APPELLATE COUNSEL.

POINT IV
ALTERNATIVELY, ASSUMING ARGUENDO
THAT THE PCR COURT WAS CORRECT IN
FINDING THAT THE ISSUE OF THE TAPE'S
ERRONEOUS EXCLUSION HAD BEEN
ADJUDICATED ON ITS MERITS, THE RES
JUDICATA BAR OF R. 3:22-5 SHOULD BE
RELAXED, AS ITS APPLICATION RESULTS IN A
FUNDAMENTAL INJUSTICE.

Defendant's first three points require little discussion. They all essentially

restate defendant's position that the taped telephone conversation should have

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been admitted, and that its admission would have entirely exonerated him.

Clearly, this issue has been previously addressed.

Our prior decision affirming the conviction stated that defendant's self-

serving statements on the recording "are not admissible under any exception to

the hearsay rule." (Slip op. at 12). Furthermore,

the benefit defendant would have gained from
admission of the recorded statements, he gained
through [the third party's] testimony. . . . [D]efendant
developed the defense that [the third party] was
incredible because he wanted to avoid damaging his
likelihood of becoming an attorney, or of getting into
trouble himself. That the jury rejected the theory, and
convicted defendant, was not the result of the court's
exclusion of the evidence in the form of the transcripts,
as the substance was presented to the jury.

[Id. at 12-13.]

Therefore, Judge Kazlau properly refused to consider this same contention on

PCR, and rejected defendant's thinly veiled reiteration of the argument.

Defendant further contends that the application of Rule 3:22-5 should be

relaxed in this case in the interest of justice. We simply do not agree. It is clear

that Judge Austin's decision to allow for cross-examination based on the

transcript permitted defendant to develop his third-party culpability defense to

the jury. Thus, no reason at all, much less a compelling reason, has been

presented which would warrant the relaxation of the rule in this case. The

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application of the rule indeed is "not an inflexible command." State v. Franklin,

184 N.J. 516, 528 (2005). In this case, however, there is nothing in the record

which warrants such relaxation.

Affirmed.

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