NOT FOR PUBLICATION WITHOUT THE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-1079-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT SABATINI,
Defendant-Appellant.
______________________________
Submitted September 13, 2018 – Decided September 27, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 10-04-
0223.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison S. Perrone, Designated Counsel;
William Welaj, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Robert Sabatini appeals from a July 24, 2017 order denying his
petition for post-conviction relief (PCR). We affirm.
I.
Defendant was convicted of first-degree murder and was sentenced to fifty
years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We
affirmed the conviction and sentence on defendant's direct appeal. State v.
Sabatini, No. A-1740-12 (App. Div. Feb. 11, 2016), certif. denied, 226 N.J. 212
(2016).
Our opinion summarized the trial evidence, and the summary provides
useful context for this appeal:
The trial concerned the murder of Charles Ray on
Back Neck Road, an isolated country road in
Cumberland County, in the late evening of September
13, 2008 or the early morning of September 14. The
murder occurred within a few hundred feet of
defendant's house, which was the only house on that
part of Back Neck Road. Apart from expert testimony,
which will be discussed in detail later, the State's case
was fairly straightforward albeit not airtight.
Defendant lived not far from the murder scene. An
impartial witness encountered defendant and pointed
out Ray's body lying in the road. Defendant claimed to
be shocked at hearing this news. Defendant was
wearing a gray tank top and pants which, on later
analysis, proved to be stained with Ray's blood.
Defendant knew Ray's habits, knew Ray would be
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driving down the darkened back road that night, and
knew Ray would pull over if flagged down by someone
he knew. Defendant had flagged down Ray on prior
occasions to ask for money. Defendant needed money
to buy crack cocaine that night, and made multiple
phone calls to two different drug dealers. According to
two witnesses, defendant had previously expressed
disdain for Ray and said he should be killed for
encouraging the drug trade on Back Neck Road.
The defense case was that there were a number of
other individuals living on or near Back Neck Road
who had personal or financial motives to kill Ray, and
that the police had focused too quickly on defendant as
a suspect and ignored other possible suspects. The
defense also contended that defendant had approached
Ray's body after the murder and could have gotten a bit
of Ray's blood on his clothing at that time. The defense
also contended to the jury that, given the extent of Ray's
wounds and the amount of blood they produced, his
attacker would have been drenched in blood, as
compared to the few drops on defendant's clothing.
Much of the State's lengthy trial presentation was
devoted to responding to those aspects of the defense,
by showing that the police investigated every possible
suspect, and that defendant did not approach Ray's body
after the murder. The State also presented expert
testimony designed to show that the drops of Ray's
blood on defendant's clothing were similar in shape and
pattern of distribution to those on Ray's clothing.
According to the expert, the blood drops on defendant's
shirt were typical of the spatter pattern caused by blows
with a blunt object, rather than a swipe pattern caused
by accidentally touching Ray's bloody clothing or the
blood near his body. The expert also explained to the
jury how, during an attack with a blunt object, an
attacker might get very little blood on his own clothing.
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[Id. slip op. at 3-5. ]
In his current appeal, defendant raises many of the same arguments
presented to and rejected by the PCR judge. His counseled brief presents the
following points of argument:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFORDING HIM AN EVIDENTIARY HEARING TO
FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO CALL SEVERAL
WITNESSES WHO WOULD HAVE PROVIDED
BENEFICIAL AND POTENTIALLY
EXCULPATORY TESTIMONY FOR THE
DEFENDANT.
1. TRIAL COUNSEL'S FAILURE TO
MAKE APPROPRIATE ARRANGEMENTS TO
PRESENT THE TESTIMONY OF THE
A-1079-17T3
4
DEFENDANT'S FATHER, THOMAS
SABATINI, TO THE JURY.
2. TRIAL COUNSEL'S FAILURE TO
PRESENT RELEVANT TESTIMONY
THROUGH THE DEFENDANT'S SISTER,
LISA HILES.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO REQUEST THE TRIAL
COURT INSTRUCT THE JURY REGARDING THE
LESSER INCLUDED OFFENSE OF
PASSION/PROVOCATION MANSLAUGHTER.
D. THE DEFENDANT DID NOT RECEIVE
ADEQUATELEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO TAKE APPROPRIATE
ACTION WHEN INFORMED A JUROR HAD
POSSIBLY BEEN SLEEPING THROUGH PART OF
THE TRIAL.
Defendant's pro se supplemental brief argues that the trial court should
have held an evidentiary hearing on his petition. He also presents the following
points, which we have formatted for clarity.
POINT II:
PETITIONER'S CLAIM THAT DEFENSE TRIAL
COUNSEL WAS INEFFECTIVE.
A. Alleged failure to retain experts.
A-1079-17T3
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B. State did not submit evidence concerning DNA
not belonging to the defendant or the decedent.
C. Counsel failed to investigate original crime scene
reports.
D. Trial court allowed the state to enter suppressed
evidence.
E. Petitioner's argument that appellate counsel was
ineffective
F. Alleged failure to take appropriate action when
juror slept.
G. Petitioner[']s claim that the court failed to include
lesser included offenses.
POINT III:
ARGUMENTS MADE IN PETITIONER'S PRO SE
SUBMISSIONS.
A. Trial counsel failure to move to dismiss
indictment.
B. Petitioner's allegation of prosecutorial
misconduct.
After reviewing the record in light of the applicable legal standards, we
conclude that defendant's arguments are uniformly without merit, and we affirm
substantially for the reasons stated by Judge Jean S. Chetney in her twenty-seven
page written opinion. We add the following brief comments.
A-1079-17T3
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Defendant contends that his attorney should have arranged for a de bene
esse deposition of his ailing father (now deceased), who defendant asserts could
have provided him with an alibi. After reading the father's written statement to
the police, we conclude that the father's testimony would not have provided an
alibi. According to the father, on the night of the murder, defendant kept
periodically leaving the house for a few minutes at a time and then returning.
The murder took place close to defendant's house, and the father did not know
how long defendant was gone during his last absence. The father's testimony
would not have eliminated the possibility that on one of his excursions outside
the house, defendant flagged down Ray's car and killed him.
Contrary to defendant's argument, his trial counsel was not ineffective in
failing to request a passion/provocation manslaughter charge. There was no
evidentiary basis to charge the jury as to passion/provocation manslaughter.
Moreover, such a charge would have been inconsistent with the defense theory
that defendant liked the victim and had nothing to do with killing him.
Like the PCR judge, we find no merit in defendant's claim that the trial
judge should have interviewed a juror who defendant now claims may have been
sleeping. The issue of whether the juror was remaining "alert" was raised at the
beginning of a trial day. The trial judge indicated that he had personally
A-1079-17T3
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observed the juror. Neither the judge nor the attorneys stated that the juror had
been sleeping. None of the attorneys asked the judge to interview the juror or
take any further action at that time. The issue did not come up again that day or
any other day during the trial. Defendant's PCR argument is not supported by
legally competent evidence that the juror was asleep at any time during the trial.
"[B]ald assertions" are insufficient to create a prima facie case of ineffective
assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999).
Because defendant did not present a prima facie case of ineffective
assistance, the PCR judge did not err in deciding the petition without an
evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant's remaining appellate arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1079-17T3
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STATE OF NEW JERSEY VS. ROBERT SABATINI (10-04-0223, CUMBERLAND COUNTY AND STATEWIDE)
Combined Opinion