STATE OF NEW JERSEY VS. MICHAEL A. MALTESE (09-02-0184 AND 10-01-0097, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2793-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. MALTESE,

Defendant-Appellant.
_________________________

Submitted September 29, 2020 – Decided October 13, 2020

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 09-02-
0184 and 10-01-0097.

Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, Designated Counsel, on the
brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Two grand juries indicted and charged defendant with committing

numerous crimes. 1 After a jury found him guilty as charged, we upheld the

convictions.2 The Supreme Court affirmed but remanded for a new trial on two

of the convictions. 3 Defendant then filed a petition for post-conviction relief

(PCR), primarily contending that his trial and appellate counsel rendered

1
In the first indictment, defendant was charged with two counts of first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts one and two); third-degree
hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count three);
two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (counts
five and seven); two counts third-degree fraudulent use of a credit card, N.J.S.A.
2C:21-6(h) (counts six and eight); third-degree attempted theft, N.J.S.A. 2C:5-
1 and N.J.S.A. 2C:20-3 (count nine); fourth-degree tampering with physical
evidence, N.J.S.A. 2C:28-6(1) (count ten); fourth-degree false swearing,
N.J.S.A. 2C:28-2(a) (count eleven); and third-degree hindering investigation,
N.J.S.A. 2C:29-3(b)(4) (count twelve). In the second indictment, defendant was
charged with second-degree unlawfully disturbing, moving, or concealing
human remains, N.J.S.A. 2C:22-1(a)(1), and third-degree failing to dispose of
human remains in a manner prescribed by law, N.J.S.A. 2C:22-1(b).
2
State v. Maltese, No. A-5323-10 (App. Div. Nov. 8, 2013).
3
State v. Maltese, 222 N.J. 525, 553 (2015) (remanding on counts one and
two—first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)). The United States
Supreme Court denied certiorari. New Jersey v. Maltese, ___ U.S. ___, 136 S.
Ct. 1187 (2016).

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2
ineffective assistance. 4 Meanwhile, a second jury found him guilty at the re-

trial, but we reversed those convictions and remanded for a third trial. 5

Following the completion of the re-trial and sentencing, defendant refiled

his PCR petition. Defendant now appeals from a December 14, 2018 order

denying that petition without an evidentiary hearing. The order under review

primarily deals with purported ineffectiveness of counsel associated with

convictions that the Supreme Court partially upheld after the first trial. Judge

Alberto Rivas thoroughly considered defendant's PCR contentions and rendered

a comprehensive oral decision, with which we substantially agree. We therefore

affirm.

On appeal, defendant argues:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS AND THE [PCR JUDGE]
ERRED IN CONCLUDING OTHERWISE.

4
Defendant's initial PCR petition was denied, without prejudice, on December
21, 2016, pending the re-trial due to the similarity of the issues raised in the
PCR petition and the issues to be re-litigated at trial.
5
State v. Maltese, No. A-0795-18 (App. Div. ____) (reversing and remanding
convictions, entered on remand, for two counts of second-degree
passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(1), (2)).
A-2793-18T3
3
 A. The prevailing legal principles regarding
claims of ineffective assistance of counsel,
evidentiary hearings and petitions for [PCR].

B. Trial counsel was ineffective for failing to file
a motion [in the first trial] to suppress evidence
of a statement made to police by . . .
co[]defendant and any evidence derived from that
statement.

C. But for trial counsel's unprofessional error in
not moving to exclude co[]defendant's statement
to police [in the first trial], defendant's
convictions for desecrating human remains
would have been reversed by the New Jersey
Supreme Court.

POINT II

THE ADMISSIBILITY OF CO[]DEFENDANT'S
STATEMENT AND DERIVATIVE TESTIMONY
WAS NOT CHALLENGED AT THE SECOND TRIAL
AND THEREFORE DEFENDANT'S CLAIM THAT
TRIAL COUNSEL WAS INEFFECTIVE DURING
THE FIRST TRIAL FOR FAILING TO MOVE TO
SUPPRESS EVIDENCE OF CO[]DEFENDANT'S
STATEMENT TO POLICE REMAINED VITAL TO
THE DETERMINATION OF DEFENDANT'S [PCR]
PETITION.

POINT III

THE ADMISSION OF [CODEFENDANT'S]
TESTIMONY AT [THE FIRST TRIAL] WAS
PREJUDICIAL NOTWITHSTANDING THE
ADMISSIBILITY OF EVIDENCE CONCERNING
THE LOCATION AND REMAINS OF THE

A-2793-18T3
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 VICTIMS' BODIES UNDER THE INEVITABLE
DISCOVERY RULE.

POINT IV

[DEFENDANT'S] CONVICTIONS [IN THE FIRST
TRIAL] MUST BE VACATED ON DOUBLE
JEOPARDY GROUNDS AND DUE PROCESS
GROUNDS.

A. The charges against defendant for theft and
fraudulent use of a credit card constitute double
jeopardy and denied defendant due process under
the law.

B. The charges against defendant for hindering
prosecution, tampering with evidence and
desecrating/disturbing human remains constitute
double jeopardy and denied defendant due
process under the law.

C. The defendant's charges for hindering
investigation and false swearing constitute
double jeopardy and denied defendant due
process under the law.

POINT V

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.

I.

Defendant argues that trial counsel was ineffective for failing to file a

motion to suppress codefendant's statement to police and trial testimony.

Defendant asserts that codefendant made incriminating statements because

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police shared information obtained from defendant, which the Supreme Court

later suppressed. Therefore, defendant asserts that codefendant's statements

should have been excluded as "fruit of the poisonous tree." Applying settled

principles, we disagree.

To establish a claim for ineffective assistance of counsel, a defendant must

satisfy the two-pronged test enumerated in Strickland v. Washington, 466 U.S.

668, 687 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J.

42, 58 (1987). To meet the first Strickland prong, a defendant must establish

that his counsel "made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687.

The defendant must rebut the "strong presumption that counsel's conduct [ fell]

within the wide range of reasonable professional assistance[.]" Id. at 689. Thus,

we must consider whether counsel's performance fell below an objective

standard of reasonableness. Id. at 688.

To satisfy the second Strickland prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

A-2793-18T3
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sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." Fritz, 105 N.J. at 58.

A defendant is only entitled to an evidentiary hearing when he "has

presented a prima facie [case] in support of [PCR]," meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ultimately

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (first

alteration in original) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)). The

defendant bears the burden of establishing a prima facie case. State v. Gaitan,

209 N.J. 339, 350 (2012).

Defendant fails to meet the first Strickland prong because, as the PCR

judge noted, defendant lacked standing to move to suppress codefendant's

statement. The privilege against self-incrimination is personal in nature and

must be claimed by the person seeking its protection, not by someone on

another's behalf. See In re Boiardo, 34 N.J. 599, 604 (1961). It is well

established that a defendant cannot "vicariously assert that another's right

against self-incrimination has been violated." State v. Baum, 199 N.J. 407, 417

A-2793-18T3
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(2009). As such, defendant's trial counsel was under no obligation to file a

motion to suppress codefendant's statement.

Additionally, our Supreme Court previously addressed this argument and

held that there was no violation of the defendants' rights where two defendants

argued that their Fifth Amendment rights were violated when they confessed as

a result of an illegally obtained confession by their codefendant. State v.

Johnson, 43 N.J. 572, 595 (1965). The Court held that the two defendants'

confessions were voluntary and ultimately admissible, even if their confessions

were a product of their codefendant's involuntary statement. Id. at 595-96; see

also State v. Manning, 165 N.J. Super. 19, 30-31 (App. Div. 1978) (upholding

the admission of a confession after police lied to the defendant, telling him that

his codefendant had already confessed). The Court declared that

"[v]oluntariness remains the test in this situation." Johnson, 43 N.J. at 595-96.

Even if counsel could have successfully moved to suppress codefendant's

statement to police, which is not the case, there is no legal authority under which

the trial judge could have then barred codefendant from testifying at trial.

Codefendant was charged under the same indictment as defendant, and as such,

she had a constitutional right to testify at trial. State v. Savage, 120 N.J. 594,

627-28 (1990); see also State v. Long, 119 N.J. 439, 488-89 (1990) (affirming

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that the State may condition a plea agreement on a defendant's agreement to give

truthful testimony).

Defendant also fails to satisfy the second Strickland prong because, as the

PCR judge stated, he failed to establish a reasonable probability that the result

of the proceeding would have been different had trial counsel made such a

motion. As to codefendant's statement to police, the State did not introduce this

statement at trial. Additionally, the trial judge found that the victims' bodies

and related physical evidence were admissible under the inevitable discovery

doctrine. See State v. Sugar, 108 N.J. 151, 156 (1987) (noting evidence that was

the product of an illegal search is admissible when the evidence in question

would have been discovered without reference to the police misconduct or

error). As for codefendant's trial testimony, defendant himself testified about

his involvement in the disposal of his parents' bodies and his inconsistent

statements to police, and therefore codefendant's testimony was not necessary

to establish defendant's guilt.

II.

Defendant contends that his convictions after the first trial should be

reversed based on double jeopardy and due process grounds because some of the

convicted offenses have elements in common. He argues that the following

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offenses overlap: count five, theft by unlawful taking, with count six, fraudulent

use of a credit card; count three, hindering apprehension of prosecution, with

count ten, tampering with physical evidence; and count eleven, false swearing,

with count twelve, hindering apprehension by false information to law

enforcement.

"Where two criminal statutes prohibit the same basic act, the prosecutor

may[,] in the exercise of sound discretion[,] proceed under either or both statutes

as long as only [a] single conviction survives." State v. D.V., 348 N.J. Super.

107, 114 (App. Div. 2002), aff'd o.b., 176 N.J. 338 (2003); State v. Gledhill, 67

N.J. 565, 580 (1975); see also N.J.S.A. 2C:1-8 (providing that "[w]hen the same

conduct of a defendant may establish the commission of more than one offense,

the defendant may be prosecuted for each such offense"). It is a "well 'settled

rule'" that when an act violates more than one statute, the State may prosecute

under either so long as "it does not discriminate against any class of defendants."

State v. Moorer, 448 N.J. Super. 94, 104 (App. Div. 2016) (quoting State v.

Kittrell, 145 N.J. 112, 129 (1996)). So long as both criminal statutes clearly

define the prohibited conduct and corresponding punishment, the notice

requirements of due process are satisfied. Kittrell, 145 N.J. at 129.

A-2793-18T3
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 As the PCR judge noted, it is clear that a prosecutor can bring overlapping

charges with common elements. As to counts five and six, the theft charge was

premised on defendant's ATM withdrawals, while the fraud charge related to

defendant's continued use of the card at various locations. As to counts three

and ten, the hindering charge referred to defendant destroying evidence on his

parents' bodies and removing the bedding to prevent his own apprehension,

whereas the tampering charge referred to defendant stripping, bleaching,

moving, and concealing the parents' bodies to impair the integrity and

availability of the bodies as evidence. As to counts eleven and twelve, the false

swearing charge concerned defendant's October 18, 2008 statement to police,

whereas the hindering charge concerned statements that defendant made to

police about his parents' whereabouts between October 17 and 24, 2008.

Moreover, these contentions are barred under Rule 3:22-4(a), as they

could have been raised as a direct challenge to his convictions after his first trial.

In State v. Smith, 43 N.J. 67, 74 (1964), our Supreme Court explained that a

PCR "proceeding may not be used as a substitute for an appeal from the

judgment of conviction. All alleged errors inhering in a trial must be asserted

in a direct review from the conviction[.]" See also R. 3:22-3 (providing that a

petition for PCR is not a substitute for a direct appeal).

A-2793-18T3
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 Thus, we reject defendant's assertion that he suffered double jeopardy

violations. The prosecutor was legally permitted to bring these claims as they

were separate and discrete.

III.

Finally, defendant argues that to the extent that the PCR judge found that

any of the issues raised in his PCR petition should have been raised on direct

appeal, he was deprived of effective assistance of appellate counsel for counsel’s

failing to do so. We disagree.

Appellate counsel is not required to present all non-frivolous claims.

Jones v. Barnes, 463 U.S. 745, 751 (1983); see also State v. Gaither, 396 N.J.

Super. 508, 515-16 (App. Div. 2007) (confirming that appellate counsel has no

duty to make an argument, regardless of merit, even if the defendant believes

that it should be made). A court will not find appellate counsel to be ineffective

if counsel's failure to appeal the issue could not have prejudiced the de fendant

because the appellate court would have either found that no error occurred or

that the error was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); State v.

Harris, 181 N.J. 391, 499 (2004). "A brief that raises every colorable issue runs

the risk of burying good arguments . . . in a verbal mound made up of strong and

weak contentions." Jones, 463 U.S. at 753.

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 The PCR judge rejected defendant's arguments on the merits. Because

appellate counsel on direct appeal is not required to bring all of defendant's

arguments, regardless of merit, appellate counsel on PCR appeal was not

required to bring all of defendant's arguments as well. See Gaither, 396 N.J.

Super. at 515. Appellate counsel properly exercised discretion in determining

which arguments to make. See Jones, 463 U.S. at 754 (discouraging judges from

"second-guess[ing] reasonable professional judgments and impos[ing] on

appointed counsel a duty to raise every 'colorable' claim suggested by a client

[because it] would disserve the very goal of vigorous and effective advocacy").

Thus, defendant was not deprived of effective assistance of appellate counsel.

We conclude that defendant's remaining arguments—to the extent we

have not addressed them—are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

Affirmed.

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