Date: 07-09-2016

Case Style: STATE OF NEW JERSEY VS. SPYRIDON GIZAS

Case Number: A-0472-14T1

Judge:

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Carolyn A. Murray, Acting Essex County Prosecutor; Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor

Defendant's Attorney: Joseph E. Krakora, Public Defender; Ruth E. Hunter, Designated Counsel

Description: In October 2009, defendant owned Harold's Deli in
Parsippany when he processed four transactions totaling charges
of $39,700 on several American Express credit cards supplied by
Ramsey Muslay. When the rightful cardholders alerted American
Express of the fraudulent charges, the credit card company
opened an investigation that resulted in Muslay's arrest.
Muslay claimed that he and defendant were co-conspirators in the
fraudulent transactions.
Defendant was subsequently charged under Essex County
Indictment No. 11-02-0249 with third-degree conspiracy to commit
fraudulent use of a credit card and theft, N.J.S.A. 2C:5-2,
2C:21-6(h), and 2C:20-4 (counts one and six); third-degree
fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (counts
two, four, seven, and nine); and third-degree theft by
deception, N.J.S.A. 2C:20-4 (counts three, five, eight, and
ten).
At the jury trial, Muslay testified for the prosecution
that he and defendant were involved in the fraud with the
understanding that they would evenly split the credit card
proceeds. However, according to Muslay, defendant reneged on
their deal and gave him less than $10,000 in cash.
Defendant called three witnesses to support his position
that he was not involved in the fraud scheme. When defendant
A-0472-14T1 3
decided not to testify, the trial judge conducted the following
voir dire of defendant:
Q: Mr. Gizas, you understand that you have the right to testify in this case?
A: Yes, Your Honor.
Q: And have you gone over that issue with your attorney regarding whether or not you should testify?
A: Yes, Your Honor. We went through it in detail yesterday.
Q: And you understand that the ultimate of the -- of course you should consider your attorney's advice, but you understand that the ultimate decision of whether you testify or not is yours?
A: Yes, Your Honor.
Q: And do you wish to testify?
A: No, Your Honor.
The jury found defendant guilty on all counts of the
indictment. At sentencing, following merger, the judge imposed
an aggregate five-year custodial term. We affirmed defendant's
conviction and sentence on direct appeal. State v. Gizas, No.
A-4342-11 (App. Div. July 23, 2013).
Defendant filed a timely PCR petition, alleging ineffective
assistance of counsel because trial counsel had "coerced"
defendant not to testify, and was ineffective in cross-examining
Muslay. Judge Ronald D. Wigler conducted a PCR evidentiary
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hearing. At the hearing, defendant testified that he was not
allowed by his attorney to testify:
Q: [C]ould you please tell us, uh, what transpired between you and [your trial attorney] regarding your right to testify?
A: At the end of the trial I, uh -- I, uh - while my attorney had all the questions for the -- for the, uh, witnesses I, uh -- I called him to . . . my chair and I said, can I testify? He said, "No, I think we got it." And he did not allow me to testify.
Thus, defendant contradicted his trial testimony when he was
voir dired regarding his decision not to testify.
Defendant's trial counsel testified on behalf of the State.
Counsel disclosed that he had several trial strategy meetings
with defendant, and that before the trial and "just about [every
day] during the course of the trial" they discussed whether
defendant would testify. He furthered explained that they
discussed what defendant wished to testify to, the likelihood of
what the jury would hear regarding his prior criminal history to
impeach his testimony, and whether his testimony would hurt or
help his case in light of the testimony of the three defense
witnesses. According to trial counsel, defendant told him that
"he was comfortable with the case and didn't want to take the
stand and testify[,]" and that "his version of the events were
adequately put before the jury" by the testimony of the defense
A-0472-14T1 5
witnesses called. At the conclusion of the hearing, the judge
reserved decision.
Judge Wigler later issued a comprehensive written opinion
denying defendant's PCR petition. Judge Wigler found that each
of defendant's contentions failed to meet both prongs of the
Strickland1 test. Regarding the first prong of Strickland
addressing whether counsel's performance was deficient, the
judge deemed the trial counsel's testimony "very credible," and
corroborated defendant's trial testimony during voir dire that
defendant had in fact consulted with counsel as to this
"important trial strategic decision" and voluntarily decided not
to testify.
Concerning the second prong considering whether there is a
reasonable probability that but for counsel's alleged error the
result of the proceeding would have been different, the judge
determined that "[d]efendant had good reason not to testify
since his prior convictions would have been revealed to the jury
for the purpose of impeaching his credibility."
Judge Wigler also did not find trial counsel ineffective in
his cross-examination of Muslay, holding that counsel effected a
proper cross-examination "using the information available
1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
A-0472-14T1 6
through discovery, while making strategic decisions regarding
the questioning" which are afforded "considerable deference,"
and that the cross-examination was not "conducted with
'insufficient information' in a way which would require a
reversal of [defendant's] conviction or that may have caused
prejudice to [defendant]." Further, the court determined that
trial counsel effectively demonstrated Muslay's own involvement
in defrauding multiple restaurants other than defendant's
restaurant. This appeal followed.
Before us, defendant contends that the Judge Wigler erred
in denying his PCR petition because trial counsel's testimony
failed to provide that adequate advice was given to defendant
about his right to testify. We have considered this contention
in light of the record and applicable legal principles and
conclude it is without sufficient merit to warrant a discussion
in a written opinion. R. 2:11-3(e)(2). We affirm substantially
for the reasons expressed by Judge Wigler in his well-reasoned
written opinion. However, we add the following brief comments.
Where, as here, the judge conducts an evidentiary hearing,
we must uphold the judge's factual findings, "'so long as those
findings are supported by sufficient credible evidence in the
record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we
A-0472-14T1 7
defer to a trial judge's findings that are "'substantially
influenced by [the trial judge's] opportunity to hear and see
the witnesses and to have the "feel" of the case, which a
reviewing court cannot enjoy.'" Ibid. (alteration in original)
(quoting Robinson, supra, 200 N.J. at 15). We owe particular
deference to the trial judge's credibility determinations. See
State v. Locurto, 157 N.J. 463, 470-71 (1999).
Judge Wigler found trial counsel's evidentiary hearing
testimony more credible than defendant, noting that counsel
answered "all questions by counsel very forthrightly." Trial
counsel explained the numerous discussions he had with defendant
throughout the trial, and the trial strategy employed to avoid
having him testify, which would have resulted in the disclosure
of his criminal record in order to attack his credibility. A
defense attorney's trial strategy is generally not second
guessed in a PCR proceeding. State v. Gary, 229 N.J. Super.
102, 115-16 (App. Div. 1988). To the contrary, trial counsel's
informed strategic decisions demand our heightened deference,
and "are virtually unchallengeable." Strickland, supra, 466
U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Moreover, the fact that defendant's strategy was
unsuccessful and he was convicted does not warrant a conclusion
that trial counsel was ineffective. See State v. Harris, 181
A-0472-14T1 8
N.J. 391, 488 (2004) ("Defendants have a right to a reasonable
strategy based on reasonable investigation; they may not claim
ineffective assistance merely because the strategy did not
produce the result counsel sought."), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Outcome:

Under the circumstances, counsel's strategic decision cannot be considered
ineffective assistance of counsel.
Affirmed