SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4809-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER N. RUSCH,

Defendant-Appellant.

Submitted October 31, 2017 – Decided

Before Judges Carroll and Mawla.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Indictment No. 10-

03-0392.

Joseph E. Krakora, Public Defender, attorney 

for appellant (William Welaj, Designated 

Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, 

attorney for respondent (Samuel Marzarella, 

Chief Appellate Attorney, of counsel; Shiraz 

Imran Deen, Assistant Prosecutor, on the 

brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.

November 21, 2017
2 A-4809-15T3

 Defendant Peter Rusch appeals from the denial of his petition 

for post-conviction relief (PCR) without an evidentiary hearing. 

For the reasons that follow, we affirm. 

 In a four-count indictment, defendant and co-defendant 

Raymond Graziosi were jointly charged with first-degree robbery, 

N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourthdegree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count 

three). Graziosi was separately charged with third-degree 

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10 

(count four). Following a June 2011 jury trial, defendant was 

acquitted of count two, but convicted of the remaining counts. 

 At sentencing on September 1, 2011, the court merged count 

three with count one. The court then sentenced defendant to a 

seventeen-year prison term on the robbery conviction, with an 

eighty-five percent period of parole ineligibility under the No 

Early Release Act, N.J.S.A. 2C:43-7.2. 

 Defendant appealed and, in an unpublished opinion, we 

affirmed his convictions and sentence. State v. Rusch, No. A-795-

11 (App. Div. Feb. 14, 2014). The Supreme Court denied defendant's 

petition for certification. State v. Rusch, 219 N.J. 627 (2014). 

 The facts underlying defendant's convictions are set forth 

in our earlier opinion and need not be repeated in the same level 
3 A-4809-15T3

of detail here. Briefly summarizing, during the early morning 

hours of July 24, 2009, the victim, George Murphy, was attacked 

and robbed at knifepoint by two individuals, later identified as 

defendant and Graziosi. The incident took place on the beach in 

Seaside Heights. Murphy advised police that the men involved were 

white, and one wore a tan hat, white tee shirt, and jean shorts, 

and the other wore a red hat. The police apprehended Graziosi, 

who was wearing a red hat, near the scene, and Murphy immediately 

identified Graziosi as one of the perpetrators. Defendant was not 

at the scene, but was arrested within a short time after police 

spotted him jumping fences between houses. When questioned by 

police, defendant admitted "hanging out all night" with Graziosi, 

but denied any knowledge of the incident with Murphy on the beach. 

 Graziosi pled guilty and testified for the State at 

defendant's trial. Graziosi stated he and defendant were 

approached in a convenience store parking lot by Murphy, who asked 

to buy drugs from them. The three men walked to the beach, where 

defendant punched Murphy in the face. Graziosi then helped pin 

Murphy down, while defendant held a knife to Murphy's throat and 

removed cash and a wallet from Murphy's pockets. After police 

apprehended Graziosi, he identified defendant as the other 

individual involved in the robbery. 
4 A-4809-15T3

 Defendant filed a timely petition for PCR in February 2015. 

PCR counsel was appointed and submitted a brief contending trial 

counsel failed to: (1) object to the court's omission of a portion 

of Model Jury Charge (Criminal), "Testimony of a Cooperating CoDefendant or Witness" (revised 2/6/06), when it was read to the 

jury; (2) challenge Murphy's out-of-court identification of 

defendant based on a faulty photo identification procedure; (3) 

secure evidence that would have assisted in establishing a defense, 

such as the convenience store surveillance video and fingerprint 

evidence; and (4) pursue another altercation defendant was 

involved in that evening with a female acquaintance, which could 

have assisted in establishing an alibi defense. Defendant also 

faulted counsel's request that defendant prepare a list of proposed 

questions and anticipated answers for each witness to be called 

at trial. 

 Judge James M. Blaney, who was not the trial judge, denied 

defendant's petition by order filed on May 6, 2016. Judge Blaney 

issued a comprehensive thirteen-page written opinion on the same 

date setting forth his findings and reasons for denying defendant

any relief. The judge concluded defendant did not establish a 

prima facie showing of ineffective assistance of counsel and, 

therefore, no evidentiary hearing was required. This appeal 
5 A-4809-15T3

followed, in which defendant presents the following issues for our 

consideration: 

POINT I

THE TRIAL COURT ERRED IN DENYING [] 

DEFENDANT'S PETITION FOR POST[-]CONVICTION 

RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY 

HEARING TO FULLY ADDRESS HIS CONTENTION THAT 

HE FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL.

POINT II

THE TRIAL COURT ERRED IN DENYING [] 

DEFENDANT'S PETITION FOR POST[-]CONVICTION 

RELIEF, IN PART, ON PROCEDURAL GROUNDS 

PURSUANT TO RULE 3:22-4. 

 The standard for determining whether counsel's performance 

was ineffective for purposes of the Sixth Amendment was formulated 

in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. 

Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of 

ineffective assistance of counsel, defendant must meet the 

following two-prong test: (l) counsel's performance was deficient 

and he or she made errors so egregious counsel was not functioning 

effectively as guaranteed by the Sixth Amendment to the United 

States Constitution; and (2) the defect in performance prejudiced 

defendant's rights to a fair trial such that there exists a 

"reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." 
6 A-4809-15T3

Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed.

2d at 698. 

 Here, defendant focuses his appeal on the statement Murphy 

gave to police in which he indicated that one of the men who robbed 

him wore a tan hat and the other a red hat. Murphy elaborated 

that he identified Graziosi at the scene as the man with the red 

hat, and it was the man wearing the tan hat who held the knife to 

his throat during the robbery. When asked about the specific 

features of the man wearing the tan hat, Murphy replied he had 

"identified him in the pictures already." 

 Defendant asserts there was no mention in discovery of a 

photo array or the photo identification procedure the police 

utilized. He submits this implies "that in fact no photo array 

was used at all and that single photos were used." Defendant 

argues trial counsel was ineffective in failing to challenge this 

"faulty identification procedure," and he was prejudiced because, 

other than Graziosi, no other witness identified him as one of the 

robbers. Defendant further contends the PCR court erred in finding 

this argument was procedurally barred under Rule 3:22-4(a) because 

it could have been raised on direct appeal. Defendant also argues 

appellate counsel was ineffective in failing to raise the 
7 A-4809-15T3

identification issue on appeal.1 After reviewing the record, we 

do not find these arguments persuasive. 

 On direct examination by the prosecutor, Murphy was not asked 

to identify defendant in the courtroom as one of the men who robbed 

him, nor was he questioned about any prior out-of-court 

identification he made of defendant. However, on crossexamination, Murphy referenced the word "picture," and he was then 

asked by defense counsel, "Didn't they show that person to you?" 

The State sought a sidebar, during which the identification issue 

was discussed. The following colloquy ensued: 

[PROSECUTOR]: Judge, we discussed this at 

length in chambers. The State has made every 

confession on the [identification]. [Defense 

counsel] has just opened that door by directly 

asking him, didn't they show you pictures to 

[identify] the guy with the knife. I am going 

to get up there on redirect and have [Murphy] 

[identify] [defendant] in court. 

 . . . . 

[DEFENSE COUNSEL]: I did not ask him about 

any pictures. I was asking him the person who 

was apprehended, was he shown that person. 

[THE COURT]: I think it's been pretty well 

established there's a prior inconsistent 

 

1 We decline to consider defendant's new claim of ineffective 

assistance of appellate counsel because it was not previously 

raised in defendant's PCR petition, was not argued before the PCR 

court, and does not involve jurisdictional or public interest 

concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. 

Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 

62 N.J. 229, 234 (1973). 
8 A-4809-15T3

statement so you made your point, but now you 

are going a little far afield and I do not 

want anything that is going to lead to opening 

the door and giving an out[-]of[-]court 

identification because the State . . . 

attempted not to do an out[-]of[-]court or 

in[-]court identification and it will remain 

such. 

 . . . . 

I will tell this jury to disregard any 

question about pictures or any answer about 

pictures, okay. We will move on from there. 

The judge then instructed the jury: 

You are to totally and completely disregard 

the question and answer that you just heard 

regarding pictures. It is not to enter into 

your discussions or deliberations at any time. 

It is not evidence. 

 It is clear from the record the State had conceded the 

identification issue and did not introduce an out-of-court or incourt identification of defendant before the jury. Defendant's 

contention that trial counsel should have somehow challenged an 

identification that was not used at trial lacks merit. Had defense 

counsel done so, the trial judge would have precluded the 

questioning or, alternatively, counsel would have risked opening 

the door to allow Murphy's identification testimony. 

 Moreover, defendant has failed to demonstrate prejudice. As 

Judge Blaney aptly concluded: 

Defense counsel's attempts to cross-examine 

about the pictures did not fall below the 
9 A-4809-15T3

standard of what a reasonable attorney should 

do, and his failure to continue to do so after 

the [c]ourt warned him to stop discussing the 

pictures was proper. If trial counsel had 

more firmly objected and eventually brought 

the issue of the picture being used to 

identify [defendant] at the police station, 

it does not seem likely that this small bit 

of evidence, in comparison with the remainder 

of the evidence against him, would have caused 

a different result. 

 The record also supports Judge Blaney's findings on 

defendant's other claims. Accordingly, we are satisfied from our 

review of the record that defendant failed to make a prima facie 

showing of ineffectiveness of trial counsel under the StricklandFritz test. The judge correctly concluded an evidentiary hearing 

was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 

(1992). 

 Affirmed.