SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3112- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. TROY BUNERO, Defendant-Appellant.

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Submitted January 9, 2024

– Decided April 15, 2024 Before Judges Sumners and Smith. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14

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- 0010. Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief ). Matthew J. Platkin, Attorney General, attorney for respondent (Adam David Klein, Deputy Attorney General, of counsel and 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3112

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Defendant Troy Bunero, a former supervisor in the North Bergen Department of Public Works (DPW), was indicted on F ebruary 20, 2014, for his role in a scheme divert ing DPW resources for private use . The nine-count indictment included a count for third-degree theft by unlawful taking or disposition, N.J.S.A. 2C:20 -3(a) and 2C:2-6 , alleging defendant " knowingly did unlawfully take or exercise unlawful control over t he movable property of [DPW], including tools, equipment, vehicles, and emp loyee services, including, but not limited to" by directing DPW employees to " work on one or more election campaigns" and perform work on defendant's home, his co-defendant's car, and another DPW supervisor's home, "for which they were paid for regular or overtime hours by [DPW]." Defendant pled not guilty to all counts. At trial , the court indicated it planned to instruct the jury on theft of services, N.J.S.A. 2C:20-8(b), instead of theft by unlawful taking, pursuant to the theft con solidation statute, N.J.S.A.
2C: 20 -2(a). A week later, 1 the court issued the jury instructions, quot ing the theft of services statute and descri bing the crime as "theft as a third[-]degree

1 We briefly stayed the trial, allowing the State to file an emergent motion for leave to appeal the trial court's order to charge t he jury on the affirmative defense of duress, N.J.S.A. 2C:2-9(a)

. The State's leave to appeal was granted and the trial court's order was summarily reversed.3 A- 3112

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offense." The jury found defendant guilty on all counts, and he was subsequently sentenced to a five-year prison term. The conviction was af firmed on direct appeal. State v. Bunero, No. A- 2126 -15 (App. Div. Apr. 2, 2018), certif. denied, 235 N.J. 464 (2018). 2 Following his unsuccessful direct appeal, defendant petitioned for postconviction relief (PCR) , alleging ineffective assistance of counsel. The petition was denied without an evidentiary hearing on Decemb er 5, 2019

. We affirmed in part but remanded for the PCR j udge to address defendant's claim that his trial counsel rendered ineffective assistance by failing to object to the trial court's jury instruction on theft of services. State v. Bu nero, No. A- 1896

- 19 (App. Div. May 3, 2021) (slip op. at 11). On February 28, 2022 , PCR Judge Angelo Servidio , who replac ed the retired initial PCR judge, issued an order denying defendant's claim without an evidentiary hearing and a written opinion supplementing the initial PCR judge's decision. Judge Servidio reasoned the indictment a lleged defendant used township workers' services for private use , giving him sufficient "notice that theft of services was within the four corners of hi s [i]ndictment." State v. Talley ,

2 Separately , we reversed a trial court order granting defendant 's bail pending appeal. State v. Bunero, No. A- 1848 -15 (App. Div. June 21, 2016).4 A- 3112

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94 N.J. 385, 390-93 (1983) ; Cannel, New Jersey Criminal Code Annotated , cmt. 2 on N.J.S.A. 2C: 20

- 2 (20 20 ) (observing "the common unifying conception in all theft offenses is the 'involuntary transfer of property'" without the owner's consent). Thus, the theft consolidation statute allowe d the trial court "to charge the jury on theft of services" and trial counsel wa s not ineffective when trial counsel failed to oppos e th is instruction. In a single point, defendant argues before us:
MR. BUNERO IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO A JURY CHARGE ON THEFT OF SERVICES. PCR is appropriate when a criminal defendant was su bstantially denied a constitutional right, such as the right to effectiv e assistance of counsel. R. 3:22

- 2(a) ; State v. Gideon, 244 N.J. 538, 550 (2021). To establish ineffective assistance of counsel, the defendant must show: 1) "counsel's performance was deficient," and 2) "the deficient performance preju diced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984) ; State v. Fritz, 105 N.J. 42, 58 (1987). The failure to file a meritless motion is not ineff ective assistance of counsel. State v. O'Neal, 190 N.J. 601, 619 (2007)

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An evidentiary hearing is held "only upon the estab lishment of a prima facie case in support of post-conviction relief." R. 3:22 -10(b). A "prima facie case" requires a defendant "demonstrate a reasonabl e likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid. , and must be supported by "specific facts and evidence supporting his allegations, " State v. Porter, 216 N.J. 343, 355 (2013). "We review a judge's decision to deny a PC R petition without an evidentiary hearing for abuse of discretion." Stat e v. Peoples, 446 N.J. Super. 245, 255 (App. Div. 2016) (citing State v. Preciose , 129 N.J. 451, 462 (1992)). Applying these principles, we conclude defendant's contentions lack sufficient merit to warrant discussion in a written opinion, R. 2:11

- 3( e)(2), and affirm substantially for the reasons expressed in J udge Servidio's thorough and cogent thirteen-page written decision. We add thes e brief remarks. The theft consolidation statute provides, in pertin ent part: Conduct denominated theft . . . constitutes a single offense . . . . A charge of theft . . . may be supported by evidence that it was committed in any manner tha t would be theft . . . under this chapter, notwithstanding the specification of a different manner in the indi ctment . . . [unless] the defense would be prejudiced by lack of fair notice or by surprise. [N.J.S.A. 2C:20-2(a) (emphasis added).]6 A- 3112

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Considering the charges against defendant, the stat ute allowed the trial court to instruct the jury on theft of services. T he indictment alleged defendant had DPW employees renovate homes, repaint his co-de fendant's car, and work on external election campaigns, all at DPW's expens e. Theft of services requires showing the defendant, " having control over the disposition of services of another, to which he is not entitled, . . . knowingly divert [ed] such services to his own benefit or to the benefit of another not en titled thereto." N.J.S.A. 2C:20- 8(b). Because "defendant was provided with adequate notic e of the charges" that were ultimately given to the jury, State v. Do rn, 233 N.J. 81, 96 (2018), there is no merit to his claim that counsel was ineffective for not objectin g to the trial court's theft of services jury instructio n . In failing to make a prima facie showing of ineffective assistance of counsel under Strickland, defendant was not entitled to an evidentiary hearing. Affirmed.