SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2429-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL A. CATALANO,

Defendant-Appellant.

______________________________

Submitted January 14, 2019 – Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 15-01-0212.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew R. Burroughs, Designated Counsel, 

on the brief).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Tiffany M. Russo, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.

January 25, 2019
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Defendant Daniel Catalano appeals from the Law Division's July 17, 2017 

order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing, and the court's September 11, 2017 order denying his 

motion for reconsideration. We affirm.

On August 25, 2014, a team of State Troopers was conducting a 

surveillance of an alley in Newark. According to his written report, Detective 

Meyers observed defendant engage in a hand-to-hand drug transaction with 

another individual.1 Defendant then got into his co-defendant's2car and drove 

away. The Troopers stopped the car and, after searching defendant, found 

seventy-five bags of heroin in his sweatshirt.

Based upon this evidence, an Essex County grand jury returned a fivecount indictment charging defendant with third-degree conspiracy, N.J.S.A. 

2C:25-2 and N.J.S.A. 2C:35-5(a)(1) (count one); third-degree possession of 

heroin, N.J.S.A. 2C:35-10(a) (count two); third-degree possession of heroin, 

with the intent to distribute it, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); 

 

1

 The detective's report, which was provided to us by the parties at our request 

following the submission of their appellate briefs, stated that he "was able to see 

[defendant] with an unobstructed view from an undisclosed location."

2

 During his plea colloquy, defendant testified that the co-defendant, who was 

driving the car, had no knowledge that defendant was in possession of heroin.
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third-degree possession of cocaine, N.J.S.A. 2C:35-10(a) (count four); and 

third-degree possession of cocaine with the intent to distribute it, N.J.S.A. 

2C:35-5(a)(1) and (b)(3) (count five).

Defendant's attorney filed a motion to suppress the heroin. The attorney 

asserted that although defendant was in the alley as claimed by the Troopers, he 

did not engage in any drug transaction. In addition, defense counsel argued that 

the alley was so narrow that the Troopers could not have seen into it if they were 

conducting their surveillance while sitting in their unmarked undercover car 

located on the adjacent street.

Several months later, the State offered to dismiss counts one, three, four, 

and five of the indictment if defendant agreed to plead guilty to count two, 

possession of heroin. The State also stated it would recommend that the trial 

judge sentence defendant to a three-year term with no period of parole 

ineligibility, and that this term should be concurrent to an anticipated custodial 

sentence defendant expected to receive in Monmouth County on unrelated 

offenses. Defendant agreed to this proposal, and defense counsel withdrew the 

suppression motion. The judge thereafter sentenced defendant in accordance 

with his negotiated plea.
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Defendant filed a timely petition for PCR. Defendant argued that his plea 

attorney provided ineffective assistance by failing to properly investigate his 

case. In support of this assertion, defendant retained an investigator who took 

photographs from various locations he personally selected into the alley. From 

the vantage points the investigator chose, he stated he could not see into the 

alley. Defendant claimed that if his plea attorney had hired an investigator prior 

to his plea to take similar photographs, defendant would not have withdrawn his 

motion to suppress and, instead, could have proven that the Troopers had 

fabricated their claims that they observed him engage in a drug transaction while 

in the alley.

In a thorough oral opinion, Judge Michael Petrolle considered defendant's 

assertion and denied his petition. The judge concluded that defendant failed to 

satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687 

(1984), which requires a showing that a defendant's performance was deficient 

and that, but for the deficient performance, the result would have been different.

Judge Petrolle observed that defendant's attorney filed a motion to 

suppress the heroin, but defendant then decided to accept the State's plea offer. 

Under those circumstances, the judge found that defense counsel "did all that 

the attorney would be expected to do in the circumstances in light of . . . 
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defendant's decision not to proceed with the motion, [and instead] to plead 

guilty[.]"

In addition, the judge noted that defendant did not produce a certification 

from the investigator "as to what he could see or couldn't see. All we have is 

photographs from that person."3 The judge concluded that the photographs were 

"not in any way dispositive of what an officer saw or said he saw in his report[,]" 

because there was nothing from the investigator to indicate where he was when 

he took the photographs. In short, defendant produced no evidence that the 

investigator took the pictures from the same surveillance locations the Troopers 

used on the date of defendant's offenses. The judge found that an evidentiary 

hearing was not necessary because defendant failed to prove a prima facie case 

of ineffective assistance.

Defendant thereafter filed a motion for reconsideration. In support of this 

motion, defendant produced a written memo, but not a certification or affidavit, 

from the investigator. This memo did not identify the specific locations the 

investigator used to take the photographs, and merely asserted that he was "not 

 

3

 The parties did not provide us with these photographs with their appellate 

submissions, but later did so at our request.
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sure how the police were able to see around the corner . . . to see a drug deal 

take place."

After oral argument, Judge Petrolle denied defendant's motion for 

reconsideration. In denying the motion, the judge explained:

[I]t appears to me that these photographs are 

photographs from vantage points that the investigator, 

whom I know to be a very fine investigator and a[n] 

experienced police officer, are vantage points for 

photographing that he chose to take. But they're not the 

same vantage points that – or the points that the State 

Police had.

It appears to me, from reading the report, that 

there was more than one vantage point. And with the 

detail that the police, the State Police Officer supplied 

as to actions and dress, apparel, each individual 

involved participating, it – there's no way that the . . . 

investigator could know where the officers, who were 

the State Police Investigating Officers, made their 

observations from.

And what we have is . . . a really an effort at . . . 

and I don't mean to be facetious or insulting, but an 

effort at . . . trying to set up a straw person that the 

defense can then argue against.

The defense is supplying the vantage points that 

they say the police couldn't see from. They're not in 

any way establishing a challenge to the vantage points 

the police did see from. And this is an after the fact 

challenge to credibility purely based on speculation.

This appeal followed.
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On appeal, defendant presents the following contentions:

POINT I

AS DEFENSE COUNSEL FAILED TO PROPERLY 

INVESTIGATE THE CASE, DEFENDANT'S 

GUILTY PLEA WAS NOT KNOWINGLY, 

VOLUNTARILY, AND INTELLIGENTLY MADE.

POINT II

THE PCR COURT WAS WRONG WHEN IT DENIED 

DEFENDANT'S MOTION FOR 

RECONSIDERATION.

POINT III

AS THERE WAS A GENUINE DISPUTE OF 

MATERIAL FACTS, AN EVIDENTIARY HEARING 

WAS REQUIRED.

When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, that he or she is entitled to the requested 

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 

459 (1992). To sustain that burden, the defendant must allege and articulate 

specific facts that "provide the court with an adequate basis on which to rest its 

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel." State v. 
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Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts 

should grant evidentiary hearings and make a determination on the merits only 

if the defendant has presented a prima facie claim of ineffective assistance. 

Preciose, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obliged to show not only the particular manner in which counsel's 

performance was deficient, but also that the deficiency prejudiced his right to a 

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). The 

United States Supreme Court has extended these principles to a criminal defense 

attorney's representation of an accused in connection with a plea negotiation. 

Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134, 

143-44 (2012).

There is a strong presumption that counsel "rendered adequate assistance 

and made all significant decisions in the exercise of reasonable professional 

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not 

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific 

errors of counsel undermined the reliability" of the proceeding. United States 

v. Cronic, 466 U.S. 648, 659 n.26 (1984).
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We have considered defendant's contentions in light of the record and 

applicable legal principles and conclude that they are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm 

substantially for the reasons expressed by Judge Petrolle in his well-reasoned 

written opinion, and add the following brief comments.

The record amply supports Judge Petrolle's determination that defendant's 

plea attorney did not provide defendant with ineffective assistance. The attorney 

filed a motion to suppress, raising the same allegation as defendant raised in his 

PCR petition. Rather than pursue that motion, defendant decided to accept the 

State's offer, negotiated by his attorney, to dismiss four of the five counts of the 

complaint in return for a recommended sentence that would run concurrent to a 

sentence defendant was about to receive in another county.

Contrary to defendant's claim in his motion for reconsideration, the 

investigator's memo added nothing to defendant's assertion that he would have 

been able to establish that the Troopers' claims that they saw defendant in the 

alley were not credible. Reconsideration should only be granted in "those cases 

which fall into that narrow corridor in which either 1) the [c]ourt has expressed 

its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious 

that the [c]ourt either did not consider, or failed to appreciate the significance 
10 A-2429-17T2

of probative, competent evidence[.]" Cummings v. Bahr, 295 N.J. Super. 374, 

384 (App. Div. 1996) (quoting D’Atria v. D’Atria, 242 N.J. Super. 392, 401-02 

(Ch. Div. 1990)). Therefore, we have held that "the magnitude of the error cited 

must be a game-changer for reconsideration to be appropriate." Palombi v. 

Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010).

As Judge Petrolle found, the barebones memo was not "a game-changer" 

because the investigator did not establish that he took the photographs from the 

same surveillance points the Troopers used when they observed defendant. The 

investigator also did not submit a certification in support of the memo. State v. 

Cummings, 321 N.J. Super. at 170 (stating that a defendant seeking PCR must 

present facts "supported by affidavits or certifications based upon the personal 

knowledge of the affiant or the person making the certification"). Thus, the 

judge properly concluded that defendant failed to meet either prong of the 

Strickland test and, therefore, he was not required to conduct an evidentiary 

hearing on defendant's PCR application. Preciose, 129 N.J. at 462.

Affirmed.