State of New Jersey v. Sergio Derosa

NOT FOR PUBLICATION WITHOUT THE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-1335-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SERGIO DEROSA,

Defendant-Appellant.

_______________________

Submitted June 3, 2025 – Decided August 1, 2025

Before Judges Sumners and Susswein.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Indictment No. 16-09-2118.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Mark Zavotsky, Designated Counsel, on the

brief).

William E. Reynolds, Atlantic County Prosecutor,

attorney for respondent (Matthew T. Mills, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sergio DeRosa was found guilty by a jury of first-degree

murder for shooting his wife, Lynn DeRosa, in their home and was sentenced to

the mandatory minimum thirty-year parole ineligibility term. Defendant had

initially been charged with reckless manslaughter, but the indictment was

superseded about a year later when the State, based upon further investigation,

elevated the charge to first-degree murder. The jury rejected defendant's defense

that the shooting was accidental; he claimed he was cleaning his rifle under his

wife's guidance when it mistakenly fired. His conviction was affirmed on

appeal. State v. DeRosa, No. A-1350-17 (App. Div. Oct. 29, 2020) (slip op. at

2), certif. denied 245 N.J. 360 (2021).1

Defendant filed a self-represented PCR petition, which, on January 23,

2023, the PCR judge "dismissed without prejudice, preserving the original filing

date for six months, due to the [defendant's] failure to file a timely brief."

Defendant filed a timely second PCR petition and brief claiming trial counsel

was ineffective for failing to: (1) present a legal expert regarding equitable

distribution and alimony in the event defendant and his wife divorced or ask for

a jury instruction on divorce distribution law; (2) object during the State's

1

Defendant did not appeal his sentence.

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summations concerning defendant's motive to murder his wife; and (3) interview

defendant's son and daughter-in law who testified on behalf of the State that his

parents had marital and financial problems and was not prepared to confront

these claims. A different PCR judge entered an order denying defendant relief,

explaining his reasons in a seventeen-page written decision.

Defendant appeals, arguing:

POINT I

DEFENDANT RECEIVED INEFFECTIVE

ASSISTANCE OF COUNSEL FOR COUNSEL'S

INADEQUATE REPRESENTATION AND

PREPARATION DURING BOTH THE PLEA AND

TRIAL STAGES OF HIS CRIMINAL

PROCEEDINGS.

A. APPLICABLE LAW.

B. DEFENDANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL FOR

COUNSEL'S FAILURE TO ATTEMPT TO

NEGOTIATE A PLEA OFFER TO THE

ORIGINAL CHARGE OF [RECKLESS2]

MANSLAUGHTER.

C. DEFENDANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL FOR FAILURE

TO PRESENT EXPERT TESTIMONY TO

2

Defendant's merits brief interchangeably uses the terms "aggravated" and

"reckless." Because defendant was charged with "reckless manslaughter," we

only use this term.

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REFUTE THE PROSECUTOR'S CLAIM HE

WAS FINANCIALLY MOTIVATED TO

MURDER HIS WIFE.

D. DEFENDANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL FOR

COUNSEL'S FAILURE TO OBJECT TO

PREJUDICIAL COMMENTS DURING THE

PROSECUTOR'S CLOSING WHICH WERE

NOT SUPPORTED BY THE RECORD AND

WERE USED TO ESTABLISH MOTIVE FOR

THE CRIME.

E. DEFENDANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL WHO FAILED

TO CONDUCT PRETRIAL INTERVIEWS OF

HIS SON AND DAUGHTER-IN-LAW WHO

SURPRISED COUNSEL AT TRIAL WHEN

THEY OFFERED A MOTIVE FOR FIRST-

DEGREE MURDER.

After reviewing the record in view of the parties' arguments and governing

legal principles, we affirm the PCR judge's order denying relief based upon trial

counsel's failure to present expert testimony, object to the prosecutor's

summation comments, and conduct pretrial interviews of defendant's son and

daughter-in-law. However, we reverse and remand for an evidentiary hearing

to determine whether trial counsel was ineffective for not negotiating a plea to

reckless manslaughter.

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I

To resolve the issues raised in this appeal, we need not discuss at length

the trial proceedings, which are detailed in our fifty-eight-page unpublished

opinion affirming defendant's conviction. See DeRosa. We instead summarize

the proceedings along with the PCR judge's rulings that relate to defendant's

arguments. Before we address these arguments, we set forth the principles that

guide our analysis.

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

defendant must show: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland). The

mere raising of PCR does not entitle the defendant to an evidentiary hearing,

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), because the

court reviewing claims of ineffective assistance has the discretion to grant an

evidentiary hearing only if the defendant makes a prima facie showing in support

of the requested relief, State v. Preciose, 129 N.J. 451, 462-63 (1992). An

evidentiary hearing should only be conducted if there are disputed issues as to

material facts regarding entitlement to PCR that cannot be resolved based on the

existing record. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

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We review a PCR judge's legal conclusions de novo. State v. Harris, 181

N.J. 391, 419 (2004). "Where . . . the PCR [judge] has not conducted an

evidentiary hearing, we review [their] legal and factual determinations de novo."

State v. Aburoumi, 464 N.J. Super. 326, 338 (2020).

II

Defendant contends trial counsel neglected to present expert testimony to

challenge the State's theory that defendant murdered his wife because he feared

she would divorce him, leaving him destitute. He asserts a marital law expert

would have shown that a divorce would have not have financially ruined him.

Defendant's claim that such an expert would have aided his defense is

misguided.

To provide expert testimony, a party must satisfy N.J.R.E. 702, which

states:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion

or otherwise.

Thus, expert testimony is only needed where: "(1) the intended testimony must

concern a subject matter that is beyond the ken of the average juror; (2) the field

testified to must be at a state of the art such that an expert's testimony could be

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sufficiently reliable; and (3) the witness must have sufficient expertise." Hisenaj

v. Kuehner, 194 N.J. 6, 15 (2008). Yet, an "expert[] may not intrude on the

province of the jury by offering, in the guise of opinions, views on the meaning

of facts that the jury is fully able to sort out without expert assistance." State v.

Sowell, 213 N.J. 89, 102 (2013) (quoting State v. McLean, 205 N.J. 438, 461

(2011)).

We agree with the PCR judge that trial counsel was not ineffective for

failing to proffer marital expert testimony regarding the law of equitable

distribution and alimony, as well as failing to ask for a jury instruction on these

legal principles, because the issues are irrelevant to a legitimate defense strategy

and such testimony would be confusing.

The State's motive theory that defendant killed his wife to avoid being

shut out from getting any assets from her –– their house and the bank accounts

were in her name –– if they divorced comes directly from defendant's statement

that his brother "just got divorced" and was taken for "half a million dollars."

Rather, considering defendant's gambling debt, his limited monthly social

security income, Lynn's spendthrift ways and shared hobbies with another man,

the State theorized in summation defendant's thinking: "There's no way he's

getting divorced. There's no way she's taking his money and bringing it to

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another man. . . . So[,] on April 26, 2014, I'm going to kill my wife." However,

contrary to defendant's contention, the State never presented any evidence that

defendant killed his wife based on his knowledge of our state's divorce law. The

State merely cited defendant's self-expressed fear of being in the same boat as

his brother.

Testimony by a defense marital expert would not have been admissible

because it would not help the jury "understand the evidence or determine a fact

in issue." N.J.R.E. 702. The issue before the jury was whether defendant killed

his wife in order to maintain his lifestyle given his fear that his wife would leave

him. We agree with the State that an expert cannot answer the factual question

of whether defendant was concerned—even incorrectly—that a divorce would

substantially affect his financial security. Additionally, the State's theory of

motive rests on what defendant believed about the consequences of a divorce at

the time of the homicide, not on what an expert opines as to the financial

consequences of divorce. The jury could decide the issue without an explanation

of our divorce law regarding distribution of marital assets.

III

Defendant argues trial counsel failed to object to the State's summation

remarks, which, defendant contends, were without a basis in fact, law, or

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evidence, that he intentionally killed Lynn while she was sleeping because he

believed she wanted a divorce which would leave him financially destitute.

Defendant maintains trial counsel's objection during the motion for a new trial

failed to challenge the State's inference that Lynn was sleeping when she was

shot which called for a new trial because counsel's ineffectiveness affected the

jury's verdict. He asserts "the prosecutor's misconduct had the clear capacity to

lead to an unjust verdict by establishing a motive, while [also] . . . negating

defendant's entire testimony that the shooting was an accident."

We agree with the PCR judge that trial counsel was not ineffective as she

challenged these closing arguments. The judge correctly recognized trial

counsel objected to the prosecutor's arguments regarding divorce, financial

motive, defendant seeking money, infidelity, and the proximity of the parties

when defendant shot her. Counsel waited until the prosecutor had concluded his

summation because she did not want to interrupt him. The trial judge

commented that it was the correct way to object but denied the objections after

considering the parties' arguments.

Regarding the State's inference that Lynn was likely sleeping when she

was shot, trial counsel did not object. Yet, this was not ineffective

representation because as the PCR judge correctly reasoned the inference was

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reasonably grounded in the State's evidence. See State v. Reddish, 181 N.J. 553,

641 (2004) (internal citation omitted) (holding closing remarks must be confined

in scope to "evidence revealed during the trial and reasonable inferences to be

drawn from that evidence"); see also State v. Echols, 199 N.J. 344, 359-60

(2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)) (recognizing

prosecutors "are afforded considerable leeway in making opening statements

and summations"). The medical examiner testified "[t]he lack of injury to the

surface of [Lynn's] eye suggests that her eyes were closed at the time of the

incident," and "she had fine white particulate matter over the right side of her

face and her hair." This testimony, coupled with the fact that it was around 9:00

p.m. when the shooting occurred and Lynn was on the couch, substantiated the

State's reasonable inference that she was "asleep" when she was shot. Counsel

cannot be held ineffective for not objecting to closing remarks that would not

have been sustained. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The

failure to raise unsuccessful legal arguments does not constitute ineffective

assistance of counsel.").

IV

Defendant argues trial counsel was ineffective for not interviewing his son

and daughter-in-law before they testified that he had financial difficulties and

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marital discord. He points to counsel's certification attesting that she was

"blindsided" by the two witnesses' testimony, which the State used to establish

defendant's motive for killing Lynn. Defendant claims he was prejudiced by

counsel's deficient investigation which affected the outcome of the trial.

Defendant seeks an evidentiary hearing to question counsel why she chose not

to interview his son and daughter-in-law.

We agree with the PCR judge that trial counsel was not ineffective. Trial

counsel's certification that she was ill-equipped and surprised at trial regarding

the son and daughter-in-law's testimony is belied by her arguments, nearly a

month-and-a-half before trial, in support of her unsuccessful motion to suppress

the admissibility of the witnesses' statements. Counsel recited the witnesses'

statements to law enforcement and the theory they proffered to the State that

defendant planned to murder Lynn. Thus, as the judge correctly determined,

counsel was well-informed that the witnesses would testify that defendant's

financial troubles and strained relationship with Lynn motivated defendant to

kill her. The PCR judge's weighing of these factual conflicts is supported by the

record.

Moreover, even if counsel was ineffective for not presenting testimony to

refute his son and daughter-in-law's testimony, defendant did not present a

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certification by a witness who could provide such testimony. Therefore, we

cannot conclude that defendant was prejudiced by counsel's ineffectiveness.

V

Defendant asserts trial counsel was ineffective by not pursuing a plea deal

when he was originally charged with reckless manslaughter. He relies upon trial

counsel's certification stating she

never negotiated a non-trial resolution with the

prosecutor nor discussed a possible plea with

[defendant] because I believed that the shooting was an

accident, and the [S]tate could not prove an intent to

kill or cause serious bodily injury. Neither did I

contemplate a plea to reckless manslaughter . . . as I

believed in [defendant's] claim of innocence.

Moreover, counsel affirmed, "[a]fter the fact, the prosecutor indicated that he

would have agreed to allow [defendant] to plead to [] reckless manslaughter."

Defendant contends counsel's "overconfidence of an acquittal prevented the

[plea] offer from being presented for consideration," thus, he was unable to

make an informed decision. Defendant argues he was prejudiced because if trial

counsel had presented a plea offer to reckless manslaughter, a second-degree

offense he would have accepted it as it would have reduced his sentence

exposure to between ten to thirty years, as opposed to a sentence of thirty years

without parole eligibility for the first-degree aggravated manslaughter offense.

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He certified that "[a]lthough I did not shoot my wife on purpose, I would have

pled to reckless manslaughter" since "I did cause her death[,] and it was reckless

to aim a gun in her direction while I was cleaning it."

On this issue, we are constrained to part company with the PCR judge.

We are mindful that "the decision whether to engage in such bargaining rests

with the prosecutor" and a plea agreement operates as a contract, which "requires

that both parties to the bargain voluntarily agree to its term" and come to a

"meeting of the minds." State v. Williams, 277 N.J. Super. 40, 46 (App. Div.

1994). Nevertheless, "[a] defense counsel's duty to provide representation in the

plea negotiation process thus plainly includes the duty to explore the possibility

of resolving criminal charges through a plea agreement when directed to do so

by a client, to keep the client informed of a plea offer, and to follow the client's

instructions in accepting or rejecting the plea offer." Cortez v. Gindhart, 435

N.J. Super. 589, 602 (App. Div. 2014). More generally, lawyers are required to

take "any steps necessary in the proper handling of the case," including but not

limited to "a careful investigation of the facts of the matter, the formulation of

a legal strategy, the filing of appropriate papers, and the maintenance of

communication with the client." Ziegelheim v. Apollo, 128 N.J. 250, 260-61

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(1992) (first quoting Passanante v. Yormark, 138 N.J. Super. 233, 239 (1975)),

(then citing id. at 238-39). Further, we recently held

a defendant has a right to have his counsel advocate on

his behalf for the most favorable plea deal possible.

Indeed, given the prevalence of negotiated guilty

pleas—which account for the vast majority of

convictions—it is axiomatic that the assistance of

counsel during the plea negotiation process is no less

important than assistance rendered during a jury trial.

[State v. Wildgoose, 479 N.J. Super. 331, 350-51 (App.

Div. 2024).]

It seems from trial counsel's certification that she never pursued plea

negotiations based upon her one-dimensional view of the case –– her client's

perspective. It appears counsel did not exercise the reasonable conduct expected

of lawyers and undermined her duty to "pursue the goals of the client," and

undertake "a careful investigation of the facts of the matter [and] the formulation

of a legal strategy." Ziegelheim, 128 N.J. at. 261; see also Strickland, 466 U.S.

at 700.

In not granting defendant an evidentiary hearing, the PCR judge stated:

[Defendant] had to complete a [p]retrial

[m]emorandum, with the assistance of counsel, and

acknowledge review and understanding of its contents

before the court. Every [p]retrial [m]emorandum

includes a section directing the defendant to set forth in

detail the plea agreement offered including sentencing

recommendations. Clearly, a plea agreement was

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extended, and [defendant] rejected that offer, on the

record.

However, there is no credible evidence in the record memorializing or intimating

that defendant freely and voluntarily rejected a plea offer to reckless

manslaughter. And if a plea offer was extended, the PCR judge would have to

evaluate when it was extended and what steps trial counsel took during

defendant's initial charge that constituted sound trial strategy. An evidentiary

hearing is necessary to address these issues to determine if counsel was

ineffective with respect to plea negotiations, which prejudiced defendant.

The State's assertion that defendant maintained his innocence and,

therefore, would be prohibited from perjuring himself by pleading guilty is

unpersuasive. A reckless manslaughter factual predicate only requires:

[(1)] "[the defendant] consciously disregards a

substantial and unjustifiable risk that the material

element exists or will result from his conduct;" and

[(2)] "the victim's death . . . was within the scope of the

risk contemplated by the defendant."

[State v. Campfield, 213 N.J. 218, 232-34 (2013); see

also N.J. Model Jury Charge (Criminal), 2C:11-

4(b)(1).]

Defendant conceded that he acted in a reckless manner, as reflected by his

statements to law enforcement that he turned off the gun's safety measure,

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loaded a live round into the shotgun, which was aimed at the victim, and pulled

the trigger. Based on the present record, a negotiated guilty plea by defendant

to reckless manslaughter seems plausible.

We affirm in part and reverse and remand in part for proceedings

consistent with this opinion. We do not retain jurisdiction.

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