STATE OF NEW JERSEY VS. SERKAN M. SEYREK (13-11-1533, BERGEN…

                                       RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4952-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SERKAN M. SEYREK,

     Defendant-Appellant.
__________________________

                   Submitted September 16, 2020 – Decided October 15, 2020

                   Before Judges Whipple and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Accusation No. 13-11-1533.

                   Galantucci & Patuto, Esqs., attorneys for appellant
                   (David J. Altieri, on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Edward F. Ray, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM

          Defendant Serkan M. Seyrek appeals the trial court's June 4, 2019, denial
of his petition for post-conviction relief (PCR) after an evidentiary hearing. We

affirm. Defendant raises the following issue on appeal:

            THE TRIAL COURT ERRED IN DENYING
            APPELLANT'S [PCR] PETITION BECAUSE TRIAL
            COUNSEL    FAILED    TO    PERFORM    AS
            GUARANTEED BY THE SIXTH AMENDMENT,
            WHICH PRECLUDED MR. SEYREK FROM
            ENTERING HIS GUILTY PLEA KNOWINGLY AND
            VOLUNTARILY.

      We discern the following facts from the record. On February 22, 2012,

defendant left a party at a college where he had been drinking. After being

dropped off at home, defendant took a knife from his kitchen and went back

outside. A few hours later, defendant entered a home by climbing onto a second-

floor deck and opening the unlocked door. Once inside, defendant sexually

assaulted two children before being caught in the act by their mother. Defendant

fled the home, leaving behind fingerprints, shoeprints, a piece of jewelry

containing the letters "SERV-N," blood, and other forms of DNA evidence.

      Approximately six months later, defendant was arrested for an unrelated

burglary. While being questioned, defendant asked whether the sexual assault

case, which had been publicized throughout the neighborhood, had been solved.

One of the detectives thought defendant matched the description of the sexual

assault suspect; defendant then became a person of interest. Defendant returned


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                                       2
to the police station to discuss that assault with the police on September 6 , 2012.

In the initial sexual assault interrogation, defendant waived his Miranda1 rights

both verbally and on a Miranda form provided by the police. Following some

initial questioning, defendant invoked his right to counsel. Upon confirming

that defendant did indeed wish to consult with an attorney, the officers ended

the interrogation.

       A half-hour later, defendant reinitiated the discussion about the case after

being informed that officers intended to seek a court order to collect DNA

samples from him. The officers then returned to the interrogation room , where

they asked defendant to confirm his request for counsel had been honored and

that defendant was voluntarily reinitiating proceedings. Officers orally re -read

defendant his Miranda rights, which he subsequently waived.              Defendant

confessed to the sexual assault and voluntarily agreed to provide DNA samples

to the police.

       Defendant was charged with eight counts of first-degree aggravated

sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14 -2(a)(1),

and one count of second-degree burglary, N.J.S.A. 2C:18-2. On November 21,

2013, defendant pled guilty to four counts of first-degree aggravated sexual


1
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                            A-4952-18T4
                                         3
assault of a victim less than thirteen years old, and one count of burglary. On

March 7, 2014, defendant was sentenced to an aggregate twenty-eight years in

prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2;

Megan's Law, N.J.S.A. 2C:7-1 to -11; and Parole Supervision for Life, N.J.S.A.

2C:43-6.4. Defendant filed a PCR petition in July 2018, asserting that his

counsel was ineffective for failing to move to suppress his statements to police

after invoking his right to counsel; for failing to advise him he could pursue a

diminished capacity defense or challenge physical evidence such as DNA and

fingerprints; and for failing to advise him of the breadth of his plea or of the

consequent limitations on his parole eligibility. The court granted an evidentiary

hearing that was held in May 2019, on the issue of defendant's discussions with

his counsel regarding his plea.

      During the hearing, defendant's trial attorney testified she went over

defendant's plea agreement with him in detail, including all five counts as well

as the NERA and civil commitment implications. Regarding the failure to file

motions to suppress the testimonial and physical evidence, the trial attorney

stated she had discussed these motions with defendant, and that he had decided

not to pursue those options.      The trial attorney also claimed that similar

considerations were made regarding defendant's possible use of a diminished


                                                                          A-4952-18T4
                                        4
capacity defense, with the defendant deciding the plea was more advantageous.

Furthermore, defendant's trial attorney indicated that she did not file a motion

to suppress as she believed it was improper to file such a motion pre-indictment.

Finally, defendant's trial attorney testified that defendant expressed an

uninterrupted desire to plea which was maintained throughout the various

discussions they had regarding the contents of his plea and the strength of his

possible defense.

      On June 4, 2019, the PCR court denied defendant's PCR petition. It found

that even if the trial attorney had filed a successful suppression motion under

Miranda, the State still had enough physical evidence to reliably obtain a

conviction. It found no merit to defendant's assertion that his counsel was

ineffective for not raising an intoxication defense. The court found plea counsel

credible and defendant to have been fully informed of all aspects of his plea

agreement. This appeal followed.

      Claims of ineffective assistance of counsel are governed by the standards

set forth in Strickland v. Washington, 

466 U.S. 668

(1984). See State v. Fritz,

105 N.J. 42

, 58 (1987) (adopting the Strickland standard in New Jersey). For a

defendant to establish a prima facie case of ineffective assistance of counsel

under Strickland, the defendant must show that defense "counsel's performance


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                                       5
was deficient," and that "there exists 'a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.'" State v. Preciose, 

129 N.J. 451

, 463-64 (1992) (quoting 

Strickland, 466 U.S. at 694

); see also State v. Allegro, 

193 N.J. 352

, 366 (2008).

      "The first prong of the [Strickland] test is satisfied by a showing that

counsel's acts or omissions fell outside the wide range of professionally

competent assistance considered in light of all the circumstances of the case ."

Allegro, 193 N.J. at 366

(quoting State v. Castagna, 

187 N.J. 293

, 314 (2006)).

To satisfy the second prong of Strickland, a defendant must prove "'that there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.'"

Id. at 367

(quoting State v.

Loftin, 

191 N.J. 172

, 198 (2007)). The second prong is "an exacting standard:

'[t]he error committed must be so serious as to undermine the court's confidence

in the jury's verdict or the result reached.'" Ibid. (quoting 

Castagna, 187 N.J. at 315

). Applying this standard, we reject defendant's arguments.

      Where there has been an evidentiary hearing, we review a PCR petition

with deference to the trial court's factual findings. State v. Nash, 

212 N.J. 518

,

540 (2013) (citations omitted).

      Defendant asserts that his trial counsel was ineffective because she (1)


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                                        6
failed to properly file motions to suppress his testimonial and physical evidence;

(2) failed to properly inform him of his potential intoxication defense; and (3)

failed to properly inform him of the contents and consequences of his plea

agreement. Arguments two and three constitute challenges to the trial court's

sufficient credible factual findings. The court found that defendant and his

attorney discussed the possibility of pursuing a diminished capacity defense .

Those findings "could reasonably have been reached on sufficient credible

evidence present in the [testimony]." See State v. Locurto, 

157 N.J. 463

, 471

(1999).

      As for the third argument, defendant contends that a failure to understand

the full contents of one's plea as well as the full legal exposure one faces would

satisfy the Strickland test. The court found that during meetings with his trial

counsel, defendant was properly informed about the contents of his plea and his

maximum exposure, a finding that was also based on the sufficiently credible

testimony of defendant's trial attorney.

      When the trial judge addressed the remaining issue, trial counsel's failure

to move to suppress the testimonial and physical evidence, the trial judge was

unable to view one of the two videos of defendant's interrogation and

accordingly conducted the Strickland test under the assumption that the initial


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                                           7
prong had been satisfied. In particular, the judge was unable to open the video

of the initial interrogation, which contained defendant's invocation of his right

to counsel. The occurrence of this invocation of Sixth Amendment rights is

uncontested by both parties. However, due to this discrepancy, the judge chose

to presume the first prong of the Strickland test had been satisfied and focused

his analysis on the second prong. Based on the available evidence, the judge

did express that he believed no Miranda violation had occurred.

      Defendant argues the judge erred in finding that the failure to file a

Miranda motion had no substantive effect on the outcome of the case. He asserts

that the court's reliance on physical evidence was inappropriate because that

evidence was obtained as a direct result of his testimony and, therefore, it should

have also been suppressed as "fruit of the poisonous tree."

      Even if we presume for purposes of this discussion that defendant's

statements were subject to suppression, we do not agree the outcome would have

been different. The physical evidence of DNA, blood, fingerprints, and the

jewelry would have been admissible under the inevitability doctrine. State v.

Johnson, 

120 N.J. 263

, 290 (1990). In Johnson, the defendant was arrested for

killing two people after police were approached by the defendant's friend, to

whom the defendant had confessed.

Id. at 269-70.

Following the arrest, Johnson


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                                        8
was interrogated for multiple hours wherein he repeatedly stated, "I can’t talk

about it," before eventually confessing.

Id. at 275, 284.

Our Supreme Court

interpreted this statement to be an assertion of his right to remain silent and saw

the police's actions as coercive. See

id. at 285-86.

This coerced confession

tainted the testimonial evidence as well as the murder weapon that was found as

a result of the questioning.

Id. at 287-88.

However, the court in Johnson held

the physical evidence was still admissible because the state established by clear

and convincing evidence that (1) the detective had begun preparing a search

warrant prior to the coercion; (2) the application would have been granted; and

(3) the investigators would have inevitably searched Johnson's home and found

the contested physical evidence.

Id. at 289-90.

      Here, there is no support that the physical evidence would have been

suppressed as fruits of the defendant's alleged unconstitutionally obtained

statements. The State would have obtained the physical evidence even without

the contested statements. Police had already collected defendant's fingerprints

after his burglary arrest, and they possessed defendant's statements recorded in

the initial interrogation which made him a suspect prior to his confession.

Defendant's fingerprint matched a print found at the scene of the crime,

providing police with enough evidence to request and likely obtain a court order


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                                        9
for the buccal swab. See Johnson, 

120 N.J. 263

at 290-91. The police stated at

the start of the reinitiated interrogation that they had already expressed an

intention to file for a court order regardless of defendant's decision to continue

talking about the case. See

Id. at 289-90.

This indication that police were

continuing to pursue defendant as a suspect even before he made the contested

statements, and the likelihood that they would have inevitably obtained the

physical evidence by seeking a court order, satisfies the inevitability doctrine.

      Moreover, to satisfy the second prong of the Strickland test, defendant

also needs to establish that but for his counsel's errors, there is a reasonable

probability that he would have rejected a plea and gone to trial. Lee v. United

States, 582 U.S. ___, 

137 S. Ct. 1958

, 1969 (2017) (citing Hill v. Lockhart, 

474 U.S. 52

, 59 (1985)).

      Here, defendant fails to provide any evidence that, but for the suppression

of his testimony, defendant would have rejected the plea and gone to trial.

Defendant's assertion that the suppression of the testimony would have given

him increased leverage to negotiate a more favorable plea is not sufficient to

satisfy Strickland's second prong.     See 

Hill, 474 U.S. at 58-59

.       Overall,

defendant has not provided persuasive legal arguments as to why the physical

evidence should be suppressed, or that he would have insisted on going to trial


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                                       10
even without this suppression. Without the ability meet the second prong of the

Strickland test, this court concludes the trial judge correctly denied defendant's

PCR petition.

      Affirmed.




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