                     NOT FOR PUBLICATION WITHOUT THE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-0433-15T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

ROSARIO MIRAGLIA,

          Defendant-Appellant.
_________________________________________________

           Submitted October 11, 2017 – Decided October 18, 2017

           Before Judges Fisher and Sumners.

           On appeal from the Superior Court of New
           Jersey,   Law  Division,   Monmouth County,
           Indictment No. 05-02-0383.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Adam W. Toraya, Designated
           Counsel, on the brief).

           Christopher J. Gramiccioni, Monmouth County
           Prosecutor, attorney for respondent (Mary R.
           Juliano, Assistant Prosecutor, of counsel and
           on the brief).

PER CURIAM

     Defendant was convicted by a jury of the first-degree murders

of Julia Miraglia, his grandmother, and Leigh L. Martinez, his

former girlfriend and the mother of his child, with knives and a
meat cleaver. After the murders, defendant called 9-1-1 and, as

police arrived, defendant, who was covered in blood, turned around,

put his hands behind his back, and said, "arrest me." When a police

officer asked "what's going on," defendant replied: "I killed her,

I   killed   that   fucking      bitch."       The    jury   rejected     defendant's

insanity defense, which was based on defendant's assertion that

he was Jesus Christ and on a mission from God.

      Defendant     was     sentenced      to        two    consecutive     terms     of

imprisonment for life without the possibility of parole. He filed

a direct appeal, arguing the trial judge erred in: finding him

competent to stand trial; denying his attorney's application,

which defendant opposed, for a bench trial; and instructing the

jury on the insanity defense. We rejected these arguments and

affirmed the judgment of conviction, State v. Miraglia, No. A-

0407-09 (App. Div. 2013), and the Supreme Court denied defendant's

petition for certification, 216 N.J. 8 (2013).

      Defendant     filed    a    pro   se      post-conviction       relief     (PCR)

petition five years and two-and-one-half months after entry of the

judgment     of   conviction,     arguing       he    was    denied   the   effective

assistance of trial counsel because, among other things, counsel

proceeded against his wishes in urging an insanity defense, in

opposing defendant's attempts to represent himself, in pursuing a

bench trial, and in failing to seek suppression of his statements

                                           2                                   A-0433-15T3
to police. Defendant also asserted he was denied the effective

assistance of appellate counsel because that attorney did not

advocate defendant's arguments about self-representation and his

trial attorney's failure to pursue his wishes. The PCR judge1

denied      relief   without   permitting        an    evidentiary       hearing.    He

determined that the PCR petition was time-barred because defendant

failed to file within five years of the judgment's entry, R. 3:22-

12(a)(1), and because defendant also failed to show excusable

neglect      or   other   interest-of-justice          grounds     for    permitting

consideration of the untimely PCR petition. Notwithstanding the

procedural bar, the PCR judge considered the merits of defendant's

arguments and rejected those assertions as well.

       As for defendant's contentions about his trial counsel's

failure to pursue his insistence upon a jury trial and the exercise

of    his   right    to   testify,   the       judge   correctly    observed      that

defendant received the trial of his choosing and testified on his

own behalf. In examining the trial transcript, the PCR judge also

found that counsel adequately communicated to the trial judge

defendant's desire to represent himself – a request the trial

judge rejected because of defendant's "delusional thinking." The

PCR judge also found no merit in the contention that trial counsel



1
    By this time, the trial judge had retired.

                                           3                                  A-0433-15T3
should have moved to suppress defendant's statements to police

because some statements were uttered during his 9-1-1 call and

others were made as police arrived and were attempting to ascertain

the nature of the disturbance. We agree that Miranda had no impact

at those times because its principles were not intended to hamper

or inhibit police in engaging in "on-the-scene questioning as to

facts surrounding a crime or general questioning of citizens in

the fact-finding process." Miranda v. Arizona, 384 U.S. 436, 477,

86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966). In responding

to the 9-1-1 dispatcher and in blurting out statements to the

police officer as he arrived on the scene, defendant was neither

under arrest nor undergoing custodial interrogation. State v.

Smith, 374 N.J. Super. 425, 430-31 (App. Div. 2005). A suppression

motion would not have been successful.

     The record also reveals that counsel moved for suppression

but ultimately withdrew the motion because these statements and

others made by defendant were integral to the insanity defense,

the pursuit of which constituted a reasonable strategic approach

in this case.

     Defendant appeals, arguing:

          I. THE TRIAL COURT ERRED IN DENYING THE
          DEFENDANT'S PETITION FOR POST CONVICTION
          RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
          HEARING TO FULLY ADDRESS HIS CONTENTION THAT


                                4                           A-0433-15T3
         HE   FAILED   TO   RECEIVE    ADEQUATE   LEGAL
         REPRESENTATION IN HIS CASE.

         II. THE COURT MISAPPLIED ITS DISCRETION IN
         APPLYING R. 3:22-4, R. 3:22-5 AND R. 3:22-12,
         AS PROCEDURAL BARS AGAINST THE DEFENDANT'S
         FILING FOR POST CONVICTION IN THIS CASE.

We find insufficient merit in these arguments to warrant further

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

substantially for the reasons set forth by Judge Joseph W. Oxley

in his thorough and well-reasoned written decision.

    Affirmed.




                               5                          A-0433-15T3
