STATE OF NEW JERSEY v. JAVIER MUNOZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5274-03T45274-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JAVIER MUNOZ,

Defendant-Appellant.

__________________________________

 

Submitted: October 3, 2005 - Decided:

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 91-04-0721.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Leo J. Hurley, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Javier Munoz appeals from the denial of his petition for post-conviction relief. He is serving an aggregate term of eighteen years with a six-year period of parole ineligibility following his conviction of first degree robbery, second degree possession of a weapon for an unlawful purpose, third degree unlawful possession of a weapon, fourth degree possession of hollow nose bullets, three counts of third degree aggravated assault, and two counts of fourth degree aggravated assault. The charges emanate from the robbery of a travel agency in Union City and the flight from the incident.

In his petition for post-conviction relief, defendant asserted that his sentence was disparate to that imposed on his co-defendants, that trial counsel was ineffective for failing to request a charge on second degree robbery as a lesser included offense, and that counsel failed to request amendment to the verdict sheet to reflect the lesser included offense. Defendant also alleged that appellate counsel was ineffective. The assigned public defender filed a brief on defendant's behalf in which counsel argued that defendant was denied effective assistance of counsel on the grounds identified by this court in our November 2000 opinion on direct appeal, as well as trial counsel's failure to request a charge on the lesser included offense of second degree robbery and the failure to object to the introduction of inadmissible hearsay during sentencing. Assigned counsel also contended that defendant's sentence was illegal because of the disparity of sentences among co-defendants and that appellate counsel was inadequate. Judge Tolentino held that there was an insufficient factual basis to warrant a request for this charge or to require the trial judge to deliver the charge sua sponte and denied the petition.

On appeal, defendant focuses only on the failure of trial counsel to request a charge of second degree robbery as a lesser included offense. Defendant bases this argument on his characterization of his role in the robbery as limited to "getaway driver." We affirm.

We briefly review the facts of the 1991 robbery to place defendant's argument in context. At approximately 4 p.m. on February 11, 1991, two men armed with guns entered the Delgado Travel Agency (agency) in Union City. One of the men, described as the "tall man", waived his gun and announced to the four agency employees that "[t]his is a robbery. Give me the deposit that you have ready." Two employees of the agency handed the men red or blue plastic envelopes filled with money. The men took the money and left the store. One employee was unsure whether a third person had participated in the robbery; she was later informed by her co-workers that a third man drove the getaway car.

At the time of the robbery, two Union City Police detectives, Detective Frank Caputo and Detective Brian Barrett, were in the vicinity of the agency. As they conversed, Caputo received a radio message that a robbery was in progress at the agency, located three or four blocks away. Barrett got into the passenger seat of Caputo's unmarked police car and Caputo drove toward the agency. As they approached the agency, a neighboring business owner waved the detectives down and informed them that the suspects had fled the scene by car. The business owner gave them a description of the vehicle and a license plate number.

The detectives began a search and pursuit of the vehicle. During their search, a radio broadcast relayed a specific description of the getaway vehicle, a silver two-door Mazda RX-7, and a license plate number. As they approached 76th Street and Tonnelle Avenue, the detectives saw a silver two-door Mazda RX-7. Caputo activated the car's overhead light and siren to clear traffic. As they neared the vehicle, they noticed the license plate number was the same as that given on the broadcast. The detectives chased the vehicle which had two passengers in the front seat and one in the rear.

The pursued vehicle became bogged down in heavy traffic and stopped on 91st Street and Tonnelle Avenue. Once the vehicle stopped, the passenger door opened and two of the men exited. The first person to exit was the person in the right front passenger seat, later identified as Jorge Martinez. Martinez had a large pistol in his hand, which he threw back inside the car. He then proceeded to walk slowly up 91st Street and was immediately apprehended by Barrett. Once Martinez was seized, he dropped a red plastic envelope bearing the agency's insignia.

Angel Munoz exited the vehicle immediately after Martinez, and was observed by Barrett to have a handgun in his waistband. After exiting the vehicle, Angel started walking away from Barrett and Caputo, ignoring their orders to stop. Angel fled north, up Tonnelle Avenue.

Defendant was found by Caputo lying across the front seat of the Mazda with a small black handgun in his hand. Defendant was pointing the cocked gun in the direction of Barrett who was standing nearby. As Caputo ordered defendant to drop the gun, defendant turned towards Caputo and pointed the cocked gun in his direction. After repeated commands, defendant dropped the weapon. Defendant was then ordered out of the vehicle and, after a short struggle, Caputo handcuffed him.

A subsequent search of the vehicle revealed a rubber mask, $1,030 in cash, and the agency bag. The police also secured the gun that Martinez threw back into the vehicle before attempting to flee, as well as the gun found in defendant's possession at the time of his arrest. The gun found in defendant's possession was loaded with six rounds of hollow-point bullets.

Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of Jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. However, the mere raising of such a claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Id. at 698, 104 S. Ct. at 2070, 80 L. Ed. 2d at 700. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because "prejudice is not presumed," State v. Fritz, supra, 105 N.J. at 64, a 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, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Here, in order for defendant to establish that counsel was ineffective, he must demonstrate that, based on the evidence in the case, a second degree robbery charge would have been granted if his trial counsel had requested such a charge. If defendant makes that demonstration, trial counsel's performance was deficient and his failure to request a lesser included offense charge undermined the reliability of the proceeding. Here, the facts demonstrate that a judge should have denied any request for a second degree robbery charge, and there was no basis for the trial judge to deliver such a charge sua sponte.

Under N.J.S.A. 2C:15-1b, robbery is a crime of the second degree. If there are aggravating factors, such as the use or threatened use of a deadly weapon, the crime is elevated to one of the first degree. Ibid. Moreover, the crime of robbery continues during the flight immediately after the theft. State v. Baker, 303 N.J. Super. 411, 416 (App. Div. 1997). An act is considered to be "'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1a.

Defendant's argument clearly ignores the fact that, under the Code, a robbery is not completed by the taking of property by force, but continues through the flight after such an act. Ibid. Here, defendant's conduct occurred "in the course of a theft" because the robbery was ongoing and in progress. Ibid. The record clearly reveals, and defendant does not dispute, that Martinez and Angel, after robbing the agency at gunpoint, were driven from the crime scene by defendant. Therefore, the fact that defendant was only found to have possession of a gun after the commission of the crime and in a different location is immaterial. The flight from the scene of the robbery was an integral part of the offense. The robbery was actually in progress at the time the vehicle was stopped by Caputo and Barrett.

Additionally, defendant contends the facts support a charge of second degree robbery because he did not have possession of a gun prior to being stopped by Caputo. Defendant contends there was no evidence presented at trial demonstrating his awareness of his accomplices' intent to use guns during the robbery. Defendant also contends there was no evidence presented indicating that his intent was to kill or injure anyone.

It is well recognized that an accomplice may be guilty of first degree robbery, even though he did not actually use or possess a firearm during the commission of the robbery, if he had the purpose to promote or facilitate that crime. State v. White, 98 N.J. 122, 130 (1984). Under N.J.S.A. 2C:2-6c(1), a person is the accomplice of another if:

With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person in planning or committing it; or

(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do[.]

[N.J.S.A. 2C:2-6c(1).]

An accomplice acts with the purpose of promoting or facilitating the commission of the crime for which he is charged. Ibid. Under N.J.S.A. 2C:2-2b(1), a person "acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist." Ibid. Thus, if an accomplice enters into the commission of a crime with the same intent and purpose as the actual perpetrator, each is guilty to the same degree. State v. White, supra, 98 N.J. at 129.

Here, the only reasonable conclusion from the facts adduced at trial is that defendant knew his cohorts were armed as they confronted the employees of the agency and stole the day's receipts. Moreover, his use of a gun during flight from the scene of the theft revealed his intent and purpose to injure one of the police officers.

While defendant contends his participation was limited to getaway driver, the fact that Caputo found defendant lying down across the front seat of the vehicle holding a handgun pointed at Barrett negates that argument. In fact, Martinez threw his gun into the vehicle as he was exiting, most likely to supply defendant with a weapon to use on the police officers. In addition, as defendant pointed the gun at Barrett, Barrett's back was to defendant. The gun was cocked, loaded with six hollow nose bullets, and fully operable. This evidence indicates that defendant was not pointing the gun in Barrett's direction for protection, but was prepared to injure the police officer. Moreover, when Caputo told defendant to drop the weapon, defendant did not comply, but turned the weapon toward Caputo. Caputo had to give several commands before defendant dropped the weapon. This evidence clearly indicates that defendant's intent was to injure one or both of the police officers.

For defendant to be entitled to a charge on a lesser included offense, such as second degree robbery, the "lesser" offense must be "established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). Further, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e; State v. Savage, 172 N.J. 374, 397 (2002); State v. Purnell, 126 N.J. 518, 532 (1992) (citing State v. Coyle, 119 N.J. 194, 222-23 (1990)). When the defendant seeks a charge of a lesser offense, the lesser offense instruction is required if "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 116 (1994). In the absence of a request by the defendant for a specific charge, the trial judge is required to deliver an appropriate unrequested charge only when the evidence clearly indicates the need for the charge. State v. Choice, 98 N.J. 295, 298 (1985); State v. Powell, 84 N.J. 305, 319 (1980).

Here, the evidence adduced at trial did not provide a rational basis for the charge and such a charge was certainly not clearly indicated. Therefore, defendant cannot demonstrate that trial counsel erred when he failed to request a charge for second degree robbery and defendant's petition for post-conviction relief was properly denied.

 
Affirmed.

(continued)

(continued)

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A-5274-03T4

October 21, 2005