STATE OF NEW JERSEY v. EFRAIN MERCADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5143-04T45143-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EFRAIN MERCADO,

Defendant-Appellant.

_____________________________________________

 

Submitted September 12, 2006 - Decided September 25, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Ind. No. 01-08-2105.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Efrain Mercado appeals the denial, without an evidentiary hearing, of his first petition for post-conviction relief (PCR). We affirm.

In a jury trial in April 2002, defendant was convicted of carjacking, robbery, and burglary. He was acquitted of aggravated assault. On June 28, 2002, Judge Venezia sentenced defendant to twenty years in prison with a ten-year parole disqualifier on the carjacking charge. The other convictions were merged into the carjacking conviction. We affirmed in an opinion filed October 7, 2003, and the Supreme Court denied certification on December 11, 2003. State v. Mercado, 178 N.J. 376 (2003).

Defendant filed a timely pro se PCR petition on March 22, 2004. Thereafter, appointed counsel filed an amended petition. Defendant contended that his trial counsel was ineffective by having "failed to conduct any pretrial investigation" and failing to call character witnesses on defendant's behalf. In the amended petition, defendant repeated these claims and added that counsel failed to communicate with him prior to or during trial, failed to seek suppression of witness identifications, and failed to raise an alibi defense.

At oral argument before Judge Venezia, and again on this appeal, defendant focused on counsel's failure to investigate a potential alibi defense. Defendant's other arguments are without merit and do not warrant further discussion. R. 2:11-3(e)(2). With respect to the alibi defense, defendant argued that he had alerted his attorney to such a defense, as reflected in a letter from his counsel dated December 21, 2001 requesting that defendant provide the name of the person he was with at the time of the carjacking/robbery. PCR counsel proffered that defendant was with his mother, recovering from a wound sustained less than a month earlier during an unrelated incident in which defendant was shot by police as he drove a stolen car at a police officer in an attempt to escape. In a pretrial ruling, Judge Venezia had apparently ordered the State to avoid mention of the earlier incident in the trial before him.

In denying defendant's PCR without an evidentiary hearing, the judge concluded that trial counsel could not be faulted for failing to present an alibi defense under these circumstances because it would have risked exposing the jury to the earlier shooting, with its attendant substantial prejudice. In doing so, the judge accepted PCR counsel's proffer as to the proposed alibi. As a result, he was of the view that defendant had not surmounted the first prong of the Strickland/Fritz test, which requires a showing that counsel's performance was deficient. State v. Fritz, 105 N.J. 42, 52 (1987).

While we agree with the judge's conclusion, we do so for a different reason. In our view, as the State argues, defendant failed to satisfy the second prong of the Strickland test, which requires a showing of prejudice. State v. Fritz, supra, 105 N.J. at 60-61. Defendant failed to present any evidence, by way of affidavit or certification, that his mother would have actually testified as he suggested. That evidence cannot be supplied by a proffer through counsel. Without proof that a proper investigation would have resulted in testimony by defendant's mother that he was with her on the night of the carjacking, defendant failed to demonstrate prejudice. Thus, no hearing was necessary, and the petition was properly denied without an evidentiary hearing.

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

State v. Fritz, 105 N.J. 42 (1987).

We reject the State's argument that the failure to present an alibi defense be excused because the evidence of guilt was overwhelming. No matter how strong the evidence, an alibi defense cannot be relegated to the dust bin of harmless error. If believed, such a defense counters the State's proofs no matter how strong. In addition, failure to investigate an alibi defense would invariably constitute ineffective assistance of counsel, or, at the least, require that counsel testify to justify his actions.

(continued)

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A-5143-04T4

 

September 25, 2006