STATE OF NEW JERSEY v. MARVIN REYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6500-03T46500-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN REYES,

Defendant-Appellant.

___________________________

 

Submitted March 21, 2006 - Decided April 20, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Union County, 98-06-0803.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Patricia Drozd, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Akinyemi T. Akiwowo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marvin Reyes from the June 8, 2004 order of Judge John S. Triarsi, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On December 18, 1996, the victim, Blanca Ortiz, was reported missing. Her decomposed body was found covered with branches, leaves and other debris on February 22, 1997. Defendant and four other juveniles were arrested the following day after giving statements to the police that the victim was murdered pursuant to a plot to rob her. The crime was particularly brutal. Defendant strangled the victim and put a stick down her throat. The other juveniles admitted to beating her with a rock and stabbing her.

Defendant was sixteen years old at the time of the crime. Juvenile delinquency complaints were filed in the Family Part charging him with murder, theft and conspiracy. The State moved for waiver of all three juveniles. At a probable cause hearing all of the juveniles including defendant were represented by counsel. The State produced Plainfield Detective Jorge Jimenez and Detectives Kevin Foley and Tracy Morgan-Diaz of the Violent Crimes Unit of the Union County Prosecutor's Office to testify as to proofs sufficient to establish probable cause for the charges against the juveniles, including their individual confessions. The Juvenile Court judge found that the State had met its burden of showing probable cause to sustain the charges.

Since murder is a Chart 1 offense, N.J.S.A. 2A:4A-26(2)(a), there was a presumption of waiver unless a juvenile produces testimony or other evidence to satisfy the judge that there is a probability of rehabilitation by age nineteen. N.J.S.A. 2A:4A(26)(3)(e). Accordingly, counsel for defendant presented Dr. Edward J. Dougherty, a forensic psychologist, who testified defendant was "a follower" with a below average IQ and had expressed genuine remorse for his participation in the crime. Dr. Dougherty opined that although defendant was then within one month of eighteen, he could be rehabilitated through use of the facilities and services of the juvenile court by age nineteen by assignment to the New Jersey State Reformatory at Jamesburg. The defendant's father also testified to show that defendant's life lacked structure and guidance when the crime occurred. Defendant did not testify. The juvenile court judge found that defendant had not met his burden of showing a probability of rehabilitation within the juvenile justice system by age nineteen and, accordingly, he granted the State's application for a transfer to the adult court.

Defendant and the other four defendants were indicted on charges of murder, felony murder, first-degree robbery, first-degree kidnapping, second-degree conspiracy, third-degree weapon for an unlawful purpose and fourth-degree unlawful possession of a weapon. On August 14, 1998, defendant entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and first-degree robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement. He was sentenced on November 20, 1998, to a term of twenty-eight years with a fourteen-year parole ineligibility period on the aggravated manslaughter charge and a consecutive eighteen year sentence with nine years parole ineligibility on the robbery conviction. Under the plea agreement defendant agreed to waive his right of direct appeal, and he commenced his custodial term on the date of sentence.

Defendant filed his PCR petition on June 24, 2002, and appointed counsel then filed a brief on his behalf. The non-evidentiary hearing was conducted before Judge John S. Triarsi on June 4, 2004, on defendant's contention of ineffective assistance of counsel both at the waiver hearing and at his sentencing. Judge Triarsi denied the PCR application on June 8, 2004. Defendant appeals setting forth the following legal argument:

POINT I - THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant's pro se petition presented these additional legal arguments:

POINT I - COUNSEL WAS INEFFECTIVE AT THE JUVENILE WAIVER HEARING BY FAILING TO ADVISE HIS CLIENT ABOUT HIS CONSTITUTIONAL RIGHT TO TESTIFY AT HIS OWN WAIVER HEARING.

POINT II - DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS SENTENCING HEARING.

POINT III - BASED ON COUNSEL'S SUPPLEMENTAL BRIEF AND PETITIONER'S PRO SE PETITION, THE COURT SHOULD GRANT PETITION BASED ON CUMULATIVE ERROR. IN THE ALTERNATIVE, AN EVIDENTIARY HEARING MUST BE GRANTED IN LIGHT OF THE PRIMA FACIE SHOWING OF ERRORS.

After consideration of the record, we determine that the arguments made by defendant and his counsel are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3. We make only the following comments.

When an ineffective assistance of counsel argument is made with relation to a waiver hearing, a defendant must demonstrate that counsel failed to present "genuine evidence" of his amenability to rehabilitation and the hearing judge must then assess the likelihood that the proffered evidence would have changed the result. State v. Jack, 144 N.J. 240, 245 (1996); see also State v. Torres, 313 N.J. Super. 129, 147 (App. Div.), certif. denied, 156 N.J. 425 (1998). While defendant argues that he was not apprised of his right to testify at the waiver hearing, see State v. Ferguson, 255 N.J. Super. 530, 538 (1992), there is no indication that his testimony would have changed the result. Similarly, defendant failed to make any showing that the alleged inadequacy of his counsel's performance at the time of sentence impacted on the sentence imposed by the trial judge.

Defendant did not meet either prong of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984), which was subsequently adopted by New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 53-58 (1987). Moreover, since his PCR petition failed to make a prima facie showing of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 460-61 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

 

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A-6500-03T4

April 20, 2006