STATE OF NEW JERSEY v. OSCAR L. REYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0791-07T40791-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSCAR L. REYES,

Defendant-Appellant.

____________________________________

 

Submitted June 23, 2009 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment

No. 04-02-0316.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mary M. Theroux, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Charles Cho, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Oscar L. Reyes was tried and convicted before a jury of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon (box-cutter) for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon other than a firearm, N.J.S.A. 2C:39-5d; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). After finding aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, the court sentenced defendant to an aggregate term of four years.

These are the salient facts from the evidence presented at trial. Joseph Giresi was the first witness called by the State. He gave the following account of what occurred on the evening of October 7, 2003. Giresi left the funeral home located on Harrison Avenue in Garfield on his motorcycle. As he approached Frederick Street, Giresi saw a man, later identified as defendant, stopped in the middle of the street blocking the road. The area had enough lighting to permit Giresi to see defendant's clothing and face.

Giresi stopped his motorcycle about four feet away from defendant and asked him what was he doing. Without saying a word, defendant turned around, looked directly at Giresi, walked around the motorcycle, and stopped about two feet away from Giresi. For no apparent reason, defendant reached into his pocket and pulled out a yellow-handle box-cutter, and swung it across Giresi's torso, causing him to take evasive action to avoid being cut by the knife.

Giresi left the scene and rode back to the funeral home determined to report the incident to the police. He eventually reported the incident to Garfield Police Officer Edward Figueroa. Because the crime had occurred just minutes before, Figueroa suggested that Giresi drive around the area in Figueroa's police car to see if he could find his assailant.

After driving just a short distance, Giresi and Figueroa came upon defendant walking from Frederick Street onto Gaston Street, just a few blocks from where the incident had taken place. Giresi identified Reyes as the person who had assaulted him and confirmed that he was wearing the same clothes Giresi had previously described to Figueroa.

Figueroa, who was wearing his police uniform, stopped his patrol cruiser and got out of the car. Figueroa approached defendant and ordered him to stop walking; Reyes disregarded Figueroa's verbal command and continued walking. Figueroa repeated the order to stop walking, orally announcing himself as a police officer. Reyes again continued to walk, making no effort to acknowledge Figueroa's presence.

Figueroa finally reached Reyes and grabbed him by the arm. According to Figueroa, Reyes turned around, looked slightly in Figueroa's direction, and placed his hands in his waist area. He then slightly pushed Figueroa, simultaneously exposing the box-cutter. Fearing for his safety, Figueroa sprayed what he described as a "one second burst" of mace at Reyes. This caused Reyes to run away; Figueroa chased him, eventually catching and apprehending him. Figueroa recovered a yellow-handle box-cutter from Reyes's person.

The matter came for trial on February 15, 2006, more than two years after defendant's arrest in October 2003. Before the trial began, defense counsel requested an adjournment to better prepare defendant's case. According to defense counsel, the bulk of her preparation had gone to another criminal case also pending against defendant. The trial court denied the adjournment, noting that defense counsel had been granted an adjournment in this case a month earlier.

Acting on the State's application, the trial court conducted an N.J.R.E. 104 hearing outside the presence of the jury to determine the admissibility of defendant's criminal history in the event he decided to testify in his own defense. The Assistant Prosecutor indicated that pursuant to N.J.R.E. 609, she intended to challenge defendant's credibility by bringing to the jury's attention, through cross-examination, that defendant had been convicted in December 1994 of second-degree aggravated assault, and third-degree unlawful possession of a weapon, and sentenced to a term of seven years, with a three-year period of parole ineligibility.

Defendant objected, arguing that these convictions occurred when defendant was between seventeen and eighteen years old, and were thus too remote to be admitted against defendant who was thirty-one years old at the time of this trial. Applying the standards articulated by the Supreme Court in State v. Brunson, 132 N.J. 377, 390-93 (1993), and State v. Sands, 76 N.J. 127 (1978), and mindful of the need to include the sentence imposed for a given offense, State v. Hicks, 283 N.J. Super. 301, 309 (App. Div. 1995), certif. denied, 143 N.J. 327 (1996), the trial court granted the State's application, subject to sanitizing the offenses to exclude any reference to the particular crime.

After consulting with his attorney, defendant decided not to testify. The defense did not call any witnesses.

Against this record, defendant now appeals raising the following arguments.

POINT ONE

THE RECORD BELOW CLEARLY DEMONSTRATES THAT COUNSEL'S LACK OF TRIAL PREPARATION SERIOUSLY COMPROMISED DEFENDANT'S CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR TRIAL.

POINT TWO

THE REFUSAL OF THE TRIAL COURT TO GRANT THE REQUEST OF THE DEFENSE FOR AN ADJOURNMENT OF THE TRIAL WAS AN ABUSE OF DISCRETION THAT RESULTED IN DEFENDANT BEING DEPRIVED OF THE RIGHT TO A FAIR TRIAL.

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE INTRODUCTION OF DEFENDANT'S PRIOR CONVICTION FOR PURPOISES [SIC] OF IMPEACHING HIS CREDIBILITY.

POINT FOUR

THE SENTENCING COURT ERRED IN DETERMINING THAT DEFENDANT WAS NOT ENTITLED TO BE CREDITED WITH ANY MITIGATING FACTORS AND THE RESULT WAS AN EXCESIVE [SIC] SENTENCE.

We reject these arguments and affirm. Although we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), we add the following brief comments.

As to Point One, to establish a prima facie case of ineffective assistance of counsel, defendant must show that: (1) the actions of his trial counsel were deficient in performance and not objectively reasonable; and (2) that this deficient performance materially affected the outcome of his trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Moreover, ineffective assistance of counsel claims ordinarily depend upon allegations and evidence which lie outside the record and are thus disfavored on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Direct appellate review is only appropriate when the trial record discloses all of the essential facts supporting defendant's claims. State v. Allah, 170 N.J. 269, 285 (2002).

Here, even if we were to accept defense counsel's generalized statement that she was unprepared to adequately represent defendant as a sufficient basis to meet the requirements of prong one of the Strickland/Fritz test, there is no evidence in this record from which to find that such alleged deficiency materially affected the outcome of the trial. We thus reject this argument, without prejudice to defendant's right to bring a post conviction relief (PCR) petition under Rule 3:22-2. We emphasize, however, that we express no opinion concerning the merits of any future PCR petition based on ineffective assistance of counsel, or any other ground for relief under Rule 3:22-2.

With respect to the arguments raised in Points Two and Three, there is no basis from which to find that the trial court mistakenly exercised its discretionary authority in denying defense counsel's eleventh-hour request to adjourn the trial. Defense counsel did not identify, with particularity, the precise prejudice caused to defendant by going forward with the trial. Indeed, the record shows that defense counsel zealously represented her client at each critical stage of the trial.

We reach the same conclusion with respect to the trial judge's decision to permit the State to question defendant concerning his criminal history. The judge properly applied the relevant legal standards in determining that the probative value of this sanitized evidence outweighed its prejudicial effect. We discern no legal basis to disturb this ruling on appeal.

Finally, as to Point Four, the sentence imposed was well within the trial court's discretionary authority under the code. As the Supreme Court recently reminded us, we are bound to uphold a sentence imposed by the trial court that followed the sentencing guidelines, except when such a sentence shocks our judicial conscience. State v. Cassady, 198 N.J. 165, 180 (2009). Under this standard, we discern no legal basis to interfere with the sentence imposed by the trial court.

 
Affirmed.

The sentence broke down as follows: two four-year concurrent terms on the third-degree offenses to run concurrent to two concurrent eighteen-month terms on the fourth-degree offenses.

(continued)

(continued)

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A-0791-07T4

July 27, 2009