STATE OF NEW JERSEY v. JOSE A. PAGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1385-08T41385-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE A. PAGAN,

Defendant-Appellant.

_____________________________

 

Submitted August 25, 2009 - Decided

Before Judges Sabatino and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-9-03084.

Jose A. Pagan, appellant pro se.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose A. Pagan, who was convicted of murder and other crimes after a jury trial in 1995, appeals pro se from the Law Division's denial of his second petition for post-conviction relief ("PCR"). We affirm.

The State's proofs at trial established that defendant stabbed his female companion to death with a knife. Defendant was sentenced to life in prison with thirty years of parole ineligibility. On direct appeal, we affirmed his convictions in a per curiam opinion. State v. Jose A. Pagan, Docket No. A-4900-94T4 (Dec. 31, 1996). The Supreme Court denied certification. 149 N.J. 142 (1997). Thereafter, defendant filed his initial PCR petition, alleging that his trial counsel was constitutionally ineffective. The Law Division dismissed that first petition, and we affirmed the dismissal. State v. Jose A. Pagan, Docket No. A-5383-97T4 (Oct. 18, 1999). The Supreme Court again denied certification. 165 N.J. 677 (2000).

In his second PCR petition, this time filed pro se, defendant argued that he was entitled to relief because a juror had allegedly slept through a portion of his trial and because the victim's daughter had cried in the courtroom in the jury's presence. Defendant also argues that his trial, appellate, and initial PCR counsel were all constitutionally ineffective.

The Law Division rejected each of defendant's contentions in a written opinion. The court concluded that defendant's present claims were procedurally barred because they could have reasonably been raised on direct appeal or in another prior proceeding. See Rule 3:22-4. The court further concluded that defendant's second petition lacked merit, given that the trial judge had explicitly stated on the record that he had not observed any juror sleeping or snoring, and had also observed that the victim's daughter had merely "whimpered" one or two times in the courtroom and that she had not been sufficiently loud to warrant a recess in the trial. The judge also rejected defendant's claims of attorney ineffectiveness under Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

On appeal, defendant now raises the following points:

POINT I

THE TRIAL JUDGE'S FAILURE TO INQUIRE INTO DEFENSE COUNSEL'S ALLEGATIONS OF SLEEPING JURORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND THE PCR COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT ASSIGNING COUNSEL AND HOLDING AN EVIDENTIARY HEARING

POINT II

THE TRIAL COURT'S FAILURE TO INQUIRE WHETHER ANY OF THE JURORS WERE AFFECTED BY THE VICTIM'S DAUGHTER CRYING IN THE COURTROOM AND ITS FAILURE TO IMMEDIATELY INSTRUCT THE JURY THAT THEY SHOULD DECIDE THE CASE WITHOUT BIAS, PREJUDICE, OR SYMPATHY, SUA SPONTE, AFTER DEFENSE COUNSEL ADVISED THE COURT THAT THE VICTIM'S DAUGHTER WAS SITTING IN THE COURTROOM CRYING LOUDLY DEPRIVED DEFENDANT HIS RIGHT TO A FAIR TRIAL AND THE PCR COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING A HEARING

POINT III

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL, APPELLATE, AND PCR LEVELS AND THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF

POINT IV

THE PCR COURT FAILED TO ADDRESS THE ISSUES RAISED IN DEFENDANT'S BRIEF UNDER APPROPRIATE POINT HEADINGS

We have fully considered these contentions and find that they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We thus affirm the dismissal of defendant's second PCR petition, substantially for the sound procedural and substantive reasons set forth in the letter opinion of Judge Michael L. Ravin dated August 13, 2008. We discern no reason for Judge Ravin to have conducted an evidentiary hearing, given the patent lack of merit to defendant's contentions. See State v. Preciose, 129 N.J. 451, 462 (1991).

 
Affirmed.

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A-1385-08T4

September 1, 2009