STATE OF NEW JERSEY v. RICARDO OZORIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1801-08T41801-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO OZORIO,

Defendant-Appellant.

________________________________

 

Submitted December 9, 2009 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (John R. Cascarano, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Ricardo Ozorio appeals the Law Division's denial of his petition for post-conviction relief ("PCR") arising out of his 2006 conviction for conspiracy to commit murder. We affirm the dismissal in all respects, except remand as to an unresolved issue concerning the jury instructions on accomplice liability.

We need not repeat the underlying factual scenario, which is detailed at length in our opinion affirming defendant's conviction on direct appeal. See State v. Ricardo Ozorio, No. A-5082-05T4 (App. Div. November 9, 2007), certif. denied, 194 N.J. 268 (2008). Briefly, the prosecution in this case arose out of a violent encounter between a group of young men, including defendant, and a rival group of other men near a gas station in West New York on August 24, 2003. During the course of that bloody street encounter, one of the members of the rival group, Garmair Brown, was fatally stabbed, and two of his associates were physically attacked. Several of the individuals in defendant's group came to the scene of the planned confrontation armed with sticks, screwdrivers, and knives. The State's theory at trial, which the jury evidently accepted, was that defendant and his co-conspirators attacked the victims in retaliation for the stabbing of one of their associates, Luis Carlos Arias, by a member of the rival group four months earlier.

After a lengthy jury trial, defendant was found guilty of conspiracy to commit Brown's murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3c. Other counts in the indictment against defendant were either dismissed or resulted in a not-guilty verdict. The trial court sentenced defendant to a twenty-year prison term, subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2a.

On defendant's unsuccessful direct appeal, he argued that the trial court erred in admitting proof of the Arias stabbing; improperly failing to charge the jury as to the use of "other-crimes" evidence; inaccurately summarizing testimony in presenting the identification charge; improperly denying defendant's motion for acquittal on the murder conspiracy charge; and imposing an excessive sentence. We found all of those arguments lacked sufficient merit to set aside the conviction, and the Supreme Court thereafter denied certification.

Defendant then filed the instant PCR application in the Law Division. The application was considered by the same judge who had presided over defendant's jury trial. In an oral opinion, the judge found defendant's PCR claims substantively lacked merit and, as to certain arguments, also were procedurally untimely. The judge found no reason to grant defendant an evidentiary hearing on his petition.

Defendant now appeals the PCR denial. Through his attorney, he raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT II

THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT VI

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

Defendant also offers these additional arguments in his pro se supplemental brief, amplifying the arguments on the same issues presented by his current counsel:

POINT I

THE LAW DIVISION ERRED BY DENYING AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF PROSECUTORIAL MISCONDUCT, WHEREFORE THE MATTER MUST BE REMANDED TO THE LAW DIVISION FOR A HEARING AND THE GRANT OF POST-CONVICTION RELIEF

POINT II

DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO RELATE THE ACCOMPLICE LIABILITY INSTRUCTION TO THE LESSER INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER, WHEREFORE, POST-CONVICTION RELIEF MUST BE GRANTED

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL, WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE FAULTY JURY INSTRUCTION ON ACCOMPLICE LIABILITY, AS THEY RELATED TO THE LESSER INCLUDED OFFENSES, AND WHEN APPELLATE COUNSEL FAILED TO RAISE THE CLAIM ON DIRECT APPEAL

Having considered these points in their entirety, we generally affirm the denial of PCR relief, substantially for the reasons expressed in the trial judge's oral opinion of July 10, 2008. We only add some limited amplification to the judge's analysis. However, we remand this matter to the PCR judge for additional briefing and for a specific ruling on defendant's arguments pertaining to the jury charge on accomplice liability.

Defendant's PCR arguments are almost exclusively predicated on claims that both his trial attorney and his counsel on direct appeal were constitutionally ineffective. We recognize that, under the Sixth Amendment, a person accused of crimes is guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

Defendant's first claim of ineffectiveness is that his trial attorney should have insisted that the judge charge the jury on the elements of conspiracy to commit aggravated assault and simple assault, as lesser-included offenses to conspiracy to murder. Defendant argues that the record contains "no proof that defendant intended or agreed to kill anyone," and that "[a]t most, the trial proofs showed that [he] intended to assault the other men." We concur with the trial judge's assessment that this PCR claim is unpersuasive.

Although we recognize that a lesser-included offense should be charged where it is "clearly indicat[ed]" by the proofs, State v. Jenkins, 178 N.J. 347, 361 (2004), the record here does not "clearly indicate" the necessity to have charged these lesser assault charges. The record depicts that the combatants, including defendant, came to the prearranged location armed with screwdrivers, knives and sticks, and were prepared for substantial mayhem. They had a clear motive to retaliate against Arias's stabbing by the rival group. Their motivation to cause lethal harm was heightened by the so-called "staring" incident earlier that day at the cultural parade. As the judge noted in his PCR ruling, "[t]his type of [retaliatory] activity is clearly the type of activity that is intended to cause serious bodily injury which would likely cause death." Moreover, even if we were to accept defendant's claim that lesser-included assault charges were supportable here, we are unpersuaded that defendant's trial counsel was tactically remiss, or constitutionally ineffective, in not advocating for such alternative charges.

Defendant also contends that his trial counsel should have demanded that the trial judge issue the jury a supplemental instruction under State v. Kociolek, 23 N.J. 400, 421 (1957), after the jurors had raised a question in deliberations about whether defendant's police statement would be legally binding if he did not sign the statement. This argument is unavailing because the judge did appropriately respond to and advise the jurors, in plain and simple terms, that no such signature was required. After making that clear, the judge asked the jurors, "[o]kay?," and the record contains no indication that any of the jurors was confused by the court's clarification. Given the circumstances, the court found no need to repeat the general model charge, patterned after Kociolek, that the court had originally provided the jurors about the jury's proper role in considering oral incriminatory statements made by a defendant. Nothing more needed to be said to the jurors, and defendant's counsel was not ineffective in refraining from asking for more.

In addition, defendant argues that he was constitutionally prejudiced because the trial court denied his request for adjournment once the State turned over additional discovery materials relating to a prosecution witness, Christopher Dopico, the individual who had previously stabbed Arias. The State represented that the extensive documents provided earlier in the discovery process included disclosures about Dopico and the Arias stabbing. The trial judge concluded that there was no intentional withholding of discovery by the State and, moreover, that defense counsel was not unfairly surprised so as to justify any adjournment on that basis. In his PCR ruling, the judge also noted that defendant should have sought review on this particular issue on direct appeal, and not in a collateral PCR application. See R. 3:22-4. See also State v. Mitchell, 126 N.J. 565, 583-84 (1992). We agree with the judge that this argument is procedurally untimely, and we also are satisfied that the defense at trial was not manifestly prejudiced by the State's allegedly tardy disclosures concerning Dopico.

Lastly, defendant argues that his trial and appellate counsel were constitutionally ineffective in failing to assure that the jurors received more detailed instructions on accomplice liability and to relate them more specifically to the charged lesser-included offenses of aggravated and reckless manslaughter. This was an argument also presented by defendant in his initial pro se petition to the trial court, although it was not specifically discussed in his PCR attorney's brief before the trial court. The trial judge's oral opinion on the PCR application contains no reference to this argument. Moreover, the State's brief on the present appeal is silent on the issue. Because this discrete issue was raised but not expressly decided below, we decline to resolve it for the first time on this appeal. Instead, we remand the issue for explicit consideration by the trial court. See Ins. Co. of N. Am. v. Gov't Employees Ins. Co., 162 N.J. Super. 528, 537 (App. Div. 1978). We do not retain jurisdiction, but instead permit the aggrieved party following the disposition of the remanded issue to file a new appeal if that party so chooses.

 
Affirmed in part, remanded in part.

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A-1801-08T4

 

December 22, 2009