STATE OF NEW JERSEY v. ALFREDO AVILES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2102-08T42102-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFREDO AVILES,

Defendant-Appellant.

__________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-001-11-08.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Sandra L. Battista, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annemarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alfredo Aviles appeals from a November 21, 2008 Law Division order denying his motion for post-conviction relief (PCR), which was entered after de novo review of the municipal court record. Defendant sought to vacate his guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, entered pursuant to a plea agreement. In exchange for his plea, the State agreed to dismiss a second charge issued after his refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. Defendant argued his plea should be vacated, because his attorney did not explain he had a valid defense to the refusal charge; that is, the police incorrectly read him the Division of Motor Vehicles Standard Statement for Operators of Commercial Motor Vehicles. Defendant asserted the refusal charge should have been dismissed, and he would have proceeded to trial solely on the DWI charge. The Law Division rejected this contention and denied the PCR petition. We affirm.

These are the facts taken from the parties' respective briefs. On July 18, 2006, at 12:24 a.m., Edgewater police responded to a radio call. A citizen reported the driver of a dark-colored BMW was drunk at the McDonald's drive-up window. The informant included the vehicle's license plate number. The police located the vehicle and asked the driver to open his window. A strong odor of alcohol emanated from the vehicle, and the driver, identified as defendant, admitted he recently drank three glasses of wine at a local restaurant. The police asked defendant to exit his vehicle. The police observed defendant's speech was slurred, he had difficulty maintaining his balance, and a strong odor of alcohol was on his breath. Defendant unsuccessfully attempted to perform field sobriety tests. Defendant was arrested for DWI and taken to the Edgewater Police Department.

At the station defendant was asked to submit breath samples, and the arresting officer read him the first eleven paragraphs of the standard statement mandated by N.J.S.A. 39:4-50.2(e). At that point, defendant stated he wanted to speak to his attorney. He was presented with a written copy of the statement prepared for "operators of commercial motor vehicles," N.J.S.A. 39:3-10.24e. The written statement contains twelve paragraphs. Following the twelfth paragraph, defendant wrote, "No, I want to talk to my lawyer." Defendant was issued summonses for driving while intoxicated (Number E028261) and refusal to submit to a breathalyzer test (Number E028262).

On January 4, 2007, defendant, accompanied by counsel, appeared in the Edgewater Borough Municipal Court and entered his guilty plea. The municipal court judge sentenced defendant as a second offender, as he had previously pled guilty to DWI on April 21, 2005, in Teaneck. Defendant was again arrested for DWI on April 6, 2007, in North Bergen. On March 7, 2008, defendant then filed this PCR petition with the Edgewater Borough Municipal Court seeking to vacate the conviction under review.

Defendant asserted counsel did not properly "review . . . the evidence that was against him" or advise him of the "ramifications of that plea, what his rights were to go to trial, [or] what possible defenses he had." The PCR petition was denied by the municipal court without an evidentiary hearing.

On the Law Division's de novo review, defendant asserted trial counsel should have challenged the probable cause for the stop and that there was an inadequate explanation of defendant's rights prior to the entry of his guilty plea. He also argued counsel was ineffective because he failed to challenge the police error in reading the notice mandated by N.J.S.A. 39:4-50.2(e).

Although there was no record of the initial plea proceeding, the Law Division judge relied upon the municipal court judge's statement that he fully recalled his examination of defendant before accepting his plea. Additionally, the Law Division judge concluded defendant presented insufficient evidence to satisfy the two-pronged Strickland/Fritz test and denied the petition. Defendant appealed.

Defendant contends his attorney's performance was deficient. He explains that had he known of "the valid defense to the charge of refusal[,]" he would not have agreed to plead guilty to DWI in exchange for the dismissal of the refusal. We reject this argument.

To successfully establish ineffective assistance of counsel, a defendant must prove: 1) counsel's performance was deficient: that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Allah, 170 N.J. 269, 283 (2002). "The burden to prove that [the] incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). With respect to the second prong, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. As noted in Strickland, supra:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

In examining a defendant's request to be relieved of the consequence of a guilty plea, we must weigh their claim against the strong interests of the State in preserving finality. State v. Taylor, 80 N.J. 353, 362 (1979). Moreover, "[w]here the plea was entered pursuant to a plea agreement, defendant's burden 'of presenting a plausible basis for his request to withdraw his guilty plea is heavier.'" State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981)(quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Based upon our review of the record, we cannot agree that counsel's performance was deficient or that his advice to defendant adversely affected the outcome of the plea process. Fritz, supra, 105 N.J. at 58.

While it is true that the notice given defendant spoke of commercial motor vehicle operators, that statement explained, among other things, the mandatory nature of the breath test (paragraph two), that the Miranda warnings given upon arrest did not apply to the required breath sample and that there was no right to an attorney (paragraph 4), that an ambiguous response would be considered a refusal (paragraph seven), the minimum penalties for refusing the test (paragraphs eight and eleven), and the test subject's right to have a defense expert conduct independent chemical testing of the sample (paragraph five). Although the notice additionally discussed penalties specific to commercial drivers, the message expressed was very clear.

Defendant contends he was prejudiced from the use of the commercial vehicle notice. However, he asked no questions of the police. He demanded to speak to counsel despite being advised

[A]ny warnings previously given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purposes of making chemical tests to determine your alcohol concentration. You have no legal right to an attorney, physician or anyone else present, for the purpose of taking breath samples.

In this court's review of a challenge suggesting a defendant did not understand the notice, we concluded:

The elements of a refusal offense do not include proof that the driver actually comprehended the police officer's instruction. To the contrary, the Supreme Court in [State v.] Widmaier, [ 157 N.J. 475, 498 (1999)], "emphasize[d] that a defendant's subjective intent is irrelevant in determining whether the defendant's responses to the officer constitute a refusal to take the test." If the law were otherwise, some motorists might illicitly feign such lack of comprehension to evade liability for a refusal.

[State v. Marquez, 408 N.J. Super. 273, 280-81 (App. Div. 2009).]

In this matter, we are convinced the purpose of reciting the standard statement authorized by N.J.S.A. 39:4-50.2(e) was achieved. Defendant was informed and should easily have understood that a breath sample was mandatory, that there were limitations on his right to counsel, and additional consequences resulted from his refusal to submit a breath sample. Ibid. The notice given also included defendant's right to receive a copy of the test results, N.J.S.A. 39:4-50.2(b), and the right to have an independent test performed, N.J.S.A. 39:4-50.2(c). We conclude there was no infringement on defendant's rights and no legal basis warranting dismissal of the refusal charge. Therefore, counsel's negotiation of a plea agreement to dismiss the refusal charge and the accompanying penalties and loss of license, in exchange for his plea to the DWI, was very effective. The first prong of the Strickland/Fritz test was not satisfied.

Moreover, in his PCR petition, defendant proffered no basis to challenge the DWI charge. Thus, the second prong of the Strickland/Fritz test remains unmet.

We conclude defendant has not established he is entitled to PCR by a preponderance of the credible evidence. State v. Williams, 284 N.J. Super. 142, 149 (Law Div. 1995), aff'd, 309 N.J. Super. 117 (App. Div.), certif. denied, 156 N.J. 383 (1998); State v. Zold, 105 N.J. Super. 194, 203 (Law Div. 1969), aff'd, 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). Because defendant has not established a prime facie showing of ineffective assistance of counsel, he is not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J 66 (2007).

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2102-08T4

December 10, 2009