STATE OF NEW JERSEY v. GERALDO FIGUEROA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3482-06T43482-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALDO FIGUEROA,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 31, 2009 - Decided

Before Judges Skillman and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No.

01-05-2215.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Geraldo Figueroa appeals from the denial of his petition for post-conviction relief. We affirm.

Figueroa was convicted of first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d) (count two); and third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count three). He was sentenced to eighteen years' incarceration on count one, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, which mandated that he serve eighty-five percent of his sentence before becoming eligible for parole. A concurrent term of eighteen months was imposed on count two. Count three was merged with count one.

Two witnesses identified defendant as the man who committed an armed robbery at a laundromat in Newark on February 5, 2001.

Maria Vidal, an employee of the laundromat, testified that the robber spent two to three hours in the laundromat before the robbery. He placed a kitchen knife to her neck, forced her to the floor, dragged her to the office, and, speaking in Spanish, demanded money. After obtaining about $100, the robber kicked Ms. Vidal, told her not to get up until he had gone, and then left.

Ms. Vidal described the robber to police as a thin Hispanic male, about five feet, seven inches tall. She said that he was wearing blue jeans, sneakers, a black jacket and had socks on his hands. Ms. Vidal also described the robber as having some facial hair. At trial, defense counsel confronted her with a statement she had given to the police in which she stated that the robber had a full beard.

Ms. Vidal did not identify any photograph when she was first shown books of photographs by a detective. After the police received an anonymous tip, another photo array was compiled that included a photograph of defendant. On this occasion, Ms. Vidal became excited and positively identified defendant's photograph.

Bincento Abiles, an inspector for the City of Newark Water Department, was assigned to inspect the water meter for the laundromat on the day of the robbery. He was present at the laundromat, waiting for the owner to arrive, for approximately forty minutes. While there, he observed a man sitting on a bench and walking back and forth to the window. He identified defendant in court as the man he saw in the laundromat on the day of the robbery.

A defense investigator, Rolando Velazquez, testified regarding an interview he conducted of Mr. Abiles. According to Mr. Velazquez, Mr. Abiles told him that the man he observed in the laundromat was five feet seven or eight inches tall.

At trial, defendant testified and maintained his innocence. He stated that he is six feet tall. He also testified that he washed his clothes twice a week at the laundromat that was robbed and recognized Ms. Vidal from these occasions.

On direct appeal, defendant argued that he was denied the effective assistance of counsel because: (1) he was denied his right to confront a "surprise witness" who was called in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (2) his counsel "failed to perfect" an alibi defense. This court noted that the defense investigator interviewed the "surprise witness," Inspector Abiles, four days before trial. Defendant's conviction was affirmed in an unpublished opinion. State v.Figueroa, No. A-3387-01 (App. Div. June 18, 2003).

Thereafter, defendant filed this petition for post-conviction relief (PCR). The PCR judge determined that an evidentiary hearing was unnecessary and denied defendant's petition.

Defendant presents the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO REQUEST A WADE HEARING AND APPELLATE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO RAISE THIS ISSUE ON APEAL.

C. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO THOROUGHLY INVESTIGATE POSSIBLE DEFENSES RAISED BY DEFENDANT AND APPELLATE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO RAISE THIS ISSUE ON APPEAL.

D. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD DEFENDANT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

In a supplemental pro se brief, defendant argues that he was denied the effective assistance of counsel because "Trial Counsel failed to Investigate, Failed to Call Any Witnesses To Support The Defense of Misidentification, Failed to pursue an objection That Warranted A Mistrial; Failed to Move for a Directed Verdict of Acquittal At the End of the State's Case [sic]." In the alternative, he asks that this matter be remanded for an evidentiary hearing.

Defendant contends that an evidentiary hearing was required here in order to determine "whether trial counsel's various decisions or lack thereof were 'well thought out and investigated strategic decisions' or errors of commission/omission." However, evidentiary hearings are not required to resolve all petitions for post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing should ordinarily be granted "if a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed 2d 88 (1997); accord Preciose, supra, 129 N.J. at 462. In determining whether an evidentiary hearing is appropriate, the PCR judge "should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed `in the light most favorable to defendant.'" Marshall, supra, 148 N.J. at 158 (quoting Preciose, supra, 129 N.J. at 463). If an evidentiary hearing "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief," a hearing need not be granted. Ibid. For example, an evidentiary hearing is required if there is a dispute of fact respecting matters that lie outside the record. E.g., State v. Murray, 162 N.J. 240, 249-51 (2000)(where defendant claimed his attorney had a conflict of interest, evidentiary hearing required to determine scope of affiliation with counsel for co-defendant). If, however, the resolution of the issues raised by defendant does not require oral testimony, no hearing is necessary. State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

In denying the request for a hearing, the PCR judge observed that he had presided over the trial and that the "facts raised by Mr. Figueroa are not those type of facts that are made any plainer by an evidentiary hearing." After reviewing the record and the arguments presented, we agree that an evidentiary hearing would not have "aid[ed] the court's analysis of whether the defendant is entitled to post-conviction relief," Marshall, supra, 148 N.J. at 158, and further note that defendant has failed to make a prima facie showing that he is entitled to post-conviction relief. Ibid.; Preciose, supra, 129 N.J. at 462.

Defendant's petition rests upon several contentions that purportedly demonstrate he was denied the effective assistance of both trial and appellate counsel. These claims are subject to the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1987), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy these criteria,

"[a] defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Loftin, 191 N.J. 172, 198 (2007); accord State v. Allegro, 193 N.J. 352, 366-67 (2008); State v. Castagna, 187 N.J. 293, 314-15 (2006).

As to the first of these criteria, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Echols, ___ N.J. ___, (2009) (slip op. at 15). The reasonableness of counsel's conduct is judged "on the facts of the particular case." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." Castagna, supra, 187 N.J. at 314.

Our Supreme Court has described the second prong, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," as an "exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 315).

The first allegation of ineffective assistance of counsel concerns the failure to request a Wade hearing regarding Maria Vidal's out-of-court identification of defendant's photograph. This argument plainly fails to satisfy either of the Strickland criteria.

In State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985), this court rejected the argument that a Wade hearing is constitutionally required upon the request of the defendant. The trial court's decision whether to conduct such a hearing is "a matter of discretion under the totality of the circumstances." Ibid. To be entitled to a Wade hearing, a defendant must make "a threshold showing of some evidence of impermissible suggestiveness in all pre-charge police photographic array identification procedures." Ibid.

As the PCR judge observed, no evidence of suggestiveness in the photographic identification procedure was presented here. Even on appeal, defendant fails to cite any evidence of suggestive conduct by the police. Since defendant remains unable to make the necessary threshold showing of suggestive police conduct, the fact that a Wade hearing was not requested is entirely consistent with the exercise of reasonable judgment by his counsel.

If a Wade hearing had been conducted, defendant would have been required to prove by a preponderance of the evidence that the pretrial identification procedure was so suggestive as to result in a "substantial likelihood of misidentification." State v. Cook, 330 N.J. Super 395, 417 (App. Div. certif. denied, 165 N.J. 486 (2000)). Maria Vidal's testimony reveals that she had the opportunity to observe the robber for a period of two to three hours inside the laundromat; that she had several discussions with him during that time concerning her requests that he leave; that she had the opportunity to observe him in close range as he put a knife to her neck, dragged her across the floor and threatened her; and that her attention was riveted during the course of the robbery. She testified that she was certain that she had correctly identified defendant. This testimony is consistent with her conduct in failing to identify anyone when shown an array that did not include defendant's photograph and promptly recognizing his photograph in a later array that did include it. Such testimony would have been insufficient to satisfy defendant's burden at a Wade hearing. See Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 34 L. Ed. 2d 401, 411 (1972). Therefore, defendant has failed to show that he was entitled to a Wade hearing if requested or that he would have prevailed if a hearing had been conducted. To the extent that Ms. Vidal's identification was inconsistent with a prior description of the robber as having a full beard, this evidence was presented through cross-examination, allowing the jury to consider defendant's challenge to her credibility. As a result, the failure to request a Wade hearing does not undermine confidence in the jury's verdict.

Defendant also argues that he was denied the effective assistance of counsel because his attorney failed to investigate possible defenses relating to his identification as the robber. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," and counsel's conduct is measured by "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Martini, 160 N.J. 248, 266 (1999). Counsel is not required to pursue an investigation that would be fruitless. Martini, supra, 160 N.J. at 266.

The first area of investigation concerns defendant's facial hair. During cross-examination, Ms. Vidal, who testified through an interpreter, was asked if she had told the police that the robber had a full beard. She replied, "No, I told him he had a little bit of a beard." Defense counsel then confronted Ms. Vidal with the sworn statement she had provided to the police in which she described the robber as a "Hispanic male, about five foot seven, thin with a full beard." She acknowledged giving that description to the police. The jury was, therefore, presented with the inconsistency in Ms. Vidal's testimony regarding defendant's facial hair as well as the disparity between defendant's actual height and the height attributed to him in the descriptions given by both witnesses. Although counsel could have presented testimony that defendant did not have a beard to buttress the challenge to the identification, the failure to do so did not render counsel's performance "below an objective standard of reasonableness." See Echols, supra, slip op. at 20 (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The evidence regarding the inconsistencies in Ms. Vidal's testimony about both facial hair and height was before the jury, providing the jury with a sufficient basis to evaluate the credibility of her identification. See Echols, supra, slip. op. at 20-21. Moreover, the certifications from family members presented on appeal state that defendant often had some facial hair, which they described variously as "a goatee," "[an] etched up mustache [and] a fine line of hair underneath the lip, like a goatee," and "a little bit of hair under the bottom lip." Rather than fully discrediting Ms. Vidal's identification testimony, these descriptions actually corroborated her testimony at trial that she told the police officer that the robber "had a little bit of a beard." Under these circumstances, the omitted testimony did not create "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Loftin, supra, 191 N.J. at 198.

Defendant also complains that an investigation was not conducted to corroborate his assertion that he was at work on the day of the robbery. Presumably, defendant knew what documentation and/or witnesses existed to confirm this assertion and could have advised his attorney accordingly. However, even on appeal, he has not identified any witness or document that would do so. In support of this argument, he has submitted an affidavit in which he states,

I was employed off the books which has resulted in my employer being reluctant to support my alibi, as the employer is afraid he will be prosecuted for the undocumented workers on premises and failure to with hold [sic] taxes and pay compensation insurance under New Jersey law.

Therefore, his own affidavit belies any likelihood that an investigation would have produced evidence to confirm his alibi. Therefore, this challenge to counsel's professional performance also fails to meet either of the Strickland criteria.

In his supplemental brief, defendant also asserts that his trial counsel was ineffective in failing "to pursue an objection that warranted a mistrial." This contention arises from the following exchange between the prosecutor and Ms. Vidal:

Q. Are you still afraid of the defendant?

A. I am because they told me if I were to come to court, he would get a pistol and - -

The witness's answer was interrupted by defense counsel's objection, which was followed immediately by the court's instruction to the jury to disregard the last part of the answer after the words, "I am." Despite the immediate curative response by the court, defendant argues that his counsel was ineffective in failing to seek a mistrial and to seek a judgment of acquittal at the end of the State's case.

A motion for a mistrial is generally granted only when "manifest injustice would otherwise result." State v. LaBrutto, 114 N.J. 187, 207 (1989); accord State v. DiRienzo, 53 N.J. 360, 383 (1969). Absent evidence in the record to the contrary, it is presumed that the jury followed the clear, immediate curative instruction given by the trial court to completely disregard the witness's improper statement. See State v. Winter, 96 N.J. 640 (1984); State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002); see also State v. Vallejo, 198 N.J. 122, 134-35 (2009); State v. Wilder, 193 N.J. 398, 415-16 (2008) (juries are presumed to carefully follow court's legal instructions). The remaining testimony complained of is Ms. Vidal's statement that she remained fearful of defendant. In light of her testimony that defendant had threatened to kill her when he put a knife to her neck during the robbery, this cannot be considered sufficient to cause a manifestly unjust result.

A motion for judgment of acquittal also would have been futile. The testimony of two witnesses who identified defendant as the robber was more than adequate to meet the standard set forth in Rule 3:18-1. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

We conclude that the alleged instances of ineffective assistance of counsel, individually and cumulatively, do not meet the criteria to warrant post-conviction relief on ineffective assistance of counsel grounds.

 
Affirmed.

Defendant also makes additional arguments, including one that he was denied the effective assistance of counsel because the defense investigator did not prepare a written report. These contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-3482-06T4

July 15, 2009