STATE OF NEW JERSEY v. ANDRES SANABRIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5677-07T4
5677-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRES SANABRIA, a/k/a

ANDREAS ARTHURO SANABRIA,

Defendant-Appellant.

_______________________________________

 

Submitted November 16, 2009 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-10-0134.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andres Sanabria appeals from an order entered by the trial court on April 7, 2008, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged along with co-defendants Percy Selles (Selles) and Ariel Fernandez (Fernandez) with first-degree kidnapping, multiple counts of sexual assault, robbery, burglary weapons offenses, and other crimes. Defendant was tried separately before a jury.

At the trial, the State presented evidence which established that on June 6, 2000, Selles and Fernandez abducted a woman at gunpoint from a street in Elizabeth, New Jersey, and took her by force to a residential complex containing several bedrooms, a living room, kitchen and bathroom. Defendant rented one of the bedrooms and was present in the living room when Selles and Fernandez arrived with the victim.

Selles and Fernandez took the victim into a bedroom and brutally beat, vaginally raped and sodomized her. They took the victim's keys and left to steal items from her apartment, which was located nearby. While Selles and Fernandez were away, the victim asked defendant to let her leave but he refused. Selles and Fernandez returned and apparently were angry because the victim had so little of value to steal.

Selles and Fernandez again raped the victim, orally and anally. They sexually assaulted her with a stick that had a nail hammered into it. They told defendant to bring them a bottle and he complied. Selles and Fernandez sexually assaulted the victim with the bottle and threatened to kill her if she reported the incident to the police. Selles and Fernandez left to purchase some drugs.

The victim again asked defendant if she could leave. Defendant told her that she could leave but only after she had sex with him. The victim complied and performed oral sex upon defendant. Thereafter, defendant had vaginal intercourse with the victim. Defendant then let the victim leave.

The jury found defendant guilty of first degree kidnapping, N.J.S.A. 2C:13-1(b); eight counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c)(1); first degree robbery, N.J.S.A. 2C:15-1; second and third-degree burglary, N.J.S.A. 2C:18-2; fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree conspiracy to commit various offenses, N.J.S.A. 2C:5-2. The trial judge, Judge Stuart L. Peim, sentenced defendant to an aggregate twenty-two years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed and raised the following arguments:

POINT I

THE JURY INSTRUCTION DID NOT ADEQUATELY CONVEY TO THE JURY THE BRIDGES/BIELKIEWICZ NOTION THAT IF THE JURORS BELIEVED ALL, OR EVEN SOME, OF DEFENDANT'S TESTIMONY, HE COULD BE LIABLE AS AN ACCOMPLICE TO A MUCH LESSER DEGREE THAN THE MUCH-MORE CULPABLE PRINCIPALS; LIKEWISE, THE CHARGE DID NOT ADDRESS THE JURY'S RESPONSIBILITY, IN LIGHT OF THE COMPETING VERSIONS OF THE FACTS, TO DETERMINE WHEN THE KIDNAPPING CONCLUDED. (Not Raised Below).

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

POINT III

DEFENDANT'S CONVICTIONS FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND CONSPIRACY SHOULD MERGE INTO ONE OF THE GREATER CONVICTIONS; ADDITIONALLY, THE JUDGE MISCALCULATED THE V.C.C.B. [VIOLENT CRIMES COMPENSATION BOARD] PENALTY.

We affirmed defendant's conviction and found no error in the length of defendant's sentence but remanded the matter for entry of an amended judgment of conviction reflecting additional mergers and recalculation of the V.C.C.B. penalty. State v. Sanabria, No. A-1486-02 (App. Div. June 3, 2004)(slip op. at 8). The Supreme Court denied defendant's petition for certification. State v. Sanabria, 182 N.J. 142 (2004).

On February 24, 2006, defendant filed a pro se petition for PCR, alleging that he had been denied the effective assistance of counsel. Judge Peim appointed PCR counsel, who filed a brief in which he argued that defendant's trial attorney rendered ineffective assistance by failing to: object to certain comments by the prosecutor in her opening statement; elicit certain testimony in the cross-examination of the State's witness, Daniel Nazario (Nazario); attack the credibility of defendant's statement to the police; conduct effective cross-examination of the victim; ask for a jury instruction which made clear that each defendant's criminal liability should be decided based on his individual state of mind; and effectively argue on defendant's behalf at sentencing.

In accordance with State v. Rue, 175 N.J. 1, 19 (2002), PCR counsel advanced defendant's additional contentions that he was denied the effective assistance of trial and appellate counsel. Defendant asserted that his attorney erroneously failed to argue that there was insufficient evidence to support the weapons charges; counsel should have "done more" to have certain charges dismissed prior to trial because he had "nothing to do" with those offenses; the sexual assaults were added simply to "pad" the indictment; and there was no proof that he made any terroristic threats because the victim said that he had treated her "nicely."

Judge Peim filed a letter opinion dated April 7, 2008, in which he concluded that defendant failed to present a prima facie case of ineffective assistance of counsel. The court found that the prosecutor's opening statement fairly described the evidence and defendant's role in the incident; counsel was not ineffective in his cross-examination of Nazario; counsel did not err by failing to challenge the credibility of defendant's statement to the police; and counsel's cross-examination of the victim was not deficient.

The court additionally rejected that defendant's contention that trial counsel erred in failing to seek an instruction to clarify that the criminal liability of each defendant had to be based on that individual's state of mind. The court noted that the instruction had been given. The court also noted that this issue had been raised and rejected in defendant's direct appeal.

The court found that defendant's claim regarding the jury instruction, and his claim that he had been denied the effective assistance of counsel at sentencing, were procedurally barred by Rules 3:22-4 and 3:22-6. In addition, the court found no merit in the additional issues raised by defendant and advanced by PCR counsel pursuant to Rue, supra, 175 N.J. at 19.

Judge Peim entered an order dated April 7, 2008, memorializing his decision. This appeal followed. Defendant raises the following issues for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT DENIED THE DEFENDANT HIS RIGHT TO A RUE "HEARING" BY NOT AFFORDING COUNSEL THE OPPORTUNITY FOR ORAL ARGUMENT.

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

(A) TRIAL COUNSEL'S FAILURE TO ATTACK THE CREDIBILITY OF THE DEFENDANT'S WRITTEN STATEMENT; TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER COMMENTS IN THE PROSECUTOR'S OPENING STATEMENT; TRIAL COUNSEL'S FAILED CROSS-EXAMINATION OF MR. NAZARIO AND [THE VICTIM]; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS ON CRIMINAL LIABILITY; AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.

(B) TRIAL COUNSEL'S FAILURE TO ATTACK THE CREDIBILITY OF THE DEFENDANT'S WRITTEN STATEMENT; TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER COMMENTS IN THE PROSECUTOR'S OPENING STATEMENT; TRIAL COUNSEL'S FAILED CROSS-EXAMINATION OF MR. NAZARIO AND [THE VICTIM]; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS ON CRIMINAL LIABILITY; AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST.

POINT III

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT IV

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

We have considered these contentions in light of the record and the applicable principles of law. We are convinced that defendant's arguments are without merit. We affirm the order denying defendant's petition for PCR substantially for the reasons stated by Judge Peim in his thorough and comprehensive letter opinion dated April 7, 2008. R. 2:11-3(e)(2). We add the following.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court established a two-part test for evaluating claims of ineffective assistance of counsel. In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective assistance of counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant argues that he was denied the effective assistance of counsel because his attorney failed to object to the prosecutor's comments in her opening statement that, "[t]he events [to be described] are oftentimes so gruesome that you [would not] want to believe three people could commit these types of offenses against another human being." Defendant argues that these comments were objectionable because they "allowed the jury to sympathize with the victim" and caused the jurors to "view" him as a "monster." Defendant also argues that the prosecutor improperly stated that "three people" committed the "horrific acts."

We are convinced, however, that the trial court correctly determined that defense counsel's failure to object to the prosecutor's remarks did not constitute the ineffective assistance of counsel. As the trial court found, the prosecutor's comments fairly characterized the evidence. Indeed, the record shows that, although defendant was not a direct participant in all of the acts perpetrated upon the victim, he was present when Selles and Fernandez physically and sexually abused the victim and his actions facilitated their commission of those acts. Furthermore, the prosecutor's statement was not an improper appeal to the jury's sympathy, nor was it an invitation to view defendant as a "monster."

Defendant also argues that the trial court erred by rejecting his contention that he was denied the effective assistance of counsel because his trial attorney failed to cross-examine Nazario thoroughly. Again, we disagree. Nazario had testified that, on June 6, 2000, he went to defendant's residence and called up to defendant from outside the building. According to Nazario, defendant stuck his head out of the window and said that he was there with some "chick." Defendant told Nazario that he was receiving oral sex. Nazario told defendant to stop by his house after he was finished.

Thirty minutes later, defendant arrived at Nazario's house. Defendant said that Selles and Fernandez had been "hitting on" the victim, and telling her that if she performed oral sex upon them, they would leave her alone. Defendant also said that he tried to stop Selles and Fernandez but when they left his residence, he had the victim perform oral sex upon him.

Defendant contends that his attorney should have elicited testimony on cross-examination to show that Nazario was not, in fact, present during any part of the incident and therefore had no direct knowledge of what had occurred. However, as the trial court pointed out, Nazario did not testify as to what had happened to the victim. He only testified about what he had seen and what defendant said to him.

The trial court also pointed out that further cross-examination of Nazario would only have established that he was not present in defendant's residence while the offenses were being committed, a fact that was "already clearly in the record[.]" We are therefore satisfied that the trial court correctly determined that counsel's cross-examination of Nazario was not deficient and further cross-examination along the lines suggested by defendant would not have led to a different result.

In addition, defendant contends that he was denied the effective assistance of counsel because his trial attorney failed to conduct an effective cross-examination of the victim. Defendant argues that his attorney should have questioned the victim about whether or not she was a prostitute, why she offered to have sex with defendant, and whether she could make accurate observations without her eyeglasses. In our view, the trial court correctly found no merit in this claim.

As the court pointed out in its letter opinion, many of these facts were already in the record and counsel's decision to forgo questioning the victim on these points was "sound trial strategy." The court aptly observed that, after the jury had heard the evidence of the horrific acts performed upon the victim, little "would have been accomplished by eliciting from the victim that she offered to have sex with [defendant] because it was the only thing she could think of as a way to end her ordeal[.]"

Defendant also maintains that his trial attorney was deficient because he failed to attack the credibility of defendant's statement to the police. Defendant testified, however, that he gave the police "a voluntary statement." He asserted that he had not done anything wrong. He said he had assisted the victim and helped the police to understand what had transpired. In its letter opinion, the trial court noted that, if counsel had attacked the credibility of defendant's statement to the police, it would have been inconsistent with defendant's own testimony and his trial strategy. In our judgment, the court correctly determined that defense counsel's failure to challenge defendant's statement did not constitute ineffective assistance of counsel.

We have considered the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-5677-07T4

December 9, 2009