STATE OF NEW JERSEY v. LEONEL B. REYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0566-08T40566-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONEL B. REYES,

Defendant-Appellant.

_________________________________

 

Submitted January 5, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No. 02-12-3039.

Ferro and Ferro, attorneys for appellant (Nancy C.

Ferro, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney

for respondent (Annmarie Cozzi, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

On remand for an evidentiary hearing on defendant Leonel Reyes' post-conviction relief (PCR) claim that trial counsel had interfered with his right to testify, the Law Division denied the PCR petition. Defendant appeals, and we affirm.

Briefly, by way of background, following a jury trial, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a seven-year term, subject to an eighty-five percent period of parole ineligibility, N.J.S.A. 2C:43-7.2. We affirmed the judgment of conviction, State v. Reyes, No. A-0517-03T3 (App. Div. November 1, 2004), and the Supreme Court denied defendant's petition for certification, State v. Reyes, 183 N.J. 213 (2005).

We recount the facts of the underlying crime as stated in our opinion on defendant's appeal of the Law Division's denial of his PCR petition:

The charges against defendant arose out of an incident that occurred on Saturday, November 9, 2002, when Stellianos Lazaridis was returning home from his job as a supervisor of a nightclub in the Bronx. On weekends, when the club receipts were between $15,000 and $20,000, he drove from the Bronx to the club owner's home, left the receipts there and returned to his home in Cliffside Park. At about 5:30 a.m., on the Saturday in question, Lazaridis drove around the block near his home to make sure no one had followed him. He parked his car, and when he got out, a man wearing a black jacket and a baseball cap, later identified as co-defendant Frias Ozonia, suddenly appeared "from nowhere." When Lazaridis stopped and changed direction, so did Frias. When Lazaridis asked Frias what he wanted, Frias displayed a knife. Lazaridis saw the knife, ran, screamed "police" and called 9-1-1 on the cell phone he had in his hand. At that point, defendant was running toward Lazaridis with his hand in his pocket. As Lazaridis was running away, he turned and saw Frias talking with another man, later identified as defendant.

In response to Lazaridis' 9-1-1 call, Cliffside Park Police Officer Pasquale Dorito arrived on the scene and found Lazaridis excited and nervous. After Lazaridis told Dorito what had happened and described the two men, Dorito drove around the area with Lazaridis but did not locate the suspects. Another Cliffside Park Police Officer, Michael Messenger, was on patrol that morning and heard the description of the two suspects over the police radio. When Messenger saw two men resembling the suspects walking on Palisade Avenue, he told them to stop. The men complied and Messenger asked them what they were doing in the area. One of the men told the officer that they had taken a cab to visit a girlfriend in Passaic but were dropped off in Cliffside Park. They did not explain why they were in the area at 5:30 a.m. or why the cab had dropped them off at that particular place.

When Messenger notified police headquarters that he had stopped the two men, another officer picked up Lazaridis and drove him to the scene where Lazaridis immediately identified defendant and Frias as the man with the knife.

[State v. Reyes, No. A-1979-06T5 (App. Div. February 19, 2008) (slip op. at 2-3) (Reyes II).]

In his PCR petition, defendant's principal claim was that trial counsel was ineffective because she did not allow defendant to testify on his own behalf. Defendant submitted a certification stating that his attorney gave him a form to fill out and, although he claimed he could not understand it because it was in English, signed his name indicating that he did not wish to testify. He claimed in his PCR petition that he was "confused about what line to sign and signed not only the lines reserved for my signature, but also on the line reserved for my attorney's signature as well." The trial judge asked him, however, whether he wanted to testify and he answered that he did not.

Defendant claimed in his PCR certification that he told his attorney from the beginning that he wanted to testify. At the initial PCR hearing, defendant testified that when the judge asked him if he wanted to testify at trial, he started to answer "yes," but his "attorney pinched my ear and told me that I did not have to testify because the prosecutor would ask me a lot of questions and try to confuse me." Defendant further stated that he "felt pressured by my attorney and felt that I did not have a choice so I told the judge that I would not testify." He stated that he was so unhappy with his trial counsel that he immediately fired her and retained another attorney who represented him at sentencing and on appeal. When asked what he would have said about the allegations at trial, defendant did not offer an alibi.

In a letter opinion dated August 8, 2006, the PCR judge denied relief. Defendant appealed. We affirmed in part and reversed in part, remanding for an evidentiary hearing solely on defendant's claim that trial counsel interfered with his right to testify. Reyes II, supra, slip op. at 8, 11. We reasoned that defendant's proofs raised "a fact question that should be decided after a hearing at which trial counsel can respond to the allegation[,]" and that the "judge should not vouch for the attorney's experience or credibility." Id. at 10-11.

At the subsequent hearing conducted on June 25, 2008, defendant testified, through an interpreter, that he had repeatedly expressed his desire to testify to his attorney, who told him it was not necessary to do so. Defendant felt pressured to follow his attorney's advice and therefore informed the trial judge of his decision not to testify. Defendant acknowledged signing the form electing not to testify, and knowing what he was signing, but claimed he was forced to do so by his attorney.

Defendant related the testimony that he wanted to give at trial. According to defendant, on November 9, 2002, he had been drinking and using drugs, after which he and co-defendant Frias got into a taxi to visit a female friend. On the way, they got into an argument with the taxi driver, who ordered them out in Cliffside Park. They were walking to find a bus stop when they encountered a man who then started shouting, "police, police", apparently thinking the two men were going to rob him. Defendant also said that he had enough money to get back to New York and that, if he had come to rob the alleged victim, he would have done so in a car with a gun.

Defendant's trial counsel, Kathleen Policastro, testified that, through an interpreter, she thoroughly discussed the issue of whether to testify with defendant on several occasions, and that it was his choice not to testify. Although she urged him not to testify after listening to what he wanted to tell the jury, she nevertheless told defendant that the ultimate decision was his and that he could overrule her recommendation. She warned him, however, that the prosecutor would ask him questions to confuse him.

According to Policastro, after deciding not to testify, defendant would indicate otherwise on several occasions. Ultimately, however, following a comprehensive inquiry by the trial judge, defendant advised that he did not want to testify. Moreover, the Spanish interpreter at defendant's trial reviewed the waiver form with defendant in Spanish, in accordance with standard operating procedure of the Public Defender's Office requiring that the waiver form be translated.

At the close of evidence, the PCR judge concluded that trial counsel did not improperly deprive defendant of his right to testify. The judge found:

Leaving aside for the moment the subsequent testimony of Ms. Policastro I find just taking Mr. Reyes' testimony alone that he has not established that the determination not to testify was the product of any untoward advice or coercion or threatening or anything of that matter on the part of Ms. Policastro but that what he had felt was what I believe to be the normal pressure or anxiety that any defendant would normally be under when the time came and he was confronted with the determination or decision as to whether or not to testify.

. . . .

[H]aving heard the testimony of Ms. Policastro I find that she testified forthrightly and candidly. She indicated that a translator had been seated at counsel table throughout the trial, that with respect to the form the defendant's election not to testify that she had the translator interpret the form in contradiction to Mr. Reyes' testimony although she did not oversee him actually signing that form which would explain the reason why he signed in several places; however, I do accept Ms. Policastro's testimony that she witnessed and observed and her normal practice would be to have the translator translate that form for the defendant prior to it being executed.

Now, I also accept Ms. Policastro's testimony that she not only advised Mr. Reyes that it would not be in his best interest to testify, but in fact she urged him not to testify, that her recollection differed from the proffered testimony of Mr. Reyes today that in fact he did not have enough money to get back home from New York. That fact was important because Mr. Reyes' theory was that they were there accidentally and that did not comport with the facts at trial and she denied using the word necessary. She also did advise Mr. Reyes that he would be subject to cross-examination by the Prosecutor which I think was certainly prudent and accurate advice and that perhaps the Prosecutor's questioning would somehow confuse or trip up the defendant; however, Ms. Policastro also indicated that despite her advice and urging with respect to this issue that she in fact told Mr. Reyes that the ultimate decision was his and that he could overrule her and in fact I accept that testimony and I find that that advice was given and that it was ultimately Mr. Reyes' decision as to whether or not to testify and I also find that there was certainly reasonable strategic decisions given by Ms. Policastro that were imparted to Mr. Reyes and which supported her advice to Mr. Reyes that it would not in fact be in his best interest to testify.

Accordingly, the judge denied defendant's PCR petition.

On appeal, defendant contends the court erred in finding defendant was not denied effective assistance of counsel. We disagree and affirm substantially for the reasons stated by the PCR judge in his oral opinion of June 25, 2008. We add only the following comments.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). We need not determine the latter because we are persuaded that the alleged deficiency here clearly fails to meet the performance prong of the Strickland test.

Following an evidentiary hearing, the PCR judge, crediting trial counsel's testimony, found that counsel strategically and reasonably determined that defendant's version of the incident did not constitute a viable defense to the charge; conveyed that assessment to defendant; and thereafter left the ultimate decision whether to testify to defendant. We, of course, defer to the credibility determinations of the PCR judge, State v. Johnson, 42 N.J. 146, 161 (1964), whose findings, we conclude, are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999).

Affirmed.

 

Prior to the remand hearing, defendant's counsel notified the PCR court and the prosecutor that defendant had revealed, for the first time in an interview, that he had not understood the word "pinched" and that his attorney had not touched his ear to prevent him from testifying.

Defendant also signed a form concerning the election not to testify charge. Defendant signed this form in two places and started to sign in a third place, which was the line for his counsel to sign and certify that she had discussed the right not to testify and the attendant charge. The two lines where defendant signed his name were Paragraphs 1 and 2 at the bottom of the form. By signing next to Paragraph 1, defendant indicated that he wanted the "election not to testify" charge given. He also signed Paragraph 2, which indicated that he did not want the charge given.

(continued)

(continued)

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A-0566-08T4

January 29, 2010