STATE OF NEW JERSEY v. JOSE DOMINGUEZ, a/k/a BOBBY DOMINGO JOSE DOMINIGO, JOSE O. DOMINGUEZ JOSE OSVALDO DOMINGUEZ, ALEIDES J MARMOLEJOS, DAVID TAVARAS, DAVID TAVERAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4130-08T44130-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE DOMINGUEZ, a/k/a BOBBY DOMINGO,

JOSE DOMINIGO, JOSE O. DOMINGUEZ,

JOSE OSVALDO DOMINGUEZ, ALEIDES J.

MARMOLEJOS, DAVID TAVARAS, DAVID

TAVERAS,

Defendant-Appellant.

___________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-03-0323.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose Dominguez appeals the denial of his petition for post conviction relief (PCR). We affirm the denial, but remand for resentencing.

I.

On November 19, 2003, Dominguez was convicted by a jury of fourth-degree unlawful possession of a weapon (a knife) under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and first-degree armed robbery, N.J.S.A. 2C:15-1. On February 13, 2004, he was sentenced on the robbery conviction to an extended term of twenty-five years with twelve years of parole ineligibility and, following merger of the weapons convictions, to a concurrent ten-year extended term with a five-year parole disqualifier on the charge of possession of a knife for an unlawful purpose.

Dominguez appealed from his conviction and sentence. We affirmed the conviction, but remanded for resentencing. State v. Dominguez, No. A-4768-03 (App. Div. June 27, 2006). We determined that both of the weapons offenses should have been merged into the robbery, as a result of which merger only one extended term sentence should have been imposed. Id. at 9-10. The Supreme Court denied certification. State v. Dominguez, 189 N.J. 103 (2006).

On the sentencing remand, however, the matter went to a different judge. He misinterpreted the remand as having been based on State v. Natale, 184 N.J. 458 (2005). On September 28, 2006, he imposed the same sentence, which included the two extended terms we had already held were inappropriate. Consequently, we again remand for resentencing on the robbery count only. The remaining counts are to be merged into the robbery.

In our opinion affirming the conviction, we described the facts underlying the conviction as follows:

Evidence at trial was sufficient to demonstrate that defendant entered the kitchen of a Chili's restaurant at 8:00 a.m. and demanded money and car keys from the restaurant's manager, while holding a Chili's steak knife in his hand. Defendant, who testified on his own behalf, denied any attempted theft, and claimed that he entered the restaurant's kitchen to obtain a cup of coffee before the restaurant officially opened. He claimed that he grabbed the knife in self-defense when he became concerned for his safety as the result of the aggressive conduct of the restaurant's employees and defendant's confinement by them in the restaurant's security cage at the entrance to the kitchen. Defendant was arrested by the police at the scene. A Chili's steak knife was retrieved by the police from the floor inside the restaurant.

[Dominguez, supra, slip op. at 3-4.]

Dominguez filed his PCR petition on September 6, 2007. An amended petition was filed on February 19, 2008. The PCR judge determined that an evidentiary hearing was required. That hearing was held on November 6, 2008.

Dominguez argued that his trial counsel was ineffective for failing to investigate intoxication and mental defenses, failing to request appropriate jury charges, and conceding defendant's guilt in summation. His PCR counsel also argued that trial counsel was ineffective for failing to conduct an effective cross-examination of the State's main witnesses using their prior inconsistent statements, and presenting defendant's testimony without reference to defendant's intoxication and mental illness. The PCR judge limited the evidentiary hearing to the issue of trial counsel's failure to investigate and raise an intoxication or insanity defense.

Trial attorney Joel Friedman testified at the PCR hearing that he began representing Dominguez in January 2003 as a pool attorney for the Public Defender's Office. Friedman was aware at the time that Dominguez had previously been represented by another attorney. Friedman did not "have any independent recollection" of whether he had ever discussed the case with prior counsel. Friedman recalled seeing a report in the file from an expert regarding an insanity or diminished capacity defense, although he could not recall who had prepared the report. When asked whether he had spoke to Dominguez about these defenses, Friedman replied, " . . . I'm sure I would have reached out to him. I don't recall the - the conversation though." Friedman identified two letters written by the prior attorney to the trial judge, indicating that the expert who had prepared the report, Dr. John Liccardo, would be available to testify for trial in April 2001.

In the report, Liccardo noted that, after Dominguez was arrested for the robbery, he exhibited behavior that raised questions about his mental health. Dominguez was transferred to the Ann Klein Forensic Center for evaluation and treatment. Based on his June 27, 2000, interview with Dominguez and his review of numerous reports and past medical and social history, Liccardo determined that Dominguez:

. . . is an intellectually limited young man who suffers from a major psychiatric illness, most likely a Schizoaffective Disorder, chronic type (in tenuous remission at the time of this exam). In addition to this he also has a history of Polysubstance (alcohol, marijuana, PCP) abuse/dependence and reportedly has not sought treatment for either of these serious problems.

In addition, Liccardo concluded that, at the time defendant committed the robbery, he was responding to hallucinations and "suffering from a mental disease of such severity that he did not recognize the nature and quality of his actions or that they were wrong."

Friedman acknowledged that Liccardo's report provided a basis for an insanity defense. He "guess[ed]" that he discussed the report and the possibility of an insanity defense with Dominguez on "three or four, maybe five" occasions. He did not testify as to the nature of his advice to Dominguez. Friedman did not recall whether he had been aware at the time that Dominguez had been hospitalized for psychiatric treatment and evaluation while the case was pending, although the information is reflected on the first page of Liccardo's report. He further maintained that "[t]his wasn't the kind of case when I would just spend five minutes with somebody and run upstairs to Court." Friedman admitted he was "not sure" that he ever actually spoke to Liccardo about the case.

Dominguez and Friedman appeared in court on May 12, 2003. Dominguez waived the insanity defense on the record. The following exchange between Dominguez and Friedman took place at that time:

MR. FRIEDMAN: Mr. Dominguez, are you under the influence of any medication or drugs today?

THE DEFENDANT: No.

MR. FRIEDMAN: When you are speaking here today --

THE DEFENDANT: Yes.

MR. FRIEDMAN: -- do you feel like you understand what we're doing here today?

THE DEFENDANT: Yes.

MR. FRIEDMAN: You have filled out with me, and signed, and dated, a trial memorandum, a four-page form today?

THE DEFENDANT: Yes.

MR. FRIEDMAN: Did you feel like you understood everything we have gone over?

THE DEFENDANT: Yes, I did.

MR. FRIEDMAN: You do want a trial; is that correct?

THE DEFENDANT: I want a trial.

MR. FRIEDMAN: You and I have gone over the expert reports, that not only your prior lawyer, but the State had obtained, with regard to your potential defenses of mental defect and insanity?

THE DEFENDANT: Yes.

MR. FRIEDMAN: You have reviewed with me the recommendations by both experts?

THE DEFENDANT: Yes.

MR. FRIEDMAN: And you feel like you understand them?

THE DEFENDANT: Yes, I do.

MR. FRIEDMAN: Have you reviewed with your prior attorney, and with me, your feelings, that you would not like to use those defenses at trial?

THE DEFENDANT: Yes.

MR. FRIEDMAN: That, in fact, you'd like to try the case, the merits of the case, whether you are guilty or not guilty of the crime?

THE DEFENDANT: Yes.

MR. FRIEDMAN: You feel like you understand this fully?

THE DEFENDANT: I understand.

MR. FRIEDMAN: And you've had enough time to talk to me about it?

THE DEFENDANT: Yes.

MR. FRIEDMAN: You'd like this Court to be aware today, when the Court sets a trial date, that you are not going to be relying on insanity or mental defect, at the time of trial? Though I know your own personal feelings --

THE DEFENDANT: My feelings.

MR. FRIEDMAN: -- you feel like you have had enough time to talk to me about it?

THE DEFENDANT: Yes, I do.

MR. FRIEDMAN: You have any other questions for me or the Judge at this time?

THE DEFENDANT: No.

MR. FRIEDMAN: Judge, I'm prepared to go through the trial memo form then.

With respect to an intoxication defense, Friedman recalled speaking to Dominguez about the fact that he was under the influence of PCP at the time of the offense, although he never consulted an expert about the possibility of such a defense. Friedman ultimately made a "lawyer/client decision" not to use that defense.

Dominguez also testified at the PCR hearing, explaining that he had been placed in a psychiatric hospital after first being arrested and again prior to trial. Dominguez had little memory of the offense, other than waking up at a psychiatric hospital. He testified that he had consumed alcohol, marijuana, and PCP, and was hearing voices at the time of the offense.

Dominguez testified that he and Friedman had discussed an insanity defense on two occasions prior to trial. During those conversations, Friedman told him not to raise an insanity defense because "it would never work." Dominguez acknowledged waiving the insanity defense on the record, explaining that Friedman told him to do so.

In denying Dominguez's petition for post-conviction relief, the PCR judge explained his reasoning as follows:

[Friedman] testified with regard . . . to what defenses to pursue on more than one occasion with Mr. Dominguez. And clearly from his testimony he established that he laid it all out for his client, strategically, the pros and cons of the various defenses to these charges. And apparently had his client make the decision.

Perhaps Mr. Dominguez may have took . . . that Mr. Friedman maybe didn't feel so strongly with regard to the viability of the insanity defense, but I cannot accept that the inference, . . . that Mr. Dominguez is attempting to put forth at this point that somehow . . . Mr. Friedman bullied him into pursuing a defense or abandoning a defense that he really wanted to pursue and that his lawyer, "made him do it." I don't think that that went on in this case.

I think that Mr. Friedman did the best that he could to lay out all the pros and cons for his client as to how these various defenses would play out before a jury. And such that his client could make an informed and educated decision for himself as to which way to proceed.

I will note, particularly with regard to . . . Dr. Liccardo's report, [t]here was some representations by the defendant about using PCP and other drugs. And at no time, however, in his findings does Dr. Liccardo at all intimate . . . [t]hat [Dominguez] did admit to using PCP in the past for a couple of months. And also in his first opinion, "He has a history of polysubstance abuse - alcohol, marijuana, PCP abuse dependence and reportedly has not sought treatment for either of these serious problems."

However, conspicuously missing from Dr. Liccardo's report is any indication that there was an intoxication defense. Rather, his third opinion, his third recommendation and impression . . . he finds that Mr. Dominguez was suffering from a mental disease of such severity that he did not recognize the nature and quality of his actions, so in other words, that perhaps he had an insanity defense.

And he also indicates that this had to do with the fact that the defendant was experiencing auditory hallucinations to some extent that instructed him to act in a certain manner.

The second impression on that report makes clear that as far as Dr. Liccardo was concerned -- and this is very pertinent. This is very important. The defendant, Mr. Dominguez, was competent. He was competent to proceed and to participate in his defense and to cooperate -- the last line. "If Mr. Dominguez were able to maintain the level of functioning noted at the time of this evaluation," and there's no indication to the contrary, "he should be able to cooperate with his attorney in formulating a reasonable defense."

He was aware of that initial hospitalization at Ann Klein and the various diagnoses, DSM diagnoses that Mr. Dominguez had. Okay. All right.

This report coupled with -- because this is really what Mr. Friedman had to work with -- was this report. And this, coupled with his testimony, as to how he counseled the defendant, basically . . . I think what's clear from his testimony is, "I reviewed the reports with him. I reviewed the various defenses with him. The pros and cons of which way to go and it was Mr. Dominguez who decided he preferred not to pursue a mental defense or defect defense, but rather, simply to defend the case on the merits without interposing any affirmative defense or mental defense."

And that does not arise to ineffective assistance of counsel. Perhaps, had Mr. Dominguez's election been different maybe the trial would have been completely different. I don't know. None of us have a crystal ball and hindsight is 20/20. But even in this case, we'll never know.

But just because that's a possibility, that doesn't mean that Mr. Friedman did anything wrong. He didn't turn a blind eye to anything. He didn't ignore anything. He went over everything with his client. He made sure, as much as reasonably possible that his client was informed, such that he could make an intelligent decision. And his doctor said that as "to a reasonable degree of medical certainty, Mr. Dominguez was of a level of functioning that should enable him to cooperate with his lawyer in formulating a reasonable defense." In other words, that Mr. Dominguez was up to it mentally.

. . . .

There's nothing before me that there was any dereliction or any deficiency on the part of Mr. Friedman. In other words, to me, there's not even a prima facie showing of any ineffective assistance.

I think he did exactly what would be expected of him. He did his job. There's no indication that this would have been different had the defendant's choice been different.

But the important thing to note here -- and that's why I corrected you, Counsel, when I indicated to you that you mischaracterized the record, because Mr. Friedman didn't waive anything. Mr. Friedman didn't make any decision. Your client did.

And I'm satisfied, clearly, it was your client who made the decisions. All Mr. Friedman did was inform him of his various choices. And that's very important here. And . . . perhaps Mr. Dominguez in his own mind has come to conclude that his lawyer made him do it, so to speak.

I don't agree with that. I don't find that. I find that, rather, what Mr. Friedman did was simply lay it out for him and from his experience as a trial attorney, to lay out the pros and cons, and then allowed Mr. Dominguez to make the choice. Mr. Dominguez did, in fact, make that choice and the case proceeded accordingly. And that's borne out not only on this record today, but also the record before Judge Pullen on the 12th of May, 2003.

But I find nothing on this record to suggest that there was any ineffective assistance by Joel Friedman in the defense of this matter.

The implementing order was entered on November 12, 2008.

This appeal followed.

II.

Dominguez raises the following issues on this appeal.

POINT ONE: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO: DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

POINT THREE: AS THIS COURT PREVIOUSLY DETERMINED ON DIRECT APPEAL, DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ARMED ROBBERY.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "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. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactics or strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

The PCR judge appropriately held an evidentiary hearing with respect to the issue of the potential defenses related to insanity and intoxication. We owe considerable deference to the judge's factual findings based on that hearing. State v. Elders, 192 N.J. 224, 243-44 (2007). His conclusion that Friedman discussed the defenses with Dominguez and that Dominguez chose not to pursue them is fully supported by the record, as is the judge's determination that Dominguez was not pressured or forced to do so by his attorney.

Even if Friedman conveyed to Dominguez his belief that the defenses were not viable, we find no evidence of ineffective assistance of counsel. Decisions that are based on tactics or strategy are generally not considered ineffective assistance when viewed as unsuccessful in hindsight. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. Indeed, "[j]udicial scrutiny of counsel's performance must be highly deferential," which deference 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." Ibid.

Having carefully reviewed the record, we conclude that Dominguez's remaining arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed in part and remanded for resentencing.

(continued)

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A-4130-08T4

July 26, 2010