STATE OF NEW JERSEY v. JAMES HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5652-07T45652-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES HERNANDEZ,

Defendant-Appellant.

________________________________

 

Submitted: March 10, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-05-2512.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Assistant Prosecutor, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant James Hernandez appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful posses sion of a weapon, contrary to N.J.S.A. 2C:39-5b. The second-degree weapons offense was merged into the murder conviction for purposes of sentencing, and defendant was sentenced to thirty years in prison without parole, to be served consecutively to a sentence he was serving at the time of sentencing on another indictment. He was also sentenced on August 21, 1998, to a term of five years on the third-degree weapons offense, to be served concurrently with the sentence on the murder conviction. We affirm.

On October 10, 1996, Ian Vega was celebrating a birthday in a restaurant in Newark with his girlfriend and her family. Around 9:00 p.m. while Vega was standing outside the res taurant getting some air, defendant shot him in the head with a .25-caliber handgun. The bullet entered his brain near the hairline over the left temporal region, travelled through his brain, and lodged in his skull in the right parietal-occipital subdural lobe.

An eyewitness testified that she saw defendant, whom she knew, having an argument with Vega, whom she did not know. Because the argument was in Spanish, she could not understand what was being said and crossed the street to avoid them. Then, she heard a gun shot, turned around, and saw Vega falling to the ground and defendant looking up and down the street, then running away. She did not give a statement to the police at this time, offering to do so several months later to help her incarcerated boyfriend.

Defendant was arrested the following year on unrelated charges and gave a statement to the police in which he admitted to the shooting. He claimed he shot at Vega for self-protec tion. Defendant testified at trial that he had been involved in dealing drugs in Newark and had been involved in about fifteen incidents in which rival drug dealers and "some kids from High Street" tried to kill him and did kill several of his partners.

Defendant testified that Vega asked him, "What the fuck [he] was looking at." Defendant explained, "The guy was bigger than me, and I thought we [were] going to get into a confronta tion, so I put my hands up, and he reached[] in his back pock ets, and I thought he was going to pull something out a knife or something, so I just backed up, and turned around, and just shot him, and I ran . . . ." Defendant said he was only trying to scare Vega, not shoot him. He admitted he told his cousin Moses Guzman to hold the gun, that he had "shot at someone." He denied telling him that "he had a beef with the [guy] and had to shoot him."

Defense witness Sonya Soto, who was with Guzman at the time, testified that after she heard a shot, defendant came running down the street and called Guzman to go with him. When Guzman returned, he told Soto that defendant had shot someone and had given him the gun and told him to hide it. The gun was never recovered. There was no evidence at the scene that gave the investigating officer reason to believe that Vega had a weapon. When the case went to the jury, it convicted defendant on all charges. He was sentenced on August 21, 1998.

On direct appeal from his convictions and sentences, defendant raised the following issues for our consideration:

POINT I - MID-TRIAL PUBLICITY, AND THE JUDGE'S FAILURE TO INSTRUCT JURORS AS TO PUBLICITY BEFORE TRIAL BEGAN, UNDERMINED DEFENDANT'S RIGHT TO TRIAL BY [A] FAIR AND IMPARTIAL JURY.

POINT II - THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT IMPROPERLY DENIED THE DEFENDANT'S MOTION FOR [A] NEW TRIAL.

POINT III - THE TRIAL COURT'S COMMENTS DUR ING DEFENSE COUNSEL'S SUMMATION WERE UNDULY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL, THEREBY CONSTITUTING REVERSIBLE ERROR.

POINT IV - DEFENSE COUNSEL'S FAILURE TO PROPERLY PREPARE FOR TRIAL, AND THE FAILURE TO PROPERLY IMPEACH THE STATE'S WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. DEFENSE COUNSEL FAILED TO ADEQUATELY PREPARE FOR TRIAL.

B. DEFENSE COUNSEL['S] FAILURE TO PROPERLY CROSS-EXAMINE AND IMPEACH STATE'S EYEWITNESS.

[State v. Hernandez, No. A-787-98 (App. Div. Jan. 20, 2000) (slip op. at 4-5).]

With respect to Point IV(A), defendant asserted that his trial counsel did not consult with him while he was at the Garden State Youth Correc tional Facility until just prior to trial. In fact, he ulti mately wrote to the public defender's office requesting that he be assigned new counsel, but his request was denied. While he was awaiting trial, an investigator from the public defender's office, Angel Santiago, interviewed several witnesses who had personal knowledge regarding defendant's history as it related to numerous recent shootings and attempts on his life in the months and years prior to the shooting of Vega. Each witness would testify to incidents of attacks, stabbings, or shootings perpetrated on defendant that they had witnessed. This testi mony would have been proffered to establish that defendant had a legitimate and reasonable fear for his safety and life and that was inconsistent with knowing or purposeful murder. Based on this prospective testimony, defendant intended to rely on General Principles of Justification, N.J.S.A. 2C:3-1, and Lack of Requisite State of Mind, N.J.S.A. 2C:4-2, as to which Rule 3:12-1 written notice was required no later than seven days before the arraignment/status conference, although for good cause shown that deadline could be extended. No such written notice was submitted.

On the first day of trial, July 13, 1998, after the jury was selected, the following colloquy took place:

THE COURT: . . . You know we have Rule 3[:]12-1 that talks about notice of certain specific criminal code provisions. . . . Are we involved in this?

[THE PROSECUTOR]: Yes, Judge. Your Honor recognizes, I think, from our last appearance the lack of requisite state of mind 2C:4[-]2.

THE COURT: Have you received a notice of this? Have you received a written notice?

[THE PROSECUTOR]: No, I haven't, Judge.

THE COURT: Well, then, it's not in the case.

[DEFENSE COUNSEL]: Judge, the last time we were here this was detailed before the [c]ourt. Counsel knows exactly what his witnesses are going [to] testify about. I was asked for a proffer, and I proffered it before the [c]ourt. It's not about 17 witnesses. Counsel has 20 witnesses on his list.

THE COURT: This is a new case and I did nothing. I did nothing. I made no decisions. I did nothing. This case was not ready. I sent it back. I have made no findings or no decisions. I'm calling your attention to Rule 3[:]12-1 which says that a defendant shall serve written notice on a prosecutor if the defendant intends to rely on any of the following sections of the Code of Criminal Justice. Lack of requisite state of mind, 2C:4[-]2. What does that say, 2C:4[-]2?

[DEFENSE COUNSEL]: . . . The [c]ourt did not make a ruling on this question. What comes last time we were before you is for a proffer before this [c]ourt on what my witnesses will testify about. . . .

THE COURT: . . . You're going to have to make a proffer because there is no diminished capacity in this case, it wasn't plead [sic].

The following day, defense counsel served a Rule 3:12-1 notice on the prosecutor. Before the jury was brought out, defense counsel addressed the judge:

[DEFENSE COUNSEL]: . . . There was an issue that counsel raised late yesterday about wanting a proffer on what it is what my witnesses will testify about. As I indicated to the [c]ourt yesterday, that proffer was previously given by counsel before this [c]ourt on the record. I think counsel pretty much has the idea what it is these witnesses are going to testify about. Then, after that, the [c]ourt raised the issue of Rule 3:12.

THE COURT: If that's what this is all about. It's been suggested that that's what this is all about.

[DEFENSE COUNSEL]: Well, what counsel was raising was a proffer. It was the [c]ourt who raised the Section 3:12. As the [c]ourt knows, there's been a lot of discussion back and forth, and as I said what counsel was looking for was a proffer on my witnesses which I previously had given him, and sort of has the idea as he said what he has said. As I said, the [c]ourt raised the 3:12 issue, and I have given counsel a one paragraph letter this morning, Judge.

THE COURT: That's a little late, I'm afraid. I already ruled on it, counselor. It's a little late, I think egregious misconduct, and playing fast and loose with the [c]ourt. This is the case that I was going to try before, and sent it back to the [c]ourt from which it came because you, counselor, were egregiously unprepared. Remember that?

[DEFENSE COUNSEL]: I remember it.

THE COURT: You're still unprepared today, but we have a jury sworn here, and you're going to try this case the way you made it. . . .

We found Points II, III, and IV(B) to be of insufficient merit to require discussion in our opinion. Id. at 5. We left Point IV(A) "to such consideration as it may warrant in a [PCR] application." Ibid. After thorough consideration, we found Point I lacking in merit and affirmed defendant's conviction and sentence. Id. at 19.

Two and one-half years later, counsel for defendant prepared a Brief and Appendix in Sup port of the Defendant's Petition for Post-Conviction Relief on July 15, 2003, and on August 12, 2003, defendant signed the verified petition his attorney had prepared. Included in the Appendix was the brief filed on direct appeal, our opinion preserving Point IV(A) for PCR, the April 15, 1997, investigation report of Patrick DeFrancisci, and a certification from Celindes "Linda" Romero. It was not until almost two years later that on June 1, 2005, the Criminal Pre siding Judge assigned the public defender to represent defendant.

In his petition, defendant raised the following claims with respect to his trial counsel:

[POINT I] - TRIAL COUNSEL FAILED TO ADE QUATELY PREPARE FOR TRIAL BY FAILING TO SERVE NOTICE AS REQUIRED BY R. 3:12-1 WHICH DEPRIVED THE PETITIONER A FAIR TRIAL.

[POINT II] - TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY CROSS-EXAMINE AND IMPEACH THE STATE'S EYE-WITNESS [SIC], ANTOINETTE BRIGANTI ORTIZ.

Defendant also raised claims with respect to his appellate counsel:

[POINT III] - PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL DUE TO COUNSEL'S FAILURE TO RAISE THE "HEARSAY" ISSUE AND THE ISSUE OF "PETI TIONER'S RIGHT OF CONFRONTATION" ON DIRECT APPEAL. (Pro Se Brief, Points II, III and IV).

[POINT IV] - APPELLATE COUNSEL FAILED TO RAISE AN ISSUE ON DIRECT APPEAL THAT THE PROSECUTOR'S IMPROPER COMMENTS IN OPENING AND SUMMATION, TOGETHER WITH THE ADMISSION OF PREJUDICIAL NON-TESTIFYING WITNESS STATE MENTS PREJUDICED PETITIONER AND DENIED HIM A FAIR TRIAL. (Pro Se Brief Point V).

[POINT V] - FOR FAILING TO RAISE ANY CLAIM HEREIN THAT COULD HAVE BEEN RAISED ON DIRECT APPEAL SO AS TO BAR THE WITHIN CLAIM UNDER R. 3:22-4.

In addition, defendant raised the following issues in his counseled brief in support of PCR:

POINT [VI] - THE WITHIN MATTER IS NOT PROCEDURALLY BARRED.

A. The within matter is not procedurally barred by R. 3:22-12.

B. The specifically enumerated exceptions to R. 3:22-4 clearly apply to this Petition.

C. In so far as [sic] the within Petition alleges facts that lie "outside of the record", the within Petition cannot be procedurally barred under R. 3:22-5.

POINT [VII] - THE DEFENDANT HAS SET FORTH A PRIMA FACI[E] CLAIM OF INEFFECTIVENESS OF TRIAL COUNSEL AND IS ENTITLED TO A FULL EVI DENTIARY HEARING TO DETERMINE WHETHER HE SHOULD BE AFFORDED A NEW TRIAL.

A. In evaluating the [p]etitioner's claims, this [c]ourt must view same in the light most favorable to the Petitioner.

B. The performance of the peti tioner's trial counsel was clearly deficient and had counsel's per formance been otherwise, the results herein would have been different.

POINT [VIII] - THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

In his brief, defendant argued that the witnesses he wished to have testify had all been interviewed and served with trial subpoenas. He expected them to corroborate his testimony that he had been the victim of shootings, stabbings, and other attacks and that he had become a paranoid, fearful individual who was constantly afraid of another attack on his life, and that his brother could also testify to this. Two individuals, Ivelisse Claudio and Edwin Hernandez, could testify that defendant was the victim of a close-range shooting in a pizzeria. Defendant represented that he had not been able to secure a voluntary statement from these two individuals, but would subpoena their testimony at a PCR evidentiary hearing. Another witness, Celindes Romero, from whom defendant had obtained a certification, would testify that the jacket defendant allegedly wore during the shooting was only purchased afterwards, as a gift. Finally, he asserted he had never committed a violent crime before. He contended that all of this evidence would have corroborated his testimony at trial, rendering it more credible, and raised a reasonable doubt that he had the requisite mens rea to be convicted of murder.

On November 30, 2007, the PCR judge heard argument on the petition without an evidentiary hearing. The judge complied with Rule 1:7-4, finding the facts and drawing conclusions of law in a lengthy oral decision on the record. First, he found that defendant filed his PCR petition on April 4, 2005, which was almost seven years after his conviction. He went through each one of defendant's claims seriatum. As to Point I, the judge found that trial counsel's "performance could be con sidered as deficient" in failing to comply with R. 3:12-1; how ever, he noted that defendant had not identified experts to sup port his state of mind and, with his admission to shooting Vega and the absence of any evidence that Vega was involved in drugs, concluded that the outcome was not likely to be different.

Turning to defendant's Point II, the judge found that trial counsel did extensively cross-examine Ortiz with respect to her possible bias. He concluded the conduct of the cross-examination "was not so deficient as to satisfy the first prong required under Strickland."

Point III related to the use of Guzman's statement by the State to attempt to refresh petitioner's recollection about hav ing "a beef" with Vega, which defendant claimed deprived him of his right of confrontation. The judge found that the issue could have been raised on direct appeal and was barred by Rule 3:22-4, but he nonetheless addressed the merits of the issue. He found that the prosecutor's questions improperly put the con tent of Guzman's statement before the jury and that they should have been excluded. However, he determined that the outcome of the trial would not likely have been different had defense coun sel objected and the evidence been excluded, because defen dant confessed to the shooting and an eyewitness placed him at the scene.

The judge then turned to Point IV, relating to improper com ments made by the prosecutor in his opening statement and closing argument. He found that these issues could have been raised on direct appeal, but even without the comments defen dant's testimony provided "ample evidence for a jury to conclude that he was guilty." The evidence of defendant's guilt at trial was "overwhelming."

With respect to defendant's Point V, which asserted that appellate counsel was ineffective for not raising the issues in Points I through IV, the judge found that this point lacked merit because the underlying points had no merit. The judge did not separately address the issues raised in defendant's coun seled brief, but did so in the context of his discussion of each of the five issues raised in the PCR petition. Accordingly, PCR was denied and this appeal followed.

Defendant raises the following issues for our consideration:

POINT ONE - THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT TWO - THE COURT ERRED IN FINDING THE DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ARE BARRED BY THE PRO VISIONS OF R. 3:22 BECAUSE THEY ASSERT CON STITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT [THREE] - P.C.R. COUNSEL PROVIDED INEFFECTIVE ASSISSTANCE [SIC] BY HIS FAILURE TO ADVANCE ALL ISSUES RAISED BY DEFENDANT.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).

In Strickland, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692, the United States Supreme Court explained the con stitutional guarantee embodied in the Sixth Amendment of effec tive assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffec tive assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demon strate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, 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. Adequate assistance of counsel should be measured by a "reasonable competence" stan dard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

In Point One on appeal, defendant urges that he established a prima facie claim of ineffective assistance of counsel entitling him to an evidentiary hearing. Specifically, the PCR judge found, as defendant urged in PCR Point I, that trial counsel's performance was deficient because he was unprepared for trial, not having served the notice of reliance on specific provisions of the Code of Criminal Justice, as required by Rule 3:12-1. He contends that the PCR judge erred in not allowing him the opportunity to prove the second prong of Strickland at an evidentiary hearing. He contends "that several witnesses would have testified consistently with [d]efendant's version of events and provided a justification for the shooting." He too would have testified that "his past experiences with shootings, stabbings, and other attacks ma[d]e him fearful, constantly afraid of physical attacks and paranoid." He argues, "Only by having an evidentiary hearing with the potential witnesses that would have testified had trial counsel properly filed the required notice, can the court determine if there was prejudice."

We do not have the benefit of the investigative report or the certification of Romero. However, it is clear from the defendant's description of the subject matter of his witnesses' testimony that they would not support a claim under N.J.S.A. 2C:3-2 that there was some justification for killing Vega, nor would they be able to support a claim under N.J.S.A. 2C:4-2 that defendant suffered from some mental disease or defect that would establish that defendant could not have acted purposely or knowingly. Being in a hyper-vigilant or panicked state is not a defense under the Code. State v Rose, 112 N.J. 454, 483 (1988). As a result, defendant has failed to prove that he was prejudiced as a result of counsel's ineffective assistance.

Defendant is entirely correct that Rule 3:22-4 is not a bar to consideration of the merits of PCR Points III and IV. Obviously, appellate counsel would not charge himself or herself on direct appeal with being ineffective. However, the judge did go on to address Points III and IV on the merits and concluded that defendant was not prejudiced by the use of Guzman's statement or the prosecutor's improper comments. He found the evidence of defendant's guilt was "overwhelming" and the errors would not have affected the outcome. We see no error in this determination.

Last, defendant contends that his PCR counsel provided ineffective assistance because he did not advance all the claims defendant called to his attention. We have compared the claims actually raised with those advanced by defendant and conclude that PCR counsel did raise all but two issues: trial counsel's failure to move for an immediate mistrial and trial counsel's failure to remove from the record statements attributed to the witness who never came to trial. However, there is no substantive discussion of that to which each of these issues relates. Without a certification from defendant setting forth the facts on which the claims are based, we cannot determine whether either issue has any merit.

 
Affirmed.

With the exception of our opinion, the items in the PCR appendix have not been included in the appellate appendices.

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

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A-5652-07T4

July 26, 2010