STATE OF NEW JERSEY v. MOISES TOMAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5911-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOISES TOMAY,

Defendant-Appellant.

______________________________________________________

October 6, 2010

Submitted August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-01-0039.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Moises Tomay appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Pursuant to a plea bargain reached with the State, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). In December 2004, he was sentenced to an aggregate term of twenty-five years' imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a motion for reconsideration of his sentence; disposition of the motion is not disclosed by the record.

In November 2006, defendant filed a pro se PCR petition.1 In his brief, defendant raised a number of issues regarding his sentence, as well as a claim that trial counsel provided ineffective assistance. In conjunction with PCR counsel's supplemental brief, defendant filed a certification that further set forth his claims of ineffective assistance.

Defendant certified that trial counsel "only met with [him] twice during the time that [he] was in jail," that counsel "did not go over the plea form . . . and [defendant] did not . . . read it." Moreover, defendant claimed that he was "scared" by counsel's statements that the "State['s] evidence was overwhelming," and, although a translator was present at all times, that he had difficulty understanding the proceedings "due to the language issue . . . [and] was not aware that [he] had the ability to appeal . . . ." Defendant further asserted that he was never advised of the impact of NERA on his sentence, that he would not have pled guilty if he had been, and that trial counsel "failed to establish a defense based on intoxication and did not use it at sentencing."

Oral argument on the PCR petition took place before the same judge that had accepted defendant's guilty plea and imposed the sentence. The judge denied the petition and this appeal followed.

Defendant argues before us that the judge erred regarding his claims of ineffective assistance of counsel, specifically citing trial counsel's failure to: "fully inform defendant of his sentence exposure prior to his plea"; "properly investigate . . . an intoxication defense"; "pursue an intoxication defense"; "move to suppress defendant's statement"; and "advance any sentencing arguments." These arguments are unpersuasive.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must "'show[] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial". State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 or R. 3:22-10 (2010); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).

The judge noted that the transcript of the plea proceedings belied defendant's claim that counsel failed to advise him of his potential sentence. Indeed, at that time, defendant, with a Spanish interpreter present, was clearly and repeatedly advised of the potential sentence contemplated by the plea bargain and the effects of NERA. He indicated he fully understood. In fact, the judge again explained the consequences of the plea to defendant before sentencing him; defendant again unequivocally stated he understood.

Regarding the intoxication defense, the PCR judge noted that the issue was fully explored by trial counsel. At sentencing, trial counsel provided a lengthy explanation of his consideration of the defense, and his rejection of it in light of the State's plea offer.

Defendant was inadvertently stabbed by a friend during the homicide and required hospitalization as a result. The judge further noted that defendant's statement to the police, given upon defendant's release from the hospital three days after the homicide, described "deliberate, purposeful conduct." The judge concluded "there would be a better argument for ineffective assistance of counsel if the defense did use intoxication . . . ." Noting the strength of the State's case, the judge concluded that it was "proper, good, prudent defense strategy . . . to save . . . defendant from [being convicted of] a purposeful killing" because "defendant's [sentencing] exposure [then] changes quite a bit."

The judge further concluded that trial counsel was not ineffective for failing to challenge the admissibility of the defendant's statement, since defendant was clearly not intoxicated when he spoke to the police, the police fully complied with the Miranda2 requirements, and defendant's guardian -- his older brother -- was present when the statement was taken.3

Lastly, though not specifically addressed by the judge, we note that trial counsel did indeed make an argument regarding defendant's sentence, not based upon any intoxication defense, but rather based upon defendant's age. Even if trial counsel could have been more vigorous in his comments at sentencing, defendant has failed to demonstrate how it would have made any difference since the sentence imposed was fully in accord with the plea bargain struck and, thus, presumptively reasonable. State v. Sainz, 107 N.J. 283, 294 (1987).

1 Defendant filed an earlier pro se PCR petition which was withdrawn when assigned counsel apparently moved to file a direct appeal as within time. In a letter that is in the record, defendant indicates this effort was rejected by the "Appellate Intake Unit." The record contains no motion or order.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Defendant was a juvenile when the crime was committed and when he entered his guilty plea. He became an adult prior to being sentenced.