STATE OF NEW JERSEY v. DANIEL AGRON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6008-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL AGRON,

Defendant-Appellant.

September 28, 2010

Submitted September 7, 2010 - Decided

Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 04-02-0544 and 04-12-4682.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of defendant's petition for post-conviction relief (PCR). No evidentiary hearing was granted. Defendant raises the following points:

POINT ONE

MR. AGRON IS ENTITLED TO RELIEF OR A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT FOUR RELEVANT MITIGATING FACTORS TO THE COURT AT SENTENCING

POINT TWO

MR. AGRON'S PETITION FOR POST-CONVICTION RELIEF IS NOT BARRED BECAUSE HE DID NOT FILE A DIRECT APPEAL AND DID NOT RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN A DIRECT APPEAL

We reject defendant's contentions and affirm.

On June 29, 2005, defendant, Daniel Agron, entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as amended from the original charge of murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2). Defendant also entered a guilty plea to a second single-count indictment on a charge of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5). On August 22, 2005, pursuant to the plea agreement, defendant was sentenced to fifteen years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter and a concurrent four-year term on the aggravated assault. The remaining counts of the first indictment were dismissed, including counts of attempted murder involving two other victims, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a). No direct appeal was filed from these convictions.

On December 13, 2007, defendant filed a pro se petition for PCR. Thereafter, the matter was briefed by counsel. On March 20, 2009, the court heard oral argument and rendered a decision denying defendant's petition, including his request for evidentiary hearing.

The facts need not be recited at length. On January 3, 2003, while in Camden, defendant shot and killed Alex Castellar,1 striking him in the head and leg. During this altercation, defendant also shot at two other victims, Alexis Gonzalez and Confessor Castellar. As the judge described it in denying defendant's PCR, the incident occurred because of "bad blood" between two groups in the neighborhood.

The evidence against defendant was substantial. He was positively identified by the two surviving victims as well as other eyewitnesses. He gave a taped confession.

Defendant, at age twenty-three, had a prior juvenile history but no adult criminal history. At sentencing, the court found aggravating factor three, the risk that defendant would reoffend, N.J.S.A. 2C:44-1(a)(3), as well as nine, the need to deter defendant and others from committing crimes, N.J.S.A. 2C:44-1(a)(9). The court also found mitigating factor seven based on defendant's lack of a prior adult criminal history. See N.J.S.A. 2C:44-1(b)(7).

Under the familiar test applied to claims of ineffective assistance of counsel, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "there is 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. Without establishing a prima facie case of ineffective assistance of counsel, a defendant is not entitled to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

a.

Defendant contends that his trial attorney was ineffective because he failed to present four mitigating factors: three, N.J.S.A. 2C:44-1(b)(3); four, N.J.S.A. 2C:55-1(b)(4); five, N.J.S.A. 2C:55-1(b)(5); and eight, N.J.S.A. 2C:55-1(b)(8). We find no merit to this contention.

Mitigating factor three, that a "defendant acted under a strong provocation" is not applicable. That factor is limited to instances in which the conduct engaged in by the victim leads the actor to commit an offense. See State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986). Nothing in the record, other than the judge's comments that there was "bad blood" in the neighborhood, establishes that the victim engaged in any provocative conduct.

Similarly, mitigating factor four should be found where there are "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." The sentencing court described defendant's conduct as a "brutal" killing. After he shot Castellar in the head, he stood over him and continued shooting. Defendant does not direct our attention to any fact in the record that warrants the award of this mitigating factor either.

Mitigating factor five states that the victim "induced or facilitated" the commission of the crime. There is no basis in this record which supports this argument.

Defendant also asserts his "conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8). No certification, affidavit, reports, or any other proof supports this contention. In light of defendant's juvenile history, as a separate consideration from the circumstances of this homicide, this claim lacks merit.

Therefore plea counsel was not ineffective because he did not argue mitigating factors at sentencing and his performance did not "f[a]ll below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is little likelihood that but for counsel's failure to argue these mitigating factors the sentence would have been less than as agreed to and as imposed by the court. The contentions regarding counsel's failure to argue mitigating factors are mere "bald assertions" and do not constitute a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Thus defendant was not entitled to an evidentiary hearing.

b.

The court also found that the real crux of defendant's argument was a claim of excessive sentence, ordinarily addressed on direct appeal, not of ineffective assistance of counsel, and that therefore the procedural bar contained in Rule 3:22-3 was applicable. The rule states, "a petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction . . . ." R. 3:22-2. Despite this acknowledged procedural bar, the court nonetheless reached the merits of the petition. We will not consider this issue as it becomes moot by our decision, which is also on the merits.

A

1 The victim's name is spelled "Castalar" in the plea transcript; the indictment and PCR transcript indicate it is spelled "Castellar."