STATE OF NEW JERSEY v. SAMUEL RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3290-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL RODRIGUEZ,

Defendant-Appellant.

________________________________

May 12, 2011

Submitted: March 16, 2011 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 93-10-1157.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh,Senior Assistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant Samuel Rodriguez appeals from the denial of his second petition for post-conviction relief (PCR) grounded on ineffective assistance of trial, appellate and PCR counsel. We affirm.

Following a jury trial, defendant was convicted of murder, N.J.S.A.2C:11-3a(2); felony murder, N.J.S.A.2C:11-3a(3); and robbery, N.J.S.A.2C:15-1. At sentencing on March 6, 1998, the trial judge merged the felony murder conviction with the murder conviction and imposed a term of life imprisonment with a thirty-year parole-ineligibility period. The judge also imposed a consecutive twenty-year term of imprisonment, with a ten-year parole-ineligibility period for the robbery conviction, and the appropriate assessments.

We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Rodriguez, No. A-5095-97 (App. Div. June 3, 1999). Our Supreme Court denied certification. State v. Rodriquez, 162 N.J.663 (1999).

On February 3, 2000, defendant filed his first PCR petition contending, in part, that trial counsel was ineffective in failing to request an identification charge, call defense witnesses, present evidence attacking or discrediting his statement to the police wherein he admits he committed the murder,1and thwarting his desire to testify. Following a hearing, Judge Riva, who was the trial judge, denied defendant's petition. We affirmed in an unpublished opinion, State v. Rodriguez, No. A-6723-00 (App. Div. Mar. 28, 2003), and the Court denied certification, State v. Rodriquez, 177 N.J.493 (2003).

On March 4, 2004, defendant filed a second PCR petition raising the following claims of ineffective assistance of counsel: (1) appellate and PCR counsel failed to challenge the admission of the statement of defendant's brother, Henry Rodriguez,2into evidence; (2) trial and PCR counsel failed to challenge the admission and credibility of defendant's statement; (3) trial counsel failed to investigate and present evidence that defendant did not voluntarily waive his Mirandarights, he did not give his statement knowingly and intelligently, and he requested an attorney before giving his statement; (4) trial counsel had a conflict of interest; (5) trial counsel failed to file a motion to suppress defendant's statement or make any arguments at the Mirandahearing; (6) appellate and PCR counsel failed to present substantive constitutional issues; and (7) on appeal from the denial of defendant's first PCR petition, appellate counsel failed to present all grounds advanced by PCR counsel. Defendant also contended he was denied a fair trial and due process by the State's use of Henry's out-of-court statement and Judge Riva abused his discretion in admitting Henry's statement.

Following a hearing, Judge Riva denied the petition. In a written opinion, the judge concluded Rule3:22-12 procedurally barred the second PCR petition, and defendant failed to establish excusable neglect or an injustice warranting relaxation of five-year time period. SeeR.3:22-12(a)(1). The judge also concluded Rule3:22-5 procedurally barred defendant's challenges to his and Henry's statements because he raised these issues on his direct appeal or the appeal of the denial of his first PCR petition. Addressing the merits, Judge Riva concluded defendant failed to establish the ineffective assistance of trial, PCR and appellate counsel. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO HIS TRIAL ATTORNEY'S CONFLICT OF INTEREST

A. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO AN ACTUAL CONFLICT OF INTEREST

B. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO A POTENTIAL CONFLICT OF INTEREST WHICH T.K. FAILED TO DISCLOSE IN THE TRIAL RECORD

POINT II- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO HIS TRIAL ATTORNEY'S FAILURE TO PROPERLY CHALLENGE THE ADMISSION AND CREDIBILITY OF A STATEMENT TAKEN FROM DEFENDANT BY THE POLICE

A. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO T.K.'[S] FAILURE TO INVESTIGATE AND PRESENT EVIDENCE THAT THE WAIVER OF MIRANDARIGHTS WAS NOT KNOWING AND INTELLIGENT

B. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO T.K.'[S] FAILURE TO PRESENT EVIDENCE THAT DEFENDANT'S STATEMENT WAS INVOLUNTARY AND TAKEN IN VIOLATION OF HIS RIGHT TO COUNSEL

POINT III- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF HIS APPELLATE AND FIRST POST-CONVICTION RELIEF ATTORNEYS DUE TO THEIR FAILURE TO CHALLENGE THE ADMISSION OF HENRY RODRIGUEZ'S PRIOR STATEMENT INTO EVIDENCE

POINT IV- THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ANY ADDITIONAL ERRORS

POINT V- THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R.3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS

A. THE TIME BAR SHOULD BE RELAXED ON THE GROUNDS OF EXCUSABLE NEGLECT

B. THE TIME BAR SHOULD BE RELAXED IN THE INTEREST OF JUSTICE

POINT VI- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Riva in his comprehensive, well-reasoned written opinion. However, we make the following brief comments.

Defendant's second PCR petition, filed approximately six years after his conviction and approximately three years after the denial of his first PCR petition, is untimely. R.3:22-12(a)(1); R.3:22-12(a)(2)(C).3 There is no tolling of the five-year limitations period of Rule3:22-12(a) pending appeal. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J.373 (1996).

Also, except for defendant's conflict of interest contention, all of his contentions are procedurally barred either because they were determined on the merits in his prior appeals, Rule 3:22-5; State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971), or they could and should have been raised in defendant's prior appeals, R. 3:22-4; State v. Afandor, 151 N.J. 41, 50 (1997).

Regarding defendant's conflict of interest contention, M.K., Esq. initially represented defendant at the Miranda hearing and cross-examined Detective Humphrey. T.K., Esq. replaced M.K. during the hearing and cross-examined Detective Maute. T.K. also represented defendant at trial and cross-examined both detectives. Defendant claimed that T.K. had a conflict of interest based on his "long-standing personal and professional relationship" with the two detectives. Judge Riva concluded, and we agree, that defendant failed to establish a conflict. As the judge found, defendant never informed T.K. that the detectives had mistreated him; there was no "credible evidence that these detectives engaged in offensive or coercive police practices during [defendant's] interrogation"; defendant did not claim there was any deficiency in M.K.'s or T.K.'s cross-examination of the detectives; and defendant's claim "that T.K.'s knowledge of the detectives resulted in his failure to effectively and meaningfully investigate the circumstances surrounding his [statement], to present [defense] witnesses at the [Miranda] hearing and during the trial, and to make legal arguments that would preserve the issues for appeal is sheer speculation."

1 Following a hearing pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Judge Riva concluded the State established beyond a reasonable doubt that it complied with the Miranda procedures and defendant voluntarily waived his rights and made the statement.

2 Henry gave the police a statement that defendant returned home on the morning of the murder with blood on his sneakers and leg and said to Henry, "I think I killed [the victim]." At trial, Henry claimed the statement was false. During a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), Henry inculpated himself and another person in the murder. Henry subsequently invoked his Fifth Amendment right against self-incrimination. Thereafter, Judge Riva admitted the statement as a prior inconsistent statement. See N.J.R.E. 803(a)(1).

3 The court rules governing PCR petitions were revised and amended subsequent to the filing of defendant's PCR petition. We have applied the rules in effect at the time of the filing.