STATE OF NEW JERSEY v. JOSE RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3595-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

JOSE RIVERA,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

SubmittedMay 24, 2011 Decided July 1, 2011

 

Before Judges Carchman and Graves.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-02-0457.

 

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent (Philip Lago, Designated Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent/cross-appellant (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following an expansive but unsuccessful motion to suppress and a jury trial, defendant Jose Rivera was convicted1 of first-degree knowing and purposeful murder of his wife, Amalia Rojas, N.J.S.A. 2C:11-3(a)(1),(2) and third-degree hindering apprehension, N.J.S.A. 2C:29-3. On November 21, 2002, the trial judge sentenced defendant to a term of life imprisonment with thirty-years of parole ineligibility as well as a consecutive five-year term of imprisonment. Defendant appealed, and we affirmed the conviction but remanded for resentencing on the hindering charge in light of State v. Natale, 184 N.J. 458, 466 (2005); State v. Rivera, No. A-0823-03 (App. Div. August 23, 2007). The Supreme Court denied certification. State v. Rivera, 193 N.J. 221 (2007). On February 5, 2008, following a hearing on the remand, the judge imposed the same sentence.

In the interim and prior to resentencing, on January 17, 2008, defendant filed a pro se petition for post-conviction relief (PCR). Rather than dismiss the PCR as out-of-time, see R. 3:22-12, the PCR judge substantively addressed the merits and denied the petition. Defendant appeals, and we affirm. The State cross-appeals, and we dismiss the cross-appeal.

In our opinion on the direct appeal, we set forth in detail the factual underpinnings of the offense together with an extensive discussion of the facts related to defendant's confession. We see no need to repeat these facts and incorporate them by reference. Rivera, supra, No. A-0823-03 (slip op. at 2-10).

To place this appeal in context, defendant was charged with murdering his wife by strangling her behind a warehouse in Lyndhurst after a domestic dispute in their home in Astoria, Queens. After apprehension, defendant gave a twenty-four page statement detailing how he had killed his wife. Further police investigation, including the execution of a search warrant at defendant's home, revealed evidence that corroborated defendant's confession.

The motion to suppress consumed five days. Defendant did not testify at the hearing.

On his direct appeal, defendant argued:

POINT I

 

THE COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER.

 

POINT II

 

THE PROSECUTOR'S MISSTATEMENT IN HIS SUMMATION OF THE LAW ON PASSION/PROVOCATION DEPRIVED DEFENDANT OF A FAIR CONSIDERATION OF THAT OPTION BY THE JURY, REQUIRING REVERSAL OF HIS MURDER CONVICTION. (Not Raised Below.)

 

POINT III

 

THE AGGREGATE LIFE-PLUS-FIVE YEAR TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE RELEVANT CIRCUMSTANCES.

 

In his PCR, he asserted:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

 

II. DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS W[ERE] WRONGFULLY DENIED.

 

III. THE DEFENDANT WAS DEPRIVED [OF] HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.

 

IV. ALL OF THE STATEMENTS ALLEGEDLY MADE BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED.

 

V. THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

 

VI. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

VII. AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

 

VII[1] THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION.

 

In denying the PCR, the judge made discrete findings regarding the issues raised. As to defendant's argument that he did not understand his rights at the time of his arrest, the judge said:

The issue of whether or not this defendant understood . . . English based on his education or lack of ability to understand the English language, in my opinion is not really a meritorious argument. Because very frankly, he did have the auspices of an interpreter not only when he took the guilty plea, and delineating not only a factual basis, but a colloquy with the judge over his rights. Later on, then having that plea vacated by virtue of the application that was made on his behalf and ultimately then going to trial.

 

I do not accept nor is there any proof in the record that he didn't understand the Spanish language either. . . . It's my opinion that he understood and was able to communicate even in the English language to a point of expressing his opinion and expressing himself. . . . [V]ery frankly, there was nothing in the record in my opinion to indicate that he . . . didn't understand the ins and outs of what was taking place with respect to the first application to vacate the plea and then thereafter the motion for Miranda, and then thereafter the trial.

 

In addition, the PCR court found that it was "contrary to the record" to suggest that defendant was unaware of his consular rights under the Vienna Convention. The judge found that defendant was advised of these rights and declined, in writing, to have the Mexican consulate notified. Moreover, the court indicated that a detective from the Bergen County Prosecutor's Office, nevertheless, had notified the consulate about the incident and the arrest because the victim, Amalia Rojas, was a Mexican national.

The PCR court also determined that neither defendant's trial counsel nor his appellate counsel was ineffective. Regarding defendant's allegation that he was denied the right to testify on his own behalf, the judge stated:

[I]n my opinion, there is nothing to indicate that [defendant] was prevented from testifying. It was a technical decision of consequence made by [trial counsel] from a strategic standpoint of not exposing his client to having a record made on an issue that maybe in his opinion he considered to be non-essential to his defense . . . .

 

The judge determined that defendant had failed to make a prima facie showing of ineffective assistance of counsel. He further found that even if there had been ineffective assistance, defendant was not prejudiced. The PCR judge concluded:

[T]here is no single or cumulative amount of errors here that would necessitate in my opinion either a new trial or, for that matter, under [State v. Preciose, 129 N.J. 451 (1992)], a plenary hearing to determine why it is that a lawyer would make certain moves in a case because there is no prima facie showing at all, not even close [to] ineffective assistance.

 

On this appeal, defendant argues:

POINT I- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

POINT II- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS WERE WRONGFULLY DENIED.

 

POINT III- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED.

 

POINT IV- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

POINT V- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT WAS DENIED HIS RIGHT TO TESTIFY.

 

POINT VI- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND RENDERED THE TRIAL UNFAIR.

 

POINT VII- 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 VIII- THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

We have carefully reviewed the record and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments.

We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, we apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153-54 (1991).

In assessing the first prong, we must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). As noted, in considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of reasonable professional assistance." Ibid. (citation and internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (citation and internal quotation marks omitted). As the Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]

 

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). To prove prejudice, defendant must show the "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-07 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Here, defendant claims counsel was ineffective in not fully advising him of his right to testify at trial or the suppression hearing. As to the suppression hearing, the record is devoid of evidence suggesting that defendant was not advised of his right to testify. A review of the entire record reveals that trial counsel developed a sophisticated attack on the confession including presenting expert testimony. Counsel made a strategic decision, and defendant's testimony at the suppression hearing, a rare occurrence in any event, would have provided substantial discovery opportunities for the prosecution. We find no basis for concluding that counsel was ineffective; moreover, the confession was not the sole basis for defendant's conviction. He had told a friend of his guilt and offered to lead the police along the route that he had taken on the day of the murder.

Finally, we dismiss the cross-appeal. The judge determined the merits of defendant's PCR adverse to defendant. Accordingly, the argument as to the effect of R. 3:22-12 is moot.

We affirm substantially for the reasons set forth in Judge Venezia's thorough and thoughtful oral opinion of October 7. 2008.

A

ffirmed.

1 Defendant first entered a plea of guilty that was later withdrawn.