STATE OF NEW JERSEY v. ARNOLD BORRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5168-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARNOLD BORRERO,

Defendant-Appellant.

_______________________________________________________

Argued May 24, 2011 Decided June 16, 2011

Before Judges Yannotti, Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Complaint Nos. S2005-004606 and S2005-004609.

John Vincent Saykanic argued the cause for appellant.

Kenneth P. Ply, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ply, on the brief).

PER CURIAM

Defendant, a police officer, was found guilty in the Newark Municipal Court of simple assault, in violation of N.J.S.A. 2C:12-1(a)(1). On appeal, the Law Division affirmed defendant's conviction based on a de novo review of the municipal court record. We affirmed defendant's conviction in an unreported opinion. State v. Borrero, No. A-5784-06 (Dec. 5, 2008).

The Newark Police Department brought disciplinary proceedings against defendant based on that conviction seeking his removal. The Civil Service Commission upheld defendant's removal from his position as a police officer. Defendant appealed that administrative action, which we are affirming by an opinion being filed simultaneously with this opinion. In re Borrero, No. A-6291-08.

Our prior opinion described the incident that resulted in defendant's conviction and the conflicting versions of that incident testified to by the complaining witness, Sara Lesende, and a bystander, Luis Cal, who supported Lesende's testimony, and by defendant:

On October 18, 2004, defendant Arnold Borrero, a former Newark Police Officer, was driving to traffic court. Ahead of him was a vehicle driven by Sara Lesende. Lesende was driving slowly and periodically stopping her vehicle as she searched for a parking space. Defendant and other drivers were honking their horns. Defendant exited his van and approached Lesende's car, motioning her to pull over, but her vehicle moved forward. Lesende had noticed defendant's van behind her and once waved, signaling him [to] drive around her vehicle. Lesende then turned right and intended to turn left when she spotted a parking spot. Defendant followed her and angled his van to prevent her from moving.

Defendant exited his van and strode toward Lesende, intending to give her a traffic citation for obstructing traffic. Lesende testified defendant was angry and uttering profanities. She suggests defendant never specifically identified himself as a police officer and she did not recognize his clothing as that of a police uniform. The two were yelling. Defendant testified he was requesting Lesende's license, registration and insurance. Lesende testified defendant was screaming obscenities and calling her derogatory names; she was confused and panicked. Using his cell phone, defendant called for a police car to assist him.

At this point the parties' stories diverge. Lesende testified she was trying to put the car in park and may have "mistakenly" put the car in reverse. Other witnesses stated Lesende's vehicle moved about six inches in reverse while defendant was adjacent to it. Suddenly, Lesende "felt a punch" on her left side. Defendant had opened her car door and began pulling her hair, scratching her neck, and punching her ribs. The blows knocked Lesende's braces off her upper teeth. When Luis Cal[,] a bystander approached, defendant drew his gun, aimed it at Cal, and threatened him in coarse and obscene language.

Defendant testified Lesende was uncooperative and hysterical. When he called for another officer to assist, Lesende stated she was not sticking around. She placed the car in reverse and defendant believed she was going to drive off. To prevent Lesende's escape, defendant reached into her car and attempted to turn off the ignition and grab the keys. Lesende began to scream, slap and scratch defendant. Cal approached defendant, tapped him on the shoulder and told defendant to leave Lesende alone. Cal took a boxing stance, causing defendant to draw his weapon. Defendant stated he did not aim his weapon or threaten Lesende, use profane language, strike her, or call her derogatory names.

[Borrero, supra, slip op. at 3-5.]

On defendant's direct appeal, he asserted claims of ineffective assistance of counsel. We rejected defendant's ineffective assistance claims based on his counsel's failure to object to the authenticity of photographic evidence of Lesende's injuries and his failure to highlight defendant's contention that Lesende was motivated to testify falsely to establish the basis for a civil action against him and the City of Newark and to prevent the revocation of her student visa for assaulting a police officer. Borrero, supra, slip op. at 11-12.

However, we preserved defendant's right to pursue his ineffective assistance claim based on his counsel's failure to call two witnesses, Juan Carlos Avilez and investigator Frank Herrmann, who allegedly could have undermined the credibility of Lesende's trial testimony:

[D]efendant argues counsel failed to call trial witnesses. Defendant states Lesende identified Juan Carlos Avilez as an eye witness to the events. However, internal affairs officer, Sergeant Lillian Carpenter, confirmed Avilez was not present. Defendant suggests counsel should have called Avilez to undermine Lesende's credibility and expose her plan to develop a civil action against defendant. Additionally, defendant identifies Investigator Frank Herrmann, a member of the Professional Standards Bureau of the prosecutor's office responsible for conducting the NPD administrative investigation of the alleged misconduct. Defendant asserts Herrmann would have revealed evidence collected that proved Lesende's acts of false swearing.

During the municipal court trial, Carpenter testified and briefly mentioned Lesende identified Avilez as an eye witness. However, the conclusions drawn following her investigation of that claim were excluded, following objection. Defendant did not present evidence of Herrmann's testimony to the municipal court or the Law Division. Prior to sentencing in the municipal court, defendant's statements suggest he knew the internal investigation had cleared him of wrongdoing. However, the record is not clear as to the availability or substance of Herrmann's potential testimony. It is likely defendant had a reasonable opportunity to raise his claim in the earlier Law Division proceeding, which would have possibly supported a claim for the ineffectiveness of appellate counsel.

Lesende's credibility was vital to the State's case. Arguably, evidence challenging her truthfulness may have had significant impact on the weight of the evidence offered. Also of relevance is whether the proposed additional witnesses were available and not called as a matter of trial strategy, or whether their testimony, if presented, would have sufficiently altered the outcome of defendant's trial as he contends. The answers to these questions lie outside the record as they require presentation of additional evidence, and

must await a post-conviction relief petition.

[Id. at 9-10.]

Following our affirmance of his conviction, defendant filed a lengthy petition for post-conviction relief (PCR). This petition was supported by investigatory reports submitted by Sergeant Carpenter, Investigator Herrmann, and other police investigators relating to Lesende's alleged efforts to persuade Avilez to testify falsely that he had been present at the time of the confrontation between defendant and Lesende and that Lesende's version of the incident was true. However, defendant's petition was not supported by a certification from Avilez.

The municipal court judge who had found defendant guilty at trial denied defendant's petition. The judge issued a lengthy written opinion that rejected each of the arguments defendant presented in support of his petition.

Regarding his trial counsel's alleged ineffective assistance in failing to call Avilez as a witness, the judge noted that defendant had not submitted a certification or affidavit by Avilez stating that he would have been prepared to testify that Lesende attempted to persuade him to testify falsely in support of her version of the incident:

Defendant now contends that if Avilez was called to testify, he would have stated that he was not a witness to the altercation and that Lesende had offered him money, which she would have obtained "after she won her [civil] case in court," to testify on her behalf. Defendant bases this belief on the administrative report of Carpenter, which was written following her investigation into the altercation and interview with Avilez. Defendant, however, has failed to provide a sworn statement by Avilez that this, in fact, would have been his testimony.

The municipal court judge also stated that even if Avilez had given such testimony, it would not have resulted in defendant's acquittal:

The issue of Lesende's credibility was squarely before this court. Defendant's trial counsel elicited testimony as to Lesende's potential motives and as to the charges of obstruction and lying to the police that were pending against her at the time of trial. However, such questions of credibility did not prove controlling. This court found the testimony of Cal and Lesende to be believable. But, more importantly, this court also determined defendant lacked credibility and did not accept his version of the events. The additional testimony of Avilez would not have altered this court's ultimate finding of defendant's guilt because the decision did not rest solely on the testimony of Lesende. It was defendant's inability to explain the injuries on Lesende that strongly impacted in a finding of guilt.

The judge also rejected defendant's ineffective assistance claim based on his trial counsel's failure to call Investigator Herrmann as a witness. The judge concluded that the testimony defendant asserted Herrmann could have given, based on the information set forth in his investigatory report, would have been inadmissible as hearsay or improper opinion testimony.

On appeal from the municipal court's denial of defendant's petition for PCR, the Law Division also denied the petition.

On appeal to this court from the Law Division's affirmance of the denial of his petition, defendant argues that the Law Division judge mistakenly conceived of defendant's appeal from the municipal court's denial of his petition for PCR as a second petition for PCR and consequently erroneously denied the petition on the basis of Rule 3:22-5, which bars a defendant from seeking PCR on a ground that has been decided adversely to him in a prior proceeding. We agree with defendant that the trial court misconceived the nature of defendant's appeal from the denial of his petition. See R. 3:23-1. This ordinarily would lead us to remand the case to the Law Division to address the merits of defendant's petition without consideration of the procedural bar of Rule 3:22-5. However, we have determined that it would be appropriate under the circumstances of this case to exercise our original jurisdiction under Rule 2:10-5 and to review directly defendant's appeal of the denial of his petition by the municipal court.

Defendant presents the following arguments in support of his appeal:

I. [THE TRIAL COURT] ERRED IN DENYING THE PCR APPLICATION (AND ERRED IN DENYING A HEARING) AS THE PETITIONER ARNOLD BORRERO WAS DEPRIVED OF HIS SIXTH AMENDMENT UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT (ARTICLE I, PARAGRAPH 11) TO EFFECTIVE TRIAL COUNSEL (AND DE NOVO APPELLATE COUNSEL) DUE TO TRIAL COUNSEL'S FAILURE TO CALL JUAN CARLOS AVILEZ; AVILEZ WOULD HAVE TESTIFIED THAT THE ALLEGED VICTIM HAD SOUGHT TO SUBORN HIS FALSE TESTIMONY AGAINST THE PETITIONER; APPELLATE (LAW DIVISION) COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE AVILEZ ISSUE IN THE MUNICIPAL APPEAL. A PRESUMPTION OF PREJUDICE IS JUSTIFIED OR, AT THE VERY LEAST, THE CONVICTION MUST BE VACATED AS THERE IS A REASONABLE PROBABILITY THAT, BUT FOR COUNSEL'S ERRORS, THE RESULT WOULD HAVE BEEN DIFFERENT.

II. THE PETITIONER BORRERO WAS DEPRIVED OF HIS SIXTH AMENDMENT UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE TRIAL COUNSEL (AND DE NOVO APPELLATE COUNSEL) DUE TO TRIAL COUNSEL'S FAILURE TO CALL A REPRESENTATIVE OF THE ESSEX COUNTY PROSECUTOR'S PROFESSIONAL STANDARD'S UNIT -- NAMELY, INVESTIGATOR FRANK HERRMANN -- AND DE NOVO APPELLATE COUNSEL'S FAILURE TO ARGUE SAME ON DE NOVO APPEAL.

III. THE PETITIONER BORRERO WAS DEPRIVED OF HIS SIXTH AMENDMENT UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE TRIAL COUNSEL (AND LAW DIVISION DE NOVO APPELLATE COUNSEL) DUE TO THE FACT THAT THE TRAFFIC SUMMONSES AGAINST LESENDE WERE DISMISSED DUE TO PETITIONER'S FAILURE TO APPEAR IN THE NEWARK MUNICIPAL COURT (WHICH WAS THE RESULT OF HIS NOT BEING NOTIFIED BY THE MUNICIPAL COURT).

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the November 20, 2009 written decision of Judge Frasca of the Newark Municipal Court. We add the following supplemental comments.

Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Under this rule, a defendant asserting a claim of ineffective assistance of counsel in a petition for PCR based on his counsel's failure to produce a witness at trial must present a certification by that witness concerning the testimony the witness would have been prepared to give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div. 1999).

Defendant failed to present any certification or affidavit by Avilez or other competent evidence that Avilez would have been available to testify at defendant's trial or what his testimony would have been if defendant had presented him as a witness. We cannot simply assume his availability as a witness as of the date of defendant's trial or that he would have testified in conformity with the statements he apparently gave to Carpenter and Herrmann. Moreover, Judge Frasca, who was the trier of fact at defendant's trial, expressly stated that even if Avilez had given testimony in conformity with those statements, it would not have changed the outcome of the trial.

Affirmed.