STATE OF NEW JERSEY v. JOSE ALVARENGA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0210-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE ALVARENGA,

Defendant-Appellant.

_______________________________

November 9, 2012

Submitted November 2, 2011 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

05-09-1280.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Mark P. Stalford, Designated Counsel,

on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Joie Piderit, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose Alvarenga appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On May 18, 2006, a jury convicted defendant of second degree conspiracy, N.J.S.A. 2C:5-2; first degree armed robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and third degree aggravated assault, N.J.S.A. 2C:12-1(b).1 The evidence presented at trial shows that defendant and his codefendant accosted and robbed a man at gunpoint, taking $550 from his person. The crime was committed inside a house of prostitution. Defendant and his cohort tied up the victim and two other men and left them bound in a room.

On September 15, 2006, the court sentenced defendant to an aggregate term of fifteen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed defendant's conviction and remanded for the court to re-sentence defendant without consideration of aggravating factor number two, N.J.S.A. 2C:44-1. State v. Alvarenga, No. A-1034-06 (App. Div. March 18, 2008).

Defendant filed this pro se PCR petition on April 20, 2009, alleging ineffective assistance by the attorney assigned to represent him at trial. Specifically, defendant claimed that his assigned trial counsel advised him against testifying in his own defense, despite his lack of any prior criminal involvement. Because he believed his assigned counsel "was not working for [his] interest," he retained private counsel "prior to trial." According to defendant, the trial court denied his request for a "continuance" to permit private counsel to represent him at trial, thus denying his right to be represented by counsel of his own choice. Defendant claimed that if he had been permitted to have "counsel of [his] own choice, [he] would have testified and been acquitted."

The court assigned counsel to assist defendant in prosecuting his PCR petition. PCR counsel filed a brief addressing the grounds defendant raised in his pro se petition and raising other alleged incidents of ineffective assistance by trial counsel. Specifically, PCR counsel argued that trial counsel provided ineffective assistance by failing to challenge: (1) the constitutionality of the interactions between defendant and the police officers who responded to the scene of the robbery; and (2) the admissibility of certain parts of the victim's trial testimony, which allegedly implicated defendant in other crimes in violation of N.J.R.E. 404(b). PCR counsel also argued that even if any one of these missteps, when considered individually, does not present grounds for reversing defendant's conviction, their cumulative effect had the capacity of denying defendant his right to effective assistance of counsel.

After considering the arguments of counsel, the PCR court denied defendant's petition without an evidentiary hearing. Judge Bradley J. Ferencz explained his ruling in an oral opinion delivered on February 19, 2010. Defendant now appeals that ruling, raising the following arguments:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10.

A. Trial Counsel Was Ineffective By Failing To File A Motion To Suppress.

B. Trial Counsel Rendered Ineffective Assistance By Permitting The Admission Of Highly Prejudicial 404(b) Evidence Without Objection. Appellate Counsel Rendered Ineffective Assistance By Failing To Raise This Issue On Direct Appeal.

C. Trial Counsel Was Ineffective For Coercing Defendant Not To Testify [On] His Own Behalf.

D. Appellate Counsel Was Ineffective In Failing To Raise On Direct Appeal That Defendant Was Denied Trial Counsel Of His Own Choice.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "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.

Based on the record developed at trial, we reject defendant's arguments and affirm substantially for the reasons expressed by Judge Ferencz. Defendant has not presented any competent evidence showing that the representation provided by his trial counsel was ineffective. The record also shows that the trial judge had proper grounds to deny defendant's request to adjourn the trial in order to secure private counsel.

As the following colloquy indicates, three months before the scheduled trial date, the judge informed defendant of the need to have private counsel ready to proceed:

DEFENDANT: . . . [M]y family hired a private attorney for me, and I don't know if it was my attorney or it was the Court here that informed him that I had signed trial papers and I haven t signed any trial papers.

THE COURT: On March 16, [2006,] you . . . were in this courtroom and at that time you said that you are still seeking to hire a private attorney.

DEFENDANT: Yes.

THE COURT: In fact, on February 23, [2006,] which is almost three months ago, you were in court and you said you wanted to hire an attorney, another attorney, and we gave you a pretrial conference on March 16[, 2006]. On the March 16 date I told you the trial was going to take place today May 15 and if you hired an attorney you should do so very quickly so that that attorney could be prepared to proceed with this trial on May 15[, 2006]. I also told [the codefendant] the same thing that date. It was your right to hire any counsel you wanted but that you had to do so rather quickly so that he would be prepared or she would be prepared to go ahead with the trial, and then it wasn't until May 11 the Court received a letter from [that private] lawyer with a substitution of attorney and my understanding is when [that private attorney] realized that today was the trial date he did not want to represent you in this matter because he didn't have time to prepare so it has nothing to do with your signing anything, it has to do with we had a pretrial conference and on the record you were given detailed instructions about your rights, your right to have an attorney, and on March 16 you were told that the attorney had to be prepared to try the case today.

Is there anything else that you wish to be heard on?

DEFENDANT: Only that that's what I wanted to tell him, to tell him if he could give me an opportunity to hire a private attorney because it was difficult for me to hire an attorney here because I don't know any attorneys here. It's an opportunity I am missing.

THE COURT: Well, you had three months to have an attorney come in here and you didn't do it, so you can't hire an attorney with four days before the trial and then expect the attorney to be ready to go on the case.

Anything else?

DEFENDANT: No.

This record clearly shows that the trial court properly exercised its discretionary authority to manage the trial in a manner that did not violate defendant's constitutional right to counsel. See State v. Furguson, 198 N.J. Super. 395, 405 (App. Div.), certif. denied, 101 N.J. 266 (1985).

1 The same jury convicted codefendant Melvin Rolando-Padilla of the same offenses.