STATE OF NEW JERSEY v. DAVID VASQUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID VASQUEZ,

Defendant-Appellant.

________________________________

December 27, 2013

Submitted December 17, 2013 - Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1754.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal arises out of the trial court's denial of defendant David Vasquez's petition for post-conviction relief ("PCR"). We affirm.

After a 2008 jury trial, defendant was convicted of three counts of second-degree sexual assault, N.J.S.A. 2C:14-2a(4). He was acquitted of numerous other counts in the indictment. The court imposed three concurrent terms of eight years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, plus other conditions.

The relevant facts established by the State at trial were set forth in this court's unpublished opinion affirming defendant's convictions and sentence on direct appeal. State v. Vasquez, No. A-763-08 (App. Div. Aug. 24, 2010), certif. denied, 205 N.J. 101 (2011). The record shows that defendant picked up a seventeen-year-old girl, J.P., at 12:30 a.m. on November 30, 2005 at a Newark train station. According to the victim's account, he pulled a gun out, pointed it at her, and told her to get into the car. He then drove her to an abandoned industrial area and had intercourse with her in the back seat. Defendant then drove the victim home after taking down her cell phone number. Defendant called the victim several times in the days that followed, and the police traced the calls back to him. DNA evidence substantiated that defendant and J.P. had engaged in sexual relations.

Defendant's theme at trial was that the sex between him and J.P. was consensual. He did not testify in his own behalf, but his attorney cross-examined J.P. to draw out what he claimed to be inconsistencies and logical flaws in her account, including the contents of the telephone calls. In summation, defense counsel noted, among other things, that a thorough examination of J.P. revealed no bruising or other comparable physical marks indicative of violence.

In his PCR petition, defendant claimed he was deprived of the effective assistance of counsel, mainly because his trial attorney had allegedly failed to properly advise him of his right to testify. On that point, our August 2010 opinion acknowledged that defendant had contended for the first time on direct appeal that he had wanted to testify at trial, but we preserved that issue for a future PCR application. Id. at 12 n.2. The record shows that after the State rested its case the trial judge stated on the record that he was going to give defendant time to talk to his attorney. The implication of that statement on the record is that defendant would then have an opportunity to discuss potentially testifying with his lawyer.

In a January 23, 2012 written opinion, Judge Joseph C. Cassini, III, rejected defendant's PCR petition, finding it to be without merit. The judge saw no need to have an evidentiary hearing.

Judge Cassini was the same judge who had presided over the trial. Although the judge recognized that there was no explicit indication in the trial transcripts that defendant and his attorney had conferred about his right to testify, the judge pointed out that he had the advantage of observing defense counsel throughout the proceeding and that defense counsel was professional and appropriately aggressive throughout the case. Accordingly, the judge found it not only probable, but also logical, that defendant was specifically aware that he could have testified. The judge also found that there was no reasonable probability that defendant's fate at trial would have been any better if he had taken the stand. As it was, defendant was successful through the efforts of his attorney in having the jury reject many of the counts of the indictment.

The judge concluded that defendant had not made a prima facie showing of ineffective assistance, and thus was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992). He consequently denied the petition.

On his present appeal, defendant now raises the following points:

POINT I

THE COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS PURSUANT TO R. 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE DEFENDANT'S COUNSEL ON THE MOTION FOR POST CONVICTION RELIEF FAILED TO ADVANCE GROUNDS SOUGHT BY THE DEFENDANT AT THE PCR HEARING.

We have carefully considered defendant's arguments in light of the record and the applicable law, including the two-pronged requirements under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), to prove (1) deficient performance and (2) actual prejudice. Having done so, we affirm the trial court's dismissal of his petition, substantially for the reasons set forth in Judge Cassini's written opinion. Defendant has simply not presented a sufficient basis for PCR, much less an evidentiary hearing on the matter. His present claim that he was never properly advised by his trial counsel of his right to testify is undermined by the fact that his brief on direct appeal stated that he did have a conversation with counsel about testifying. "[B]ald assertions" of deficient performance are simply insufficient to support a PCR application. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Porter, __ N.J. __, __ (2013) (slip op. at 14) (reaffirming these principles in evaluating which of a defendant's various PCR claims warranted an evidentiary hearing).