STATE OF NEW JERSEY v. LISANDRO TAVERAS

NOT FOR PUBLICATION WITHOUT THE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.

LISANDRO TAVERAS,

Defendant-Appellant.

________________________________________________

December 24, 2014

Submitted December 2, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2548.

Ferro & Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lisandro Taveras took part with several others in a home-invasion during which a twelve-year-old girl was threatened with a gun and bound with duct tape while her father's safe containing $200,000 worth of jewelry was removed from the house. State v. Taveras, No. A-3139-07 (App. Div. July 6, 2009) (slip op. at 3-4). During the trial from which defendant was absent, two of defendant's co-defendants testified against him, and the State introduced defendant's statement to law enforcement in which he admitted driving his cohorts from New York City to the house, but denied leaving the car and going into the home. Id. at 5-6. The jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree theft, N.J.S.A. 2C:20-3; third-degree criminal restraint, N.J.S.A. 2C:13-2(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); second-degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).

Nearly seven years after the jury's verdict, defendant was apprehended and sentenced to an aggregate term of sixteen years in prison, eighty-five percent of which was to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and the sentence imposed. Taveras, supra, slip op. at 3. The Supreme Court denied his petition for certification. 200 N.J. 503 (2009).

In March 2012, defendant filed a petition for post-conviction relief (PCR). He certified that he was advised of the State's plea offer for the first time during a conference held in court on April 19, 2001, despite the offer having been forwarded to defense counsel one month earlier. A copy of the assistant prosecutor's letter dated March 19, 2001, conveying the offer to defense counsel is contained in the record.

The State offered that if defendant would plead guilty to first-degree robbery, the State would recommend he be sentenced as a second-degree offender and that the maximum sentence be seven years, subject to NERA and the Graves Act. Additionally, defendant would have to agree to testify truthfully at trial against any of his co-defendants.1

Defendant certified that he had no time to discuss the offer "with both . . . parents," and since trial counsel failed to inform him of the maximum sentence he faced if he went to trial, he "had no way of judging whether this was a fair offer." Defendant acknowledged that he had time to speak to his father, who was in court with him, but he "felt very rushed." Defendant rejected the offer and decided to go to trial.

Defendant further cited three specific instances of counsel's ineffective assistance during the trial. First, defendant never received notice of the trial date, and trial counsel failed to object to an instruction the judge gave to the jury regarding defendant's absence. Second, trial counsel failed to move for a new trial, a predicate to preserve defendant's right to appeal being tried in absentia. Lastly, trial counsel failed to object to hearsay testimony given by a detective regarding statements given by the two cooperating co-defendants.

Although the State conceded that an evidentiary hearing was appropriate on the claim of trial counsel's ineffective assistance during the plea bargaining stage, the PCR judge, who was also the trial judge, disagreed. He concluded that defendant was given ample time to discuss the plea offer with his attorney and his father. The judge did not specifically address defendant's claim that trial counsel never advised him of the maximum time he faced if convicted at trial. As to the other claims of ineffective assistance during trial, the judge tersely concluded that none of them met the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The judge entered an order denying defendant's petition, and this appeal ensued.

Before us, defendant reiterates the arguments he made in the Law Division. We affirm.

To establish a claim of ineffective assistance of counsel, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

These principles have been extended by the United States Supreme Court to representation provided in connection with plea negotiations. Lafler v. Cooper, 566 U.S. ___ , ___ , 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___ , ___ , 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant claiming ineffectiveness of counsel during plea negotiations must establish with "reasonable probability" that the result would have been different had he received proper advice from that attorney. Lafler, supra, 566 U.S. at ___ , 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07.

When a defendant's claim is that counsel's ineffective assistance "led not to an offer's acceptance but to its rejection," he

must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

[Id. 566 U.S. at ___, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407 (emphasis added).]

We have said "'that an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance.'" State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (emphasis added) (quoting State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002)).

As borne out by the transcript of the proceedings at the April 2001 conference, when defense counsel sought an additional two-week adjournment to further discuss the plea offer with defendant, the judge denied the request but granted a recess so defendant could discuss the offer with counsel.2 We are unable to ascertain from the transcript how much time passed, but we note that the judge told counsel to "take as long as you want," and asked defendant and counsel to return before 12:30 p.m. When the proceedings resumed, trial counsel informed the judge that the matter needed to be set down for trial.

The judge then conducted a pre-trial conference that in most respects complied with Rule 3:9-1(e). He did not, however, address defendant directly to "determine" that he understood what the State's final plea offer was and the sentencing exposure if convicted. R. 3:9-1(e)(1) and (2).

As he did in the Law Division, defendant contends that trial counsel provided ineffective assistance because he failed to review the plea offer with him until the day of the conference. However, defendant fails to demonstrate why he was prejudiced by this delay since it is undisputed that he had ample opportunity to discuss the plea offer with his attorney and his father. Defendant's claim that he was "rushed" is but a bald assertion of prejudice, unsupported and uncorroborated by defendant's father or any other witness. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant also claims that trial counsel never advised him of the potential sentencing exposure if he went to trial. The record itself would belie defendant's claim had the judge fully complied with Rule 3:9-1. However, even without direct contradiction of defendant's uncorroborated assertion, we reject the claim of ineffective assistance in this regard for a very basic reason.

As noted above, defendant bears the burden of demonstrating prejudice, and, in a situation like this, defendant must demonstrate that if he were aware of the potential exposure at trial, he would have accepted the plea offer, which in this case required that he testify against his co-defendants. Defendant made no such claim in his certification, nor was that asserted during oral argument on his PCR petition. The failure to do so results in the lack of a prima facie case of prejudice.

Defendant's claim that counsel provided ineffective assistance during the trial lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.

As we made clear in our prior opinion, the judge did not err in commencing trial in defendant's absence. Taveras, supra, slip op. at 9. Therefore, trial counsel's failure to move for a new trial did not foreclose our consideration of the merits of defendant's arguments. Additionally, as we noted, the judge's instruction to the jury largely tracked the approved Model Jury Charge. Id. at 10. Even if trial counsel had objected to the judge's unfortunate comment that defendant's absence was occasioned by "a prior business commitment" remedial action would have been a curative charge instructing the jury to ignore that misstatement. We are convinced that counsel's failure to object resulted in no prejudice under the Strickland/Fritz standard. The same is true regarding counsel's failure to object to hearsay testimony elicited from one of the detectives regarding statements made by the two cooperating witnesses. As we explained in our prior opinion, both witnesses testified and were subjected to vigorous cross-examination that impeached their credibility. Taveras, supra, slip op. at 11-12. Trial counsel's failure to object to the detective's testimony, even if deemed deficient, did not amount to prejudice under Strickland/Fritz.

Affirmed.

1 Both testifying co-defendants were sentenced as second-degree offenders to five years imprisonment. Taveras, supra, slip op. at 16.

2 It is also apparent from the transcript that the case had be the subject of at least two prior listings, both of which had been adjourned, and that it was set for "plea cut-off."