STATE OF NEW JERSEY v. CESAR PEREZ

NOT FOR PUBLICATION WITHOUT THE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.

CESAR PEREZ, a/k/a HUAYASCHE GARCIA,

a/k/a CESAR GARCIA,

Defendant-Appellant.

February 26, 2014

Submitted February 11, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-12-1710 and 05-12-1746.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Cesar Perez appeals from a September 6, 2012 Law Division order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. We affirm.

On December 13, 2005, a Hudson County Grand Jury returned Indictment No. 05-12-1710, charging defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three).

On December 14, 2005, a Hudson County Grand Jury returned Indictment No. 05-12-1746, charging defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1b(7).

On March 13, 2006, defendant entered into a plea agreement with the State whereby he pled guilty to two charges: count two of Indictment No. 05-12-1710 (possession of a weapon for an unlawful purpose), and Indictment No. 05-12-1746, which was amended to fourth-degree aggravated assault. In exchange for the plea, the State agreed to recommend a probationary sentence and dismiss the remaining charges.

During the plea hearing before Judge Sheila A. Venable on March 13, 2006, defendant confirmed he understood the plea agreement, he entered into it voluntarily, and he was satisfied with the legal services his attorney provided. He acknowledged on the plea form and in his plea colloquy with the court that he was not a United States citizen, and could possibly be deported as a consequence of his guilty plea. Defendant admitted possessing a knife with the purpose to use it against an individual who assaulted him, and, on a separate date, throwing a bottle into a crowd and injuring someone during the course of a fight.

Consistent with the plea agreement, on May 26, 2006, Judge Venable sentenced defendant to two years' probation, concurrent on each charge. Defendant also received jail credits of 183 days on each indictment. The usual fines and penalties were imposed, and the remaining counts, along with two complaints charging disorderly persons offenses, were dismissed.

Defendant did not file a direct appeal following his sentencing. In June 2011, defendant filed a pro se petition for PCR, essentially claiming that plea counsel was ineffective because he failed to: (1) file a Wade1 motion to suppress the victim's out of court identification; (2) apply for defendant's admission into the Pretrial Intervention (PTI) program; and (3) inform defendant of the immigration consequences of his plea. The court appointed counsel to represent defendant on his petition.

Judge Venable heard argument from counsel on August 30, 2012, and on September 6, 2012, issued a comprehensive oral decision denying PCR. The judge rejected defendant's contention that plea counsel was ineffective for failing to file a Wade motion, reasoning:

To obtain a pretrial hearing a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken ID. State v. Henderson, 208 N.J. 208, 238 (2011).

It is clear that the petitioner would not have been able to satisfy that initial burden during trial. On the day of petitioner's arrest, the police observed petitioner committing the offense, followed him as he began to walk away, and arrested him immediately thereafter.

There's nothing in the police report to suggest that the police [lost] sight of petitioner between the time he began to walk away when officers approached and the time they arrested him. Thus, the victim's identification of petitioner was not obtained through suggestive or improper means. The court agrees with the State's assertion that even if trial counsel had prevailed in a Wade hearing, it would have only rendered the victim's ID inadmissible at trial.

The detailed observation of the police officers and their immediate arrest of petitioner would still have been admissible at trial. Therefore, petitioner cannot meet either prong of the Strickland test under this argument.

Judge Venable further found that petitioner would have been rejected for PTI had he applied. The judge noted that defendant was originally charged with first-degree armed robbery. Pursuant to Rule 3:28, Guideline 3(i) and the Official Comment, there is a rebuttable presumption against admission for first and second degree offenses, and applicants charged with such offenses should ordinarily be rejected unless the prosecutor has affirmatively joined in the application. Defendant was additionally charged with, and pled guilty to, aggravated assault, and thus also could have been rejected under Guideline 3(i)(3), which ordinarily excludes crimes committed with violence against another person. The judge concluded, "Consequently . . . petitioner would have been rejected based on the facts of his case, regardless of the degree of the offense."

Finally, Judge Venable rejected defendant's contention that his plea counsel failed to inform him of the immigration consequences of his plea, pointing out that defendant answered "yes" to question seventeen of the plea form, indicating his awareness that he could be deported. The court noted that the holding in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that counsel has an affirmative duty to inform a defendant entering a guilty plea of the mandatory deportation consequences, represented a new standard that did not apply retroactively to this matter. See Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Gaitan, 209 N.J. 339 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Hence, given the prevailing professional standards and the state of immigration law when defendant entered his plea in 2006, advising defendant as to the possibility of deportation, even if deportation was probable, was not deficient legal advice. Moreover, Judge Venable noted that defendant had not asserted his innocence or that he wished to withdraw his plea and proceed to trial on the original charges.

Judge Venable concluded that defendant failed to meet either part of the two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

On appeal from the denial of his petition, defendant presents the following argument:

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE THERE WAS PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL PRESENTED.

Based on our review of the record and the applicable law, we conclude this argument lacks sufficient merit to warrant extended discussion in a written decision, Rule 2:11-3(e)(2), and we add only the following comments.

To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test. Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). In the context of a guilty plea, a defendant must demonstrate that he would not have pled guilty but for his counsel's defective representation. Nu ez-Vald z, supra, 200 N.J. at 139 (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

In this case, the PCR court concluded that defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports that determination. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Venable on September 6, 2012.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).