STATE OF NEW JERSEY v. JOSE ANTONIO 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NOT FOR PUBLICATION WITHOUT THE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.

JOSE ANTONIO PEREZ,

Defendant-Appellant.

_________________________________

October 28, 2014

Submitted September 23, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4417.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

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

PER CURIAM

Defendant, Jose Antonio Perez, appeals from an order denying his petition for post-conviction relief (PCR). Defendant claims he was denied his constitutional right to effective assistance of counsel at trial. Specifically, he claims his counsel did not advise him of his right to testify at trial. After an evidentiary hearing, Judge Peter V. Ryan denied defendant's PCR petition. We affirm for the reasons set forth in Judge Ryan's January 7, 2013 written opinion.

Defendant raises the following two arguments on appeal

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HE WAS NOT ADVISED OF HIS RIGHT TO TESTIFY BY TRIAL COUNSEL

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

Although defendant made other claims in his petition, these two points, that are essentially one point, are the only ones pursued on appeal.

Defendant was a member of a gang known as the Latin Kings. Ten members of the gang were indicted as the result of the kidnapping of four fellow gang members. Two of the four victims were murdered. Six of those individuals who were indicted pled guilty. Defendant and three others were tried before a jury. Defendant was acquitted of some counts of the indictment, but was convicted of other counts. The procedural history and facts are more thoroughly set forth in Judge Ryan's comprehensive opinion.

Relevant here, Perez and the other three remaining defendants filed PCR petitions. Over three days, the judge held an evidentiary hearing on the petitions, where thirteen witnesses testified, including defendant's attorney. Of note, defendant's counsel testified that he always discusses the right to testify with his clients throughout the trial. Moreover, he indicated that he would have a specific discussion about the right to testify, including the advantages and disadvantages of a particular defendant testifying, after the prosecution rests.

At the conclusion of the evidentiary hearing, Judge Ryan issued his detailed and well-reasoned opinion setting forth his findings of fact and legal analysis. The judge found defendant's claim that he was not advised of his right to testify "plainly implausible."

Based on our review of the record, we find no reason to disturb Judge Ryan's factual findings and credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). In light of his factual findings, his legal conclusions are correct.

Affirmed.