STATE OF NEW JERSEY v. JOHN TRICOCHE

NOT FOR PUBLICATION WITHOUT THE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.

JOHN TRICOCHE, a/k/a JOHN EARL,

MARCEL ABRAHAM, JAY GREEN,

JOHN T. MOORE, JAY TORRES,

JOHN TORRES,

Defendant-Appellant.

_______________________________

June 16, 2015

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-02-739.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, John Tricoche, appeals from a Law Division order denying his petition for post-conviction relief (PCR). Defendant argues the PCR judge erred, as trial counsel's conduct amounted to ineffective assistance because he failed to call a witness who could impeach the version of events recited by the State's police witnesses and failed to obtain and introduce defendant's medical records for emergency treatment hours after his arrest, showing he was beaten by police. We disagree and affirm.

A grand jury charged defendant with (1) first-degree attempted armed robbery, N.J.S.A. 2C:5-1 and 2C:15-1; (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); (3) second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); (4) third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and (5) second-degree certain persons not to be in possession of weapons, N.J.S.A. 2C:39-7(b).

The charges stem from these facts, found in the trial record. On a rainy night in Camden, Corporal Luis Sanchez patrolled Camden in a marked police car, accompanied by Detective Julio Rodriguez. Driving towards the intersection of Mount Ephraim Avenue and Everett Street, the officers observed defendant and Otto Ramos crossing paths in the middle of the street. According to Detective Rodriguez, defendant pulled a handgun from his pants and pointed it at Ramos, who was carrying a case of beer. Corporal Sanchez also saw defendant pull "a black object" from his pants and point it at Ramos, but he could not definitively identify the object as a gun. Ramos dropped the beer and ran towards the police car. According to Corporal Sanchez, Ramos was screaming, "he's trying to rob me." Defendant turned and saw the police car. He returned the gun to his pants and fled into Schemenski's Tavern, a nearby bar. The officers pursued defendant and watched him enter the restroom. Following defendant, the police caught him attempting to place the weapon in a trash can.

Corporal Sanchez arrested defendant. Detective Rodriguez stood by to secure the restroom. When a crowd gathered, he removed the gun, which was later found to be loaded with five bullets. At trial, the State presented only the testimony of the arresting police officers.

Defendant presented the testimony of a Schemenski's Tavern employee who remembered defendant entering the bar on the night in question. The employee testified she saw defendant enter and directed him to extinguish his cigarette because smoking was prohibited. Defendant went to the restroom to snuff his cigarette. Seconds later, two police officers "briskly" entered the bar and asked the location of the men's room. The employee pointed, stating "the bathroom's over there." The police "pulled [defendant] out and they had a gun on a pencil."

In his closing argument, defense counsel emphasized Ramos did not sign a complaint or testify at trial. He argued

I suggest to you that without Mr. Ramos here, without him sitting in this witness stand after having sworn to tell you and this [c]ourt the truth and without him sitting here looking at [defendant] in the eye, you don't know enough to make a determination as to what, if anything, was going on between Ramos and [defendant].

. . . .

[T]he Judge is going to tell you . . . it may be that you have a gun without a license . . . and it might otherwise be a crime for you to have that gun[,] but if you have that gun for a protective purpose, then it's not a crime . . . with regard to that particular statute.

The jury acquitted defendant of the attempted robbery charge, but convicted him of the remaining offenses. The judge sentenced him to an aggregate prison term of nineteen years with a nine-and-a-half-year period of parole ineligibility. Defendant appealed his conviction, which this court affirmed in an unpublished opinion. State v. Tricoche, No. A-1508-09T2 (App. Div. Aug. 16, 2011), certif. denied, 209 N.J. 596 (2012).

In his petition for PCR, defendant argued trial counsel provided ineffective assistance because he (1) did not fingerprint the gun or move to suppress it, (2) did not call a witness to testify, (3) did not subpoena defendant's medical records from the morning after his arrest, (4) did not review surveillance video of the crime scene, and (5) did not meet with defendant for long enough to adequately prepare for trial. The PCR judge concluded most of these claims represented decisions that were "strategic in nature and therefore unchallengeable." Further, he found the record belied the allegation counsel was ill-prepared, stating documents reflected counsel spent over forty-eight hours on the case, including at least four hours interviewing or meeting with defendant. The PCR judge denied defendant's petition and rejected his request for an evidentiary hearing.

On appeal, defendant argues

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

"'[PCR] is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove

First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"

[State v. Arthur, 184 N.J. 307, 319 (2005) (emphasis added) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-45).]

Thus, "th[e] test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

In our review, we defer to the PCR judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." (citation and internal quotation marks omitted)). We review consequent legal conclusions de novo. Nash, supra, 212 N.J. at 540-41.

Here, defendant argues trial counsel should have called Khadjah Ballance, with whom it was believed he was having a relationship at the time of the incident. A defense investigator recorded her statement of recalled events prior to trial. Ballance explained she was with defendant at Schemenski's Tavern when he left to talk to others and she went to get something to eat. As the two reentered the tavern, a police car drove into the area. Defendant ran toward the tavern's bathroom. Police officers entered as defendant was exiting the bathroom. They detained defendant and searched the bathroom. Ballance saw police take defendant outside and observed "on the security system in the bar where police were 'beating up' [defendant] . . . outside for about [ten] minutes."

Related to this omission, counsel further failed to obtain and introduce the emergency room treatment records for medical care rendered to defendant at 6:00 a.m. on the morning following his arrest. Defendant received treatment for a bruised jaw and cut lip, which he suggests corroborates Ballance's statement police beat him. Defendant argues this evidence contradicts the testimony by Detective Rodriguez and Corporal Sanchez and created reasonable doubt, allowing a jury to find the police officers were not credible.

However, the record reflects the decision not to use this evidence was part of a defense strategy. We note during Detective Rodriguez's identification testimony, defense counsel requested a side-bar where he objected to publishing defendant's arrest processing photograph to the jury. The State noted the photograph was relevant to refute any claim defendant was beaten by police at the time of arrest. During this colloquy, the State also mentioned defendant's medical records were not presented in discovery as promised. Defense counsel assured the judge the allegation of assault by police was not being raised at trial. Accordingly, the judge concluded the State's use of the photo must be prohibited and would be allowed only in rebuttal if the issue arose in defendant's case.

Strategic and tactical decisions by trial counsel made after a proper investigation "are virtually unassailable on ineffective assistance of counsel grounds . . . ." State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). The record reflects counsel was well aware of defendant's claim he was beaten by police and sought medical treatment the morning after arrest. In presenting his defense, counsel decided not to pursue presentation of this evidence, but stuck to a theory that without Ramos the evidence was insufficient to secure a conviction. This strategy successfully resulted in defendant's acquittal of the most serious charge for armed robbery. "We owe some degree of deference to counsel's strategic or tactical decisions and should carefully refrain from undermining or preempting them." State v. Mays, 321 N.J. Super.619, 633 (App. Div.), certif. denied, 162 N.J.132 (1999). Defendant has not rebutted the presumption counsel's decision reflected "'sound trial strategy.'" Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695).

We also determine the record supports the judge's conclusion counsel diligently prepared the matter for trial, including meeting with defendant, investigating possible witnesses, and making pre-trial motions. We reject as unfounded the claim counsel's assistance was ineffective and we will not interfere with the "pragmatic dimension [of] the PCR court's determination" to deny the need for an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), see also Preciose, supra, 129 N.J. at 462.

Affirmed.