STATE OF NEW JERSEY v. LUIS AYBAR-SANTOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS AYBAR-SANTOS,

Defendant-Appellant.

April 25, 2017

Submitted March 29, 2017 Decided

Before Judges Fuentes and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-04-0521 and 11-09-1360.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis Aybar-Santos appeals from an August 27, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant contends his appellate counsel rendered ineffective assistance. We affirm.

We discern the following facts from defendant's testimony at the plea hearing. On December 12, 2009, while armed with a shotgun, defendant chased his victim, Nathaniel Morillo, and shot Morillo in the buttocks at close range. Defendant reviewed a picture of Morillo's injuries, which "show[ed] a very large chunk of [Morillo's] body missing." Defendant acknowledged that had the bullet impacted Morillo slightly higher or to the left, it could have hit his spine, or if lower it could have "bl[own] open the femoral artery," resulting in Morillo's death. Defendant further acknowledged that, based on his prior criminal history, he was not permitted to possess a gun.

Defendant was charged in Middlesex County Indictment No. 10-04-0521 with first-degree attempted murder of Morillo, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); second-degree possession of a weapon, a shotgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1) (count six). Defendant was also charged separately in Indictment No. 11-09-1360 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.

The trial court decided three pretrial motions that are the focus of the present appeal. First, defendant moved to dismiss the indictment on the basis that the State misrepresented to the grand jury that Morillo was shot in the back rather than the buttocks. The trial court denied the motion, finding that the proofs submitted to the grand jury were sufficient to sustain the indictment, and that there was no prosecutorial misconduct.

Second, defendant moved to bar Morillo's out-of-court identification of defendant as the shooter. He contended he was entitled to a Wade1 hearing "in an abundance of caution" following the Supreme Court's recent ruling in State v. Henderson, 208 N.J. 208 (2011). During argument on the motion, it was noted that Morillo knew defendant since elementary school. Citing "the relationship of the parties," the trial court denied the motion, finding that defendant failed to make a threshold showing of impermissible suggestiveness that would require a Wade hearing.

Third, the State moved to admit at trial evidence of an earlier encounter involving defendant and his co-defendants, and Morillo and his friends. The encounter occurred approximately thirty minutes before the shooting and involved the use of a knife. The State sought to admit this testimony pursuant to N.J.R.E. 404(b) as relevant to defendant's motive. The court noted the prior encounter was "assaultive in nature," and ruled it "was evidence that is currently admissible as background or completes the story." The court further indicated it would provide a limiting instruction "to insure that the jury considers [] the evidence [only] for the purposes for which it is admitted, not a bad act which indicates the propensity, but rather as an event which precipitated the subsequent shooting."

Following the motions, on October 5, 2011, defendant pled guilty to two charges: count one of Indictment No. 10-04-0521 (attempted murder), and Indictment No. 11-09-1360 charging him with certain persons not to have weapons. Based on defendant's plea testimony, the judge found his plea was "knowing [and] intelligent" and that defendant was satisfied with the services of his attorney.

Pursuant to the terms of the negotiated plea agreement, the judge sentenced defendant to an aggregate twelve-year prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2a. The judge ordered the sentence to run concurrent with a federal sentence defendant was then serving, and that defendant pay $7548.79 in restitution. The remaining charges were dismissed on application of the State.

Defendant filed a notice of appeal. Consistent with the advice of appellate counsel, defendant did not challenge the trial court's rulings on the pretrial motions, even though he had reserved the right to do when he entered his guilty plea. Defendant limited his challenge to the sentence imposed, which we considered on our excessive sentencing oral argument calendar. R. 2:9-11. In an unpublished decision, we affirmed the custodial portion of the sentence, but vacated the restitution award and remanded the matter for a restitution hearing. State v. Aybar-Santos, No. A-2980-11 (App. Div. May 14, 2013).2

Defendant filed a pro se PCR petition on May 28, 2014. After counsel was appointed, defendant filed an amended PCR petition and supporting brief alleging that appellate counsel was ineffective in failing to challenge the trial court's rulings on the pretrial motions. The PCR judge considered oral argument, denied the petition, and issued a comprehensive oral opinion. The judge concluded defendant had not presented a prima facie case of ineffective assistance of appellate counsel, and determined that an evidentiary hearing was not required.

Defendant raises the following points on appeal

POINT I

THE PCR COURT'S FINDINGS SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE APPELLATE COUNSEL'S DECISION TO PRESENT DEFENDANT'S APPEAL BEFORE THE EXCESSIVE SENTENCE PANEL INSTEAD OF PURSUING A PLENARY APPEAL SATISFIED R. 3:22 PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.

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.

II.

To prove ineffective assistance of trial counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).

This standard applies as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Nevertheless, an appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983); Gaither, supra, 306 N.J. Super. at 515-16. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing State v. Preciose, 129 N.J. 451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

A.

With these principles in mind, we first address defendant's argument that his appellate counsel was ineffective for failing to challenge the denial of his motion to dismiss the indictment. As noted, defendant contended the trial court erred in denying the motion based on a misrepresentation by the prosecutor to the grand jury that Morillo had been shot in the back. However, as the PCR judge noted, the prosecutor also mentioned during the grand jury presentation that Morillo had been shot in the buttocks. The PCR judge concluded defendant "proffered no evidence to establish that the denial [of the motion to dismiss the indictment] constituted an abuse of discretion warranting [a]ppellate relief."

An indictment should be dismissed "only on the clearest and plainest ground, . . . and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations omitted). Prosecutorial misconduct should not be used as a means to dismiss an indictment, unless it "is extreme and clearly infringes upon the [grand] jury's decision-making function," State v. Murphy, 110 N.J. 20, 35 (1988) (alteration in original) (citing State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div.), certif. denied, 75 N.J. 10 (1977)), and "amounted to an intentional subversion of the grand jury process." Ibid. We review a decision on a motion to dismiss an indictment for an abuse of discretion. State v. Triestman, 416 N.J. Super. 195, 220 (App. Div. 2010).

We conclude that the record supports both the trial judge's and the PCR judge's findings. Accordingly, we find no abuse of discretion in the PCR judge's determination that appellate counsel's failure to challenge the denial of the motion to dismiss the indictment did not amount to ineffective assistance of counsel.

B.

Next, we reject defendant's argument that appellate counsel should have challenged on direct appeal the trial court's failure to conduct a Wade hearing with respect to Morillo's out-of-court identification of defendant as the shooter. The PCR court correctly determined that, even if appellate counsel had challenged the trial court's ruling not to hold a Wade hearing, defendant would not have been successful in barring Morillo's identification, under the principles set forth in State v. Madison, 109 N.J. 223 (1988), which was the law in effect at the time. The PCR judge noted that the Supreme Court's recent decision concerning eyewitness identifications did not apply retroactively to the identification involved in this case. See Henderson, supra, 208 N.J. at 302.

Under Madison, the court must first determine whether the police employed an identification process that was impermissibly suggestive. Madison, supra, 109 N.J. at 232 (citing Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)). If so, the court must determine whether the "objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The reliability determination must be made based on the totality of circumstances. Id. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).

The PCR judge found that Morillo "based his identification [of] defendant on their prior relationship, which apparently went back to grade school. The identification of [] defendant by [Morillo] preceded any identification procedure undertaken by the police." Relying on State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004), the PCR judge correctly determined that, under these circumstances, defendant was not entitled to a Wade evidentiary hearing because he failed to make a threshold showing of suggestiveness.

C.

Finally, defendant renews his argument that appellate counsel was ineffective for failing to challenge the trial court's decision to admit evidence of the confrontation between defendant, Morillo, and their acquaintances, which shortly preceded the shooting. In rejecting this argument, the PCR judge found

This is a case where the trial court considered testimony and the arguments of counsel and came to the conclusion that the actions that took place prior to the shooting were intrinsically tied to the shooting. There is support in the record for that determination and no showing by [defendant] that a clear error in judgment took place warranting a reversal of that standard at the [a]ppellate level.

Again, we agree with both the trial judge and the PCR judge that evidence of the prior encounter was "intrinsic" to the charged crimes. Evidence that is "intrinsic" to the charged crime, is not "other crimes" evidence, and therefore not subject to N.J.R.E. 404(b). Evidence may be intrinsic to the charged crime in two ways. "First, evidence is intrinsic if it 'directly proves' the charged offense." State v. Rose, 206 N.J. 141, 180 (2011) (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010)). "Second, uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." Ibid. (quoting Green, supra, 617 F. 3d at 249).

Moreover, had appellate counsel raised this issue on direct appeal, we would have applied "our deferential standard for reviewing a trial court's evidentiary rulings, which should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233 (2016) (citations omitted). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted."'" Ibid. (citation omitted). Guided by this deferential standard of review, we agree with the PCR judge's conclusion that defendant is "[u]nable to make the requisite showing that he would have prevailed had the issue been presented" on direct appeal.

Here, the existing record was sufficient to resolve defendant's claims, and defendant failed to present a prima facie case of ineffective assistance of appellate counsel. Therefore, the PCR judge correctly determined that an evidentiary hearing was not required on defendant's petition.

Affirmed.

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

2 The State subsequently withdrew its request for an order of restitution.