STATE OF NEW JERSEY v. BENEDICTO MAISONET

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3784-05T43784-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENEDICTO MAISONET,

Defendant-Appellant.

 

Submitted September 10, 2007 Decided September 25, 2007

Before Judges Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 98-07-1159.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur P. Zapolski, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Monalisa Captan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Benedicto Maisonet's petition for post-conviction relief was denied on December 14, 2005, without an evidentiary hearing. On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS DENIED FUNDAMENTAL FAIRNESS.

THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

In a pro se brief, defendant raises only the effective assistance of appellate counsel issue.

We have carefully reviewed the record in light of defendant's contentions and the applicable law, and conclude that defendant's claims are without merit. Consequently, we affirm.

Defendant was convicted by a jury on June 27, 2001, of third-degree cocaine distribution. The court imposed a seven-year state prison term subject to three years of parole ineligibility, as defendant was mandatory extended term eligible pursuant to N.J.S.A. 2C:43-6(f). On direct appeal, we affirmed the conviction and sentence. State v. Maisonet, No. A-5680-01 (App. Div. Dec. 31, 2003). The Supreme Court denied certification. State v. Maisonet, 180 N.J. 151 (2004).

We summarize the trial evidence as follows. Union City Detective Juan A. Loacess testified that at approximately 10 p.m. on March 10, 1998, he was stationed on a rooftop narcotics surveillance post. From that position, while using a twelve-inch long telescope, Loacess observed defendant, along with his co-defendant Nelson Franco, selling drugs to a third man in the area of 45th and 46th Streets and Broadway. The surveillance team immediately arrested defendant who was found to have cash on his person.

On cross-examination, Loacess acknowledged that in neither his police report nor his grand jury testimony did he mention using a telescope. During an earlier mistrial he had testified he used binoculars, not a telescope, while surveilling the area. He attributed his confusion as to the device used to the three-year lapse between the incident in 1998 and the trial in June 2001.

After the jury found defendant guilty, the co-defendant signed statements purporting to exculpate Maisonet. Hearings on the ensuing motion for a new trial were held on October 12, 2001 and December 11, 2001, during which Franco testified that only he, and not defendant, was involved in the drug sale witnessed by Loacess. He also testified that drugs found in the patrol car that took them to the police station belonged to him and not to Maisonet. Franco claimed that when he was arrested he told police that defendant was not involved. Franco did not inform defendant about this claim until after the conviction. The trial court did not find Franco believable and therefore denied defendant's request for a new trial. On direct appeal, we also denied defendant's request for a new trial, based on the trial judge's "detailed analysis of the testimony and of the witnesses." State v. Maisonet, supra, slip op. at 8.

In Point I of defendant's brief he contends that it would be fundamentally unfair to allow the conviction to stand in light of Franco's exculpatory statements. Because we addressed that argument on direct appeal, it is barred by R. 3:22-5, which expressly states that a "prior adjudication upon the merits of any ground for relief is conclusive . . . ."

In Point II of his brief, defendant argues first that trial counsel was ineffective in that he failed to argue that the verdict was against the weight of the evidence. This argument is based on Loacess's confusion as to which device he used and the omission of mention of the device in his report or grand jury testimony. It is clear from the trial transcript, however, that trial counsel vigorously attacked the detective's credibility on cross-examination. When trial counsel moved for acquittal pursuant to R. 3:18-1 at the close of the State's case, he contended that the detective's observations did not prove that defendant had sold drugs. During trial counsel's summation, he again vigorously attacked the detective's credibility.

In assessing whether a defendant has established a prima facie claim in support of post-conviction relief, the facts are viewed in the light most favorable to the defendant. State v. Preciose, 129 N.J. 451, 462-63 (1992). A defendant must be able to show the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 667 (1984). The test was adopted by the Supreme Court of New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Initially, it requires proof of representation which falls "below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Counsel's acts or omissions must fall outside the range of professionally competent assistance within the greater context of the circumstances of the case. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In applying the standard, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable" representation. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

The second step of the analysis requires a defendant to show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. S. Ct. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. It is the defendant's burden to demonstrate a reasonable probability that but for the deficient performance of counsel, the outcome would have been different. State v. Arthur, 184 N.J. 307, 319 (2005).

In this case, trial counsel vigorously explored the weaknesses of Loacess's testimony. When trial counsel moved for judgment of acquittal pursuant to R. 3:18-1, he argued that the detective's observations only established innocent social interaction between defendant and the drug purchaser. His summation attacked Loacess's credibility. Thus, trial counsel's performance fell within the range of reasonable representation as required by Strickland.

Defendant makes two claims of ineffective assistance of counsel as to his appellate counsel. First, defendant claims that appellate counsel did not communicate sufficiently with him. Defendant contends that if appellate counsel had directly communicated with him, defendant's counsel would have understood the import of Franco's exculpatory statements and the weaknesses in Loacess's testimony. The appellate brief in defendant's direct appeal focused exclusively on the trial court's refusal to grant a new trial based on Franco's testimony. Additional communication with defendant would not have enhanced counsel's performance, as appellate counsel did pursue the theory as grounds for a mistrial.

Defendant also contends that appellate counsel committed error when counsel failed to address the weaknesses in Loacess's testimony in the direct appeal brief. Whether this omission was deficient within the meaning of Strickland is debatable. Even if it was, the omission is not so significant 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. Had the weaknesses in Loacess's testimony had been raised on appeal, we would nonetheless have concluded the jury's reliance on the testimony was reasonable. It was reasonable for the jury to find that whether Loacess used a telescope or binoculars was of little consequence. Loacess was stationed on a rooftop at night and would have needed a device in order to make his observations. There is no probability that but for the omission of mention of Loacess's testimony on appeal, the result of the proceeding would have been different.

Simply stated, defendant failed to establish a prima facie claim of ineffective assistance of trial or appellate counsel.

Affirmed.

 

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A-3784-05T4

September 25, 2007