STATE OF NEW JERSEY v. RAUL FLORES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4509-04T44509-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAUL FLORES,

Defendant-Appellant.

____________________________________________________

 

Submitted March 28, 2007 - Decided April 17, 2007

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 97-12-2206.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Joan T. Buckley, Designated

Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

We affirm the order of December 21, 2004, denying post-conviction relief (PCR) substantially for the reasons stated in Judge Patrick Roma's comprehensive written opinion of December 9, 2004.

On this appeal defendant's essential argument is that his trial attorney failed to present any character witnesses and as such, the PCR judge "should have ordered an evidentiary hearing to consider all the circumstances surrounding the failure to present essential character evidence."

 
Defendant correctly states that, on the direct appeal, we expressly declined to "address [the State's claim] that defense counsel's failure to call character witnesses reflects trial strategy," and that we preserved the issue of "the ineffective assistance of counsel claim based on the failure to call such witnesses to enhance defendant's credibility" for development on a petition for post-conviction relief. However, we agree with Judge Roma that defendant has not made a sufficient enough showing to warrant an evidentiary hearing on the issue, given defendant's burden of demonstrating both that counsel was not reasonably effective and that, but for the deficiency of counsel, the result would have been different. See State v. Cummings, 321 N.J. Super. 154, 169-72 (App. Div. 1999) (no entitlement to hearing where prima facie case of ineffective assistance of counsel has not been demonstrated).

Affirmed.

(continued)

(continued)

2

A-4509-04T4

April 17, 2007