STATE OF NEW JERSEY v. PEDRO BAUZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4167-07T44167-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO BAUZA,

Defendant-Appellant.

_______________________________

 

Submitted September 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, Indictment No. 04-10-1655.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of

counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (John R. Cascarano, Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant Pedro Bauza appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Following trial by jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). After merging the weapons offenses with the armed robbery, the judge sentenced defendant to a ten-year prison term with an eighty-five percent parole bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The facts comprising this criminal episode are taken from our previous decision affirming defendant's judgment of conviction, State v. Bauza, No. A-1073-05 (App. Div. April 3, 2007):

The prosecution was based upon a routine armed robbery of an attendant in a Citgo gas station, however, the State's investigation led it to believe that defendant had stolen another person's name, thereby adding some complexity to the potential proofs. The State concluded that defendant had somehow obtained a wallet belonging to Rudolfo Gonzalez, and then purchased and registered in Gonzalez's name the Lincoln Town car used in the robbery. Initially, however, the State intended to prove its case without calling Rudolfo Gonzalez and thus did not list him as a potential witness.

At trial, the State presented witnesses to prove that defendant, while driving a Lincoln Town car very early one morning in March, robbed a Citgo gas station attendant by placing a box cutter to the attendant's throat. The attendant later identified defendant in a photo lineup as the man who had robbed him and had also identified the Lincoln as the car used in the robbery. Although the attendant could not identify defendant in court as the person who robbed him, the police subsequently arrested defendant driving the Lincoln Town car, which was clearly visible in the gas station's surveillance videotape for the morning of the robbery.

As part of his defense, defendant attempted to show through cross-examination of the State witnesses and his own testimony that Rudolfo Gonzalez, not defendant, had committed the crime and that defendant had purchased the car not knowing that it had been used in the armed robbery. To counter this defense, the State proffered testimony from one of the officers regarding the theft of Gonzalez's wallet, but the trial court found the evidence to be inadmissible hearsay. Over defendant's objection, the court eventually allowed the testimony to establish the loss of Gonzalez's wallet and that he never owned a Lincoln Town car.

Defendant testified that at the time of the robbery he was at home with his "common law" wife. Defendant further testified that he had purchased the Lincoln Town car two days before he was arrested from a man called "Tariq" in Newark for $1200 in cash. Defendant stated that the car came with a driver's license, registration, and insurance card in the name of Rudolfo Gonzalez. Defendant's "wife" corroborated that he was at home with her while the robbery was being committed.

[Id. at 2-4.]

Defendant appealed from his judgment of conviction, arguing that the trial court erroneously:

(1) failed to instruct the jury on alibi;

(2) permitted the prosecution to call a witness not on the State's witness list;

(3) failed to order a mistrial after the prosecutor inquired about whether defendant invoked his Fifth Amendment rights;

(4) denied defendant a Wade hearing concerning defendant's out of court identification;

(5) allowed the prosecutor to prejudice defendant's right to a fair trial by an improper summation; and

(6) sentenced defendant to a ten-year sentence for a first-degree crime instead of sentencing defendant as if he had been convicted of a second-degree crime.

[Id. at 2.]

We affirmed, finding arguments (4)-(6) to be without sufficient merit to warrant discussion, Rule 2:11-3(e)(2), and explained why we rejected defendant's other arguments. Bauza, supra, at 2. Defendant's subsequent petition for certification was denied by the Supreme Court. State v. Bauza, 192 N.J. 69 (2007).

Defendant then filed a timely PCR petition. Therein he presented several issues lack of an alibi defense charge; alleged prejudicial impact of the State's summation; the court's allowance of an unlisted witness's testimony; and the excessiveness of his sentence all of which had been previously raised and adjudicated on direct appeal. In addition, defendant claimed ineffective assistance of counsel for failing to communicate before and throughout the trial in developing an alibi/misidentification defense.

Following a hearing, the PCR judge denied the petition without an evidentiary hearing. As a threshold matter, the court found that all the claims, save ineffective assistance of counsel, were procedurally barred under Rule 3:22-5, having been previously raised and resolved on direct appeal. In rejecting the ineffective assistance claim on the merits, the PCR judge found it to be "[a] bare allegation unsupported by any other evidence or documentation[]" and concluded:

The court's careful review of the entire trial transcript disclosed that Mr. Bauza was represented by a very skilled attorney who fought hard to protect his rights and defend the case skillfully with good knowledge of the applicable substantive law and the rules of evidence. She fought long and hard for her client from the beginning of the trial until the time of sentence when she tried to have the court impose the most lenient sentence possible on her client.

Unfortunately the jury found her client guilty even after the defendant and his wife testified during the trial. The jury's verdict was fair and reasonable and fully supported by the credible evidence.

. . . .

As to his blanket assertion that his counsel never talked to him about the trial and the defense, that statement is incredible on its face. First it is clear that the defense from the beginning of the case was a denial that the defendant was the robber. His counsel opened to the jury on that theory.

The defendant testified, so did his girlfriend who said he was with her in bed at the time of the robbery. If the jury believed their testimony he would have been acquitted. The jury did not find their testimony credible for good reason if you carefully review the defense testimony.

No other defense is suggested by the defendant in a post conviction relief submission other than he was not the robber and that someone else was. That was exactly the same defense that he and his wife testified to at the trial.

This appeal follows in which defendant raises the following issues:

I. AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.

II. THE TRIAL RECORD IS SILENT AS TO WHETHER THE DEFENDANT'S TRIAL ATTORNEY MISADVISED HIM WITH RESPECT TO HIS SENTENCING EXPOSURE.

III. A PRIOR ADJUDICATION OF AN ISSUE ON APPEAL DOES NOT BAR A PCR APPLICATION ON THE SAME ISSUE PROVIDED THE CONSTITUTIONAL PROBLEM RAISED THEREIN IS OF SUFFICIENT IMPORT.

In essence, defendant reiterates his argument below that defense counsel failed to pursue the alibi and misidentification defenses and raises an issue for the first time here, namely that counsel misadvised as to defendant's sentencing exposure during plea negotiations.

As to the latter, issues not raised before the PCR court are precluded from review here. See State v. J.M., 182 N.J. 402, 410 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). But aside from the procedural bar, we reject defendant's argument on the merits because it amounts to a "bald assertion," entirely devoid of any support in either the trial or PCR records. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant's essential claim of ineffective assistance of counsel is equally unsubstantiated. To prevail on such a claim, defendant must show that his counsel was deficient and counsel's deficient performance prejudiced his defense. State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Here, defendant has failed to specifically "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Moreover, his naked assertion of lack of communication with counsel is, as noted by the PCR judge, who cited numerous examples to the contrary, belied by the trial record.

Not only did defendant fail to prove the performance prong of the Strickland test, he has not presented any evidence to establish that better communication with counsel would have led to a different result. After all, the defense at trial fully availed itself of the strategy that defendant did not commit the crime, but that Rudolfo Gonzalez did. In addition, defendant and his common-law wife testified that he was not present during the offense. Defendant now has simply failed to demonstrate how counsel's alleged deficiency made it any more difficult for that defense tactic to succeed. In our view, the PCR judge's rejection of defendant's ineffective assistance of counsel claim is unassailable and accordingly, we affirm substantially for the reasons stated by the judge in his oral opinion of December 27, 2007.

 
Affirmed.

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

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A-4167-07T4

October 5, 2009