STATE OF NEW JERSEY v. JOSEPH CRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2853-06T42853-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CRUZ,

Defendant-Appellant.

_______________________________________

 

Submitted March 8, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-4327.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Cruz appeals from an order entered by the trial court on November 17, 2006, denying his petition for post conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 98-10-04327 with conspiracy to commit murder, N.J.S.A. 2C:5-2 and 11-3; murder, N.J.S.A. 2C:11-3(a); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); possession of an assault weapon, N.J.S.A. 2C:39-5(f); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was tried before a jury. At the trial, the State presented evidence which established that on July 29, 1998, two police officers in Newark heard the sound of gunfire coming from a location near the intersection of Martin Luther King Boulevard and Crane Street. The officers saw several persons running in different directions and a black male, later identified as Cedric King (King), approached the patrol car. King fell to the ground. He subsequently died as a result of a bullet that penetrated his chest cavity.

The police chased several individuals and eventually apprehended defendant and co-defendant Roberto Mejias (Mejias). In a search of the area, the officers found an assault rifle, latex gloves and a .357 Magnum handgun. After his arrest, Mejias gave the police two statements. In the first statement, Mejias admitted that he shot King but did not implicate defendant. In the second statement, Mejias discussed defendant's involvement in the shooting.

Mejias pled guilty to conspiracy to commit murder, receiving a stolen handgun, unlawful possession of a handgun, and aggravated manslaughter. The State agreed to recommend a sentence of twenty years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Mejias testified at defendant's trial, as a witness for the prosecution.

Mejias stated that he began selling heroin for defendant on the day before King's shooting. Mejias said that King also was a drug dealer. On the day of the shooting, King approached him and defendant and said that someone had robbed one of his "runners." King threatened them if he saw them in the area again. Later that day, King returned.

Defendant and Mejias went to the second floor of defendant's residence on Crane Street. He told Mejias that they "were about to get into a shoot out." Defendant was standing at the window and King was standing on the street below. They argued. According to Mejias, defendant shot his assault rifle at King several times. Defendant was wearing latex gloves at the time. Mejias shot at King with his handgun.

The jury found defendant not guilty of conspiracy to commit murder, but guilty of murder, possession of an assault weapon, and possession of a weapon for an unlawful purpose. The trial court sentenced defendant to life imprisonment, with a thirty-five year period of parole ineligibility.

Defendant appealed and challenged his conviction and sentence. We affirmed. State v. Cruz, No. A-6144-00T4 (App. Div. February 6, 2003) (slip op. at 8). Thereafter, defendant filed a petition for certification, seeking review of our judgment by the Supreme Court. The Court denied the petition. State v. Cruz, 176 N.J. 430 (2003).

Defendant thereafter filed a pro se petition for PCR, dated March 17, 2006. The court appointed PCR counsel, who filed a brief arguing that defendant had been denied the effective assistance of counsel because his trial attorney failed to: 1) have defendant testify on his own behalf; 2) persuasively negotiate a plea agreement for defendant; 3) object to testimony which revealed that defendant was known on the street as "Dog" or "Mad Dog[;]" 4) conduct himself in an appropriate manner at trial; 5) consult an expert in the field of ballistics and firearms identification to challenge the findings of the State's expert; 6) effectively cross-examine Mejias regarding his ability to perceive events; 7) investigate and subpoena potential witnesses for trial; and 8) object to inappropriate comments by the assistant prosecutor.

The PCR court considered defendant's petition on November 16, 2006, and filed a letter opinion dated November 17, 2006, in which it concluded that defendant had not been denied the effective assistance of counsel. The court entered an order dated November 17, 2006, denying PCR. This appeal followed.

We note that, because a transcript could not be made of the hearing on defendant's PCR petition, we temporarily remanded the matter to the trial court to reconstruct the record. The PCR court thereafter informed us that no arguments had been advanced at oral argument that were not included in the briefs filed by the parties prior to the hearing.

On this appeal, defendant raises the following arguments for our consideration:

POINT ONE

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

POINT THREE

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We are convinced from our thorough review of the record that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in the PCR court's letter opinion dated November 17, 2006. We add the following.

Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his ineffective-assistance-of counsel claims. We disagree. An evidentiary hearing was not required in this matter because defendant did not present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

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A-2853-06T4

March 31, 2010