STATE OF NEW JERSEY v. WILLIAM RUIZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3446-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM RUIZ,

Defendant-Appellant.

_________________________________

December 21, 2010

Submitted November 30, 2010 - Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-03-0355.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Joseph J. D'Onofrio, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

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

Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1a(2), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The State's evidence at trial established that on November 9, 2004, defendant snatched a $100 bill from a bar patron at the Dart Inn in Dover. The bar patron, who had been attempting to pay his bar tab at the time of the incident, and his friend, followed defendant outside in an effort to recover the $100 bill. Defendant then brandished a knife, swinging it at the victim. Dover Police arrived at the scene, arrested defendant and recovered a blue-handled knife in defendant's pocket, the same type used to menace the victim. At police headquarters, Officer Michael Thiel witnessed defendant throw a $100 bill to the floor and cover it with his foot.

The jury convicted defendant of all charges. After appropriate mergers, defendant was sentenced to an aggregate five-year term, with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.

Defendant appealed, arguing among other things, that the verdict was against the weight of the evidence and the product of jury taint. Defendant also claimed that he never unequivocally waived his constitutional right to testify. We affirmed the judgment of conviction, finding none of the issues raised were of sufficient merit to warrant extended discussion in a written opinion. State v. Ruiz, No. A-4786-05 (App. Div. Apr. 30, 2007) (slip op. at 4). In so holding, we found the evidence of defendant's guilt "compelling" and that there was no juror taint. Id. at 4-7. As to defendant's election not to testify, we found:

Here, the trial judge afforded defense counsel a recess to discuss with his client whether or not to testify. When trial resumed, counsel stated that defendant chose not to testify and wanted the jury told that his decision cannot be used against him. Defendant voiced no disagreement with this representation of counsel. Indeed, no claim is made that counsel was ineffective in this regard. Under the circumstances, we are satisfied that the on-the-record colloquy demonstrates that defendant clearly and unequivocally waived his right to testify.

[Id. at 8.]

Defendant filed a timely PCR petition re-raising the issues of weight of the evidence and juror taint. He also claimed ineffective assistance of trial counsel, who allegedly denied defendant his right to testify and did not adequately consult with defendant prior to trial, investigate defendant's case or develop a defense strategy. Specifically, defendant argued trial counsel failed to obtain an alleged videotape, which would have purportedly shown defendant did not discard the $100 bill, or to call witnesses, who would supposedly have testified to defendant's lack of motive for committing the crime and his absence from the Dart Inn where the robbery occurred.

An evidentiary hearing was held on defendant's PCR petition, during which defendant's sister testified that had trial counsel called her as a witness, she would have explained that defendant had no reason to commit the robbery because his relatives regularly provided monetary support to defendant. Defendant also testified at the PCR hearing, claiming that trial counsel neither met with him during the year leading up to his trial while he was free on bail nor allowed him to testify during trial. According to defendant, he wanted to testify that Dover Police had planted a knife in his back pocket and recorded his actions on videotape at the station following his arrest, which would have demonstrated that he had not dropped the $100 bill on the floor in an attempt to cover up the evidence. Lastly, defendant testified that the bartender and patrons at the Dart Inn would have confirmed his absence from the bar on the night of the robbery.

At the PCR hearing, defendant's trial counsel testified that it was his practice to provide discovery to, and discuss the case with, defendant. In fact, counsel stated that he likely discussed the case with defendant during the multiple status conferences prior to trial, including a possible plea bargain, which defendant had rejected. Moreover, counsel was unaware of defendant's sister, and, in any event, would not have called her as a witness because her testimony was not relevant and, in fact, may have harmed defendant's character in the eyes of the jury. Counsel also testified that he did not know of the identity of the bartender at the Dart Inn or of any other patrons at the bar that night. Indeed, defendant never advised counsel that he was not at the Dart Inn on the night of the robbery.

The PCR court denied defendant's petition. Specifically, the court held that defendant's claims challenging the weight of the evidence, his election not to testify and the court's excusing a juror were previously addressed in defendant's direct appeal and thus barred under Rule 3:22-5. The court also rejected defendant's claim of ineffective assistance of counsel, finding that (1) trial counsel had not been ineffective in failing to call defendant's sister to testify because her testimony would not have been relevant to the case; (2) trial counsel had discussed the accuracy of defendant's criminal record with defendant; and (3) trial counsel had discussed with defendant his decision not to testify. As to the latter two findings, the PCR court specifically concluded:

[I]t's clear to the Court that there . . . had been a lengthy discussion on [defendant's prior record] with [defendant] and [trial counsel]. It was done in the courtroom. In fact, there were occasions when [defendant] interrupted [trial counsel] and tried to say something to the Judge about his record. So the record was clearly discussed in the courtroom outside of the presence of the jury and later on I find between [defendant] and [trial counsel].

In holding "beyond a reasonable doubt that . . . defendant was adequately and properly represented by [trial counsel,]" the court expressly discredited defendant's testimony and credited that of trial counsel:

The defendant who I did not find for the record today to be a credible witness conveniently forgets certain things, keeps trying to say he was set up, that this . . . never happened, he wasn't in the bar. The defendant says the knife was planted on him. Again, there was no . . . evidence whatsoever to suggest that.

[There is] nowhere in the record [that] defendant say[s] I had all this exculpating information that, my attorney didn't use. The defendant didn't indicate that he was someplace else down the street, he had he wasn't even near the area, and, therefore, he couldn t have been the person that was involved in this matter. The defendant never [brought] that up to his attorney.

. . . .

[Defendant] certainly had a number of years now to . . . try to develop a case to suggest that he wasn t adequately represented. I don't find that today to be the case. I found [trial counsel] to be a very credible witness. . . .

On appeal, defendant raises the following issues:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL DEPRIVED DEFENDANT OF THE OPPORTUNITY TO TESTIFY.

B. COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER.

C. COUNSEL FAILED TO DEVELOP A DEFENSE STRATEGY.

D. TRIAL COUNSEL FAILED TO INVESTIGATE THE CASE.

E. TRIAL COUNSEL FAILED TO PRESENT ESSENTIAL WITNESSES AT TRIAL.

II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.

III. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

IV. THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

V. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY

BARRED UNDER R. 3:22-5.

We reject these arguments as without merit, Rule 2:11-3(e)(2), and affirm the denial of defendant's PCR petition substantially for the reasons stated by Judge Dangler in his January 26, 2009 oral opinion. Suffice it to say, the PCR judge's factual findings are "'supported by adequate, substantial and credible evidence.'" State v. Harris, 181 N.J. 391, 415-16 (2004) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see also State v. Locurto, 157 N.J. 463, 471 (1999). In stark contrast, defendant has offered nothing by way of certifications or affidavits as to what a so-called "adequate" investigation would have revealed or what unidentified witnesses would have said to support his alibi claim, which trial counsel testified was never raised by defendant at any time prior to filing of the instant petition. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

A