STATE OF NEW JERSEY v. RAMON ALMONTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0172-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMON ALMONTE,

Defendant-Appellant.

__________________________________

March 8, 2011

Submitted January 3, 2011 - Decided

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.

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

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for respondent (Steven J. Harbace, Assistant Prosecutor, on the brief).

PER CURIAM

This appeal arises out of the trial court's denial of post-conviction relief ("PCR") to defendant, Ramon Almonte. Defendant claims that he is entitled to PCR relief because the lawyer representing him at his 2006 jury trial was allegedly ineffective in various respects. The trial court rejected defendant's claims of ineffectiveness, and so do we. For the reasons that follow, the dismissal of defendant's PCR petition is affirmed.

We need not repeat at length the salient facts, which are detailed in our unpublished opinion on direct appeal sustaining defendant's convictions of conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a, and two related weapons offenses, N.J.S.A. 2C:39-5d and 2C:39-4d. State v. Almonte, No. A-2152-06 (App. Div. Apr. 4), certif. denied, 196 N.J. 86 (2008).

As our prior opinion noted, defendant's offenses arose out a violent encounter between two rival gangs, i.e., "Los Trinitarios" and the "60th Street" gang, outside of a gas station in West New York. During that encounter, one of the 60th Street members, Garmair Brown, was stabbed to death and two of Brown's companions, Christopher Navarro and Brian Powell, were stabbed and injured. The attack was organized by Los Trinitarios in response to the stabbing a few months earlier of one of their members, Luis Carlos Arias, apparently by men in the 60th Street gang.

The fatal melee occurred following the Dominican Day Parade in West New York on August 24, 2003. Defendant was not accused of stabbing any of the victims himself. However, he admitted that he got into the vehicle, which then headed to the gas station after the street encounter was planned, and that he brought with him a plywood board or stick that could be used as a weapon. He claims that he was intoxicated at the time, and that he had been coerced into taking part in the brawl by leaders of the gang.1

After the jury found defendant guilty of conspiracy to commit murder and the weapons offenses, the trial judge imposed a twenty-year sentence on the conspiracy count and concurrent eighteen-month sentences on the weapons counts. In our opinion on direct appeal, we upheld the convictions, but remanded for resentencing to enable the merger of the weapons offenses. Almonte, supra, (slip op. at 19).

In August 2008, defendant filed a PCR petition, alleging that his trial counsel had been constitutionally ineffective. The PCR petition was referred to Judge Fred Theemling, the same judge who had presided over defendant's jury trial. After conducting a limited evidentiary hearing, at which both defendant and his trial attorney testified, Judge Theemling rejected the PCR application.

In appealing the trial court's rejection of his PCR claims, defendant raises the following points:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE BY FAILING TO CONSULT ADEQUATELY WITH DEFENDANT AND/OR BY NOT PURSUING A COERCION, OR DURESS, DEFENSE; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED DUE TO TRIAL COUNSEL'S FAILURE TO PURSUE AN INTOXICATION DEFENSE.

A. Trial Counsel's Failure To Consult Adequately With Defendant Mandates A Reversal Of His Convictions.

B. Trial Counsel's Failure to Pursue A Coercion, Or Duress, Defense Mandates A Reversal Of His Convictions.

C. This Matter Must Be Remanded For An Evidentiary Hearing Because a Prima Facie Case Was Established Regarding The Claim That Trial Counsel Failed To Pursue An Intoxication Defense.

We conclude that these arguments all lack merit, substantially for the reasons cogently stated in Judge Theemling's written opinion accompanying his order dated April 22, 2009. We briefly amplify the judge's analysis as to the three primary accusations that defendant makes against his trial attorney: (1) that the attorney failed to consult with him sufficiently before trial; (2) that the attorney should have pursued a defense of coercion or duress; and (3) that the attorney should have developed an intoxication defense.

Before commenting on these three main issues, we must first acknowledge the governing standards of criminal representation under the Sixth Amendment of the United States Constitution and under New Jersey law. A person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). Judge Theemling correctly applied these standards to defendant's PCR application.

Defendant first contends that his trial attorney did not consult with him adequately. He complains that the attorney did not meet with him in jail. However, as Judge Theemling noted, the attorney instead chose to meet with defendant at the courthouse on occasions when the attorney had to appear for a conference or proceeding. In particular, as Judge Theemling pointed out, trial counsel's time records show that he met with defendant repeatedly in the court house, during the more than fifty court appearances counsel made in the three different matters in which he represented defendant. The judge further noted that on multiple occasions, the trial attorney had reserved the jury room and arranged for an interpreter so that he could speak with defendant. Defendant acknowledged in his testimony at the PCR hearing that he felt comfortable speaking with the attorney in the jury room.

In addition, Judge Theemling found credible trial counsel's testimony that he went over the State's plea offer with defendant extensively, and on several occasions, and that he kept defendant reasonably informed about the status of the case. Conversely, the judge found defendant's testimony at the PCR hearing "less than credible." We must defer to the judge's credibility findings, which have reasonable support in the record. See State v. Locurto, 157 N.J. 463, 471-72 (1999). In sum, defendant failed to sustain his burden of proving the alleged lack of consultation and guidance.

Defendant next argues that his trial attorney should have asserted a defense of duress or coercion, or at least should have pressed such defenses more effectively. This argument also fails. For one thing, it bears noting that under the law applicable to homicide cases, the defenses of duress can only reduce a defendant's exposure to manslaughter rather than provide a complete defense to murder. See N.J.S.A. 2C:2-9(b). Moreover, the trial transcripts plainly show that defense counsel cross-examined the State's gang expert about the likelihood that defendant would have faced retaliation if he had refused to go along with the gang members in the car to the location of the planned attack. Defense counsel repeated this theme during summation. Ultimately, the jury did not accept that attempted explanation of defendant's conduct, but that does not mean defense counsel was ineffective. This issue is likewise without merit.

The third issue concerning trial counsel's failure to pursue an intoxication defense is particularly weak. Although defendant was probably feeling the effects of alcohol consumption that night when he joined up with his associates, there is no indication that his faculties were so prostrated that the requisite state of mind for him to take part in the conspiracy and to possess the weapons was "totally lacking." See State v. Cameron, 104 N.J. 42, 54 (1986). For example, defendant was able to remember where a gang leader had stashed a screwdriver used in the attack, which suggests that his powers of observation and memory were substantially intact that night. Thus, it was entirely proper to reject defendant's bald assertions that, in retrospect, he would have been acquitted if an intoxication defense had been mounted.

We also concur with the trial court's finding that defendant was not deprived of effective representation on direct appeal. Furthermore, we approve of the judge's decision to limit the scope of the PCR evidentiary hearing, and to not take testimony as to matters for which defendant had failed to present a prima facie case for PCR relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

Defendant's remaining contentions on appeal lack sufficient merit to warrant discussion R. 2:11-3(e)(2).

1 Defendant admitted that he was formerly a member of Los Trinitarios. His actual status as a current or former gang member does not affect our analysis.