STATE OF NEW JERSEY v. DARWIN GODOY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2439-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARWIN GODOY,

Defendant-Appellant.

__________________________________

July 22, 2011

Submitted June 1, 2011 - Decided

Before Judges Wefing and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

98-04-624.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and remand in part.

This matter has an extended procedural history, not all of which is pertinent to the issues before us, and we have omitted so much of that procedural history as is immaterial. Tried to a jury, defendant was convicted of one count of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 15-1; one count of conspiracy to commit murder, N.J.S.A. 2C:5-2, 11-3; armed robbery, N.J.S.A. 2C:15-1; murder, N.J.S.A. 2C:11-3a; two counts of second-degree manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4, 2-9b; and three counts of felony murder, N.J.S.A. 2C:11-3a(3). Defendant appealed his convictions and sentence. We affirmed his convictions but remanded with respect to certain issues of merger. State v. Godoy, No. A-0808-01 (App. Div. June 2, 2003). Defendant's final aggregate sentence was life in prison, with a thirty-year period of parole ineligibility.

Defendant filed a pro se petition for post-conviction relief that the trial court dismissed as untimely. Defendant appealed, and we summarily reversed. State v. Godoy, No. A-1967-05 (App. Div. May 9, 2006). Defendant thereafter filed a new petition for post-conviction relief. Counsel was assigned to represent defendant, and he filed an extensive brief on defendant's behalf and orally argued the merits of his petition to the trial court. The trial court later issued a written decision setting forth its reasons for denying the petition, both on grounds of timeliness and on the merits. This appeal followed.

On appeal, defendant raises the following issues for our consideration.

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MISAPPLIED THE PROCEDURAL BARS OF RULE 3:22-4, 3:22-5, AND RULE 3:22-12, AND FAILED TO APPLY THE INJUSTICE CRITERIA OF RULE 1:1-2.

POINT II SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

In our earlier opinion, we set forth the facts underlying defendant's convictions.

The State presented evidence during trial that defendant conspired with Miguel Suarez, Richard Morales and Dimpy Patel in the commission of an execution-style murder of Rajesh Kalsaria, Ajit Hira and Bhushan Raval. In his statement to the police, defendant admitted that the conspiracy was hatched when he first met Patel, a local merchant. According to defendant, Patel offered to pay him $10,000 to "find someone that could [kill] someone that [Patel] had in mind." Defendant enlisted Suarez, a recent acquaintance with whom defendant was selling illegal cloned cell phones. Defendant arranged a meeting between Patel and Suarez.

At the meeting, Patel explained to defendant and Suarez that he wanted a certain diamond merchant "eliminated." Patel agreed to furnish Suarez with the merchant's address and that Suarez could keep whatever cash and jewels found in the house at the time the shooting was carried out.

Several weeks later Patel gave defendant the address of the intended victim, 71 Chestnut Street, Bogota. On the day of the shooting, defendant met with Suarez and Suarez's friend, Richard Morales, at an Acme parking lot in Secaucus. The three then proceeded to Bogota, defendant driving alone in his Subaru.

Defendant, parked within view of 71 Chestnut Street, acted as a lookout while Suarez and Morales entered the victim's home armed with a machine gun and silencer. While in the home, Suarez called defendant on a cell phone to advise him that there were three men inside the house and did not know what to do. Eventually Suarez called back and said "[f]uck it, I'm gonna do it" and asked defendant to come inside. Defendant rejected Suarez's request to come into the residence.

Immediately after this call from Suarez, Bogota Police Officer James Sepp pulled his police car along side defendant's vehicle. According to Sepp, defendant had been parked at the location for a suspiciously long period of time. Defendant told him that he had been sent out by his employer to estimate the size of an upcoming project. However, defendant appeared nervous. Sepp testified that during the stop, defendant's cell phone rang continuously, and defendant was strangely abrupt with the callers.

Officer Sepp and other Bogota police officers responded to a call concerning a multiple shooting at 71 Chestnut Street. The officer found Kalsaria, Hira and Raval shot to death. Kalsaria had been shot twice in the head and once in the torso and was laying face down with his hands underneath him. Hira had been shot in the head while laying face down with his eyes and mouth duct-taped shut and his hands tied behind his back. Raval had been both shot in the face and stabbed approximately twenty-six times. Over $60,000 in diamonds, gold jewelry and cash was missing from the residence.

A subsequent investigation by the police revealed bags of assorted jewelry and gemstones in Patel's vehicle and Rajesh Kalsaria's name and phone number written on a piece of paper in Patel's home. A bullet-proof vest was found in Suarez's residence and Hira's Toyota, taken from the shooting scene[,] was found several blocks from Suarez's home. The telephone records of the four conspirators established numerous calls among them, including a forty-one minute call between defendant and Suarez moments before Officer Sepp approached defendant's parked Subaru.

Ultimately, defendant was connected to the murders because of Sepp's observation of defendant's parked car near the 71 Chestnut Street address. In his statement to the police, defendant claimed that after Officer Sepp let him go, defendant purchased a phone card and called Suarez who told him that he had "whacked them." Later, defendant called Patel who told him that Suarez's [sic] had dropped off some jewelry and diamonds and had left for Puerto Rico. Patel warned defendant to stick to the story he had already told the police.

* * * *

According to defendant, it was his belief that he would have nothing at all to do with the planned murder after he introduced Suarez to Patel. However, he acknowledged subsequently relaying messages between Patel and Suarez, including advising Suarez of the address of the intended victim. Defendant maintained that he tried to get out of serving as a courier, but that Patel again told him not to "fuck around with [him]." Defendant felt powerless and overwhelmed with fear and anxiety.

Nevertheless, defendant participated in a testing of the gun and silencer which had been purchased for the "hit." He also agreed to accompany Suarez and Morales to 71 Chestnut Street on the day of the murders. He claimed, however, that he felt he would be killed if he did not agree.

Defendant claimed that he only learned that there had been three murders when he later watched the news on television. He further testified that shortly after his arrest he had told an attorney that Patel had said to him that "if you fuck with me, I'll hunt you down and kill you."

[Godoy, supra, No. 0808-01 (slip op. at 3-7).]

Among the arguments defendant presented to the trial court in support of his petition for post-conviction relief was the contention that his inculpatory statement to the police should not have been admitted into evidence against him at trial. Clearly this contention was not cognizable on post-conviction relief proceedings; it was barred under Rule 3:22-4 since it could, and should, have been asserted on defendant's direct appeal. In addition, the trial court conducted a Miranda hearing, at which defendant testified. At the conclusion of that hearing, the trial court found no basis to exclude defendant's statements to the police.

Defendant also argued to the post-conviction relief court that the trial court had wrongfully denied his request for an adjournment of his trial. Not only is this contention also barred by Rule 3:22-4, it is not supported by the record. His trial attorney did not ask for a postponement because he was not prepared for trial but because he had another matter scheduled in another county at the same time. The trial court told trial counsel that it would contact the other court to advise it that defense counsel was on his feet on this matter and not available to go elsewhere.

Defendant also argued that the trial court had erred in the charge it gave on accomplice liability. This contention is similarly barred by Rule 3:22-4 and, again, is not supported by the record. The post-conviction relief court stated that the trial court clearly told the jury that each of the participants in this event may have acted with a different state of mind, and the criminal liability of each depended upon his own individual state of mind, not that of anyone else.

Defendant presented as an additional argument that he was wrongly charged with three counts of murder, when he should have faced only one. The premise for this argument is that defendant had only agreed to assist in the murder of Kalsaria and had no knowledge the other two individuals would be in the house. The jury clearly rejected that contention in its entirety but saw fit to convict defendant of the lesser-included offense of manslaughter with respect to the killing of the other two individuals. There is no legal merit to the argument and overlooks entirely that defendant was charged with, and convicted of, three counts of felony murder.

Defendant is an Ecuadorian national. He put forth as an additional argument in support of his petition for post-conviction relief that his rights under the Vienna Convention on Consular Relations were violated because he was not immediately advised of his right to consult with the Ecuadorian consul. The post-conviction relief court noted in its written opinion that defendant's contention was not supported by the record and, even if it were, it would afford no relief to defendant. We held in State v. Cabrera, 387 N.J. Super. 81 (App. Div. 2006), that a statement improperly obtained from a defendant in violation of the Vienna Convention will not be suppressed so long as that violation does not affect the voluntary nature of the statement. Here, after a full Miranda hearing at which defendant testified, there was a factual finding that defendant's statement was fully voluntary.

Defendant also contested his sentence in his petition for post-conviction relief. Claims of excessive sentence are not cognizable on post-conviction relief proceedings. State v. Acevedo, 205 N.J. 40, 46 (2011); State v. Flores, 228 N.J. Super. 586, 594-96 (App. Div. 1988), cert. denied, 115 N.J. 78 (1989). Defendant attempts to transform his argument that his sentence is excessive into a contention that it is illegal, and thus cognizable on a petition for post-conviction relief. We consider his attempts unsuccessful; his arguments are addressed to the quantum of his sentence, that it is excessive.

Defendant presents an additional argument. At an earlier point in the trial proceedings, defendant entered a negotiated plea of guilty. One of the terms of his plea agreement was that he testify truthfully against his accomplices, Suarez and Morales. When their matter came on for trial, defendant, after starting to testify, refused to proceed any further. His plea was thus vacated. When defendant's matter came on for trial, the trial court permitted a transcript of a portion of his guilty plea to be read to the jury.

Defendant argued to the post-conviction relief court that this deprived him of a fair trial. The post-conviction relief court, citing Rule 3:22-5, rejected this argument on the basis that defendant presented it to the trial court

It is not possible from the record before us to determine whether, at defendant's trial, the court admitted so much of defendant's testimony at the trial of Suarez and Morales as he gave prior to his change of heart or whether it admitted his colloquy during his guilty plea that was ultimately vacated. We infer from defendant's papers that it was the latter; the State's brief does not clarify the issue.

We are uncertain what authority would permit the admission into evidence of a defendant's admission of guilt made during a subsequently vacated plea proceeding. We thus remand this matter to the trial court for further proceedings with respect to this question; in all other respects, the trial court's order is affirmed.

Affirmed in part and remanded in part.