STATE OF NEW JERSEY v. ANTONIO GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2581-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO GONZALEZ,

Defendant-Appellant.

_____________________________________________________________

July 12, 2011

Submitted January 11, 2011 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

99-10-3133.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jay Bernstein, Designated

Counsel, on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(Luanh L. Lloyd, Special Deputy Attorney

General/Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Antonio Gonzalez appeals from an order dated April 12, 2007, denying his petition for post-conviction relief. We affirm.

On March 9, 2001, a jury found defendant guilty of murdering Chaino Pantoja, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). The court sentenced defendant to a thirty-year prison term with thirty years of parole ineligibility on the murder conviction. Defendant received concurrent sentences for the other offenses. Defendant's convictions were affirmed on direct appeal. State v. Gonzales, No. A-1524-01 (App. Div. Nov. 3, 2003), certif. denied, 179 N.J. 371 (2004).

In our prior opinion, we noted that the primary evidence of defendant's guilt came "from the testimony of co-defendant Henry Quinones who was present with defendant when the victim was shot and killed," and we summarized the pertinent facts as follows:

On August 8, 1999, at about 8:30 p.m., defendant and Quinones were together on Crane Street in Newark. Defendant told Quinones that he wanted to get the "motherfuckers," meaning the victim Chaino Pantoja and Jesus Badillo, who was known as Chucho, "off the block" because they were making more money from selling drugs than defendant. Quinones told defendant not to worry because he would back up defendant in any fight with the victim and Chucho. Thereupon, Quinones rode his bike and defendant walked to ... Crane Street where Chaino and Chucho were sitting on the steps. Defendant had a gun in his hand.

While Quinones remained on his bike approximately three to four feet away, defendant told Chaino, that he had to "get off the block." Chaino did not argue with or threaten defendant; he did not have a gun and made no threatening moves toward defendant. Chaino told defendant that he and Chucho would leave.

Nevertheless, defendant walked up very close to Chaino, pulled a .357 magnum handgun from his pants, cocked the gun and shot Chaino in the mouth. After Chaino was shot, he tried to stand up, but stumbled and fell over. Quinones rode his bike away from the murder scene and did not turn himself into the police for ten days, when he heard that the police wanted him for questioning. He provided a statement to the police implicating defendant.

. . . .

After the shooting, defendant ran to ... Prince Street where Glisette Medina, the mother of his child, lived. Medina's apartment was located "quite a distance across Newark" from ... Crane Street. Defendant and Medina did not live together and prior to the day of the shooting, defendant had not visited Medina for "a couple of months." When defendant arrived at Medina's house, where she lived with her boyfriend Jameel Mitchel, she observed defendant to be upset, very nervous and sweating "a lot." Defendant was wearing white sneakers, blue short pants and no shirt.

Defendant told Medina that he had shot someone "in the head" on Crane Street with a .357 magnum and killed them. He asked Medina for money so that he could go to Puerto Rico. She did not give defendant the money, but told him to lie down in her children's bedroom. While in the bedroom, defendant asked Medina for a pair of shorts into which he could change.

After defendant went into the bedroom, Medina and her boyfriend Jameel began to argue about defendant's presence at the apartment. As a result, Medina called the police, reporting a domestic disturbance. When the police arrived, Jameel told them that defendant was in the bedroom and had killed someone. Defendant, who appeared to be "very nervous" and "sweating profusely," was arrested at Medina's apartment. Medina turned over to the police the shorts defendant had been wearing. The shorts had a blood stain, but it was inconclusive as to whether it was the victim's blood. The police also confiscated defendant's white sneakers which were determined to be stained with the victim's blood.

In a September 19, 2006 certification in support of his petition, defendant made the following claim:

On or about September 12, 1999, I received a letter from my Ms. Medina wherein she apologized to me for providing a statement to the police. She indicated in the letter that she only did so because she was threatened with action against her. A true copy of the letter is attached hereto as Exhibit A. The original letter was written in Spanish. I have provided with the certification a true translation into English of that same letter and attached the same hereto as Exhibit B.

Prior to trial, I discussed this letter with my attorney and provided him with a copy of the same. Despite that Ms. Medina served as a witness against me and in doing so, provided significantly damaging testimony, my attorney failed or refused to use the letter in any capacity.

The September 12, 1999 letter attached to defendant's certification reads as follows:

Dear Friend,

I hope that you receive this short letter. You be in perfect health. The reason for this letter is to tell you to forgive me for what happened. They told me that if I would not do that statement, they was gonna lock me up. And I have too many problems already. But I will not let you down. I am always gonna be there for you. What happened was that I also was in the hospital. And I gotta get the money for the plane tickets for the kids. Tony you gotta be strong for your son. I want you to understand me at least a little bit. I will help you on top of everybody. Jorge don't got nothing against you. He told me to help you. If you can, call when you get a chance. Your son is coming in two weeks. Remember you are always gonna have a place in my heart.

In its reply brief to the trial court, the State argued that when the September 1999 letter was read in conjunction with a prior letter dated August 29, 1999, it was "clear that Ms. Medina's intent was to apologize for having to provide damaging evidence, not that the evidence was untrue." The translated version of the letter written on August 29, 1999, reads as follows:

Dear friend,

I hope that you are doing alright when you receive this short letter. I am fine, thank God. This letter is to let you know that your son is coming on September 18. When our son arrives, I will bring them over for you to see them. Maybe I will go back to George. He will take care of your little boy. I will always talk to him about you because you are [the boys'] father. Tony, I want you to know that I am here for you all the way. We are not together, but I will always be with you in good times and bad times. You failed me many times. We could have been so happy if you had not been the way you are. You could have been the happiest man in the world. Now what we have left is our son and my friendship that will always be the same. Take good care and may God bless you.

During oral argument on April 12, 2007, defendant's attorney confirmed that the only issue was whether trial counsel was ineffective for not cross-examining Medina regarding one of the letters she wrote to defendant. During the course of the hearing, Judge Richard Camp, who also presided over defendant's trial, noted that if defense counsel had questioned Medina regarding one of the letters, the State would have been able to introduce the other letter and there was no indication in either letter that Medina's trial testimony was false. The judge further noted that the decision whether to cross-examine Medina regarding the letters was "a two-way street" because Medina could have said, "this is what he told me." Judge Camp determined that defense counsel had to make a discretionary decision based on his "observations of the demeanor of the witness," and there was no showing that counsel's performance was deficient.

On appeal from the order denying his petition, defendant presents the following arguments:

POINT I

THE PCR COURT MISAPPLIED THE STRICKLAND TEST REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL; AS THE JUDGE ONLY EXAMINED THE FIRST PRONG (DEFICIENT PERFORMANCE OF COUNSEL), WITHOUT A THOROUGH REVIEW OF THE SECOND PRONG (PREJUDICE DENYING DEFENDANT A FAIR TRIAL).

POINT II

THE TRIAL JUDGE MISAPPLIED THE LAW AND CHARGED THE JURY UNDER THE WRONG DEFINITION OF "REASONABLE DOUBT" PREJUDICING THE JURY'S FINDINGS. (Issue Not Raised Below).

Based on our review of the record and the applicable legal principles, we have concluded that these arguments are without merit. R. 2:11-3(e)(2). The jury instructions, when read as a whole, were adequate. Moreover, the record fully supports Judge Camp's conclusion that defendant failed to present a prima facie claim in support of post-conviction relief under the Strickland/Fritz standard.1 See State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009) (noting that "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds"), certif. denied, 201 N.J. 155 (2010).

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).