STATE OF NEW JERSEY v. ESTEBAN CANTERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2800-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ESTEBAN CANTERO,

Defendant-Appellant.

________________________________________________________________

March 11, 2011

Submitted February 28, 2011 - Decided

Before Judges Grall and Coburn.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 02-03-0526.

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

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying post-conviction relief (PCR). We affirm.

After a jury trial, defendant was convicted of murder, N.J.S.A. 2C:11-3; aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7); and aggravated sexual contact, N.J.S.A. 2C:14-3(a). He received an aggregate prison term of 57 years, of which 30 years were to be served without parole. Appropriate financial penalties were imposed plus community supervision for life pursuant to N.J.S.A. 2C:43-6.4(a).

After exhausting direct review, which resulted in affirmance, defendant filed the petition for PCR which is now before us.

The evidence introduced at trial clearly demonstrated defendant's guilt. We described the evidence at length in our opinion disposing of the direct appeal. Here, we will summarize the key points.

Although defendant was not the victim's father, he had, with one exception, treated her as his daughter for many years--from the time she was one year old in 1983 until her death in 2001. The exception is that he repeatedly assaulted her sexually. His video recordings of some of those attacks were obtained by the police in a search of his home.

On the night of February 23, 2001, defendant first reported to neighbors and the police that someone had entered his home and shot the victim. Then he gave written statements, finally saying that he had shot her by accident while showing her his handgun. While incarcerated pending trial, defendant told two cellmates, Jose Irizarry and Michael Hans, that he killed the victim because she had threatened to reveal the sexual attacks to her mother, with whom he had a lengthy relationship. The autopsy revealed traumatic injuries to the victim's vagina and anus and that the cause of death was a gunshot to her forehead.

Defendant's first point on appeal from the denial of his PCR petition is that the judge erred in ruling that defendant had failed to establish a prima facie case for the proposition that his Sixth Amendment right to compulsory process was denied and that he was denied due process. His second point is the judge erred in rejecting his claim that he was denied effective assistance of counsel because his trial attorney failed to withdraw as counsel so that he could testify on defendant's behalf. His third point is a reiteration of his second point. His fourth point incorporates arguments made in the brief submitted by his PCR attorney, and includes the claim that his attorney on the direct appeal was also ineffective.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Kreizman in his thorough and well-reasoned opinion. Nevertheless, we add the following brief comments.

The main focus of defendant's brief concerns Jose Irizarry, a cell-mate who testified that defendant told him that he killed the victim to silence her. When first interviewed by a detective, on February 2003, Irizarry said that defendant maintained that the shooting was accidental. But on March 3, 2011, he gave the detective a written statement, which he later testified to at trial. The day before, March 2, defense counsel met with Irizarry at the jail. Irizarry did not tell defense counsel of his intent to give a statement against Cantero. The trial began on March 4 and Irizarry testified in accordance with his new statement on March 12.

Defendant's claim is that his attorney should have withdrawn as counsel prior to trial and testified with respect to what Irizarry told him on March 2. Defense counsel's cross-examination of Irizarry implied that during the March 2 interview Irizarry had indicated that he would testify in accordance with his first statement. In our opinion on defendant's direct appeal, we observed that "[d]efense counsel had presented a strong argument [in summation] attacking the credibility of defendant's cell-mates, Irizarry and Hann." State v. Cantero, No. A-3233-03T4 (App. Div. Nov. 10, 2005, at 10.) In any case, defendant did not support his PCR petition with any evidence as to what his counsel would say if called as a witness in a plenary hearing. That minimum requirement must be met before defendant is entitled to a plenary hearing. State v. Petrozell, 351 N.J. Super. 14, 23 (App. Div. 2002). Furthermore, as Judge Kreizman also properly recognized, testimony, as perhaps suggested by the questions asked on cross-examination of Irizarry, would have been cumulative since the witness had already given a contrary statement to the police, which came before the jury. State v. Bey, 161 N.J. 233, 262, 265-66 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Finally, as Judge Kreizman found, it cannot be said that the course chosen by defense counsel caused defendant substantial prejudice.

Since defendant's main point is without merit, his claim that appellate counsel was ineffective because this main point was not raised is obviously also without merit.

Defendant also contends that his attorney's pre-trial investigation was defective, but he provides no evidence that further investigation would have provided helpful evidence.