STATE OF NEW JERSEY v. JOSE CRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2995-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE CRUZ, a/k/a JOSE A. BURGOS,

Defendant-Appellant.

__________________________________

March 23, 2011

 

Submitted March 8, 2011 - Decided

 

Before Judges Graves and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-09-1707.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, 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 Jose Cruz appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.

I.

In September 2000, Cruz and three co-defendants, Modesto Rodriguez, Adam Rubeen, and Roman Alexander, were indicted for first degree armed robbery, N.J.S.A. 2C:15-1 (Count I); second degree burglary, N.J.S.A. 2C:18-2 (Count II); third degree theft, N.J.S.A. 2C:20-3 (Count III); first degree kidnapping, N.J.S.A. 2C:13-1(b) (Count IV); third degree threats to kill, N.J.S.A. 2C:12-3(b) (Count V); fourth degree possession of a knife or knives under circumstances not manifestly lawful, N.J.S.A. 2C:39-5(d) (Count VI); and third degree possession of a knife or knives for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count VII). Cruz was tried separately in May and June 2003. He was acquitted on Counts VI and VII, and convicted on the remaining counts.

In our opinion on Cruz's direct appeal, we outlined the underlying facts as follows:

The convictions arose out of a home invasion of William Cottrell and theft of about $124,000. The evidence at trial revealed that the victim had a sister-in-law, Judy Rolon, who was involved in the drug trade and who was dating [Cruz], a/k/a "Chickie." Apparently when Cottrell was not home, [Cruz] would bring large sums of money to Cottrell's house, and Rolon would hide it there. [Cruz] devised a plan and recruited co-defendants to break into the house, telling them there was a significant amount of money inside, and no one was home.

 

On November l0, 1999, [Cruz] picked up Rodriguez, Rubeen and Alexander in his white BMW and drove them to Cottrell's house in Rochelle Park. At about 5:30 p.m. they broke in, grabbed Cottrell and threatened him while brandishing knives. They then tied him up for several hours, refusing to give him his heart medicine, while they ransacked the house and struggled with the upstairs safe. The men talked in Spanish to one another, and Cottrell heard someone identified as "Chickie."

 

After Rubeen found the cash under a sauna, bundled with a label stating the amount, the assailants left the house. They walked by the railroad tracks for about a mile to a bar where [Cruz] picked them up in his car. They then drove back to New York City, where they divided the money evenly at a laundromat in the Bronx and parted company.

 

At about 10:00 p.m., after the intruders left, Cottrell was able to run next door for help, still tied to the chair. His neighbor unbound Cottrell's hands and called the police. The police arrived soon thereafter, while Cottrell was still pale, shaking, and clutching his chest while claiming an incipient heart attack. Cottrell provided the officers with a description of the incident and intruders and was transported to Hackensack University Hospital.

 

Defendants were apprehended after a lengthy investigation. Upon their arrests in New York City, Rubeen and Alexander made formal statements to the Bergen County Prosecutor's Office and the Rochelle Police Department, which they later recanted at [Cruz]'s trial, claiming they were on drugs at the time. More particularly, on March 6, 2000, Rubeen viewed photographs and made a statement in which he described the incident, identified [Cruz] as the planner of the crime and driver, and identified [Cruz]'s white BMW as the means of transportation. He also identified Rodriguez as another participant, and admitted that the four of them evenly split the $124,000 robbery proceeds. On July 20, 2000, Alexander admitted his involvement in the crime and similarly identified the photographs of [Cruz], Rubeen and Rodriguez as his accomplices and the white BMW as the means of transportation. Following a Gross1 hearing, the statements were admitted.

 

[Cruz] and Rodriguez were arrested on March 7, 2000. The next day when [Cruz] was served with the complaint, he blurted out the following inculpatory statements: "How could I be charged with theft when I didn't take anything?" and "We only got $80,000 out of the house and, okay, I drove them, but I didn't go in the house." [Cruz] was convicted, the jury specifically having found him to have been an aider and an abetter.

 

[State v. Cruz, No. A-0916-03T4 (App. Div. Mar. 10, 2006) (slip op. at 3-6).]

 

The trial judge sentenced Cruz to a twenty-five year term on Count IV, subject to parole ineligibility of eighty-five percent of the term. The judge also sentenced Cruz to a twenty-year concurrent term on Count I, a ten-year concurrent term on Count II, and five-year concurrent terms for Counts III and V.

Cruz appealed. We affirmed his conviction, but remanded for resentencing under State v. Natale, 184 N.J. 458 (2005). State v. Cruz, supra, slip op. at 10. The Supreme Court denied certification. State v. Cruz, 187 N.J. 82 (2006). A different judge presided at the sentencing remand. He merged Count III into Count I, and imposed the same terms on the remaining counts. Consequently, Cruz again received an aggregate sentence of twenty-five years with an eighty-five percent period of parole ineligibility. Cruz appealed the new sentence. The appeal was heard as part of a sentencing calendar, and we affirmed the new sentence in an order filed September 16, 2008.

Cruz filed his PCR petition in December 2008.2 He argued that both his trial counsel and appellate counsel provided ineffective assistance such that he was deprived of his constitutional right to the effective assistance of counsel. Following oral argument on June 2, 2009, the judge who had handled the resentencing denied the petition. This appeal followed.

II.

On appeal, Cruz raises the following issues:

POINT I: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS AND SUBSEQUENTLY REQUEST THE TRIAL COURT TO CHARGE THE JURY ON ALIBI DEFENSE.

 

A. TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS AND SUBSEQUENTLY REQUEST THE TRIAL COURT TO CHARGE THE JURY ON ALIBI DEFENSE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

a. TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS CONSTITUTED DEFICIENT CONDUCT.

 

b. TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS AND SUBSEQUENTLY REQUEST THE TRIAL COURT TO CHARGE THE JURY ON ALIBI DEFENSE PREJUDICED DEFENDANT.

 

POINT II: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO PRESENT DETECTIVE SERGEANT BRADY'S EXCULPATORY TESTIMONY.

 

A. TRIAL COUNSEL'S FAILURE TO PRESENT DETECTIVE SERGEANT BRADY'S EXCULPATORY TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

a. TRIAL COUNSEL'S FAILURE TO PRESENT DETECTIVE SERGEANT BRADY'S EXCULPATORY TESTIMONY CONSTITUTED DEFICIENT CONDUCT.

 

b. TRIAL COUNSEL'S FAILURE TO PRESENT DETECTIVE SERGEANT BRADY'S EXCULPATORY TESTIMONY PREJUDICED DEFENDANT.

 

POINT III: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE THE TRIAL COUNSEL'S FAILURE TO INTERVIEW THE CO-DEFENDANTS ADEQUATELY IN ORDER TO CROSS EXAMINE THEM EFFECTIVELY.

 

A. TRIAL COUNSEL'S FAILURE TO INTERVIEW THE CO-DEFENDANTS ADEQUATELY FOR EFFECTIVE CROSS EXAMINATION FOR THE DEFENSE CASE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

a. TRIAL COUNSEL'S FAILURE TO INTERVIEW THE CO-DEFENDANTS ADEQUATELY FOR EFFECTIVE CROSS EXAMINATION CONSTITUTED DEFICIENT CONDUCT.

 

b. TRIAL COUNSEL'S FAILURE TO INTERVIEW THE CO-DEFENDANTS ADEQUATELY FOR EFFECTIVE CROSS EXAMINATION PREJUDICED DEFENDANT.

 

POINT IV: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE THE APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE MARCH 8, 2000 STATEMENT.

 

A. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE MARCH 8, 2000, STATEMENTS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

a. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE MARCH 8, 2000, STATEMENTS CONSTITUTED DEFICIENT CONDUCT.

 

b. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE MARCH 8, 2000, STATEMENTS PREJUDICED DEFENDANT.

 

POINT V: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE THE APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CO-DEFENDANTS TESTIFYING IN PRISON GARBS.

 

A. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CO-DEFENDANTS TESTIFYING IN PRISON GARBS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

a. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CO-DEFENDANTS TESTIFYING IN PRISON GARBS CONSTITUTED DEFICIENT CONDUCT.

 

b. APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CO-DEFENDANTS TESTIFYING IN PRISON GARBS PREJUDICED DEFENDANT.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

 

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .

 

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

 

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

III.

Cruz argues that trial counsel provided ineffective assistance of counsel by failing to call Sandra Fernandez as an alibi witness. The State responds that not calling Fernandez was a tactical decision that did not constitute ineffective assistance.

On the eve of trial, defense counsel provided notice to the State naming Fernandez as an alibi witness. Fernandez would have testified that Cruz was with her on the night of the burglary, from 8:00 p.m. until the following morning. The State provided defense counsel with a list of Fernandez's four convictions, which the State intended to use to impeach her testimony. Defense counsel did not call her as a witness.

In dismissing the PCR petition, the judge held that:

Counsel was aware of the fact that the witness had four prior convictions, counsel was aware of the fact she'd be cross-examined as to those four convictions, counsel was further aware of the fact that the alibi testimony really was quite weak when one considers that there was some testimony in the case . . . that the events occurred at 5:30 p.m., some two and a half hours prior to the defendant meeting up with Ms. Fernandez . . . .

 

. . . .

. . . I do not consider a prima facie showing to have been made for an alibi witness to have not been called . . . .

We note that Cottrell testified that the intruders left his house at approximately 10:00 p.m. Consequently, we do not rely on the judge's conclusion that an alibi beginning at 8:00 p.m. was not viable.

Nevertheless, the core of the judge's finding was that Fernandez would not have been a credible witness due to her past convictions. We agree that defense counsel's decision not to call an alibi witness with four convictions does not amount to ineffective assistance of counsel for Strickland purposes.

Cruz next argues that trial counsel was ineffective because he failed to elicit testimony from Detective Brady, one of the officers present when Cruz made the incriminating statement after he was served with the criminal complaint in jail. Cruz contends that Brady would have "indicated that he never heard the oral statement Lieutenant Flannelly claimed [he] allegedly made at the Passaic County jail." We note that Cruz did not present any certification from Brady to that effect.

The PCR judge held that "[t]here's nothing in the . . . case that indicates that the contention is either supported with a certification or some sort of an affidavit by Detective Brady." Further, he noted that Brady not having heard Cruz's statement "wouldn't disprove the statement. It would just prove that Detective-Sergeant Brady didn't hear it . . . ." We agree. Two other officers present testified that Cruz made the statement. That Brady did not hear it would not have been likely to change the result of the trial. Again, Cruz failed to make out a prima facie case under Strickland.

Cruz further argues that his trial counsel was ineffective for failing "to interview the co-defendants adequately for cross examination . . . ." The PCR judge did not make any specific findings with regard to that issue. Nonetheless, he did conclude that "none of th[e] criticisms [made by Cruz] . . . rise to the level of ineffective assistance, but even for argument sake even if they did, they would not have changed the result based on the other evidence produced . . . ." We agree.

Until shortly before the trial, Rubeen and Alexander were planning on implicating Cruz. They changed their position at or shortly before trial. Cruz presents no evidence that they would have been available for interviews, or that any interviews would have been helpful. More significantly, he fails to articulate what further impeachment would have resulted from the proposed interviews. Defense counsel cross-examined both of them and developed their testimony to demonstrate that their prior statements were untrue. A general assertion that trial counsel would have cross-examined effectively had there been an interview does not satisfy either prong of the Strickland test.

Cruz's next argument is that appellate counsel failed to appeal the denial of his motion to suppress his statement in the Passaic County jail. The PCR judge noted that, at the time he served Cruz with the complaint, Detective Flannelly was not "trying to elicit an incriminating response from [Cruz]. This contention also lacks merit because according to State v. Worlock, 117 N.J. [596,] at 625 [(1990)], appellate counsel cannot be censured or depicted as being ineffective for failing to raise an issue that has no merit." We agree.

An interrogation requiring Miranda3 warnings occurs only where there is "express questioning or its functional equivalent"; that is, "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980). The judge who heard the Miranda motion made a factual determination that Cruz's statement was not obtained by interrogation. That finding would have been binding on appeal and is legally correct. As the PCR judge correctly held, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." Worlock, supra, 117 N.J. at 625.

Cruz's final argument is that trial and appellate counsel were ineffective for failing to raise the issue of co-defendants testifying in prison garb. Trial counsel failed to object, and appellate counsel did not raise the issue on appeal.

In 2003, the Supreme Court held that, "going forward, a trial court may not require a defendant's witness to appear at trial in prison garb." State v. Artwell, 177 N.J. 526, 539 (2003). In 2009, the rule was extended to the State's witnesses in order "to impose a level playing field." State v. Kuchera, 198 N.J. 482, 500 (2009). At the time of trial in 2003, Artwell still controlled.4

The co-defendants were called as witnesses for the State so that a basis could be established for the admission of their prior statements inculpating Cruz. Cruz argues that the trial court should have recognized that, because the co-defendants' testimony favored him because they had recanted their prior statements, they were effectively his witnesses. Consequently, according to Cruz, trial counsel should have objected to their prison garb in order to avoid undercutting their credibility, and appellate counsel should have raised the issue on appeal.

This argument fails both prongs of the Strickland test. As to the performance prong, the law at the time of the trial did not require the co-defendants to be dressed in civilian clothes because they were called by the State. As to the prejudice prong, the PCR judge found that different clothing would not have changed the outcome of the case.

The PCR judge's assessment is supported by substantial credible evidence in the record. The trial judge had characterized the testimony of one co-defendant as "incredible, absolutely incredible, I don't believe a word that the witness testified to. Mr. Rubeen - - I think he spelled his name correctly, that was the last non-perjurious statement made . . . ." Nevertheless, to ensure that the prison garb was not an issue, the judge correctly advised the jury that, even though co-defendants "appear in jail garb, that shouldn't affect your credibility in any way." The record supports the PCR judge's determination that "it was not a deficiency of [trial counsel] to have not objected . . . because it does not bespeak of ineffective assistance." The same is true for appellate counsel. Worlock, supra, 117 N.J. at 625.

Affirmed.

1 State v. Gross, 121 N.J. 1 (1990).

2 An earlier petition had been dismissed because the appeal on the sentence was pending.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 We question whether the Supreme Court would apply Kutchera retroactively. See State v. Dock, ___ N.J. ___, ___ (2011) (slip op. at 37-38), holding that Artwell would have limited retroactivity.