STATE OF NEW JERSEY v. N.M

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5806-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

N.M.,

Defendant-Appellant.

________________________________

March 29, 2011

Submitted March 21, 2011 - Decided

Before Judges Sabatino and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-07-0748.

Yvonne Smith Segars, Public Defender, attorney for appellant (James A. Plaisted, Designated Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals the trial court's denial of post-conviction relief ("PCR") in connection with his convictions of second-degree sexual assault, and third-degree aggravated criminal sexual contact. The convictions arose out of evidence that defendant had engaged in improper sexual acts with his adolescent daughter on several occasions.

Prior to entering his guilty plea to these offenses in 2001, defendant had given a confession to investigators. The trial court conducted a Miranda1 hearing and concluded that the confession was voluntary. A plea agreement ensued.

Defendant was sentenced to two concurrent five-year prison terms, subject to community supervision for life, the requirements of Megan's Law, and a sexual offender evaluation at Avenel. The sentence was consistent with the terms of the plea agreement. Defendant has since completed the custodial portion of the sentence. There is no indication in the record before us that defendant ever filed a direct appeal of his sentence.

In 2004, defendant filed a PCR application in the Law Division. The gist of his application is that he allegedly did not understand the lifetime parole supervision consequences of his plea. Defendant alleges that he did not receive the effective assistance of counsel in advising him with respect to that plea. Defendant, whose native language is Spanish, contends that he should have been assisted by a translator when he went over the plea forms with his trial attorney.

After several adjournments, the trial court conducted an evidentiary hearing on defendant's PCR application. The sole witness at that hearing was defendant's trial attorney. The trial attorney testified that he had, in fact, reviewed with defendant the consequences of his plea. Trial counsel also testified that he spoke with defendant repeatedly in English without the use of an interpreter, and that defendant had no trouble communicating with him in those discussions. Defendant elected not to testify at the evidentiary hearing, and instead relied upon his own written narrative of events submitted in connection with the PCR application.2

After considering the testimony of defendant's former attorney, the plea transcripts, and the legal arguments, the trial court dismissed defendant's PCR application. In his letter opinion dated April 9, 2008, the PCR judge credited the testimony of the trial attorney concerning the adequacy of the advice he had given to defendant about the plea, and concerning defendant's ability to comprehend that advice and the consequences of the plea without a translator. The judge concluded that defendant had therefore "not proven by a preponderance of the evidence that his attorney deviated from the reasonable [level of] professional assistance."

On appeal, defendant makes the following points in his brief:

POINT I

THE TRIAL COURT'S FINDINGS WERE INADEQUATE AND CLEARLY ERRONEOUS WITH REGARD TO THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE.

A. The Ineffective Assistance of Counsel Claims Herein Are Appropriately Raised In This Petition.

POINT II

THE TRIAL COURT'S FINDINGS WERE CLEARLY ERRONEOUS WITH REGARD TO THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE.

POINT III

THE UNCONSTITUTIONAL DELAY OF THE RESOLUTION OF THIS MOTION REQUIRES RELIEF FOR THE DEFENDANT.

The Sixth Amendment of the United States Constitution guarantees a person accused of crimes 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., 466 U.S. 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 such 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. "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), certif. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

Here, the PCR judge only needed to reach the first prong of the Strickland test, concluding that counsel's performance was not proven to be deficient. The judge's fact-finding in this regard was based upon his assessment of the sworn testimony of defendant's trial counsel. We owe deference to that fact-finding, particularly given the absence of opposing testimony from defendant, who elected to rely on his written submission and thereby insulate himself from cross-examination by the State. See State v. Locurto, 157 N.J. 463, 474 (1999).

We detect no miscarriage of justice with respect to the delay in adjudicating defendant's PCR application. To be sure, the four-year delay is unfortunate and not ideal, although we do note that some of the delay appears attributable to perceptions that defendant was going to withdraw his application. In any event, as a prospective matter, we anticipate that the recent amendments to the Court Rules respecting PCR applications will succeed in expediting the disposition of those matters in general. See generally R. 3:22-6 through -12 (as adopted and amended, effective February 1, 2010).

Affirmed.

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

2 Although the State did not object to defendant's reliance on his written narrative, generally speaking, once the trial court finds a prima facie case of ineffective assistance of counsel and orders an evidentiary hearing, the court should determine the facts based on the testimony presented, and any other evidence properly admitted at the hearing.