STATE OF NEW JERSEY v. JOSE RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2404-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE RODRIGUEZ,

Defendant-Appellant.

May 21, 2012

Submitted February 27, 2012 - Decided

Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-01-0109.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jose Rodriguez appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of two counts of second-degree eluding, N.J.S.A. 2C:29-2(b), and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). The trial court sentenced defendant on January 5, 2007, to a term of nine years of imprisonment for the first eluding conviction and a consecutive eight-year term for the second, resulting in an aggregate term of seventeen years. The court also imposed concurrent fifteen-month and 365-day sentences, respectively, for the fourth-degree aggravated assaults. On appeal, we affirmed. State v.Rodriguez, No. A-0811-07 (App. Div. June 12, 2009), certif. denied, 200 N.J. 473 (2009).

We recount the facts described in the unpublished opinion issued on defendant's direct appeal. The convictions resulted from defendant's attempts to flee police on two separate dates. On October 23, 2005, while in Montville, police stopped defendant's vehicle while investigating a report of a fight among the vehicle's passengers. The passengers were removed from the car; defendant remained behind the wheel. When asked for identification, defendant only produced an insurance card, and initially complied with the instruction to turn off the engine and step outside of the car. He then got back in the vehicle without permission, supposedly to look for additional identification but drove away instead, dragging one of the four officers alongside. A second officer ran from the front of the car to avoid being run over and was struck by an open door as it passed him. The officers eventually abandoned the chase, during which defendant drove at speeds as high as 120 miles per hour.

A baseball cap with "LA" insignia, which defendant had been wearing during the encounter, was found at the scene of the initial stop. Police were able to identify defendant by viewing a convenience store video from a nearby gas station he had patronized before the stop.

Three days later on October 26, 2005, police spotted defendant in the same vehicle, this time in Newark. When officers attempted to pull him over, defendant fled, this time driving at speeds of up to 100 miles per hour. The chase ended when his car crashed and he was arrested as he tried to run away. Defendant was wearing the same fleece upper garment as in the convenience store video.

Following the Supreme Court's denial of certification on his direct appeal, defendant filed a timely PCR petition. He raised numerous points for the motion judge's consideration, both pro se and in his attorney's submissions.

The PCR judge denied the petition in part because several of defendant's legal arguments had already been considered on direct appeal, and therefore could not be revisited. See R. 3:22-5. Applying the Strickland standard to defendant's remaining contentions, the judge then concluded he had failed to establish a prima facie case of ineffective assistance of counsel and was therefore not entitled to a hearing. See Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

On appeal, defendant raises the following points for our consideration:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY DEFICIENT WHERE HE DID NOT ATTEMPT TO PLACE BEFORE THE JURY THE DEFENDANT'S FACIAL SCAR BECAUSE HE INCORRECTLY BELIEVED TO DO SO WOULD HAVE IMPLICATED THE DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION

POINT TWO

THE FAILURE TO REQUEST A JURY CHARGE REGARDING IDENTIFICATION, WHILE NOT PLAIN ERROR, WAS INEFFECTIVE ASSISTANCE OF COUNSEL

POINT THREE

THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF

In order for defendant to establish entitlement to PCR on the grounds of ineffective assistance of counsel, he is obligated to show not only that counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The alleged deficiencies in this case failed to meet either the performance or prejudice prongs of the Strickland test.

Defendant contends that his attorney was ineffective because he did not "place before the jury the defendant's facial scar . . . ." We note the PCR judge looked at the scar, and said "your scar is there, but it's not so horribly disfiguring that I would even [give] any second thought [to] it."

The judge further observed with regard to the October 23 incident, that the State's proofs were overwhelming, in part because defendant was depicted on the videotape viewed by the jury. As the judge opined, "[t]he jury determined [defendant was] the same person in the videotape as the person that was arrested in the subsequent eluding." The jury also had the benefit of hearing from the four officers at the scene who identified defendant in court as the driver of the car.

On October 26, defendant had been the sole occupant of the car and was arrested while trying to run away on foot. Hence the judge opined, "It was overwhelming evidence that [defendant was] the driver on both occasions." We agree.

It was not ineffective assistance of counsel for defendant's attorney to have made the strategic decision not to display defendant's scar, which the PCR judge characterized as minimal, in light of the overwhelming proofs identifying defendant as the driver on both occasions. Because displaying the scar would not have affected the outcome, the decision not to do so did not prejudice defendant's right to a fair trial.

Defendant also contends that his attorney's failure to request an identification charge was ineffective assistance of counsel as to the October 23 incident. On direct appeal, defendant raised this very point and we said, "In view of this overwhelming corroborative evidence of the identification of defendant as the perpetrator . . . we are unable to conclude that the trial court's failure to give a special jury instruction regarding identification testimony constituted plain error." Rodriguez, supra, slip op. at 9. For the same reason, defendant cannot establish a "reasonable probability" that the result would have been different if counsel had requested the charge. Fritz, supra, 105 N.J. at 60.

Finally, defendant "incorporates . . . all of his pro se arguments for post-conviction relief." They are as follows:

1. The trial court's imposition of a consecutive sentence was excessive where, contrary to the findings below, the acts involved a singular incident close in time and proximity to one another.

2. The trial court's jury charge relieved the State from proving beyond a reasonable doubt the material elements of the crimes, depriving the defendant of due process of the law.

3. The defendant's trial attorney did not adequately or effectively represent the defendant at sentencing.

4. The defendant's trial attorney did not adequately or effectively advise the defendant as to whether he should testify on his own behalf at trial.

5. The defendant's trial attorney did not adequately or effectively evaluate and introduce evidence, including the testimony of the three persons arrested at the scene of the October 23, 2005 motor vehicle stop, that would have cast doubt on the police identification of the defendant.

6. The defendant's trial attorney did not adequately or effectively evaluate and introduce evidence regarding the defendant's mental condition and the resulting medication he was taking at the time of his trial and during sentencing.

We will not address the first two points because they were disposed of on the direct appeal. See R. 3:22-5; Rodriguez, supra, slip op. at 17-18, 20-21.

As to defendant's third point, the State applied to have defendant, who has a substantial record of prior convictions, sentenced as a persistent offender to an extended term, N.J.S.A. 2C:44-3(a). Defendant's attorney succeeded in defeating the application. Clearly counsel was not ineffective during sentencing.

Nor does the record support defendant's fourth claim, that his attorney did not adequately advise him as to whether or not he should testify. On two separate occasions, the trial judge discussed with defendant the instruction regarding his decision not to testify. ModelJury Charge (Criminal), "Defendant's Election Not To Testify" (2009). Defendant ultimately asked the court to give the instruction. He understood that he had the right to testify, the right to remain silent, and the ramifications of the decision.

Defendant's fifth point is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

In his final point, defendant asserts his attorney was ineffective because he did not address his mental condition. He claims he was taking anti-seizure medication during both the trial and the sentencing hearing which may have affected his ability to fully participate in his own defense. Upon admission, defendant advised the county jail where he was housed pending trial that he was epileptic. From the record, however, it appears that defendant actively participated in the proceedings, understood what was being said to him, and asked questions and responded to questions where appropriate. Moreover, defendant does not corroborate in any fashion the claim that the epilepsy medication had the potential to affect his cognition. Accordingly, there was nothing ineffective about his attorney's silence on this subject.