STATE OF NEW JERSEY v. RICARDO OZORIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO OZORIO,

Defendant-Appellant.

_______________________________

October 22, 2013

Submitted October 15, 2013 Decided

Before Judges Parrillo, Harris, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

After remand, defendant Ricardo Ozorio appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Although initially subject to a multi-party, fifteen-count indictment, Ozorio was convicted by a jury of only first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a). He was sentenced to a twenty-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On Ozorio's direct appeal, in which we affirmed the conviction and sentence, we summarized the evidence that was presented to the jury as follows:

[Ozorio's] conviction arose out of a violent and fatal encounter on a summer night in August 2003. The encounter pitted two rival groups of young men on the streets of West New York, near a gas station. During the course of that encounter, a member of one of the sparring factions, Garmair Brown, was stabbed to death. Two of Brown's companions, Christopher Navarro and Brian Powell, also were physically attacked, but survived.

As the State contended at trial, Brown's killing and the simultaneous attack on his companions were committed in apparent retaliation for the stabbing of Luis Carlos Arias, an associate of [Ozorio], four months earlier. On the day of the present offenses, Arias, who had recovered from his stab wounds, was at a cultural parade in West New York with several colleagues when a group of men began giving him menacing "looks." The men who were staring "hard" at Arias were recognized to be part of the group that had been involved in his prior stabbing. The staring incident provoked the violent clash of the two rival factions, later that evening outside the gas station.

[State v. Ozorio, No. A-5082-05T4 (App. Div. Nov. 9, 2007) (slip op. at 2), certif. denied, 194 N.J. 268 (2008).]

In 2008, Ozorio filed a pro se petition for PCR, which was supplemented by assigned counsel, and ultimately considered by the same judge who presided over Ozorio's jury trial. The judge found Ozorio's PCR claims substantively without merit and, as to certain arguments, procedurally untimely. The judge found no reason to grant an evidentiary hearing.

We affirmed, substantially for the reasons expressed in the PCR judge's oral opinion, but remanded "to the PCR judge for additional briefing and for a specific ruling on [Ozorio's] arguments pertaining to the jury charge on accomplice liability." State v. Ozorio, No. A-1801-08T4 (App. Div. Dec. 22, 2009) (slip op. at 5). We noted that

[Ozorio] argues that his trial and appellate counsel were constitutionally ineffective in failing to assure that the jurors received more detailed instructions on accomplice liability and to relate them more specifically to the charged lesser-included offenses of aggravated and reckless manslaughter. This was an argument also presented by [Ozorio] in his initial pro se petition to the trial court, although it was not specifically discussed in his PCR attorney's brief before the trial court. The trial judge's oral opinion on the PCR application contains no reference to this argument. Moreover, the State's brief on the present appeal is silent on the issue. Because this discrete issue was raised but not expressly decided below, we decline to resolve it for the first time on this appeal. Instead, we remand the issue for explicit consideration by the trial court.

[Id. at 10.]

On remand, the PCR judge expressly considered, and rejected, Ozorio's remaining ineffective assistance of counsel claims:

As the Appellate Division noted, the facts elicited at trial indicated [Ozorio and his comrades] came on to a prearranged location and had a clear motive to retaliate. This type of activity is clearly the type that is intended to cause serious bodily injury which could likely cause death.

As such, the facts of this case do not support the lesser included manslaughter charges. As to the accomplice liability charge, [Ozorio] argues that defense counsel failed to relate the accomplice liability charge to the lesser included offenses of aggravated and reckless manslaughter.

The trial court charged the jury that it may find [Ozorio] guilty of murder under an accomplice liability theory if the state proves, inter alia, that the assailant committed the crime of murder, aggravated manslaughter or manslaughter. . . .

Further, the accomplice liability charge clearly stated that [Ozorio's] culpable level could be the same or different from his [co-]defendants. . . . Therefore . . . the court's accomplice liability charge was proper and counsel['s] [failure] to object was reasonable under the circumstance[s].

Further, [Ozorio] cannot meet the second prong of the two part Strickland test on this issue because [Ozorio] was acquitted of all charges relating to accomplice liability.

An order memorializing the court's decision was entered on December 20, 2010. This appeal followed.

II.

On appeal, Ozorio presents the following argument for our contention:

POINT I: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE TRIAL AND/OR APPELLATE COUNSEL WERE CONSTITUTIONALLY INEFFECTIVE IN FAILING TO ASSURE THAT THE JURORS RECEIVED MORE DETAILED INSTRUCTIONS ON ACCOMPLICE LIABILITY AND TO RELATE THEM MORE SPECIFICALLY TO THE CHARGED LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL AND/OR APPELLATE COUNSELS' INEFFECTIVENESS.

The essence of Ozorio's argument is that the trial judge's accomplice liability charge was improper, and trial and appellate counsel were complicit in permitting that error to go unchallenged. Ozorio also contends that "notwithstanding [Ozorio] having been acquitted as to the accomplice liability charges, the erroneous and prejudicial jury instructions irreparably tainted the jury's deliberations regarding the related conspiracy to commit murder charge." Our review of the record convinces us that these contentions are meritless. R. 2:11-3(e)(2).

The trial judge's jury instructions on accomplice liability, including the re-charge on the definition of an accomplice, which was given in response to a jury question, fully conformed with the evidence that was adduced at trial. Unlike Ozorio's vague and conclusory arguments on appeal, the trial court carefully delineated the differences between conspiracy liability and accomplice liability. Ozorio has not explained, and we are unable to fathom a rationale to support his contention, why a correct iteration of the law and the concomitant acquittal on the accomplice liability count "irreparably tainted" the conspiracy to commit murder count.

The standard for determining whether trial or appellate counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework. Under Strickland's first prong, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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. Ozorio has not surmounted the formidable thresholds of either the performance or prejudice prong of the Strickland paradigm.