STATE OF NEW JERSEY v. JUAN QUINONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN QUINONES,

Defendant-Appellant.

________________________________________________________________

December 6, 2013

Submitted November 6, 2013 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-479.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Juan Quinones appeals from the August 11, 2011 order denying his petition for post-conviction relief without an evidentiary hearing. A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(2) (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count three). The judge merged count two into count one and imposed a sixty-year term of incarceration with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive five-year term for the weapon conviction. We affirmed on appeal, remanding only for resentencing on count three.1 State v. Quinones, No. A-0269-04 (App. Div. March 31, 2008). The Supreme Court denied defendant's petition for certification. 197 N.J. 16 (2008). We affirm the denial of defendant's PCR petition.

Defendant was convicted of murder in 2004. We detailed the facts at length in our opinion on direct appeal. Quinones, supra, slip op. at 2-14. We summarize those facts here. During a fist fight, defendant shot the victim in front of a large crowd of people in Paterson. The State called four eyewitnesses. Two witnesses identified defendant in court as the shooter. One of these two knew defendant from the neighborhood and identified him in court by his nickname. The other witness made an in-court identification of defendant as "the Spanish guy" he saw shoot the victim. During the fight, defendant took a gun from his son John-John, who had accompanied defendant to the scene. After the murder, defendant fled the scene. He was arrested by an FBI task force in Philadelphia one month later.

John-John lived in Seattle, Washington, at an address known to both the State and defendant. Neither defendant nor John-John testified at trial and the prosecutor suggested through cross examination of defendant's sister and mother and in his summation that defendant's family was purposefully preventing John-John from testifying. The trial court denied the State's request for a Clawans2 charge, which would have permitted the jury to infer that defendant did not call his son as a witness because he believed that testimony would have been harmful to his defense, but the judge also did not instruct the jury that it could not draw an inference against defendant, nor did defense counsel seek such a charge.

One of the issues defendant raised on direct appeal was:

IT IS REVERSIBLE ERROR TO ALLOW THE STATE TO QUESTION DEFENDANT'S WITNESSES AND COMMENT IN SUMMATION UPON DEFENDANT'S FAILURE TO PRODUCE JUAN QUINONES, JR. [JOHN-JOHN] FOR TESTIMONY.

We found on direct appeal that the comments and questions by the State were improper, but constituted harmless error that did not require a new trial. Quinones, supra, slip op. at 21. Judge Fisher, concurring and joined by Judge Stern, went further, stating, "In my view, this circumstance required that the trial judge instruct the jury that it could not draw an inference against defendant based on John-John's absence from the trial; indeed, I believe State v. McGraw, 129 N.J. 68 (1992) required such a cautionary instruction." Id.slip op. at 5 (Fisher, J.A.D., concurring). The two concurring judges determined that the failure to give this cautionary instruction, however, was harmless error based on our Supreme Court's decision in McGraw, and both joined in the affirmance. Id.slip op. at 11-12 (Fisher, J.A.D., concurring).

Defendant also raised the following issue on direct appeal:

THE PERFORMANCE OF DEFENSE COUNSEL DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONST. AMEND. VI AND N.J. CONST. (1947) ART. 1, PARA. 10 (Not Raised Below).

Defendant raised many claims of ineffective assistance, but did not raise the issue on direct appeal that defense counsel was ineffective in not seeking the cautionary instruction discussed above. We determined that none of the claims we considered amounted to ineffective assistance of counsel, but preserved defendant's rights to raise other claims in a PCR petition. Id. slip op. at 27.

On appeal before us defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE TRIAL COURT INSTRUCT THE JURY NOT TO DRAW ANY ADVERSE INFERENCE FROM THE DEFENSE'S FAILURE TO CALL THE DEFENDANT'S SON AS A WITNESS.

A. FACTUAL INTRODUCTION.

B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT BY NOT REQUESTING THE TRIAL COURT INSTRUCT THE JURY IT COULD NOT DRAW AN ADVERSE INFERENCE ARISING OUT OF THE DEFENSE'S FAILURE TO CALL THE DEFENDANT'S SON AS A WITNESS.

POINT II: RULE 3:22-5 DID NOT PRECLUDE THE COURT FROM ADJUDICATING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON ITS SUBSTANTIVE MERITS WITH RESPECT TO HIS CONTENTION THAT TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT INSTRUCT THE JURY IT COULD NOT DRAW AN ADVERSE INFERENCE FROM THE DEFENSE'S FAILURE TO CALL THE DEFENDANT'S SON AS A WITNESS.

POIINT III: THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987). Defendant argues that his PCR is not barred because (1) the substance of the instant petition was not expressly adjudicated in this court's 2008 decision on direct appeal and (2) defendant demonstrated excusable neglect in filing an untimely petition for PCR.

Pursuant to Rule 3:22-12, a PCR petition

shall be filed . . . no more than five years after the date of entry . . . of the judgment of conviction that is being challenged unless [petitioner] alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is reasonable probability that if defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

Defendant's judgment of conviction was entered on May 28, 2004. He filed his PCR petition more than six years later, on November 22, 2010.3 Defendant states that the delay was caused by an administrative error in the Public Defender's Office which resulted in his late receipt of the denial of his petition for certification, which he claims to have received more than two years after it was filed and decided by the Supreme Court. He also argues that enforcement of the time bar would result in a fundamental injustice.

We need not address the issue of whether defendant's assertions constitute excusable neglect because his substantive argument lacks merit. When deciding his direct appeal, we determined that the judge's failure to caution the jury "that it could not draw an inference against defendant based on John-John's absence from the proceedings" was harmless error. When considering PCR we consider whether, had counsel requested the charge and the charge been given, that could have changed the outcome. SeeState v. L.A., __ N.J. Super.__,__ (App. Div. 2013) (slip op. at 25) (explaining that part of the Stricklandinquiry must be whether counsel's failure causes a "reasonable probability that is, a probability sufficient to undermine confidence in the outcome that the jury would have found reasonable doubt about defendant's guilt"). The two concurring judges determined on direct appeal that although the judge erred in not giving the charge sua sponte, that error could not have caused an unjust result. We follow that law of the case. SeeLombardi v. Masso, 207 N.J. 517, 538 (2011) (explaining that a legal determination made in a case "should be respected by all other lower courts or equal courts during the pendency of that case").

Given eyewitness testimony describing defendant shooting the victim at point-blank range as well as defendant's flight after the crime, we have no difficulty in determining that the overwhelming evidence of guilt is such that even if the jury improperly concluded that defendant's failure to make his son available as a witness was relevant to his guilt, it could not have affected the outcome. R.2:10-2 (stating that error "shall be disregarded" unless it is "of such a nature as to have been clearly capable of producing an unjust result. . ."). Defendant did not meet his burden under Stricklandand the PCR judge properly denied the petition.

Affirmed.

1 After our remand, on April 25, 2008, the judge imposed a concurrent rather than consecutive five-year term on count three.

2 State v. Clawans, 38 N.J. 162 (1962).

3 Defendant does not argue that the five-year period should be calculated from his resentence on April 25, 2008.