STATE OF NEW JERSEY v. MARIO VEGA

NOT FOR PUBLICATION WITHOUT THE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.

MARIO VEGA,

Defendant-Appellant.

________________________________

December 30, 2013

Submitted: December 18, 2013 Decided:

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1295.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mario Vega appeals from the May 2, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree conspiracy to commit these crimes, N.J.S.A. 2C:5-2; third-degree criminal restraint, N.J.S.A. 2C:13-2a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7b. At sentencing, the judge merged various counts and imposed an aggregate thirty-year term of imprisonment, with a twenty-two- year period of parole ineligibility.

Defendant appealed his convictions and sentence. We affirmed the convictions, but remanded for resentencing so that the judge could further explain his reasons for imposing consecutive sentences and clarify which counts had been merged. State v. Vega, Docket No. A-0548-06 (App. Div. Feb. 23, 2009). Our Supreme Court denied certification. State v. Vega, 200 N.J. 369 (2009).

Pursuant to our remand, the judge resentenced defendant and again imposed an aggregate thirty-year term. Defendant appealed the sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed.

Defendant filed a PCR petition and his assigned counsel argued in his brief that defendant's trial counsel rendered ineffective assistance of counsel by: (1) failing to object to the prosecutor's closing statement about the condition of the boots taken from him at the time of his arrest; and (2) failing to file a motion to suppress the boots as evidence. In a May 2, 2012 written opinion, Judge John T. Mullaney, Jr. made factual findings on each of these contentions, and determined they lacked merit.1

During his summation to the jury, the prosecutor suggested that certain "black marks" that were now on the boots and "blue markings" found on the "imprint paper" that was used to take a footprint impression at the crime scene, were put there by the State's trace evidence expert during his examination of the evidence. However, the expert "did not testify [as] to the origin of the black trace material nor did he testify as to why the paper was blue." Because there was no factual support for the prosecutor's statements, the judge found that defendant's "trial counsel should have objected to the prosecutor's summation at this point."

However, the judge found that "even if trial counsel's performance was deficient in this respect, the prosecutor's comments were minimal deviations from the facts that had no capacity to impact on a jury's verdict." In so ruling, the judge noted our observation on direct appeal that defendant "never denied that the boots were his." Vega, supra, (slip op. at 24). Thus, Judge Mullaney concluded that defendant failed to satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that the deficiency prejudiced the defense. The judge found that defendant failed to demonstrate how the outcome would have been different but for trial counsel's alleged deficient performance.

The judge also found that defendant's counsel was not ineffective by failing to file a motion to suppress the boots on the ground that defendant had not been provided with Miranda2 warnings prior to giving the boots to a detective at the time of his arrest. The judge noted that, in our opinion on direct appeal, we specifically stated that "[d]efendant offers no facts to support a finding that his turning the boots over to [the detective] was not done knowingly and voluntarily. And nothing suggests that his precedent arrest was unlawful." Vega, supra, (slip op. at 15). In addition, the detective gave Miranda warnings to defendant before any interrogation occurred. Thus, there was no basis for a motion to suppress the boots because of a Miranda violation. Therefore, the judge concluded that defendant failed to satisfy the first prong of Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, which requires a showing that trial counsel's performance was deficient. This appeal followed.

On appeal, defendant raises the following contentions:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO COUNSELS' INEFFECTIVENESS; IN THE ALTERNATIVE, THIS [MATTER] MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.

A. Trial Counsel Failed To Object To The Prosecutor's Unduly Prejudicial Remarks On Summation, Which Misrepresented The Trial Testimony.

B. Counsel Failed to Pursue/Raise The Suppression Of The Boot Evidence Based Upon Defendant's Illegal Arrest. (Not Raised Below).

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, ___ N.J. ___ (2013) (slip op. at 13).

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland. Id. at 463. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mullaney in his well-reasoned May 2, 2012 written opinion.

We add the following brief comments concerning defendant's new argument concerning the legality of his arrest. Before Judge Mullaney, defendant argued that his trial counsel was ineffective because he failed to argue that his boots were seized in violation of his Miranda rights. He now argues for the first time on appeal that his trial, appellate, and PCR counsel were ineffective by failing to argue that the boots should have been suppressed because they were seized as the result of an unlawful arrest. We generally decline to consider issues that were not presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In addition, defendant's new contention plainly lacks merit. As already noted, we concluded on direct appeal that nothing in the record suggests that defendant's arrest was "unlawful." Vega, supra, (slip op. at 15). Therefore, there was no factual basis to support a motion to suppress the boots as the product of an unlawful arrest.

1 Defendant raised other claims of ineffective assistance of counsel, which the judge also rejected. Defendant does not challenge the judge's rulings on those claims.

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