STATE OF NEW JERSEY v. JORGE ALVARADO

NOT FOR PUBLICATION WITHOUT THE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.

JORGE ALVARADO,

Defendant-Appellant.

___________________________________

May 1, 2014

 

Submitted January 15, 2014 Decided

 

Before Judges Waugh and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1190.

 

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

 

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney for respondent (Michelle E.Ditzhazy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Jorge Alvarado appeals the Law Division's May 7, 2012 order dismissing his petition for post-conviction relief (PCR). We affirm in part and reverse in part, and remand for further consideration following an evidentiary hearing.

I.

We discern the following facts and procedural history from the record on appeal.

In June 2003, Alvarado was indicted for first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2). The victim was the seventeen-month-old son of Maria Delcarmen Torres, who was Alvarado's girlfriend at the time. Following a trial in September 2004, Alvarado was convicted of murder.

After retaining new counsel, Alvarado moved for a new trial. In addition to arguing that the verdict was against the weight of the evidence and that his prior counsel was constitutionally ineffective, Alvarado presented a letter he received from Torres that he argued was a recantation of her trial testimony. The trial judge disagreed and denied the motion without holding an evidentiary hearing.

Alvarado was subsequently sentenced to life in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Consequently, Alvarado must serve a period of imprisonment of sixty-three years, nine months, and three days before becoming eligible for parole.

Alvarado appealed1 and we affirmed. State v. Alvarado, No. A-6010-05 (App. Div. Mar. 6, 2008). The Supreme Court denied his petition for certification. State v. Alvarado, 195 N.J. 521 (2008).

In our opinion affirming the conviction, we described the underlying facts as follows:

The death of the child took place on March 2, 2003. Defendant and the mother, Maria Delcarmen Torres, had been living together since September of the preceding year. At about 10:00 a.m. on the day in question, the mother had left the house on errands and testified that the child was well. Around 11:30 a.m., she received a call from defendant that the child was feeling bad and "getting choked." She was only a block away, and when she arrived home, the child was not moving. Defendant denied doing anything to the child. Defendant called [9-1-1] at her request. The child was taken to the hospital, where he was pronounced dead.

 

The record contains a number of statements attributed to defendant as to what happened. In his statement to the police, defendant explained that he had pressed the child to his chest when the baby began to cry, and when the child quieted down, he put the baby on the bed. He then heard the child gasp for air, and he called the mother. He told the police that he did not intend to kill the child. He attributed bruises found on the child's body to a struggle he had with the mother the night before when she attempted to take the baby from him. Defendant's former girlfriend, Luz Mary Carcamo, testified that when she saw defendant in jail, he told her that when the child began to cry, he began playing with the child, tossing him in the air, but then slipped on spilt milk and could not catch the child. Francisco Escribano, a prisoner in the cell next to defendant, testified that defendant told him that the baby would not stop crying, and out of frustration, defendant slammed the baby against the wall and punched the child in the chest, but miscalculated, causing the baby to hit the bedpost and fall to the floor. Defendant then put the baby on the bed and called his girlfriend.

 

Dr. Thomas A. Blumenfeld, M.D., a forensic pathologist from the State's Regional Medical Examiner's Office, testified for the State. He expressed the opinion that the child suffered from battered child syndrome on the basis that the injuries were repetitive (occurred on more than one occasion) and could not have occurred accidentally. He advised that the child had bruises on his body that had occurred on different days, some possibly more than seven days earlier. In addition, the child had rib fractures which had occurred ten days to a month or so before his death. Some of the fractures roughly corresponded to the site of fingerprint bruises. The doctor could not determine from the fracture and bruises whether the child had been injured at two separate times or more times than that.

 

The doctor found that the most likely mechanism to have caused the death was squeezing or compression of the child's chest. He described the death as suffocation. The injuries he found were not consistent with punching; rather, they were consistent with pressing or placing pressure on the child. Further, he found that rather than one mechanism, three mechanisms or steps were involved on the day of the death: the child had been squeezed in the chest, pushed up on the face, and injured on his left thigh. The doctor estimated that it would take roughly one minute for the child to die with consistent squeezing. Death would be slower and more painful if the compression stopped before death.

 

After conducting a Rule 104 hearing, the trial judge allowed the child's mother, who had pled guilty to endangering the child, to testify to earlier instances when defendant had harmed her son. She testified to bruises she found on her son on occasions after the child had been in defendant's care. She also identified photographs of the child with visible bruises. In add-ition, she testified that on one occasion she found her son with a bloody mouth with defendant nearby, although defendant said the child had hit himself with a toy. Another time she discovered hot sauce on the nipple to the baby's bottle. According to the mother, defendant admitted putting the hot sauce on the nipple as a practical joke. Another time she found melting ice cubes in the baby's diaper after defendant had left for work.

 

[Alvarado, supra, No. A-6010-05 (slip op. at 1-5).]

 

On November 1, 2010, Alvarado filed his PCR petition, which was supported by certifications and a brief. Counsel, who was subsequently appointed to represent Alvarado, filed a supplemental brief. The PCR judge heard oral argument on May 4, 2012, and reserved decision. He issued a written opinion explaining his reasons for denying relief and dismissing the petition on May 7. An implementing order was entered on the same day. This appeal followed.

II.

Alvarado presents the following appellate issues through counsel:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. SINCE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL WHICH RESULTED IN THE DEFENDANT NOT TESTIFYING AT TRIAL, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.

 

POINT II: THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE AN ISSUE ON APPEAL REGARDING THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION FOR NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

 

He has also presented a pro se brief raising the following arguments:

POINT I: APPELLANT CONTENDS THAT DUE TO THE CUMULATIVE ERRORS COMMITTED BY THE PCR COURT IN THIS CASE, APPELLANT[']S RIGHTS TO A FAIR HEARING AND TO DUE PROCESS OF LAW, AS GUARANTEE[D] BY THE SIX[TH] AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION WERE VIOLATED.

 

POINT II: THE PCR COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.

 

A.

 

Before turning to the merits of the appeal, we outline the legal principles that govern our decision. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, 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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

B.

Alvarado focuses his argument primarily on his contention that trial counsel coerced him into declining to testify and the failure of his appellate counsel to appeal the trial judge's denial of his motion for a new trial based on the letter from Torres.

 

i.

We turn first to the issue of Alvarado's decision not to testify at trial. He contends that he wanted to testify, but that his trial attorney coerced him not to do so.

When the State finished with its last witness, the issue of whether Alvarado would elect to testify was discussed on the record. Defense counsel asked the judge to question his client about his decision not to testify.

THE COURT: Okay. Okay, Mr. Alvarado, your attorney is telling me that you're not going to present any witnesses and that you do not wish to testify. Is that correct?

 

THE DEFENDANT: Correct.

 

THE COURT: Okay. Now, you have the right to testify or not to testify. You discussed it with your attorney and you decided not to testify.

 

The discussion then turned to whether there should be a charge to the jury concerning a defendant's right not to testify, which defense counsel had not yet discussed with Alvarado. After the State rested and the jury was excused for the day, the discussion resumed. At that point, Alvarado was thinking about changing his mind and testifying.

[Defense Counsel]: I'm telling my client that I don't think the [charge concerning] defendant's election not to testify should be in, at which point he advised me that he thinks he wants to get on the stand, and now that he would like the evening to think hard about this, and he'll be prepared to answer the Court tomorrow morning as to whether he wants to testify or not.

 

Now, I want this record to be as clear as it possibly can. I have said to him prior to this trial, in the presence of the court officer, I have said to him again today and repeated to say to him again that in no way under any circumstance, anyhow, should he even remotely think about getting on the stand.

 

I have told him that it can be no good, he would do this at his own peril, against my -- the strongest advise I can offer a client is not to do this. I've said this to him, and I cannot prevent him, Judge. It's clear, he -- it's his trial, he does what he wants.

 

I have implored him to listen to my advice, but he is asking this Court to allow him until tomorrow morning to tell you whether he wants to testify or not. I have to bring this to you, Judge --

THE COURT: I understand.

 

[Defense Counsel]: No, I'm just making this record clear. If I could find a way not to bring it to you, I gladly would, Judge, because I think he's making a grave mistake.

 

. . . .

 

THE COURT: . . . The convenience issue I understand, but Mr. Alvarado, you decide whatever you want to decide. You have throughout the pretrial hearings, throughout the plea negotiations, throughout the trial.

 

That's -- and as I tell you continuously, that's fine with me as long as you understand everything. You know, you have an attorney not to stand next to you and look good, although probably he does.

 

. . . .

 

THE COURT: But to stand there and look good and to sound good and to represent you well. You know, he went to school, he does this for a living. He does it a lot. He has a reputation that he kind of knows what he's doing. I'd have to say that I'd agree with that reputation that he kind of knows what he's doing in these cases.

 

. . . .

 

THE COURT: I mean, I'm saying that somewhat tongue in cheek. He's experienced. I know it's hard for you, it's your case. You decide whatever you want, but you have an attorney who is experienced in these kind of matters, sir, and you understand if you testify, if I allow you to reopen and to testify, I -- I would think that the gentleman who is seated over there now would have an awful lot of questions for you.

 

Okay. So it's not just as easy -- just so you understand, it's not just as easy as saying I want to get up and tell my side of the story. You could do that, but then somebody is going to ask you I would think some very probing questions in regard to your side of the story. The choice is yours, you understand that?

 

Okay. But just don't disregard --

 

THE DEFENDANT: I understand.

 

THE COURT: You decide whatever you want, but don't disregard your attorney's advice, because you're upset or it's emotional for you. You have to -- and I know it's difficult. You have to separate the emotion from the practicality here and the law, and you've got to be realistic. All right.

 

So you decide whatever you want to decide, but don't just decide it on [emotion]. Don't just use your heart. Use your head, too. You know as well as I that he's going to be asking you some -- he, I m pointing to the prosecutor. He's going to ask you some very tough questions if you decide to get up there to testify.

 

And that's not to say you can't handle it, but I would presume he's going to ask you some tough questions. You know that, right?

 

THE DEFENDANT: That's very clear to me, Your Honor.

 

THE COURT: Okay.

 

THE DEFENDANT: That's why I asked for time to think it over in a relaxed manner, to think overnight and come back tomorrow when I'm more rested and to come back with an answer tomorrow.

 

THE COURT: Okay. That's fine. All right. But we're going to need an answer in the morning.

 

THE DEFENDANT: I --

THE COURT: Go ahead. He was saying something.

 

THE DEFENDANT: I thank you for --

 

THE COURT: Not a problem.

 

THE DEFENDANT: -- saying what you said.

 

THE COURT: Not a problem. You know what you need to think about, right, Mr. Alvarado?

 

THE DEFENDANT: Perfectly well.

 

THE COURT: You spoke to your attorney?

 

THE DEFENDANT: Many -- often -- many times.

 

THE COURT: Okay. It's different than the answer I was getting months ago, even though I know your attorney was speaking to you because he was in the jury room with you for hours on end, but you know what his advice is, right?

 

THE DEFENDANT: Perfectly well.

 

THE COURT: Okay. Whether you agree with it or not, you understand his advice, correct?

 

THE DEFENDANT: Yes, yes.

 

THE COURT: Okay. All right. You're an adult. We're all adults here. We make adult decisions and we live with our decisions.

 

[Defense Counsel]: Irrespective of his decision, as a separate issue, Judge, I think -- and I spoke to my client, and I believe he's left it to my discretion, thankfully on this one, I do not want defendant's election not to testify read. Whether he takes the stand or not tomorrow, I ask that that not be read, Judge.

 

THE COURT: Okay.

 

[Defense Counsel]: And I have specific reasons. And I've spoken to my client prior to this and he left it to my judgment and I spoke to him before we went back on the record and he told me whatever I think is appropriate. Hopefully, he keeps that same advice in making this decision, but that I'd ask to be stricken from the charge.

 

At the beginning of the following day, Alvarado told the trial judge he had decided not to testify.

THE COURT: Okay. You had a chance to speak to your attorney here, but . . . I also told you we were starting at 9:30 today. It's now 10:05, which is fine. It's not your fault that we're starting late, but you had more than enough chance to speak with your attorney yesterday afternoon, last night. Your attorney has been here since at least 9:15 this morning. I know he's been speaking to you.

 

So, just so the record is clear, you didn't just have this one minute to speak to your attorney. He's been here for at least fifty minutes that I'm aware of, and --

 

[Defense Counsel]: It was nine o'clock [] when I arrived, Judge.

 

THE COURT: Yes. Okay. I thought he was out here. I didn't poke my head out at nine. I poked my head out shortly thereafter and he was here.

 

THE DEFENDANT: I ask you to forgive me, Your Honor.

 

THE COURT: There's nothing to forgive. No forgiveness needed. All we need is a decision.

 

THE DEFENDANT: No. My decision is no, I will not testify.

 

THE COURT: Okay. Very good.

 

[Defense Counsel]: Judge, I just -- if I can for purposes of the record --

 

THE COURT: Sure.

[Defense Counsel]: Jorge, we have spoken about this probably for close to an hour this morning, correct?

 

THE DEFENDANT: (In English) Yes.

 

THE COURT: Let the interpreter translate that for you, Mr. Alvarado.

 

THE DEFENDANT: Yes.

 

[Defense Counsel]: You had originally told me this morning that you wanted to testify, correct?

 

THE DEFENDANT: Correct, yes.

 

[Defense Counsel]: After discussing it with me again, you have changed your mind, correct?

 

THE DEFENDANT: Correct.

 

[Defense Counsel]: Have I forced you or threatened you in any way to do that?

 

THE DEFENDANT: No.

 

[Defense Counsel]: I explained to you while I implore you to take my advice, the final decision is yours, correct?

 

THE DEFENDANT: Yes, that's true. Yes.

 

[Defense Counsel]: And my last conversation with you was go ahead and take the stand if that's what you want to do over my advice, correct?

 

THE DEFENDANT: Correct. Yes, that was the case.

 

[Defense Counsel]: But thankfully, on your own, in your own decision, you have now decided to listen to my advice and not take the stand, correct?

 

THE DEFENDANT: Correct.

 

[Defense Counsel]: I think it's a satisfactory waiver at this point. I wanted that on the record.

 

THE COURT: No problem.

 

[Defense Counsel]: Thank you.

 

THE COURT: Okay. Because . . . Mr. Alvarado, I know it's difficult for people to make this decision. He's gone back and forth. I understand, but you understand this is a final decision, Mr. Alvarado.

 

Once the jurors are out here, which is going to be in a minute, that's it. You can't change your mind after that. Once we go into the summations, that's it. Well, as of now, that is it. Understand?

 

THE DEFENDANT: Yes.

 

THE COURT: Okay. And, just for the record, we gave you the chance to speak -- to think about it overnight, certainly don't want to rush your decision. Your attorney emphatically placed his position on the record yesterday. You had a chance for at least an hour to speak with him this morning, and you understand and you're not testifying, correct, sir?

 

THE DEFENDANT: Correct.

 

Based upon the extensive discussion of the issue on the record, we find no merit in Alvarado's contention. Although it is clear that Alvarado waivered as to whether he wanted to testify and that his trial counsel consistently advised him not to do so, it is equally clear that Alvarado was repeatedly informed that the decision was his alone. He was given sufficient time to consider that decision and was even offered the opportunity to have the testimonial portion of the trial reopened after his initial decision not to testify had resulted in the defense resting.

ii.

We now turn to the issue of whether appellate counsel was constitutionally ineffective for failing to raise the denial of Alvarado's motion for a new trial on appeal.

Alvarado and Torres were indicted together in connection with her baby's death. Torres pled guilty to endangering the welfare of the child, which exposed her to a seven-year period of incarceration.2 She testified against Alvarado at trial. Her testimony included prior incidents involving Alvarado in which the child was allegedly injured by him.

In applying the Cofield3 analysis to determine the admissibility of the evidence concerning the prior incidents, the trial judge stated:

[W]ithout this testimony, I could see a reasonable juror wondering whether, hmm, was this a mistake, was he just trying to be quiet with the baby. Was there a tug-a-war between mom and Mr. Alvarado or was there something more, and [it is] probative to the issue of knowledge and intent which goes to the charge of murder. Knowledge, intent and purpose.

 

Consequently, the judge admitted the evidence.

Torres wrote to Alvarado in March 2005, between the end of Alvarado's trial in September 2004 and his sentencing in November 2005. Although the letter from Torres could be read as an effort to assuage her conscience and excuse herself for having testified truthfully against Alvarado, it can also be read as an apology and explanation for having testified untruthfully with respect to some or all of her testimony.

For example, she wrote that she

was always very stern with the poor boy, that hurts me a lot, but I think you were guilty, because you always liked to leave me alone and you left with your friends and I came to think that you had someone else, that made me mad, very angry, Luis,[4] you had no idea "yes" I punished that boy, but it was not to kill him, I knew he had several black and blue marks, and that is why they put me in jail, because I said I knew of the blows and the black and blue marks, and by not [calling] the police, I know, you did not know about know about it, but because of that the prosecutor asked me to give the last statement, so they could find you guilty, as I said, I had no other option, I had to do something to save myself, I did not want it, but if I did not do it, the prosecutor would not take the charges away from me, forgive me. Now, I know you are thinking in appealing your case, that means if you do it, perhaps I had to testify again and I will have to say same thing, because of the deal with the prosecutor. Luis, it was not easy for me to take the decision of writing you, but I feel that everything is happening in someway is my fault, I know you were right in willing to go to trial and to know how everything happened and where all these blows came from, the broken rib that [he] had for several months.[5]

 

The quoted language could be read as an admission that, unknown to Alvarado, Torres was "always stern" with her son, but that she believed Alvarado was "guilty" for her conduct because he frequently went out and left her alone, leading her to believe there was someone else. That made her "mad, very angry," as a result of which she "punished" the child. The "punishment" could be the explanation of the prior black and blue marks, as well as the broken rib, attributed to Alvarado. In addition, her assertions that she had to testify as she did, and would do so again if required to, because of her agreement with the prosecutor, could be understood as explaining either truthful or untruthful testimony.

In order for newly discovered evidence to warrant a new trial, the defendant must establish "that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

If Torres's statements are interpreted in the manner most favorable to Alvarado, Preciose, supra, 129 N.J. at 463, the letter would be highly material, particularly with respect to whether Alvarado's conduct on the day of the underlying incident amounted to murder or one of the lesser included offenses charged to the jury, which were aggravated manslaughter and reckless manslaughter. As noted above, the trial judge allowed introduction of that aspect of Torres's testimony for that specific purpose.

The letter was certainly not available at the time of trial, having been written after Alvarado was convicted. Finally, the letter, if interpreted most favorably to Alvarado, had the potential to impeach Torres's testimony at a new trial sufficiently to result in a different verdict, if not necessarily an outright acquittal. Given the length of Alvarado's sentence, such a difference in outcome would have very significant, real-time consequences.

Because the PCR judge declined to hold an evidentiary hearing to determine why appellate counsel chose not to include the denial of the motion for a new trial in the appeal, to evaluate fully the letter from Torres, and to determine whether it would have warranted a new trial, we remand to the trial court for such a hearing. We express no view with respect to the results of the remand, other than that the issues we have outlined need to be very carefully considered on a full record.

Having reviewed the additional arguments raised in the briefs filed by counsel and by Alvarado pro se in light of the record and the applicable law, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial of PCR relief as to those issues.

Affirmed in part, remanded in part. We do not retain jurisdiction.

1 The denial of the motion for a new trial was not raised in the appeal.

2 It is not clear form the record on appeal whether that is the sentence Torres actually received. We note that Torres's sentence was not subject to NERA.

3 State v. Cofield, 127 N.J. 328, 338 (1992).

4 Torres refers to Alvarado as "Luis" in the letter.

5 The record contains what appears to be a typed version of a handwritten letter, which may have been written in Spanish.