STATE OF NEW JERSEY v. HECTOR C. MORALES

NOT FOR PUBLICATION WITHOUT THE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.

HECTOR C. MORALES,

Defendant-Appellant.

________________________________________________________________

January 14, 2014

Submitted October 8, 2013 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-08-1545.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant's appeal from the denial of his petition for post-conviction relief (PCR) comes to us a second time, after we remanded his petition for an evidentiary hearing. We affirm, substantially for the reasons set forth in the thoughtful oral opinion of Judge Edward A. Jerejian, who presided over the evidentiary hearing.

Defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2; and three counts of third-degree theft, N.J.S.A. 2C:20-3, in 2000. The facts underlying his convictions and the details regarding his sentence are set forth in our unpublished opinion affirming his convictions and sentence, State v. Morales, No. A-5921-00 (App. Div. Oct. 24, 2002), certif. denied, 178 N.J. 375 (2003); and need not be repeated here. Thereafter, he filed a timely PCR petition, which was denied by the trial court without conducting an evidentiary hearing. In his first appeal, he raised a number of issues which, we found, lacked merit. However, we concluded that a remand was necessary so that defendant could present evidence at a hearing to support his contention that his attorney failed to take any action after defendant told him that the jury had observed him being transported in handcuffs.

At the evidentiary hearing conducted thereafter, defendant testified that, on the second day of trial, sheriff's officers were transporting him, handcuffed, back to the courtroom after a lunch break when they encountered the jury. Defendant testified, "I don't know if they all saw me, but the majority of them saw me." Defendant stated he told his attorney about the incident upon arrival in the courtroom and that his attorney went to talk to the judge. He did not hear what they were talking about. Defendant asked his attorney "if he had told the Judge, and he said[,] yes, he had told that to the Judge." Neither the judge nor his attorney did anything about the incident he reported. There is nothing in the record for the remainder of the trial to reflect this occurrence.

Defendant's trial attorney, Vincent Basile, also testified at the evidentiary hearing. Basile, an experienced criminal defense attorney, recalled his representation of defendant, in part, because there was a mistrial after he required hospitalization for cardiac symptoms. He represented defendant in the second trial, which proceeded to verdict. Basile recalled defendant as an active participant in the trial, complaining about the composition of the jury panel and treatment by sheriff's officers. In fact, Basile alerted the trial judge and defendant personally addressed the court regarding his allegation that a sheriff's officer was treating him in an overly aggressive manner.

Basile testified that there had been at least two occasions in his thirty-seven year career in which clients told him they had been observed by jurors while they were handcuffed or wearing prisoner's garb. In those cases, he notified the trial judge; they tried to identify which jurors had seen the defendant and the judge questioned the jurors to determine if they had seen what defendant reported. Basile testified he considered such information "absolutely" important because of the prejudice to the defendant that would flow from the knowledge he was in custody. It was his opinion that a curative instruction would be insufficient to ameliorate the resulting prejudice. Basile testified that, if defendant had told him he had been observed by jurors while handcuffed, he "certainly . . . would not have ignored this, and . . . would have communicated that to" the trial judge. However, he had no recollection of defendant ever mentioning this incident to him at trial.

Judge Jerejian recognized that defendant's contention regarding the jury's observation was one that would have to be treated by trial counsel and the court "as a serious issue. Irreparable harm or prejudice could result." He noted that, according to defendant, both his attorney and the trial judge were made aware of his contention at trial, but did nothing to address it. Yet, Judge Jerejian observed, defendant's trial counsel had alerted the court regarding lesser issues. He found it improbable that, given the context of the trial, both the court and counsel would ignore such a serious allegation. Judge Jerejian explicitly found Basile's testimony credible. He found the testimony did not reflect a mere lack of recollection that would allow for the discussion to have occurred and been forgotten. He described Basile's testimony as follows:

He had absolutely no recollection of the defendant ever raising this issue. And if it happened, he would have acted on it immediately. It's a very significant, extremely prejudicial situation, and he would have taken action immediately.

Judge Jerejian noted that defendant had raised other issues with the court, but the record lacked any indication that the incident now complained of ever occurred. He concluded that defendant had failed to show by a preponderance of the evidence that he had raised this issue with his attorney at trial and denied the petition.

In this appeal, defendant raises the following issues:

POINT I

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S FAILURE TO ADEQUATELY ADDRESS DEFENDANT'S COMPLAINT THAT THE JURY OBSERVED DEFENDANT IN HANDCUFFS DURING THE TRIAL.

A. TRIAL COUNSEL'S FAILURE TO ADEQUATELY ADDRESS DEFENDANT'S COMPLAINT THAT THE JURY OBSERVED DEFENDANT IN HANDCUFFS DURING THE TRIAL CONSTITUTED DEFICIENT CONDUCT.

B. TRIAL COUNSEL'S FAILURE TO ADEQUATELY ADDRESS DEFENDANT'S COMPLAINT THAT THE JURY OBSERVED DEFENDANT IN HANDCUFFS DURING THE TRIAL PREJUDICED DEFENDANT.

POINT II

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE POST-CONVICTION RELIEF PETITION.

The arguments defendant raises in Point II are procedurally barred pursuant to Rule 3:22-5. After considering defendant's arguments in Point I in light of the record and applicable legal principles, we are satisfied that they lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by Judge Jerejian in his oral opinion.