STATE OF NEW JERSEY v. JUNIOR SANTOS

NOT FOR PUBLICATION WITHOUT THE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.

JUNIOR SANTOS,

Defendant-Appellant.

_________________________________________

September 4, 2015

Before Judges Sumners and Tassini.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-08-01232.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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 Junior Santos appeals from the denial of his petition for post-conviction relief (PCR). R. 3:22-1. Defendant asserts that his trial counsel provided ineffective assistance. The State opposes the appeal as procedurally barred and substantively unsupported. We affirm.

Facts and Procedural History

The State presented trial testimony as follows: Defendant and A.S., defendant's juvenile brother, came upon J.R., the victim, a thirteen-year-old who was on a street in Teaneck. A.S. used an object to strike J.R.'s forehead, knocking him to the ground, after which both defendant and A.S. kicked and punched J.R., demanded his cell phone and money, and rifled his pockets. G.B., J.R.'s friend, came to J.R.'s aid. G.B. knew defendant and A.S. from high school. Defendant and A.S. fled in a car.

Police responded and transported J.R. to a hospital. J.R. suffered a laceration to his forehead, which required stitches to close; a fractured nose; bruising; and a concussion. J.R. was hospitalized and did not return to school for several days.

J.R.'s father, cousin, G.B.'s father, and G.B. went to the defendant's and A.S.'s home in Teaneck. When they arrived, they called police, who responded to the location and found the parties yelling at one another. G.B. told the police that he knew J.R.'s attackers and identified defendant and A.S. in a show-up procedure.

Police conducted photo arrays with J.R., who identified defendant's photo and stated that on a scale of one to ten, the level of his certainty of identification was eight. J.R. stated that he knew defendant and A.S. from the neighborhood, although he did not know their names. Thereafter, police charged defendant and A.S.

A Bergen County Grand Jury indicted defendant as follows: first-degree robbery, N.J.S.A. 2C:15-1 (First Count); second-degree aggravated assault, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1b(1) (Second Count); and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1b(2) (Third Count). At trial, the State's witnesses testified to the above-described events, and J.R. identified the defendant in court.

Defendant asserted an alibi defense. A.S. testified that he robbed J.R. and that he had pled guilty to the robbery. A.S. testified that an acquaintance, who was African-American, was with him, but that person was not involved. A.S. testified that defendant was not involved.

Donna Castillo testified that, on the day of the robbery, she employed defendant for her business in her home and that, shortly after 2:00 p.m., she transported defendant to his home. Thereafter, she returned home where her daughter gave her the telephone and she spoke with defendant, who told her that police were at his home arresting him. She then spoke to the police. Defendant testified that on the day of the robbery, he worked in Castillo's home, she dropped him off at his home at about 2:10 p.m., he did not leave home, and he did not attack J.R.

The jury convicted defendant of robbery and the lesser included offense of simple assault under the second count. The jury acquitted defendant on the third count.

Sentencing was on July 23, 2010. Defense counsel noted the letters submitted on defendant's behalf. Defense counsel argued for mitigating factors eight, eleven and thirteen, giving reasons therefor. See N.J.S.A. 2C:44-1(b)(8), (11), and (13). Defense counsel stated that defendant was young - only eighteen years of age at the time of the offense with no prior felony conviction, that he was remorseful, and that he may be subject to deportation. Defense counsel argued that the aggravating factors did not substantially outweigh the mitigating factors and, relative to the First Count, moved for a sentence one degree below the second degree robbery conviction. In support of his argument, he cited State v. Balfour, 135 N.J. 30 (1994) and State v. Tanksley, 245 N.J. Super. 390 (App. Div. 1991). Defense counsel argued for a sentence of three years. Defense counsel also argued against imposition of NERA.

The Assistant Prosecutor requested aggravating factors one, two, three, six, and nine and explained the bases for her requests. Members of J.R.'s family spoke. See N.J.S.A. 2C:44-1(b)(1), (2), (3), (6), and (9). Defendant spoke. The judge characterized the offense as serious, found the aggravating factors asserted by the State, and mitigating factor eleven. The judge sentenced defendant to custody for six years with an 85 percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, and imposed a concurrent six-month term for the simple assault conviction. Defendant did not file an appeal.

On April 16, 2012, defendant filed his petition for PCR, asserting that his trial counsel provided ineffective assistance. After considering oral arguments, on April 22, 2013, the judge filed his order denying PCR and issued a written decision, detailing his reasons for the order. This appeal followed.

Conclusions

The Rules of Court provide for PCR, which has been described as analogous to the federal writ of habeas corpus. See R. 3:22-1, -2. State v. Merola, 365 N.J. Super. 203, 216 (Law Div. 2002), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004) (citing State v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992)).

A petition for PCR is cognizable on the following grounds: (a) "Substantial denial in the conviction proceedings of defendant's rights" under the federal constitution or New Jersey s constitution or laws; (b) Lack of jurisdiction of the court to impose the JOC; (c) "Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable" under R. 3:22-2(a), -2(b), -2(d); and "Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy." R. 3:22-2. PCR provides a means for a defendant to raise issues that he could not raise on direct appeal and to thereby challenge the legality of his sentence or JOC to ensure he was not unjustly convicted. Merola, supra, 365 N.J. Super. at 216 (citing State v. McQuaid, 147 N.J. 464, 482 (1997)).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR]." R. 3:22-10(b). The trial court should consider the facts in the light most favorable to defendant to determine whether the defendant has presented a prima facie case. Merola, supra, 365 N.J. Super. at 214-15 (citing State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 462; State v. Garcia, 320 N.J. Super. 332, 338 (App. Div. 1999)). If there is a disputed issue related to a material fact relative to whether defendant has a right to PCR, the trial court should hold a hearing. Merola, supra, 365 N.J. Super. at 215 (citing State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000)). Defendant must, by the preponderance of the evidence, establish his right to PCR. Merola, supra, 365 N.J. Super. at 216 (citing Preciose, supra, 129 N.J. at 459).

Under New Jersey law, defendants asserting ineffectiveness of counsel for the first time, whether by direct appeal or petition for PCR, have a constitutional right to counsel. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). PCR counsel, to render diligent service, must communicate with the defendant and investigate his claims and make effective argument on his behalf and failure to do so can require remand. State v. Hicks, 411 N.J. Super. 370, 375-76 (App. Div. 2010).

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced his defense. State v. Nash, 212 N.J.518, 542 (2013) (citations omitted). 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. Id.at 541; Preciose, supra, 129 N.J.at 459. That is, 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).

Merely bringing a petition for PCR does not necessitate an evidentiary hearing. State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). Only when the defendant presents a prima facie claim of ineffective assistance should the trial court grant evidentiary hearings and make a determination on the merits. Preciose, supra, 129 N.J.at 462.

When the court determines whether a defendant has demonstrated defective performance by counsel and prejudice to the defense, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). Further, since prejudice is not presumed, State v. Fritz, 105 N.J.42, 52 (1987), the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S.at 689, 104 S. Ct.at 2065, 80 L. Ed.2dat 694-95.

In considering a petition for PCR, a court has discretion to grant or deny an evidentiary hearing. Preciose, supra, 129 N.J.at 462. However, where the relevant facts lie outside the trial record and the attorney's testimony may be required, an evidentiary hearing should ordinarily be granted. State v. Porter, 216 N.J.343, 354 (2013) (citation and internal quotation marks omitted). A defendant who has made a prima facie showing of his claim is entitled to an evidentiary hearing. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J.66 (2007). A demonstration of a "reasonable likelihood of succeeding" on the merits constitutes such a prima facie showing. Preciose, supra, 129 N.J.at 463. Accordingly, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel[,]" he "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super.at 170; see alsoR.3:22-10(e)(2) ("A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative . . . .").

When considering defendant's petition for PCR, "[a]s 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" requiring a hearing. Preciose, supra, 129 N.J.at 462-63. Where a defendant has demonstrated that there are genuine issues of material fact "which cannot be resolved by reference to the existing record[,]" a hearing should be held. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Since the PCR court did not conduct an evidentiary hearing, we conduct a de novo review. State v. Harris, 181 N.J.391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 989 (2005). Defendant argues that, because before the grand jury the State asked leading questions and elicited hearsay from the one witness, a police detective, his trial counsel should have moved for dismissal of the indictment and PCR should be granted.

It is not necessary that all evidence presented to a grand jury be legally competent. State v. Costa, 109 N.J. Super. 243, 246 (Law Div. 1970) (citing State v. Dayton, 23 N.J.L. 49 (Sup. Ct. 1850)). See also State v. Holsten, 223 N.J. Super. 578, 583-84 (App. Div. 1988). Hearsay testimony presented to a grand jury does not, by itself, invalidate an indictment. Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408-09, 100 L. Ed. 2d 397, 402 (1956). A grand jury may return an indictment based primarily on hearsay. In re Nackson, 221 N.J. Super. 187, 206 (App. Div. 1987), aff'd, 114 N.J. 527 (1989); State v Ferrante, 111 N.J. Super. 299, 306 (App. Div. 1970). So long as there is "some evidence" to support each element of the offense and nothing to detract from the fairness of the grand jury proceedings and so long as the indictment appears sufficient on its face, the indictment will not be dismissed. State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div.), certif. denied, 151 N.J. 466 (1997); State v. Engel, 249 N.J. Super. 336, 360 (App. Div.), certif. denied, 130 N.J. 393 (1991). However, where grand jury proceedings do not support an indictment or the indictment is unsupported on its face, dismissal is appropriate. State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002). That is, an indictment that is "manifestly deficient or palpably defective" is subject to dismissal. State v. Hogan, 144 N.J. 216, 229 (1996).

In any event, here, the trial jury, having been instructed of the State's burden of proof of facts essential to the charges beyond a reasonable doubt, convicted defendant. Accordingly, any error in the grand jury was harmless beyond reasonable doubt and provides no basis to reverse defendant's conviction. United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941, 89 L. Ed. 2d 50, 56 (1986); State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000).

Defendant alleges that his trial counsel failed to properly prepare him for trial testimony. Trial counsel was in the case through pretrial procedures. The judge asked trial counsel if he had discussed with defendant whether he would testify, and defense counsel answered that they had discussed the matter and that they anticipated that defendant would testify, although he was not yet positive. Defendant was present for his alibi witnesses' testimony; trial counsel advised defendant that his brother did not testify well. Defendant chose to testify. Defendant alleges that he was frightened, and nervous, affecting his demeanor. However, these are common feelings for criminal defendants who testify.

As the judge noted, trials are fluid and a defendant's decision to testify is frequently made at the last minute. Given defendant's alibi defense, his testimony was limited and largely consistent with the testimony of his alibi witnesses for which he had been present. As the judge noted, aside from defendant's self-serving statements, he did not support his allegation that his demeanor was adversely affected by his last-minute decision to testify. The judge noted that he did not recall any negative or nervous demeanor and noted that any nervousness was not visibly manifested. State v. Locurto, 157 N.J. 463, 474 (1999). Defendant does not specify how his answers would have differed had he been more prepared. Proof against the defendant was certain and defendant did not show that a different result could have been obtained.

Defendant argues that, at sentencing, his trial counsel failed to sufficiently address N.J.S.A. 2C:44-1's aggravating and mitigating factors. Defendant also argues that the judge failed to make explicit findings consistent with State v. Sainz, 107 N.J. 283, 291 (1987). Our review of the record leads us to conclude that these arguments lack merit. R. 2:11-3(e)(2).

The defendant has not presented a prima facie case to the effect that his trial counsel's performance was so deficient that he did not function as counsel guaranteed by the Sixth Amendment and that his trial counsel's performance deprived him of a reliable result.

Affirmed.