STATE OF NEW JERSEY v. MARCOS HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE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.

MARCOS HERNANDEZ,

Defendant-Appellant.

___________________________________________

December 16, 2015

Submitted November 17, 2015 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-11-01042.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

We previously set forth the facts in this matter in State v. Hernandez, No. A-5981-07 (App. Div. March 9, 2010), certif. denied, 202 N.J. 348 (2010), and briefly restate certain facts relevant to this appeal.

Defendant was charged under Cumberland County Indictment No. 05-11-01042 with two counts of second-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 35-5b(2).

During defendant's jury trial, the evidence established that in June 2003, Special Agent James Kerrigan (Kerrigan) of the United States Drug Enforcement Administration (DEA) arrested F.F. on drug charges. F.F. agreed to cooperate with the DEA and Cumberland County Prosecutor's Office (CCPO) in their investigations of illegal drug sales, and he identified defendant as someone who was involved in selling large quantities of cocaine in Cumberland County.

With the assistance of the CCPO and Kerrigan, F.F. contacted defendant by telephone on a number of occasions and set up two purchases of cocaine from defendant. The telephone conversations were recorded. Prior to each of the purchases, Kerrigan and other officers met with F.F. at a pre-arranged location where F.F. and his vehicle were searched to ensure he was not in possession of any drugs or money. F.F. was equipped with a Kell transmitter that permitted the officers to listen to and record F.F.'s conversations with defendant during the drug purchases. Kerrigan gave F.F. money in order to complete the transactions with defendant.

The first purchase took place on January 14, 2004, under the surveillance of Kerrigan and other law enforcement officers. A van arrived at an agreed upon location and parked behind F.F.'s truck. Defendant was driving the van and he had a single passenger. Defendant and F.F. exited their respective vehicles and briefly spoke before entering defendant's van. After about five minutes, F.F. exited the van, returned to his vehicle, and drove to a pre-arranged location where he met with Kerrigan and other officers. F.F. turned over three bags of cocaine and was no longer in possession of the money Kerrigan had given him to make the purchase.

The second transaction took place on April 14, 2004. Under the surveillance of Kerrigan and other officers, F.F. traveled to defendant's home, parked his vehicle in the driveway, and exited his vehicle. Defendant approached F.F. and the men went into the garage. A few minutes later, F.F. returned to his vehicle and drove to a location where he met with Kerrigan and other officers. F.F. turned over a package containing cocaine, but was not in possession of the money Kerrigan had provided to make the purchase.

During both transactions, Kerrigan and DEA Agent Jaramuzchett listened to F.F.'s conversations with defendant over the Kell transmitter. Jaramuzchett translated the conversations to Kerrigan because defendant and F.F. spoke in Spanish. During the trial, audio recordings of the telephone conversations between defendant and F.F. and of the drug purchases were admitted in evidence. Transcripts of the recordings of the two drug purchases also were admitted in evidence.

The audio recording of the April 14, 2004 transaction was the only recording played for the jury during the trial. It was played during Kerrigan's testimony and he identified defendant's and F.F.'s voices as those being heard during the transaction. Kerrigan also testified that the voices on the recording were the same as those heard on the recording of the January 14, 2004 transaction that was admitted in evidence, but which was not played during the trial.

F.F. was subpoenaed to testify at the trial. He appeared, but refused to testify.

The jury found defendant guilty on each of the counts of the indictment. The court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f) based on defendant's previous convictions. The court sentenced defendant to concurrent fifteen-year custodial terms, with concurrent seven-year periods of parole ineligibility.

Defendant appealed. In an unpublished opinion, we affirmed defendant's convictions and sentence. Hernandez, supra, slip op. at 28. Defendant's petition for certification was denied. State v. Hernandez, 202 N.J. 348 (2010).

Defendant filed a pro se petition for PCR alleging he was denied the effective assistance of trial counsel. After the appointment of counsel and the filing of a second petition, oral argument was heard by Judge Darrell M. Fineman, who denied the petition without a hearing. This appeal followed.

II.

On appeal, defendant raises the following issues

POINT I

THE FAILURE OF TRIAL COUNSEL TO REQUEST A DRIVER[1] HEARING WAS THE INEVITABLE FALLOUT FROM HIS FAILURE TO PROPERLY INVESTIGATE AND PREPARE THE CASE BEFORE TRIAL, THEREFORE HE WAS SURPRISED BY THE INFORMANT'S REFUSAL TO TESTIFY AND ADOPTED A FLAWED TRIAL STRATEGY THAT RESULTED IN HIM PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We have reviewed the record and affirm substantially for the reasons set forth in Judge Fineman's thorough and comprehensive written decision. We add the following comments.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes the "'right to the effective assistance of counsel.'" State v. Nash, 212 N.J. 518, 541 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).

In Strickland, the Court established a two part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Under the first prong of the Strickland standard, a petitioner "must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. It must be demonstrated that counsel's representation "fell below an objective standard of reasonableness," id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 60-61, and 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 of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Ibid. There must be 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. Defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Fritz, supra, 105 N.J. at 52; Nash, supra, 212 N.J. at 542. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; State v. Parker, 212 N.J. 269, 280 (2012).

Defendant argued before the PCR court that his trial counsel was ineffective when counsel failed to make a motion for a hearing regarding the admissibility of the various audio recordings under State v. Driver, 38 N.J. 255 (1962).2 We are convinced the PCR court correctly rejected defendant's argument because defendant failed to satisfy his burden of demonstrating that a motion for a Driver hearing would have been meritorious. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990). The PCR court correctly found that counsel was not deficient by failing to make a motion which would have been unsuccessful. Ibid. See also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . ."). We therefore conclude that defendant failed to sustain his burden under the first prong of the Strickland standard.

Because defendant did not demonstrate that a motion for a Driver hearing was meritorious, he also failed to establish a "reasonable probability that, but for" his trial counsel's purported error, "the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As such, defendant failed to satisfy his burden under the second prong of the Strickland standard.

We are convinced the PCR court correctly determined that defendant did not establish a prima facie case of ineffective assistance of counsel based upon counsel's failure to request a Driver hearing. Because defendant failed to satisfy either prong of the Strickland standard, the PCR court correctly decided that an evidentiary hearing was not required. State v. Porter, 216 N.J. 343, 354 (2013).

For the first time on appeal, defendant argues that his counsel was ineffective for failing to investigate whether F.F. would testify at trial. Defendant argues that if counsel had undertaken an investigation, he would have known F.F. was not going to testify at trial. Defendant further argues that because counsel was unaware that F.F. would not testify, counsel erred when he conceded at trial that defendant was the individual speaking with F.F. on the audio recordings and when counsel failed to contest the identification of defendant's voice at a Driver hearing.

We decline to consider these arguments because they were not raised in the petitions for PCR, were not argued before the PCR court, and do not involve jurisdictional or public interest concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

1 State v. Driver, 38 N.J. 255 (1962).

2 Defendant made other claims of ineffective assistance of counsel in his petitions for PCR. The PCR court's rejection of those claims is not challenged in this appeal.