STATE OF NEW JERSEY v. RAFAEL PICHARDO

NOT FOR PUBLICATION WITHOUT THE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.

RAFAEL PICHARDO,

Defendant-Appellant.

_________________________________

November 25, 2015

Submitted November 5, 2015 Decided

Before Judges Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1113.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

Defendant was involved in an altercation with several police officers. A jury convicted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1(b)(5); fourth-degree aggravated assault by throwing bodily fluids at a police officer, N.J.S.A. 2C:12-13; third-degree resisting arrest, N.J.S.A. 2C:29-2(a); fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1; and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). He was sentenced to an aggregate prison term of fifteen years, which included a seven-year term with eighty-five percent parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed and we affirmed his conviction, but remanded for resentencing. State v. Pichardo, No. A-0539-09 (App. Div. Feb. 8, 2011). On remand, defendant was resentenced to an aggregate prison term of twelve years, which included a seven-year term with eighty-five percent parole ineligibility pursuant to NERA.

Defendant filed a petition for PCR and was assigned counsel. After oral argument, Judge Bernard E. DeLury, Jr., denied the petition and issued a thorough and well-reasoned opinion.

We set forth the relevant facts in our opinion issued in 2011, and will only summarize some of the facts here. On February 11, 2007, defendant was at a night club in Atlantic City. He was asked by a police officer to pick up a stanchion he knocked over, but refused. Thereafter, two officers attempted to escort defendant out of the club. Defendant testified that he was struck in the head and blacked out, regaining consciousness only after he had been handcuffed. The officers, in contrast, testified that defendant resisted, punched one of the officers, and bit and severed the finger of another officer. Eventually, defendant was handcuffed, but when he was taken to the hospital, he spit at two officers.

At trial, defendant pursued a theory of involuntary action on his part, contending that he was unconscious at the time of the struggles and when he bit the finger of one of the officers. Thus, defense counsel asked the trial judge not to charge the jury with self-defense on the second-degree aggravated assault charge. On his direct appeal, defendant contended that his trial counsel was ineffective by making that request. On defendant's direct appeal we rejected that argument reasoning that defense counsel's request was part of trial strategy and defendant did not show either ineffective assistance or prejudice.1

On his PCR appeal, defendant contends

I. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST CONVICTION RELIEF WHERE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S INEFFECTIVE CROSS-EXAMINATION OF OFFICER DOOLEY.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied, 457 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, "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; State v. Nunez-Valdez, 200 N.J. 129, 138 (2009). Second, defendant must show there exists "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; State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013).

An evidentiary hearing is necessary only after a defendant meets two conditions. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). First, a defendant must establish a prima facie case in support of PCR. R. 3:22-10(b). Second, a defendant must show "there are material issues of disputed fact that cannot be resolved by reference to the existing record." Ibid.

Here, defendant claims trial counsel was ineffective in cross-examining Officer Dooley, who was the officer whose finger was bitten off. Specifically, defendant asserts that trial counsel did not ask Officer Dooley a single question regarding defendant's alleged loss of consciousness; rather, the examination focused on the type of gloves the officer was wearing, how many members of the officer's family also worked for the Atlantic City Police Department, and other topics defendant now argues were irrelevant to his defense. Defendant also contends that, at a minimum, he should have been afforded an evidentiary hearing so that trial counsel could have explained why he conducted the cross-examination as he did.

We reject these arguments. Defendant's arguments of ineffective assistance of counsel hinge on an alleged ineffective trial strategy. In short, defendant argues that his trial counsel should have focused on the defense that defendant was unconscious and, therefore, acted involuntarily. What questions trial counsel either asks or elects not to ask are the essence of trial strategy. As we stated on the first appeal, "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds .. .." Pichardo, supra, slip op. at 11-12 (quoting State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010)).

Moreover, defendant has made no showing of prejudice. There is nothing in the record to suggest that cross-examining Officer Dooley about defendant's consciousness would have had a reasonable probability of affecting the outcome of the trial. Officer Dooley testified on direct examination that defendant punched another officer and bit his finger. Defendant in his examination testified about his alleged unconsciousness. Thus, the jury heard defendant's testimony about unconsciousness, but still found him guilty.

Finally, we agree with Judge DeLury; defendant was not entitled to an evidentiary hearing. Defendant did not make a prima facie showing on either prong of the Strickland test. Defendant also failed to demonstrate disputed material facts or that the matter could not be resolved on the facts in the existing record. See State v. Jones, 219 N.J. 298, 311 (2014); State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 When we considered defendant's ineffective assistance of counsel argument on direct appeal, we noted that generally such arguments are reserved for a PCR petition. We considered that argument at that time because the relevant facts were all part of the record. Pichardo, supra, slip op. at 9-10, n.3.