STATE OF NEW JERSEY v. JOSE W. ROSARIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE W. ROSARIO,

Defendant-Appellant.

____________________________________________

November 29, 2016

Submitted October 18, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-1385.

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

Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jose W. Rosario appeals from an order entered by the Law Division on July 31, 2014, which denied his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged with second-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count one); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count four); third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-4(b) (count five); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count six); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count seven); possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count eight); and fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-5(f) (count nine).1

Defendant was tried in absentia. The trial took place on May 4 and 5, 2004. At the trial, the State presented evidence that in January 2003, Detectives Israel Brown and Michael Perez of the Bergen County Narcotics Task Force went with a confidential informant to a restaurant in North Bergen to purchase cocaine from defendant. Perez and the informant exited the restaurant and observed defendant arrive in a green minivan. Perez and the informant entered the van and discussed the purchase of an ounce of cocaine with defendant.

Perez also stated he was interested in making a larger purchase, and defendant told Perez he could provide him "with anything that [he] wanted." The informant gave defendant $700, and he provided Perez with an ounce of cocaine. After further discussions, defendant agreed to sell Perez three kilograms of cocaine for $69,000 the following day. A field test confirmed that the substance that Perez purchased from defendant was cocaine.

The next day, defendant called Brown to confirm the sale, which they agreed would take place that day at a motel in South Hackensack. Later, Brown, the informant, and other officers went to the motel. Brown observed defendant arrive in a green van with Larregui. The confidential informant exited a car and entered the van. From a distance, Brown observed Larregui holding a package, which Brown believed contained a kilogram of cocaine. Brown gave a pre-arranged signal to the other officers. They moved in and arrested defendant and Larregui. Brown found three kilograms of cocaine in a hidden compartment in the van, along with two firearms.

Defendant was questioned after his arrest, and informed of his Miranda rights,2 which were written on a form in Spanish. Defendant signed the form acknowledging that he understood his rights. Defendant then told the officers that he had recently become unemployed and borrowed money to purchase the cocaine. He said he intended to sell the drugs, turn a profit, and repay the persons who loaned him the money. He admitted that he sold cocaine to Perez.

The trial court granted the State's motion to dismiss count nine, and the jury found defendant guilty on the remaining counts. Defendant remained at large until he was arrested in July 2009. On October 30, 2009, the court sentenced defendant to an aggregate term of twenty-four years of incarceration, with a nine-and-one-half-year period of parole ineligibility.

II.

In defendant's direct appeal from the judgment of conviction, he raised the following arguments

[POINT I] DENYING [DEFENDANT] HIS RIGHT TO CONFRONTATION, THE TRIAL JUDGE ADMITTED LABORATORY CERTIFICATES IN EVIDENCE, OVER DEFENSE COUNSEL'S OBJECTION, AND WITHOUT EXPERT TESTIMONY OF THE ANALYST WHO PERFORMED THE FORENSIC TESTS.

A. BECAUSE THE LABORATORY CERTIFICATES ARE TESTIMONIAL, THE CONFRONTATION CLAUSE DEMANDED THE PRESENCE OF THE ANALYST AT TRIAL.

B. N.J.S.A. 2C:35-19 CONSTITUTES AN UNCONSTITUTIONAL INFRINGEMENT ON THE EXERCISE OF THE CONFRONTATION RIGHT.

C. THE CONVICTIONS FOR POSSESSION AND DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE MUST BE REVERSED BECAUSE THE LABORATORY CERTIFICATES WERE INADMISSIBLE.

[POINT II] THE OMISSION OF THE DEFINITION OF HOLLOW NOSE BULLETS FROM THE JURY INSTRUCTIONS ON POSSESSION OF HOLLOW NOSE BULLETS IS REVERSIBLE ERROR.

[POINT III] THE TRIAL JUDGE ERRED IN IMPOSING CONSECUTIVE SENTENCES ON COUNTS ONE AND TWO, AND IN FINDING AGGRAVATING FACTOR SIX. ADDITIONALLY, BECAUSE OF THE DISPARITY BETWEEN [DEFENDANT'S] SENTENCE ON THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE AND HIS CO-DEFENDANT'S [SENTENCE ON THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE], THE MATTER SHOULD BE REMANDED FOR RESENTENCING.

A. THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE ON COUNT TWO.

B. THE TRIAL COURT ERRED IN FINDING AGGRAVATING FACTOR SIX.

C. [DEFENDANT'S] SENTENCE IS UNFAIRLY [DISPROPORTIONATE] TO THAT WHICH HIS CO-DEFENDANT RECEIVED.

We affirmed defendant's convictions and the sentences imposed, but remanded the matter for entry of a corrected judgment of conviction. State v. Rosario, No. A-5161-09 (App. Div. Dec. 5, 2012). Thereafter, defendant filed a petition for certification with the Supreme court. The Court denied the petition. State v. Rosario, 214 N.J. 117 (2013).

III.

On August 9, 2013, defendant filed a pro se petition for PCR. Defendant claimed that he had been denied the effective assistance of trial counsel, the sentence was illegal, and he had been denied a fair trial. The court appointed counsel for defendant, who submitted a brief arguing that the court should conduct an evidentiary hearing on the petition.

PCR counsel asserted that defendant had been denied the effective assistance of trial counsel because counsel did not meet with defendant prior to trial to discuss the discovery and any possible defenses. In addition, PCR counsel asserted that trial counsel erred by failing to argue the court should impose concurrent sentences, the court had misapplied aggravating and mitigating factors, and defendant had been entrapped by the police. PCR counsel further argued that defendant's petition was not barred by Rule 3:22-4 and that, viewing the alleged errors cumulatively, defendant had been denied a fair trial.

On July 29, 2014, the PCR court heard oral argument on the petition and placed its decision on the record. The court noted that defendant had been tried in absentia, and stated that it was "incomprehensible" how defendant could complain that his trial attorney had not done his or her job correctly, when defendant had not appeared for trial and offered "little or no assistance." The court determined that defendant had not established any ground for PCR. The court entered an order dated July 31, 2014, denying PCR. This appeal followed.

On this appeal, defendant raises the following arguments

POINT I

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED AS HAVING HAD THE POTENTIAL OF BEING HEARD IN PRIOR PROCEEDINGS BECAUSE NO RECORD EXISTED TO MAKE THAT ADJUDICATION AND BECAUSE THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD

POINT II

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING THAT HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF

POINT III

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF

(A) Trial counsel was ineffective for failing to sufficiently communicate and provide discovery to defendant which deprived him of his constitutional right to assist in his own defense

(B) Trial counsel was ineffective for failing to argue for a reduction in sentence once it was learned a shockingly disparate sentence was pronounced on co-defendant [Larregui]

(C) Trial counsel was ineffective for failing to argue the court failed to establish a factual basis for the application of aggravating factor [six] to defendant's sentence

(D) Trial counsel was ineffective for failing to argue defendant's sentence was illegal for the erroneous application of consecutive sentences on counts one and two of the indictment

IV.

We turn first to defendant's contention that he was denied the effective assistance of trial counsel, in violation of his right to counsel under the Sixth Amendment to the United States Constitution, and Article I, paragraph 10 of the New Jersey Constitution. To prevail on such a claim, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).

First, the defendant must show that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires defendant to establish that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Ibid.

Second, the defendant must show that his attorney's "deficient performance prejudiced the defense." Ibid. The defendant must establish that there is "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.

Here, defendant argues that his trial attorney erred in representing him at sentencing. Defendant contends that his attorney was deficient because he failed to: (1) argue that there was no factual basis for a finding of aggravating factor six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); (2) seek the imposition of concurrent sentences on count one (second-degree distribution of CDS) and count two (first-degree possession of CDS with intent to distribute); (3) seek a reduced sentence on the basis of the alleged disparate sentence that Larregui received; and (4) sufficiently communicate and to provide him with discovery, thereby depriving defendant of the right to assist in his own defense.

We note initially that, at sentencing, defendant's trial counsel emphasized that defendant only had one prior disorderly persons conviction, and that he had not committed any additional offenses since he was released on bail in December 2003. However, the court did not err by considering defendant's municipal court conviction in analyzing the aggravating factors. See State v. Taylor, 226 N.J. Super. 441, 453-54 (App. Div. 1988).

Moreover, the court also found aggravating factors one, three, and nine. N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offenses), N.J.S.A. 2C:44-1a(3) (likelihood defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court gave defendant's criminal history minimal weight. Defendant has not shown that if the minimal weight given to aggravating factor six was eliminated from the analysis, a different sentence would probably have been imposed.

In addition, defendant's claim that his trial counsel erred by failing to seek concurrent sentences on counts one and two is without merit. In defendant's direct appeal, we rejected defendant's claim that the court erred by imposing consecutive sentences for the offenses related to the two drug sales. We stated that the court had properly applied the criteria established in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and the record supported the court's determination that the two offenses were not committed in a single period of aberrant behavior. Rosario, supra, No. A-5161-09 (slip op. at 13-16). Defendant has not shown that counsel erred by failing to argue for concurrent terms on counts one and two, or that concurrent terms probably would have been imposed if that issue were raised.

Furthermore, defendant's claim that counsel should have sought a shorter sentence based upon the sentence imposed upon Larregui is without merit. Defendant argues that the sentence imposed upon Larregui was "shockingly disparate."

We addressed this issue in defendant's direct appeal, holding that "defendant and Larregui were not similarly situated for sentencing purposes, and there was no impermissible disparity between the sentences imposed upon them." Ibid. (slip op. at 17). Thus, trial counsel did not err by failing to raise this meritless issue at sentencing, and defendant has not shown that a shorter sentence would have been imposed if the issue had been raised.

Defendant further argues that his trial counsel was deficient because he failed to communicate with him sufficiently and did not provide him with discovery. He claims that he was deprived of his ability to assist in his own defense, and he was prevented from raising a defense of entrapment. The contention is without merit.

A defendant seeking PCR "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, there is no factual support for defendant's claim that his attorney failed to communicate with him or provide him with discovery.

Furthermore, the transcript of the court's March 15, 2004 status conference suggests that defense counsel had conferred with counsel, and defendant did not object when his attorney stated that no affirmative defenses would be raised. In addition, defendant has not shown that the facts would have supported an entrapment defense, or that such a defense would have succeeded if raised.

We also reject defendant's argument that the PCR court erred by failing to conduct an evidentiary hearing in this matter. A defendant is entitled to an evidentiary hearing on a PCR petition when he or she establishes a prima facie case for PCR, there are material issues in dispute that cannot be resolved based on the existing record, and the court determines that a hearing is necessary to resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Because defendant failed to establish a prima facie case for relief, and the existing record was sufficient to resolve his claims, an evidentiary hearing was not required.

In view of our decision, we need not address defendant's contention that his claims are not subject to the procedural bar in Rule 3:22-4 for grounds for relief that were not raised in prior proceedings, or the State's contention that certain sentencing issues are barred by Rule 3:22-5, because they were adjudicated in defendant's direct appeal.

Affirmed.

1 Co-defendant Luis Larregui, who is also known as David Junior, was charged in counts two through nine, as well as count ten of the indictment. He pled guilty to count two, and the other charges were dismissed.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).