STATE OF NEW JERSEY v. ROBIN PEREZ

NOT FOR PUBLICATION WITHOUT THE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 only binding 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.

ROBIN PEREZ,

Defendant-Appellant.

_________________________________

September 20, 2016

Submitted September 12, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1630.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Diane M. Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robin Perez appeals from the trial court's denial of his petition for post-conviction relief ("PCR"). The conviction stems from defendant's negotiated guilty plea to the offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a). We affirm.

The record shows that on May 9, 2006, defendant, who was then sixteen years old, went with co-defendant Victor Marrero to the Atlantic City residence of the victim. Defendant and Marrero were armed with a knife and a lead pipe. They planned to kill the victim because they believed he had sexually assaulted his stepdaughter, a friend of defendant. Defendant and Marrero hid in a bedroom until the victim came home. When he arrived, Marrero struck him in the head with the pipe and defendant stabbed him more than forty times. The victim died from the attack, and the State charged Marrero and defendant with murder.

Because defendant was a minor, the State moved in the Family Part to waive him to the Criminal Part and prosecute him as an adult. Defendant's trial attorney did not oppose the motion and did not insist upon a probable cause hearing to justify the waiver pursuant to N.J.S.A. 2A:4A-26 (superseded 2016). Under that statute, the trial court is obligated, without the consent of the charged juvenile, to waive the juvenile to the Criminal Part on the prosecutor's motion, so long as the juvenile was at least the age of fourteen at the time of the offense and there is probable cause that the juvenile committed an offense within the narrow category enumerated in N.J.S.A. 2A:4A-26(a)(2)(a), including murder. The purpose of this provision is to "streamline and encourage waiver of older juveniles charged with serious crimes into adult court[.]" State in the Interest of A.D., 212 N.J. 200, 204 (2012).

Following defendant's waiver to the Criminal Part, the prosecutor negotiated with him and his counsel a negotiated plea to the reduced charge of aggravated manslaughter. As part of the plea agreement, the State agreed to recommend a custodial sentence of twenty-three years, subject to the parole ineligibility terms of the No Early Release Act, N.J.S.A. 2C:43-7.2. On May 28, 2008, defendant appeared before the trial court with his counsel and voluntarily provided his assent to the terms of the plea agreement. He also provided under oath the factual basis for the manslaughter, acknowledging that he stabbed the victim over forty times in a reckless manner with manifest indifference to the value of human life. Defendant also agreed that the victim was not armed and that he had not stabbed him in self-defense.

On August 15, 2008, the trial court sentenced defendant in accordance with the plea agreement to a custodial term of twenty-three years, subject to the 85% parole ineligibility period required by NERA. Defendant did not appeal his sentence.

Defendant thereafter filed his PCR petition, contending that his trial attorney had been ineffective in various respects. After briefing and oral argument, the trial court denied defendant's petition without finding a need for an evidentiary hearing. The court's reasons for the PCR denial were detailed in a fifteen-page letter opinion of Judge Bernard E. DeLury, Jr., who also was the judge who had presided over defendant's plea hearing and sentencing. Defendant moved for reconsideration, arguing in part that the court had not afforded sufficient consideration to the video recording of his custodial interview at the police station in his brother's presence following his arrest. The trial court denied reconsideration, confirming that it had considered the three-hour interview a second time and that the interview did not substantiate that the police had coerced defendant to admit to the homicide after providing him with Miranda1 warnings.

In his November 20, 2014 written opinion denying reconsideration, Judge DeLury recited several reasons for rejecting defendant's claims of coercion. In particular, the judge specifically rejected defendant's claims that his mother did not understand English sufficiently and that she was too tired to assist him during the interview. The judge noted that a detective explained to the mother in Spanish at the outset of the interview that she could request interpretation if she needed anything clarified during the session. The judge also noted that the video and related transcript showed that she "was actively involved in the interview[,]" interjecting her own comments at times during the session. The judge found that although the mother may have been tired, "she was aware of the circumstances, her rights, and her son's rights."

In his brief on appeal, defendant advances the following points for our consideration

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT MITIGATING EVIDENCE AT THE JURISDICTIONAL WAIVER HEARING, AND TRIAL COUNSEL'S FAILURE TO CONTEST THE ADMISSIBILITY OF DEFENDANT'S CUSTODIAL STATEMENT, SATISFIED PRIMA FACIE STANDARDS FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Having considered these arguments in light of the record and the applicable law, we affirm the denial of the PCR petition substantially for the reasons detailed at length in Judge DeLury's two written opinions.

Defendant fails to demonstrate deficient performance by his trial attorney and actual prejudice, as required under the well-established standards expressed in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984). Trial counsel was not obligated to file opposition to the juvenile waiver motion, as there was obviously abundant proof of probable cause that would authorize this sixteen-year-old to be prosecuted as an adult. N.J.S.A. 2A:4A-26. Moreover, for the reasons well-articulated by Judge DeLury, who meticulously reviewed the recorded police interview, there was no viable basis for defense counsel to obtain suppression of defendant's incriminating admissions. Under these circumstances, the trial court had no need to conduct an evidentiary hearing on defendant's PCR application. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

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