STATE OF NEW JERSEY v. JORGE ALVARADO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2213-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE ALVARADO,
Defendant-Appellant.
Submitted March 19, 2018 – Decided May 25, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
03-07-1190.
Joseph E. Krakora, Public Defender, attorney
for appellant (Durrell Wachtler Ciccia,
Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Jorge Alvarado's appeal from the denial of post-
conviction relief (PCR) returns to us following our remand four
years ago for an evidentiary hearing to determine whether newly
discovered evidence, a letter by a key witness for the State to
defendant after the verdict, warranted a new trial and if
appellate counsel's failure to raise the denial of the new trial
motion on direct appeal constituted ineffective assistance of
counsel. For reasons unexplained, the only witness to testify
at the remand hearing was appellate counsel. We conclude on the
basis of that testimony that counsel's failure to argue the
issue on appeal was deficient. But because no court has yet to
hold an evidentiary hearing to evaluate the letter to determine
whether it entitles defendant to a new trial, we cannot
determine whether appellate counsel's conduct resulted in any
prejudice to him.
Defendant was convicted in 2004 of the murder of Jan Carlos
Torres, the seventeen-month-old son of his girlfriend Maria
Delcarmen Torres. State v. Alvarado (Alvarado I), No. A-6010-05
(App. Div. Mar. 6, 2008) (slip op. at 1). Both defendant and
Torres were indicted for the child's murder, although there was
no dispute that defendant was alone with the baby in the hours
before the child's death. Id. at 2. He told police he pressed
the child to his chest when the baby started to cry, and laid
him on the bed when he quieted. Ibid. When he heard the baby
gasp for air, he called Torres, who immediately returned home.
2 A-2213-16T2
Ibid. When she got there minutes later, the baby was not
moving. Ibid. Rescue personnel were unable to revive him.
Ibid. Defendant admitted his actions caused the child's death,
but insisted he had no intent to kill. He claimed the death was
an accident and, at worst, his conduct was reckless.
The State's forensic pathologist testified at defendant's
trial that the cause of death was suffocation caused by
squeezing the child's chest for approximately a minute. The
expert further testified the compression injuries that caused
the baby's death were not the only ones he suffered in his short
life. Id. at 3-4. The pathologist identified several different
aging bruises and rib fractures he opined were inflicted in the
days and weeks leading up to the child's death. Ibid.
Defendant claimed the bruises on the baby's body at the
time of his death were as a result of an argument he had with
Torres the night before. He said he was trying to bring the
baby into their bed, and Torres wanted to let the baby continue
to cry in his own bed in the next room. Defendant claimed he
was holding the baby and Torres was trying to grab the child
from out of his arms, causing the bruising.
After Torres pled guilty to child endangerment and agreed
to testify against defendant, she claimed he inflicted the old
injuries the pathologist found, at times when he was alone with
3 A-2213-16T2
her son. Id. at 4. At an N.J.R.E. 104 hearing to determine the
admissibility of her allegations, she also claimed defendant
once put hot sauce on the nipple of the baby's bottle and on
another occasion ice in his diaper. Id. at 4-5.
The trial judge, although acknowledging Torres was "going
to be the only witness who is going to be able to testify to
these incidents" and that he had "some questions and some
concerns regarding her reliability," ultimately concluded he
"believe[d] her testimony" and "that the evidence [was] reliable
enough." In examining whether its probative value was
outweighed by its prejudice to defendant under Cofield,1 the
judge acknowledged the testimony was "clearly . . .
inflammatory," but found it probative of the issue as to whether
defendant's conduct was the product of an accident or mistake.
The judge explained:
[W]ithout this testimony, I could see a
reasonable juror wondering, hmm, was this a
mistake, was he just trying to be quiet with
the baby. Was there a tug-of-war between
mom and Mr. Alvarado or was there something
more, and it's probative to the issue of
knowledge and intent which goes to the
charge of murder. Knowledge, intent and
purpose.
1
State v. Cofield,
127 N.J. 328, 338 (1992).
4 A-2213-16T2
In addition to Torres, two other fact witnesses testified
against defendant. Defendant's ex-girlfriend testified to a
conversation she had with defendant when she visited him at the
county jail following his arrest. He told her he was playing
with the baby, tossing him up in the air, and slipped on some
spilled milk and could not catch the child. A jailhouse
informant testified he heard defendant bragging he slammed the
baby against the wall and "the prosecutors that they didn't have
nothing on him." The informant also testified defendant told
him "[h]e had hit the baby before and that his girlfriend had
found [out] about it and he told her that he promised he
wouldn't do it again."
As the informant stepped away from the witness stand,
defendant, who used the services of an interpreter throughout
the trial, said in English in a voice loud enough for jurors to
hear, "I'm going to make sure people in jail know you're a
fucking snitch." The judge refused defense counsel's request
for a mistrial and declined to voir dire the jurors as to
whether they heard the comment. The judge instead delivered a
general curative instruction advising
[s]ometimes, people who are involved in
a trial, the attorneys, the participants,
the parties say something, they get
excited. . . . If it happened in this trial
and you think you heard a party say
5 A-2213-16T2
something in the case, it must — I'm going
to emphasize, it must be disregarded by you.
Presented with charges of murder, aggravated manslaughter
and reckless manslaughter, the jury convicted defendant of
murder in September 2004. Alvarado I, slip op. at 5.
Defendant, however, was not sentenced for over a year. While in
jail awaiting sentencing, defendant received a letter from
Torres dated March 7, 2005. We reprint the translation included
in the record in full.
Dear Mr. Alvarado,
This letter is to tell you and hoping in God
you are in good health and stability. Well,
I imagine you have to be surprised about my
letter, "yes" Luis,[2] I am Maria, I am
writing you because I felt I had to do it
before I get over this nightmare.
I need to leave my resentment and grudge
behind, leave it here and not carry it with
me when I come out. I has not been easy for
me the lost of my son. Luis, I asked, what
happened that day? everything was fine
between the two of us, nobody wants to tell
me what really happened, I know you are a
good man and specially a good father, I know
you lost your mind perhaps for something I
said it against you, but I had no other
alternative, I had to tell you that you were
who did everything so I can come good out
this, this was the deal I had to do with the
prosecutor, forgive me my love. I know you
2
Defendant's name is apparently Jorge Luis Alvarado. Torres
referred to him as Jorge Luis at times in her testimony at the
N.J.R.E. 104 hearing.
6 A-2213-16T2
are suffering a lot in that place, I know
you love your sons a lot, and that to me,
hurts me. However, I always was very stern
with the poor boy, that hurts me a lot, but
I think you were guilty, because you always
liked to leave me alone and you left with
your friends and I came to think that you
had someone else, that made me mad, very
angry, Luis, you had no idea "yes" I
punished that boy, but it was not to kill
him, I know he had several black and blue
marks and that is why they put me in jail,
because I had said I knew of the blows and
the black and blue marks, and by not had
called the police, I know, you did not know
about it, but because of that the prosecutor
asked me to give the last statement, so they
can find you guilty, as I said, I had no
other option, I had to do something to save
myself, I did not want it, but if I did not
do it, the prosecutor would not take the
charges away from me, forgive me. Now, I
know you are thinking in appealing your
case, that means if you do it, perhaps I had
to testify again and I will have to say same
thing, because of the deal with the
prosecutor. Luis, it was not easy for me to
take the decision of writing you, but I feel
that everything that is happening in someway
is my fault, I know you were right in
willing to go to trial and to know how
everything happened and where all these
blows came from, the broken rib that had for
several months.
I am begging you to forgive me and I forgive
you and I tell you it will not easy to
forget you, because I love you very much
even though I harmed you but I had no other
alternative, I explained to you well, I will
be coming out soon from here and you do not
the time they will be giving you, it hurts
me what is going on, specially regarding
your sons, I am sorry for my handwriting,
you know that I have been through. I was
7 A-2213-16T2
under treatment while I was here, in the
Hudson County, I am going to give you an
advice, I am telling you for your own good,
when you go to prison take good care of
yourself, trust in God, what else I can tell
you, I wish you the best and forgive me
because I have lied, I want to you to
understand me better, nobody knows how is
been in here, I did not want to harm you but
if I did not do it, I would be like you,
remember I love you and it when I come out,
I am going to try to help you O.K.
I wish you can write down to me, to this
address
875867C/506072 (BRAVO)(EAST WING 3 ROOM)
PO Box 4004
CLINTON N.J. 08809
I love you, M. Maria (MC)
Defendant, with new counsel, moved for a new trial claiming
the verdict was against the weight of the evidence, his trial
counsel was ineffective, and the letter from Torres constituted
newly discovered evidence. The trial judge denied the motion on
the record in October 2005 without conducting an evidentiary
hearing on the newly discovered evidence claim.
As to that claim, the judge stated he found Torres's
testimony at trial "to be extremely credible and
straightforward." He further stated he did not "find her
'recantation' to be credible." Indeed, he did not "even find it
to be a recantation." The judge concluded defendant had not met
8 A-2213-16T2
the Carter3 standard "for showing that this is recantation
testimony. It's certainly not straightforward. I don't believe
it is recantation, but even if I believed it was recantation,
he's not met his burden."
The judge the following month sentenced defendant, who was
then thirty years old with no prior record, to life in prison,
subject to the periods of parole ineligibility and supervision
required by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
Defendant will serve sixty-three years, nine months and three
days before becoming eligible for parole.
We affirmed defendant's conviction on direct appeal,
rejecting his arguments regarding the admissibility of Torres's
testimony about his prior bad acts toward the baby, errors in
the jury charge and that his sentence was excessive. Alvarado
I, slip op. at 5-6. Appellate counsel did not argue error in
the denial of the post-trial motion based on newly discovered
evidence.
The Supreme Court denied defendant's petition for
certification. State v. Alvarado,
195 N.J. 521 (2008).
Defendant's federal habeas petition was ultimately deemed
untimely. Alvarado v. D'Ilio, No. 15-3878 (SRC) (D.N.J. Aug.
3
State v. Carter,
85 N.J. 300, 314 (1981).
9 A-2213-16T2
23, 2016), aff'd sub nom. Alvarado v. Adm'r N.J. State Prison,
No. 16-3798 (3d Cir. Sep. 11, 2017).
Defendant filed a timely petition for PCR, alleging
ineffective assistance of trial and appellate counsel, which was
denied by a different judge in May 2012. There was no
evidentiary hearing. We affirmed the decision dismissing the
claims relating to the performance of trial counsel, but
reversed those claims related to the representation provided
defendant on appeal and remanded for an evidentiary hearing.
State v. Alvarado (Alvarado II), No. A-0861-12 (App. Div. May 1,
2014) (slip op. at 22).
Quoting the letter from Torres, we acknowledged her letter
certainly "could be read as an effort to assuage her conscience
and excuse herself for having testified truthfully against
Alvarado," as the trial judge concluded. Id. at 19. But it was
obvious to us the letter could "also be read as an apology and
explanation for having testified untruthfully with respect to
some or all of her testimony." Ibid. Indeed, because the
letter, interpreted most favorably to defendant, "would be
highly material particularly with respect to whether Alvarado's
conduct . . . amounted to murder or one of the lesser included
offenses charged to the jury," was "certainly not available at
the time of trial," and "had the potential to impeach Torres's
10 A-2213-16T2
testimony at a new trial sufficiently to result in a different
verdict, if not necessarily an outright acquittal," we found the
letter could likely satisfy the test for a new trial based on
newly discovered evidence established in Carter,
85 N.J. at 314.
Alvarado II, slip op. at 21-22.
Accordingly, we remanded the matter to the PCR judge for
"an evidentiary hearing to determine why appellate counsel chose
not to include the denial of the motion for a new trial in the
appeal, to evaluate fully the letter from Torres, and to
determine whether it would have warranted a new trial." Id. at
22. The remand was assigned to a third judge, who conducted a
brief evidentiary hearing limited to the testimony of appellate
counsel. Inexplicably, Torres was not called to testify about
her letter.
Appellate counsel, an assistant deputy public defender of
thirty-two years' experience, testified that after reviewing the
entire record, she determined the admission of Torres's
testimony regarding defendant's prior bad acts, "the [N.J.R.E.]
404(b) issue" was "[t]he main point." Asked about Torres's
letter, counsel testified she "thought about it, . . . did a
little research and . . . decided not to raise it," concluding
she "did not feel it was viable for appellate review at that
point." Asked why, counsel responded:
11 A-2213-16T2
Primarily[,] it just wasn't ready for
appellate review . . . . It was not
authenticated. So I don't know who wrote
it. It wasn't certified, which we kind of
require for new evidence or a motion for a
new trial. It wasn't clearly exculpatory to
me. It was very muddy.
Asked to elaborate on what she meant by saying it was not
"clearly exculpatory," counsel testified:
It was very, as I recall, it didn't say I
did it, you didn't, or I lied, you didn't do
it. It was kind of more apologetic. And,
also, included the witness saying, and I'd
testify the same way again. It wasn't clear
whether she was just sorry for him or
whether she had information she concealed.
Had I done it as the sentencing
attorney[,] I would have sent an
investigator out, taken the certified
statement and made it very clear whether or
not she was really exculpating the defendant
or merely sad. So it had to be much more
specific in my opinion. It was very muddy.
Counsel added:
Also, strategically, there were a few
problems. I didn't want to raise it [then]
or in the appellate process. Because in my
opinion[,] there was no way it was going to
be granted and no way it was going to be
reversed. And that would be a problem later
on at a PCR. Because if you raise something
on direct appeal you can't raise it later on
PCR.
And what I thought was the better
approach was to save it for later PCR on the
sentencing attorney for not sending an
investigator out and getting a clear
statement. And that would have a bigger
12 A-2213-16T2
chance of success than raising it on appeal
— so those are my reasons.
Asked whether she believed the letter was a recantation,
counsel responded:
It did not [appear] like a recantation.
To me it was at best ambivalent. And,
certainly, not to the level of getting a
reversal of a homicide conviction. There
needed to be something very specific.
And I, also, remember her testimony was
very clear, very angry. So I was a little
surprised at the tone of this letter. And I
. . . would have wanted to have a very clean
record with a certified signature as to what
exactly she meant.
Asked if there was anything she wanted to add, counsel
stated:
No. I mean I was going by the record and I,
you know, had it been done properly I might
have raised it, but it wasn't. It was an
uncertified, unauthenticated, ambivalent,
non-exculpatory letter that came from, I
don't know where. And I would have
preferred to raise it as a PCR down the road
on a sentencing attorney.
What we have quoted constituted almost the whole of
counsel's testimony on direct examination. On cross
examination, defense counsel asked fewer than ten questions. He
established with the witness that the State did not contest the
authenticity of the letter on the post-trial motion, but failed
to ask whether counsel, having expressed concern for the rule
13 A-2213-16T2
barring issues previously adjudicated, R. 3:22-5, gave any
thought to R. 3:22-4's bar against issues that could have been
raised earlier.
Defendant's PCR counsel also did not ask appellate counsel
whether she considered arguing the trial court should not have
denied defendant's new trial motion without an evidentiary
hearing and requesting a remand for such a hearing. Finally,
defendant's counsel failed to ask if appellate counsel was
concerned about the authenticity of the letter, she did not do
what she claimed sentencing counsel should have done: send an
investigator out to take a certified statement from Torres.
Following the hearing, the judge in a written opinion
determined appellate counsel "conducted a thorough analysis
regarding the viable issues on appeal and her conduct was
strategic and reasonable in light of the circumstances."
Although having previously noted our findings in Alvarado II
that Torres's letter, if interpreted in a manner most favorable
to defendant, would be material to whether defendant's conduct
amounted to murder and had the potential to so impeach her
testimony as to alter the verdict, the PCR judge nevertheless
found Torres's letter was only "impeaching or contradictory to
[her] trial testimony" and "[c]onsequently, the first prong of
[Carter's] three-part test is not satisfied."
14 A-2213-16T2
The judge further found defendant "failed to demonstrate a
reasonable probability that the new testimony is true, and the
trial testimony false" because "the letter at issue lacked
authenticity, certification, and did not exculpate" defendant.
He accordingly concluded Torres's letter did not meet Carter's
third prong as evidence of the sort that would probably change
the jury's verdict if a new trial were granted. The PCR judge
ultimately concluded counsel's "decision to not raise this issue
on appeal would not have likely affected the outcome of this
case, based on the evidence against the [d]efendant."
Defendant appeals raising the following issue through
counsel:
POINT I
THE LOWER COURT ERRED IN CONCLUDING THAT
APPELLATE COUNSEL WAS NOT INEFFECTIVE.
He adds the following issues in a pro se supplemental brief:
POINT I
DEFENDANT WAS DENIED INEFFECTIVE (SIC)
ASSISTANCE OF COUNSEL BY FAILING TO SUBPOENA
THE WITNESS FOR PCR EVIDENTIARY HEARING IN
VIOLATION UNDER BOTH FEDERAL AND STATE
CONSTITUTION AMENDMENT XIV; N.J. CONST.
ART.I PARA.10.
POINT II
INEFFECTIVE ASSISTANCE OF DIRECT APPEAL
COUNSEL BY FAILING TO INVESTIG[ATE] THE
EVIDENCE PROVIDED IN THE MOTION FOR NEWLY
15 A-2213-16T2
DISCOVERY EVIDENCE IN VIOLATION UNDER BOTH
FEDERAL AND STATE CONSTITUTION AMENDMENT
XIV; N.J. CONST. ART.I PARA.10.
POINT III
DEFENDANT WAS DENIED INEFFECTIVE (SIC)
ASSISTANCE OF COUNSEL BY CREATING A
CONFLICTS INTEREST IN VIOLATION UNDER BOTH
FEDERAL AND STATE CONSTITUTION AMENDMENT
XIV; N.J. CONST. ART.I PARA.10.
Having considered the testimony of appellate counsel, we
find her failure to have argued that defendant's motion for new
trial based on newly discovered evidence should not have been
denied without an evidentiary hearing fell "outside the wide
range of professionally competent assistance." Strickland v.
Washington,
466 U.S. 668, 690 (1984). Whether this failure
caused defendant any prejudice, however, remains unknown as no
court has yet to conduct an evidentiary hearing to determine
whether Torres's letter would have been sufficient to change the
jury's verdict that defendant was guilty of murder. See State
v. Nash,
212 N.J. 518, 547 (2013). Accordingly, we again remand
for an evidentiary hearing on that critical issue.
To succeed on a claim of ineffective assistance, defendant
must establish, first, that "counsel's representation fell below
an objective standard of reasonableness" and, second, that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
16 A-2213-16T2
been different." Strickland,
466 U.S. at 687-88, 694. A
defendant must do more than demonstrate that an alleged error
might have "had some conceivable effect on the outcome of the
trial," State v. Sheika,
337 N.J. Super. 228, 242 (App. Div.
2001); instead, he must prove the error is so serious as to
undermine the court's confidence that the "defendant's trial was
fair, and that the jury properly convicted him," State v.
Pierre,
223 N.J. 560, 583, 588 (2015).
There is no question but that a defendant's "right to
effective assistance includes the right to the effective
assistance of appellate counsel on direct appeal." State v.
O'Neil,
219 N.J. 598, 610-11 (2014) (citing Evitts v. Lucey,
469 U.S. 387, 396 (1985)). As the Court has stated on several
occasions, "[a] PCR petition is not a substitute for raising a
claim on direct appeal." State v. Hess,
207 N.J. 123, 145
(2011); see also R. 3:22-3. Unless one of "the prescribed
exceptions" apply, claims that could have been, but were not,
raised in prior proceedings cannot be asserted on PCR. State v.
Preciose,
129 N.J. 451, 476 (1992).
The trial judge in 2005, although purporting to apply the
Carter test to determine whether defendant was entitled to a new
trial based on Torres's letter, determined the letter was not
credible based only on the document and the judge's impression
17 A-2213-16T2
of Torres's trial testimony. He never convened an evidentiary
hearing where he could judge Torres's credibility upon being
confronted with the letter she wrote defendant following his
conviction for murder. Quoting the Court's statement in State
v. Carter,
69 N.J. 420, 427-28 (1976) that "[c]ourts generally
regard recantation testimony as suspect and untrustworthy," and
that "[t]he determination of the credibility or lack thereof of
recantation testimony is peculiarly the function of the trial
judge who sees the witnesses, hears their testimony and has the
feel of the case," the court proceeded to apply "the intangibles
available to the trial judge in evaluating the credibility of
recantation testimony," that is, "[m]anner of expression,
sincerity, candor and straightforwardness," to the letter. The
judge, for example, noted, "If we go straightforwardness, the
letter is certainly not straightforward."
As the Carter test for whether newly discovered evidence
entitles a defendant to a new trial entails a fact-sensitive
inquiry, the trial judge plainly should not have determined
defendant could not carry his burden on the motion without
affording him an evidentiary hearing. As the law on this point
is well settled, we are confident had the issue been raised on
direct appeal in 2008, the panel would have done as the panel
considering the issue did in 2014: remand for an evidentiary
18 A-2213-16T2
hearing. Accordingly, even applying the "highly deferential"
review accorded counsel's performance on PCR, Hess,
207 N.J. at
147, we conclude appellate counsel's failure to raise the issue
on direct appeal cannot be ascribed to reasonable professional
judgment.
The issue in this case was not whether defendant was
guilty, defendant conceded he recklessly caused the child's
death, it was whether he was guilty of murder. Given the
pathologist's testimony of the child's history of prior non-
accidental injuries, the single, most probative evidence on that
question was undoubtedly Torres's testimony of defendant's prior
bad acts toward the child. Evidence that she lied about that
would shake the State's case to its core.4 Accordingly, it was
incumbent on appellate counsel faced with Torres's letter and
the trial court's refusal to hold an evidentiary hearing at
which Torres would testify, to try to secure that evidentiary
hearing on direct appeal. There was no reason to defer the
claim to a later PCR proceeding.
4
Although the prosecution and various trial judges have
described the State's case as "strong" and the evidence
"overwhelming," we note the evidence for murder came almost
exclusively from two witnesses, Torres and the jailhouse
informant.
19 A-2213-16T2
Although claims for new trial based on newly discovered
evidence often implicate ineffective assistance issues because
of the requirement that the evidence not have been discoverable
"by reasonable diligence beforehand," Carter,
85 N.J. at 314,
there was no such issue here as the Torres letter is dated
months after the verdict. A defendant need not prove his
counsel was ineffective in order to establish his right to a new
trial. See Nash,
212 N.J. at 555 (affirming PCR court's
conclusion that defense counsel performance was not
constitutionally deficient but granting a new trial on all
issues based on newly discovered evidence). As the Court
emphasized in Nash, the effect of the passage of time on the
memories and the availability of witnesses makes it imperative
"that meritorious newly discovered evidence claims receive
timely hearings." Ibid. Deferring defendant's claim to PCR
here ignored that imperative.5
Finally, we note that if appellate counsel were truly
concerned about the authenticity of the letter, notwithstanding
5
Although the Court's opinion in Nash was not available to
appellate counsel when she filed her brief in 2007, its
observation that "[t]he holding of an evidentiary hearing to
decide the merits of the newly discovered evidence claim should
not have taken eight years," was certainly not new law, Nash,
212 N.J. at 554. See State v. Ways,
180 N.J. 171, 197 (2004)
(noting the difficulties the passage of time can make for
correcting an injustice).
20 A-2213-16T2
the State's failure to oppose the new trial motion on that
basis, she could have employed an investigator to confirm
Torres's authorship. Her failure to investigate the facts prior
to deciding "the better approach was to save it for later PCR on
the sentencing attorney for not sending an investigator out and
getting a clear statement," robs her strategic choice of the
presumption of competence. See State v. Chew,
179 N.J. 186, 218
(2004).
Because Torres has yet to testify at an evidentiary
hearing, notwithstanding our remand in Alvarado II for such a
hearing "to evaluate fully the letter from Torres, and to
determine whether it would have warranted a new trial," Alvarado
II, slip op. at 22, we cannot determine whether "the evidence
discovered since the first trial would probably lead to a
different result if presented to a newly impaneled jury," Nash,
212 N.J. at 553, and thus whether defendant is entitled to a new
trial, see Ways,
180 N.J. at 197. The PCR judge, like the trial
court, erred in attempting to make that determination based on
Torres's letter alone.6
6
To the extent the PCR judge determined defendant did not
satisfy the first prong of the Carter test, because Torres's
letter was only "impeaching or contradictory to [her] trial
testimony," Ways makes clear he erred. See Ways,
180 N.J. at 188-89 ("Determining whether evidence is 'merely cumulative, or
(continued)
21 A-2213-16T2
As we have already determined that "[i]f Torres's
statements are interpreted in the manner most favorable to
Alvarado, Preciose,
129 N.J. at 463, the letter would be highly
material," the letter was not available at the time of trial and
it "had the potential to impeach Torres's testimony at a new
trial sufficiently to result in a different verdict, if not
necessarily an outright acquittal," Alvarado II, slip op. at 21-
22, all that remains is an evidentiary hearing to determine
whether Torres's letter, which ends with a request that
defendant "forgive [her] because [she has] lied," was intended
to recant her trial testimony and, if so, whether her statement
is believable. As the Supreme Court has explained:
The test for the judge in evaluating a
recantation upon a motion for a new trial is
whether it casts serious doubt upon the
truth of the testimony given at the trial
and whether, if believable, the factual
recital of the recantation so seriously
impugns the entire trial evidence as to give
rise to the conclusion that there resulted a
possible miscarriage of justice. His first
(continued)
impeaching, or contradictory,' and, therefore, insufficient to
justify the grant of a new trial requires an evaluation of the
probable impact such evidence would have on a jury
verdict. . . . [E]vidence that would have the probable
effect of raising a reasonable doubt as to the defendant's
guilt would not be considered merely cumulative, impeaching, or
contradictory.").
22 A-2213-16T2
duty is, therefore, to determine whether the
recanting statement is believable.
[Carter,
69 N.J. at 427 (quoting State v.
Puchalski,
45 N.J. 97, 107-08 (1965)).]
If the PCR judge on remand determines Torres has either not
recanted her trial testimony or her recantation is not
believable, then defendant would not be entitled to a new trial
based on newly discovered evidence and "would clearly be unable
to satisfy the second prong of the ineffective-assistance-of-
counsel test because the deficient performance of appellate
counsel would not have prejudiced the defense." See State v.
Bray,
356 N.J. Super. 485, 499 (App. Div. 2003). Conversely, if
defendant is successful in establishing that Torres has recanted
her trial testimony and that her subsequent testimony "is
probably true and the trial testimony probably false," Carter,
69 N.J. at 427, or other evidence convinces the court that
defendant's right to a fair trial was substantially prejudiced
entitling him to a new trial in the interests of justice, "the
PCR court would be in a position to evaluate and determine
whether the deficient performance by appellate counsel did, in
fact, prejudice the defense because there is a reasonable
probability that the result would have been different," Bray,
356 N.J. Super. at 499 (citing Strickland,
466 U.S. at 694-95).
23 A-2213-16T2
Our disposition of the appeal makes discussion of the
points defendant raises in his supplemental pro se brief
unnecessary. We note, however, that defendant complains he was
prejudiced by being assigned the same counsel at both PCR
hearings in the trial court. That circumstance resulted in
appellate counsel implicitly criticizing the PCR counsel
questioning her for failing to raise Torres's letter on
defendant's first application for PCR. Although we do not
suggest that affected counsel's cross-examination of appellate
counsel, the history of this case may be such that the Office of
the Public Defender should consider assigning new counsel for
defendant on remand.
In light of that history and the prior rulings entered in
connection with the PCR petition, we direct, in an abundance of
caution, that a different judge be assigned to conduct the
evidentiary hearing on remand. See State v. Pierre-Louis,
216 N.J. 577, 580 (2014).
Reversed and remanded. We do not retain jurisdiction.
24 A-2213-16T2
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