STATE OF NEW JERSEY v. JULIO GRACIANO

NOT FOR PUBLICATION WITHOUT THE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-3723-15T2

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

JULIO GRACIANO, a/k/a JULIO
GRACEINO and COUNTY DJ,

          Defendant-Appellant.
_________________________________

              Submitted December 18, 2017 – Decided March 22, 2018

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              08-01-0041.

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

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        A jury convicted defendant Julio Graciano of murder and

related charges. The judge imposed an aggregate sentence of sixty-
five years' imprisonment with an eighty-five percent period of

parole ineligibility pursuant to the No Early Release Act, 
N.J.S.A.

2C:43-7.2.   State v. Graciano, No. A-6263-10 (App. Div. Aug. 14,

2013) (slip op. at 1-2).    We affirmed defendant's conviction and

sentence on direct appeal, id. at 3, and the Supreme Court denied

his petition for certification.       
217 N.J. 292 (2014).

     Defendant filed a pro se petition for post-conviction relief

(PCR).   Appointed PCR counsel filed a brief asserting specific

ineffective assistance of counsel (IAC) claims, including that

trial counsel failed to properly investigate and call favorable

witnesses, including an alibi witness, and trial counsel coerced

defendant into not testifying on his own behalf.1

     The PCR judge, who was not the trial judge, granted defendant

an evidentiary hearing, see Rule 3:22-10, at which defendant and

trial counsel testified.    Defendant said he was with a friend,

Juan "Willie" Brito, at the time of the murder and into the early

morning of the day after.    Defendant told this to trial counsel

prior to trial.   Brito was present in the courtroom during most

of the trial, but defendant believed his attorney never spoke to

Brito.


1
  PCR counsel raised other specific alleged instances of trial
counsel's   and  appellate counsel's  ineffective   assistance.
However, we limit our discussion only to the specific claims
renewed before us.

                                  2                          A-3723-15T2
     Defendant said his mother spoke to Brito, and Brito was

willing to testify in support of defendant's alibi.    According to

defendant, his attorney told him Brito's testimony was unnecessary

because "we had the trial beat."     Defendant wanted to testify at

trial, but his attorney told him not to and coached defendant on

what to say when the judge questioned him about the decision.

     After defendant's testimony, PCR counsel advised that his

next witness, Brito, who he had subpoenaed, was not present.     The

prosecutor interjected:

          Prosecutor: I'll be clear on the record what
          happened . . . Mr. Brito came to my office
          . . . after he received a copy of [PCR
          counsel's] subpoena.  He spoke to . . . my
          trial chief because I was in court on other
          obligations.

               And he basically explained . . . that
          what was in the affidavit supplied by [PCR
          counsel] was false. . . . [M]y chief had told
          Mr. Brito . . . come to [the judge's courtroom]
          as the subpoena directs, and then we'll . . .
          have everything cleaned up that day, just come
          in and tell the truth.      We didn't say what
          happened. We just said come in today and tell
          the truth.

               I know [PCR counsel] did serve him. I
          know he sent someone from his office, or
          defense investigator . . . to follow up with
          him.

          PCR counsel:    That's correct.

          Prosecutor: But I expected Mr. Brito to be
          here. The State does not intend to call him.


                                 3                          A-3723-15T2
            . . . [A]t this point, Mr. Brito's not here,
            but the State did never subpoena him.

            PCR counsel:          I       don't    intend   to     call
            him . . . .

     Trial counsel then testified.               He met with defendant several

times before trial and met Brito during trial.                       He recalled

defendant was "adamant that perhaps Mr. Brito had some exculpatory

evidence . . . . along the lines of an alibi."                   Counsel recalled

a "note" or "letter" authored by Brito, but, as trial approached

and counsel investigated further, Brito was "reluctant to testify

and ultimately did not want to testify."              Counsel's "professional

opinion" was that to the extent the "letter was attempting to

establish   an   alibi[,]   .    .    .    the    overwhelming     facts   of   the

case . . . flew in . . . the face of that."                 See Graciano, slip

op. at 4-5 (describing the "substantial" evidence of defendant's

guilt, including the eyewitness testimony of several friends who

were with him at the time of the shooting).

     Counsel described his discussions with defendant regarding

whether he should testify on his own behalf.                     He acknowledged

advising defendant against testifying and explained his reasons.

     On cross-examination, counsel stated that defendant never

denied being at the scene of the shooting, but claimed he only

fired a "warning" shot.         Counsel said Brito ultimately chose not

to testify "because he was going to perjure himself."

                                          4                                A-3723-15T2
       The PCR judge found trial counsel was credible and "did

everything he could" with regard to Brito.              The judge rejected

defendant's claim that he was coerced into not testifying, noting

the extended colloquy between defendant and the judge at trial.

The judge found defendant made a "knowing and voluntary and

conscious decision not to testify" at trial.            He entered an order

denying defendant's PCR petition.

       Before   us,   defendant       argues    trial    counsel    rendered

ineffective assistance by failing to call Brito as an alibi witness

and by coercing defendant into not testifying.               Additionally,

defendant   argues    PCR   counsel    rendered   ineffective      assistance

because he failed to call Brito as a witness at the evidentiary

hearing.    We find no merit to these arguments and affirm.

       Our "standard of review is necessarily deferential to a PCR

court's factual findings . . . [and] we will uphold the PCR court's

findings that are supported by sufficient credible evidence in the

record."    State v. Nash, 
212 N.J. 518, 540 (2013) (citing State

v. Harris, 
181 N.J. 391, 415 (2004)).          However, we "need not defer

to a PCR court's interpretation of the law; a legal conclusion is

reviewed de novo."     Id. at 540-41 (citing Harris, 
181 N.J. at 415-

16).

       To establish an IAC claim, a defendant must satisfy the two-

prong test formulated in Strickland v. Washington, 
466 U.S. 668,

                                       5                              A-3723-15T2
687 (1984), and adopted by our Supreme Court in State v. Fritz,


105 N.J. 42, 58 (1987).          A defendant must show "that counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment."                  Id. at 52 (quoting

Strickland, 
466 U.S. at 687).             Second, a defendant must prove he

suffered      prejudice    due    to   counsel's       deficient      performance.

Strickland,     
466 U.S.  at    687.        A   defendant   must    show     by   a

"reasonable probability" that the deficient performance affected

the outcome.      Fritz, 
105 N.J. at 58.            "A reasonable probability

is   a    probability     sufficient      to   undermine   confidence      in    the

outcome."      State v. Pierre, 
223 N.J. 560, 583 (2015) (quoting

Strickland, 
466 U.S.  at 694; Fritz, 
105 N.J. at 52).

         Here, the PCR judge specifically found trial counsel was a

credible witness who had thoroughly investigated Brito as an alibi

witness for trial.         Although the judge did not explicitly find

Brito refused to commit perjury, trial counsel clearly reached

that conclusion.        Indeed, trial counsel testified that defendant

never denied being in the van from which the fatal shot was fired.

We also agree with the PCR judge that both the trial record and

the testimony at the PCR hearing fully support the conclusion that

defendant voluntarily and knowingly chose not to testify at trial.

         Lastly, defendant contends PCR counsel provided ineffective

assistance because he failed to seek the court's assistance to

                                          6                                A-3723-15T2
enforce the subpoena undisputedly served on Brito.                 Defendant

urges us to remand for a hearing at which Brito is compelled to

testify.

     The State argues we should refuse to consider the argument

because it was never raised before the PCR court.             That position

is untenable.    How can a defendant at a PCR hearing argue the very

attorney   presenting   his   case       at   the   hearing   is   rendering

ineffective assistance?

     However, we agree with the State that PCR counsel's duty is

to "communicate with the client, investigate the claims urged by

the client, and determine whether there are additional claims that

should be brought forward.    Thereafter, counsel should advance all

of the legitimate arguments that the record will support."             State

v. Webster, 
187 N.J. 254, 257 (2006).         There simply is no credible

evidence in the record to support the assertion that Brito, if

forced to testify, would provide an alibi for defendant.               It is

reasonable to assume that PCR counsel's decision not to enforce

the subpoena was for the very same reason that trial counsel

decided not to call Brito as a witness, i.e., because Brito would

not perjure himself by testifying in support of defendant's alleged

alibi.

     Affirmed.



                                     7                               A-3723-15T2