STATE OF NEW JERSEY v. DAVID A. FIGUEROA
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4513-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID A. FIGUEROA,
Defendant-Appellant.
__________________________________
Submitted December 11, 2017 – Decided March 15, 2018
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
12-05-0705.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lee March Grayson, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (William P. Miller,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A jury convicted defendant David A. Figueroa of aggravated
assault and weapons offenses, and the judge sentenced him to an
aggregate six-year term of imprisonment with an 85% period of
parole ineligibility pursuant to the No Early Release Act,
N.J.S.A.
2C:43-7.2. We affirmed defendant's conviction on direct appeal
and remanded for resentencing. State v. Figueroa, No. A-4610-12
(App. Div. Oct. 21, 2014) (slip op. at 4). We specifically
preserved for post-conviction relief (PCR) defendant's assertion
that trial counsel rendered ineffective assistance (IAC). Id. at
9 n.3.
Defendant filed a timely PCR petition asserting IAC.
Specifically, the petition focused on trial counsel's substitution
into the case. As the transcript bears out, counsel appeared
before the trial judge one day before the scheduled trial date and
requested an adjournment, telling the judge he had "not seen any
discovery yet." Counsel also stated that defendant had
unsuccessfully tried to contact his prior attorney to review the
discovery, a claim which predecessor counsel, who was present,
denied.
The judge, however, noted the trial date was set three months
earlier and refused to permit the substitution unless counsel
agreed to start the trial the next day. When the judge asked
counsel if he would be ready, he responded: "We don't seem to
have much of a choice [y]our [h]onor and so therefore, yes." When
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again pressed by the judge, counsel responded, "We do have a choice
and we are going forward."
PCR counsel argued trial counsel's lack of familiarity with
the evidence resulted in trial errors that prejudiced defendant.
He cited counsel's inappropriate direct examination of defendant,
which resulted in the jury hearing the specifics of defendant's
prior criminal convictions even though the judge had ordered
sanitization, and failure to object to the prosecutor's cross-
examination, which, PCR counsel argued, resulted in the jury
receiving a flight charge. Id. at 7-11.
PCR counsel argued trial counsel failed to contest the nature
of the victim's injuries, essentially conceding the victim
suffered "serious bodily injury," see
N.J.S.A. 2C:12-1(b)(1)
(causing or attempting to cause serious bodily injury is a second-
degree crime), failed to adequately cross-examine the victim about
his prior criminal history, and failed to call witnesses who may
have supported defendant's claim of self-defense. PCR counsel
argued that trial counsel simply should not have agreed to
represent defendant after the judge denied his adjournment
request.
Following oral argument, the PCR judge, who was not the trial
judge, denied defendant's petition, explaining her reasons in a
written opinion. She concluded the trial judge's denial of an
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adjournment was not a mistaken exercise of discretion, and, based
upon a review of the trial transcripts, trial counsel had received
the very limited discovery in the case, was fully familiar with
the facts and was adequately prepared for trial.
The judge found that trial counsel strategically elicited the
specifics of defendant's prior criminal convictions in "an effort
to 'soften the blow' rather than have the . . . [p]rosecutor bring
that information to the jury." The judge rejected defendant's
other claims about trial counsel's performance. Lastly, the judge
concluded that denying defendant the right to private counsel of
his choice would likely have been reversible error. See State v.
Kates,
216 N.J. 393, 395-96 (2014). The judge denied the petition
without an evidentiary hearing.
Before us, defendant argues that trial counsel provided
ineffective assistance because he agreed to represent defendant,
despite being unfamiliar with the facts of the case, without having
reviewed discovery and without conducting any investigation.
Additionally, for the first time on appeal, defendant contends
appellate counsel provided ineffective assistance by failing to
raise an argument that the denial of a reasonable adjournment
request compelled reversal. On this point, defendant urges us to
remand for an evidentiary hearing on appellate counsel's
performance.
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We have considered these arguments in light of the record and
applicable legal standards. We affirm.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland v. Washington,
466 U.S. 668,
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).
In State v. Miller,
216 N.J. 40, 59 (2013), the Court
reiterated that for purposes of PCR review, the presumed prejudice
standard of United States v. Cronic,
466 U.S. 648, 661-62 (1984),
does not apply to a petitioner's allegation of inadequate attorney
preparation time because the court denied an adjournment request.
[T]he obstacles facing defendant's attorney in
terms of inability to prepare are insufficient
to warrant a presumption of prejudice and to
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excuse the need for an inquiry into the actual
conduct of the trial. Indeed, no federal
court has reversed a criminal conviction,
pursuant to Cronic, based solely on the ground
of inadequate attorney preparation, whether
attributable to the trial court's refusal of
a continuance or not.
[Miller,
216 N.J. at 59 (quoting Fritz, 105
N.J. at 61-62).]
In short, a defendant must still establish both prongs of the
Strickland/Fritz test. Id. at 62.
In particular, defendant cites two specific examples where
trial counsel's inadequate preparation resulted in prejudice.
Other general allegations regarding counsel's lack of
investigation or preparation are unsupported by specifics. See
State v. Porter,
216 N.J. 343, 355 (2013) (holding the petition
must be supported by "specific facts and evidence supporting
[defendant's] allegations").
Defendant argues counsel improperly questioned defendant
about his prior convictions and failed to cross-examine the victim
about his prior convictions. These two examples of deficient
performance, he contends, were prejudicial.
We reject the claim as to the cross-examination of the victim.
The trial court ruled the victim's prior convictions would be
admissible for impeachment purposes, N.J.R.E. 609, and the
prosecutor elicited information about them on direct examination.
6 A-4513-15T1
Counsel's decision not to ask about them again during cross-
examination, and perhaps emphasize their importance, was
understandable, since defendant, who had his own convictions,
intended to testify and did.
We do not necessarily agree with the PCR judge that counsel's
questioning of defendant about his prior criminal record, see
Figueroa, slip op. at 7-8, was a strategic effort to "'soften the
blow'" in anticipation of the prosecutor's cross-examination. The
judge had already ruled that the details of defendant's prior
convictions would be sanitized, so the particular offenses for
which defendant was convicted would, but for counsel's open-ended
questioning, never have been revealed to the jury.
However, we already noted that the questioning may have been
designed to eliminate jury speculation about the exact nature of
the crimes. Id. at 10. More importantly, contrary to defendant's
assertion, the direct and cross-examination of defendant had
little to do with the judge's proper decision to instruct the jury
on flight. The evidence that defendant immediately fled the bar
in haste after cutting the victim's face was undisputed. In short,
in light of the overwhelming evidence of defendant's guilt, id.
at 4-7, counsel's direct examination of defendant, and his failure
to object to the prosecutor's gratuitous and improper comment
during cross-examination, id. 10-12, does not "undermine [our]
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confidence in the outcome" reached by the jury. Pierre,
223 N.J.
at 583.
Lastly, defendant for the first time argues appellate counsel
provided ineffective assistance by failing to argue on direct
appeal that the trial judge's denial of an adjournment was
reversible error. We generally refuse to consider issues not
presented to the trial court, State v. Witt,
223 N.J. 409, 419
(2015), but we address defendant's claim here for purposes of
complete review.
We apply the Strickland/Fritz standard to a defendant's IAC
claims regarding appellate counsel. State v. Gaither,
396 N.J.
Super. 508, 513 (App. Div. 2007) (citing State v. Morrison,
215 N.J. Super. 540, 546 (App. Div. 1987)). Most importantly,
appellate counsel has no obligation to raise issues on direct
appeal that would not succeed. See State v. Echols,
199 N.J. 344,
361 (2009).
"A motion for an adjournment implicates a trial court's
authority to control its own calendar and is reviewed under a
deferential standard." Miller,
216 N.J. at 65. Although the
trial judge did not engage in a searching review of the factors
identified in Miller as guideposts for the exercise of the court's
discretionary authority, see id. at 67, we are convinced from our
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review of the record that the judge's decision to deny an
adjournment was not a mistaken exercise of discretion.
Affirmed.
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