STATE OF NEW JERSEY v. ANTHONY AFANADOR

NOT FOR PUBLICATION WITHOUT THE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-5128-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY AFANADOR,

        Defendant-Appellant.

______________________________

              Submitted January 18, 2018 – Decided February 1, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 09-12-1019.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Karen A. Lodeserto, Designated
              Counsel, on the brief).

              Jennifer   Webb-McRae,    Cumberland   County
              Prosecutor, attorney for respondent (Andre R.
              Araujo, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Convicted by a jury of first-degree robbery and a weapons

offense, sentenced to an extended term of thirty years subject to
the No Early Release Act, 
N.J.S.A. 2C:43-7.2, and his judgment of

conviction   having   been   affirmed   on   direct   appeal,   State    v.

Afanador, No. A-6171-10 (App. Div. June 26, 2013), certif. denied,


217 N.J. 285 (2014), defendant filed this petition for post-

conviction relief (PCR).       The trial court denied the petition

without an evidentiary hearing.         Defendant appealed, raising a

single issue:

          POINT ONE

          DEFENDANT IS       ENTITLED TO POST-CONVICTION
          RELIEF BECAUSE     TRIAL COUNSEL WAS INEFFECTIVE
          IN FAILING TO       OBTAIN VIEWABLE SURVEILLANCE
          FOOTAGE OF THE     ROBBERY.

Finding no merit in defendant's argument, we affirm.

     The following facts, as recounted in our decision affirming

defendant's conviction and sentence on direct appeal, are

relevant to this appeal:

          On August 31, 2009, around 2:00 a.m., Abdoul
          Toure, an employee of the Riggins Gas Station
          in Vineland, while lying down on the couch in
          the business office located in the rear of the
          convenience store part of the station, was
          approached   by   a   male   armed    with   a
          handgun.   The male had a bandana over his
          nose, but the bandana did not conceal a red
          mark on the right side of his face.        The
          perpetrator was wearing a black hooded
          sweatshirt or hoodie. He told Toure, "Give
          me all the money." Toure recognized the man,
          whom he later identified as defendant, by the
          red mark, his voice, height, and build,
          including "flat-type shoulders," as "Cheesy,"
          who regularly frequented the gas station and

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had been there one and one-half hours earlier
to purchase cigarettes.

     Toure was surprised at defendant's
request.     He attempted to look defendant
directly   in   his   eyes  and   responded,
"Really?" At that point, defendant took $720
from Toure's pocket and ran away. Vineland
police responded shortly thereafter and took
a report from Toure.

     There was video equipment at the station
which monitored the outside and interior of
the store. The cameras did not capture the
actual robbery, but did capture a hooded
individual wearing a black mask enter through
the office door, remove a handgun and point
it in the direction of Toure, who was lying
on the couch. However, the identity of the
perpetrator could not be discerned from the
video. Toure, approximately one week after
the robbery, identified defendant from a photo
array.

     Also, one week following the robbery,
Shawn Land, who had contacted police to report
that a female had damaged his car, informed
the    police    about    the    gas   station
robbery.   Land told police that two weeks
before the gas station robbery, defendant,
whom he had known for about three weeks at
that point, asked him to be the getaway driver
for a robbery at the gas station. He told
defendant     he   didn't     want   to    get
involved. Defendant then showed him a silver
and red revolver which appeared real to
him. Land knew defendant by both his real
name, Anthony Afanador, and by his nickname,
"Cheesy."

     Defendant did not testify, but his uncle,
Elvin     Torres,     testified     on     his
behalf. According to Torres, at the time the
robbery was being committed, defendant, who
lived with him, was at home. He testified

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            defendant borrowed his vehicle earlier that
            evening   and   drove  two   family   members
            home.   When defendant returned around 1:15
            a.m., he took the keys from him because
            defendant had some alcohol and smoke on his
            breath.   He and defendant then both fell
            asleep in the living room until 5:30 a.m.

                 Torres did not advise police defendant
            had been with him at the time the robbery was
            being committed until eight months later. He
            explained he had been upset with defendant
            that night because defendant had taken his
            vehicle, a Ford Escape. He recorded the time
            defendant took the car to protect himself in
            case he was questioned by the police about the
            car. Although police requested that Torres
            turn over the note several times, he did not
            do so, explaining "[i]t's only a piece of
            paper, wrote down, boom.       I shuffled it
            through my bills[.]"

            [Alfanador, slip op. at 3-5.]

       In his PCR petition, which included a petition for discovery,

defendant claimed his trial counsel was ineffective because he

failed to conduct an adequate pre-trial investigation, was inept

when   cross-examining   witnesses,   and   had   no   coherent   plan   of

defense.   He also claimed his right to cross-examine witnesses was

infringed by the prosecutor, who arbitrarily withheld, or failed

to preserve, videotapes from the gas station.

       In a written opinion dated November 30, 2015, Judge Cristen

P. D'Arrigo denied defendant's petition without an evidentiary

hearing and also denied defendant's discovery petition.            In his

opinion,    Judge   D'Arrigo   rejected,    among      other   arguments,

                                  4                               A-5128-15T1
defendant's claim that his attorney should have requested video

surveillance, filed a motion to suppress testimony regarding the

videotapes, objected to testimony based on the surveillance, and

requested an adverse inference charge for failure to preserve the

entire surveillance video.    The judge explained the pre-robbery

surveillance was produced by the State in pre-trial discovery.

The robbery surveillance, however, was not produced because the

State was unable to play the surveillance video.   The surveillance

video had been provided to the State by the victim but the State

could not play it.   Judge D'Arrigo concluded there was no actual

failure by trial counsel to request appropriate discovery. Rather,

defense counsel relied upon the State's representation that the

surveillance video could not be replayed.

     Judge D'Arrigo also rejected defendant's contention his trial

counsel was ineffective for not vigorously pursuing the contents

of the unplayable video.     In rejecting this argument, the judge

wrote:

               First of all, at trial, the defense
          attorney utilized the [S]tate's inability to
          play that tape to his advantage in attempting
          to raise reasonable doubt in the jury's mind
          about what the tape might have shown and
          casting   suspicion   on  the   prosecution's
          inability to play it.    Had defense counsel
          solved the issue with regard to getting the
          tape to play, he would have been deprived of
          that argument. The attempt to get the tape
          to play was a calculated risk that had little

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          upside.     At   best  the   tape  would  be
          inconclusive.   At worst it would have been
          confirmatory of the officer's testimony of
          their recollection of the tape played at the
          store the night of the robbery. The decision
          to pursue or not pursue the technical issues
          regarding the tape was a classic strategic
          decision.

               But, Petitioner argues that it could have
          contained exculpatory images or if available,
          could have been used to impeach the testimony
          of the witnesses including the victim's
          statement of the red mark on his face/neck.
          Ignoring the strategic decision and the
          downside risk, the possibility of the tape
          containing    exculpatory    information    or
          information valuable to cross-examination was
          put to rest by the prosecutor's ability,
          albeit late ability, to actually play the
          tape.   The court having viewed the tape as
          part of these proceedings finds that there are
          no exculpatory images or information contained
          in that tape. Nor does the tape contain images
          with   the   clarity  to   identify   specific
          characteristics that would be necessary to
          impeach the victim's description of the
          perpetrator. The angle, distance, lighting,
          location, and lack of definition of the images
          make it of little value except: to confirm
          that the robbery took place; the basic
          description of the perpetrator (height, build,
          clothing1); the time at which it took place;
          and the direction from which the perpetrator
          approached and fled the scene.      Indeed the
          location where the perpetrator actually took
          the money from the clerk is not captured on

1
    Petitioner claims that the tape could have shown that the
perpetrator and the defendant wore different shoes by comparing
the images from the tape when the petitioner was in the store
earlier and those of the perpetrator an hour and half later. The
images on the second tape do not contain enough definition to make
such comparisons.


                                6                          A-5128-15T1
             the recording because it was screened from
             view. Therefore, even if the argument could
             satisfy the first prong of Strickland2, it
             could not have survived the second because had
             defense counsel more vigorously pursued the
             technical problems and actually solved them,
             it would not have changed the outcome of the
             trial.

       As previously noted, the sole issue defendant raises on appeal

is that his trial counsel was ineffective for failing to obtain

viewable surveillance footage of the robbery.         We reject this

argument substantially for the reasons expressed by Judge D'Arrigo

in    his   written   opinion.   Defendant's   arguments   are   without

sufficient merit to warrant further discussion.      R. 2:11-3(e)(2).

       Affirmed.




2
    Strickland v. Washington, 
466 U.S. 608, 687 (1984).

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