STATE OF NEW JERSEY v. LEANDRO OLIVO-REINOSO

NOT FOR PUBLICATION WITHOUT THE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-2505-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LEANDRO OLIVO-REINOSO,
a/k/a LEANDRO F. OLIVO and
LEANDRO F. REINOSO,

     Defendant-Appellant.
_______________________________

                   Submitted December 4, 2018 – Decided January 17, 2019

                   Before Judges Suter and Geiger.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 13-03-
                   0148.

                   Andrew R. Burroughs, attorney for appellant.

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Alexander C. Mech, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from the December 22, 2017 order that denied his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

      We glean these facts from defendant's trial.      On January 17, 2013,

Detective Alan McKay of the North Plainfield Police Department responded to

a report by Mitchell Castro that his Sony laptop and other personal electronic

items were missing from his apartment. Castro paid $600 for the computer. He

rented out a room in his apartment to Raymon Gonzalez, who lived there with

Michelle Olivo (Michelle), defendant's sister. 1 Gonzalez was suspected of

committing the theft, but he denied taking the laptop when questioned by the

police.

      About two weeks later, McKay found the laptop's serial number on a

"pawn list," which showed it had been sold to a local pawn shop on January 19,

2013; he recovered the laptop and returned it to Castro. It had been wiped clean

of all programs, pictures and music. The shop's owner provided the police with

a transaction sheet, which showed he purchased it for $175. A copy of "Dijon




1
  We refer to defendant's sister by her first name to avoid confusion because
defendant and she share the same surname.
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Pompey's" driver's license was attached to the transaction sheet. The store

owner hoped to resell the laptop for $250 to $270.

       McKay contacted Pompey who admitted he had allowed his identification

to be used by defendant to sell the laptop. He denied any knowledge the laptop

was stolen. Pompey consented to participate in two "consensual overhears" 2

with defendant, that were recorded.         During these calls, defendant denied

knowledge that the laptop was stolen, said he needed to use Pompey's

identification because he had left his at home, asserted the laptop was not his

but was "Raymon's," and then denied knowing Gonzalez's last name. Defendant

claimed the laptop was given to him to sell because "they want to get rid of it."

       The police questioned defendant, who waived his Miranda3 rights. In his

statement to the police, defendant said Gonzalez brought the computer to his

apartment, which he shared with Roger Mejia, because he was trying to get rid

of it. Defendant thought the laptop was in good condition and that it was worth

"like around four hundred to three hundred and fifty dollars."        He denied

knowing the laptop was stolen. Defendant also said he was estranged from



2
  McKay testified that "[a] consensual overhear . . . is when a subject makes a
telephone call in your presence, and that telephone call is recorded."
3
    Miranda v. Arizona,  384 U.S. 436 (1966).
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Michelle and was no longer close with Gonzalez. Defendant told the police he

had loaned Gonzalez $100 the night before for bail and that Gonzalez told him

he could keep that amount if he sold the laptop. Defendant used Pompey's

identification to sell the laptop to the shop owner for $175 because defendant

had lost his wallet. Gonzalez and defendant had an argument when Gonzalez

learned defendant sold the laptop.

      Gonzalez testified for the State. He knew defendant because he was dating

his sister. He acknowledged he stole Castro's laptop and other electronic items

because they had an argument.        He testified that he showed the laptop to

defendant at defendant's apartment, and told him it was stolen.         He knew

defendant fixed computers. About a week later, defendant told him he had

pawned the laptop. Although Gonzalez initially denied to the police that he stole

the laptop, he testified he eventually admitted taking it and lying to the police.

He previously had stolen two televisions from Costco when he worked there and

pled guilty to that theft. The defense did not call any witnesses.

      Defendant was indicted on a single count of third-degree4 receiving stolen

property having value of more than $500,  N.J.S.A. 2C:20-7. He was granted



4
   Theft is a crime of the third degree if the amount involved exceeds $500 but
is less than $75,000; it is fourth degree if the amount involved is at least $200
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pre-trial intervention, but that was terminated in 2014 because he violated its

conditions. Following a jury trial, defendant was convicted in August 2014 of

fourth-degree receiving stolen property,  N.J.S.A. 2C:20-7. He was sentenced in

October 2014 to three years of probation.       He violated probation and was

sentenced in June 2016 to probation with an extended date. Defendant did not

file a direct appeal from his conviction or sentence.

      Defendant filed a PCR petition in June 2017, alleging ineffective

assistance of counsel. He claims his counsel did not properly investigate the

case, and should have called alibi witnesses, who included his sister, Michelle,

and his roommate, Mejia. He claims his counsel did not effectively cross-

examine the State's witnesses and should not have conceded before the jury that

the value of the laptop was $250 because that fact all but assured he would be

deported based on a conviction.

      Defendant's PCR petition was denied on December 20, 2017, following

oral argument. The PCR judge rejected defendant's request for an evidentiary

hearing. The PCR court found that defendant's trial counsel "fulfilled his duty"

to make a reasonable investigation. Counsel's decision not to call Mi chelle or




but does not exceed $500 and is a disorderly person's offense if the amount
involved is less than $200.  N.J.S.A. 2C:20-2(b).
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Mejia as witnesses was a "strategic trial decision" that was "reasonable" and was

not because of an "inadequate investigation."          The PCR court rejected

defendant's claim that his counsel should have more thoroughly cross-examined

Gonzalez. Gonzalez's credibility already had been undermined through cross-

examination where he admitted to lying. He "impeached" Gonzalez by asking

about his pending criminal cases, by asking if he was testifying pursuant to a

plea deal and by eliciting admissions from him.

       The court found it was a "strategic choice" by defense counsel to say that

the laptop was worth $250 because there was testimony the laptop was worth up

to $600. "This concession preserved counsel's credibility and convinced the jury

not to convict defendant of third-degree receiving stolen property." The court

also found defendant did not satisfy the second prong under Strickland5 because

there was "sufficient evidence of defendant's guilt . . . to support a conviction."

The PCR court listed examples of inconsistent statements made by defendant.

The court found "counsel's decisions were all perfectly reasonable based on the

underlying facts of this case," and defendant had not shown that "but for

counsel's unprofessional errors, the outcome of the trial would have resolved

differently."


5
    Strickland v. Washington,  466 U.S. 668 (1984).
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     Defendant presents the following issues in his appeal.


           POINT I

           THE PCR COURT WAS WRONG WHEN IT DENIED
           DEFENDANT'S     PETITION    FOR    POST-
           CONVICTION RELIEF BECAUSE DEFENDANT
           HAD PRESENTED A PRIMA FACIE CASE OF
           INEFFECTIVE ASSISTANCE OF COUNSEL.

           (1) Defense counsel was ineffective by failing to
           investigate the case.

           (2) Because defense counsel failed to properly
           investigate the case, he failed to effectively cross-
           examine Raymon Gonzalez.

           (3) Defense counsel prejudicially conceded the market
           value of the stolen computer as $250.00.

           (4) Defense counsel's cumulative errors denied
           Defendant effective assistance of counsel.

           POINT II

           AS THERE WERE GENUINE ISSUES                       OF
           MATERIAL    FACTS   IN   DISPUTE,                  AN
           EVIDENTIARY HEARING WAS REQUIRED.

We are not persuaded by these arguments and affirm.

     The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington,  466 U.S.  at 668, and adopted by our Supreme Court in State v.


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Fritz, l 05 N.J. 42 (l987). In order to prevail on an ineffective assistance of

counsel claim, defendant must meet a two-prong test by establishing that: (l)

counsel's performance was deficient and he or she made errors that were so

egregious that counsel was not functioning effectively as guaranteed by the
 Sixth Amendment to the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland,  466 U.S.  at 694.

      We agree with the PCR court that defendant did not show a prima facie

case of ineffective assistance. Defendant contends that had defense counsel

investigated the case, he would have called defendant's sister and his roommate

as witnesses. Defendant claims Michelle would have corroborated his lack of

knowledge that the laptop was stolen and that Roger Mejia would have testified

Gonzalez did not tell him the laptop was stolen. However, the record supports

the PCR court's conclusion there was ample evidence for the jury to conclude

defendant was aware the laptop was stolen. Defendant was inconsistent in his

statements explaining how he obtained the laptop, whether it was his, how long

he had it, why he needed someone else's identification to sell it, why he sold it

quickly for the price he obtained, his apparent lack of surprise on the overheard


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conversations that the laptop was stolen and in claiming he did not know

Gonzalez's last name.

      Defendant argues his sister's testimony would have provided evidence of

a motive by Gonzalez. Even if he did have a motive to lie about defendant

because, as she alleged, defendant tried to break-up Gonzalez's relationship with

Michelle, that also could have weakened defendant's case. The jury would have

to believe that although Gonzalez and defendant were not on friendly terms,

defendant bailed him out and agreed to hold a computer for him. Also, his

sister's testimony would have been subject to impeachment limiting its value.

Thus, we agree with the PCR court's conclusion that counsel's actions were

strategic.

      Defendant claims that cross-examination of the State's witnesses was

inadequate but this is not supported by the record. Gonzalez conceded on cross-

examination he lied to the police and, on an earlier occasion, stole TVs from an

employer. Detective McKay acknowledged he did not do anything to verify the

value of the laptop.

      Defendant is critical of his attorney for admitting in the closing that the

laptop was worth $250. However, there was testimony that the value of the

laptop could have been as high as $600. The store owner said he could sell the


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laptop for $250 to $270. Defendant's own statement placed the value at $350 to

$400. Had the jury accepted the $600 valuation, defendant could have been

convicted of third-degree receiving stolen property.

      Even if counsel should have called witnesses or remained silent about the

laptop's market value, defendant has not shown the second prong under

Strickland was satisfied. He must show that but for the errors, the result of the

proceedings would be different. Ibid. There was evidence before the jury that

defendant was aware the laptop was stolen based on his own inconsistent

statements. Defendant's theory of the case was before the jury, but so were these

inconsistencies. Defendant has not shown anything here that would change the

result.

      We are satisfied from our review of the record that defendant failed to

make a prima facie showing of ineffectiveness of trial counsel within the

Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an

evidentiary hearing was not warranted. See State v. Preciose,  129 N.J. 451, 462-

63 (1992).

      We conclude that defendant's further arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.


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