Opinion
DOCKET NO. A-5718-11T1
07-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE AGRON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief and reply brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2075. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief and reply brief. PER CURIAM
Defendant appeals from the April 9, 2012 order of the Law Division denying his application for post-conviction relief (PCR) without a full evidentiary hearing. We affirm.
I.
On June 4, 2003, a Camden County grand jury charged defendant with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1) & (2), (counts one and two); attempted first-degree murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) & (2), (count three); conspiracy in the first-degree, N.J.S.A. 2C:5-2, (count four); second-degree possession a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count six); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1), (count eight).
In 2006, following a jury trial, defendant was found guilty of all the charges in the indictment. The trial judge imposed consecutive life terms, with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on both first-degree murder charges. The remainder of the counts received terms concurrent to the life sentences.
We affirmed the conviction, but merged the conviction for conspiracy to commit murder into the murder convictions, and remanded for resentencing. State v. Agron, No. A-0252-06 (App. Div. Nov. 21, 2008) (slip op. at 2-3). The Supreme Court denied certification. State v. Agron, 198 N.J. 313 (2009).
At resentencing, the trial court eliminated the sentence for conspiracy to commit murder; modified the life sentences for the murder convictions, and imposed a forty-two year term on count one and a forty-year term on count two, consecutive to count one. Both were subject to NERA and a five-year period of parole supervision. We later affirmed the sentence but remanded for consideration of jail credits.
The following statement of facts is from our 2008 opinion:
[D]efendant and co-defendants Angel Mendoza and Juan Salas were involved in an attempt to "clear the block" around Sixth and Vine Streets in Camden of competing drug dealers. Defendant took a gun from the car trunk of his Uncle Willie Perez and told his friend, Joseph Quinones, to "just get out of here." Within three minutes after leaving the scene, Quinones heard gunshots behind him.
A total of fifty-seven shells were discovered at the scene. Defendant, Mendoza, and Salas all had firearms. Quinones identified defendant as being in possession of a Smith & Wesson pistol linked to eight of the shells [ ] found at the scene. As a result of the shootings, Jabbar Lee and Richard Williams were killed and David Williams was critically injured.
The following day, defendant went to the prosecutor's office "as the result of the conversation" he had with the guard at his building. According to defendant, who testified at the trial, he was told that someone at the prosecutor's office was interested in speaking to him. He waited about an hour and a half and no one came to question him, so defendant left the
prosecutor's office. On cross examination, the prosecutor elicited testimony that he really went to the prosecutor's office because he was under the impression that his "Uncle Willie" had implicated him in the shootings. The following day, representatives of the Prosecutor's Office went to defendant's apartment and asked him if he wanted to come in for questioning voluntarily. Defendant testified that he agreed to go, but only because he felt that "I had to go down there or it was going to be forcible and that was it."
Defendant gave two recorded statements to representatives of the Prosecutor's Office. In the first, he testified that he and Quinones "were in front of North Gate apartments . . . and they heard the gunshots and didn't know anything more about it other than that." The investigators believed that defendant knew more than he was revealing and continued to question him. In his second statement, defendant admitted that he was part of a "plan" to "clear the block" of rivals in the drug trade, and "get them off the corner" by "trap[ping] . . . to kill as many of them" as possible and that he was involved in the shootings, but that Richard Williams, one of the victims, fired first.
[Agron, supra, slip op. at 3-4.]
In December 2010, defendant filed a pro se PCR petition. After counsel was appointed and submitted a supplemental brief, Judge Samuel D. Natal conducted a hearing on March 30, 2012, at which three witnesses testified that defendant claimed should have been called to testify at trial. On April 9, 2012, Judge Natal, who also conducted the underlying trial, issued a thirty- three page written opinion and a corresponding order rejecting defendant's arguments and denying PCR.
II.
On appeal, defendant presents the following arguments for our consideration:
POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.
A. Counsel Was Ineffective For Failing to Make Any Meaningful Challenge to The Miranda Hearing.
B. Counsel was Ineffective for Failing to Object to the Prosecutor's Opening and Closing Remarks and the Use of Facts Not In Evidence.
POINT II: THE TRIAL JUDGE ERRED AT THE PCR HEARING WHEN HE DISCRIMINATELY ALLOWED THE TESTIMONY OF ONLY SOME AND NOT ALL OF THE WITNESSES WHICH WERE ABLE TO PROVIDE EXCULPATORY EVIDENCE OF DEFENDANT.
POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
Defendant raises the following arguments in his pro se supplemental brief:
POINT I: PCR COUNSEL'S INADEQUATE REPRESENTATION PREJUDICED DEFENDANT AT AN EVIDENTIARY HEARING BY FAILING TO PROVIDE THE COURT WITH THE NECESSARY AFFIDAVITS TO
ALLOW POTENTIALLY EXCULPATORY WITNESSES TO TESTIFY.
POINT II: THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST CONVICTION RELIEF BASED ON A PRIMA FACIE CRITERIA THAT WAS TOO RESTRICTIVE.
Lastly, defendant raises the following arguments in his pro se reply brief:
POINT I: IN ANSWER TO POINT III OF THE STATE'S RESPONSE BRIEF DEFENDANT WOULD ASK THAT THE COURT MAKE THE APPROPRIATE FINDINGS TO ALLOW FOR A JUST DETERMINATION IN THE MATTER.After reviewing the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Natal in his comprehensive April 9, 2012 opinion.
A. If the court finds that the Defendant's pro se submission is not cognizable before this court the State should not be allowed to benefit from a procedural infirmity submitted by a pro se defendant[,] therefore a holding should not attach until the matter has been afforded due process.
Judge Natal rejected defendant's argument that trial counsel was ineffective for failing to assert any "meaningful challenge during the Miranda hearing." Judge Natal found that (1) the claim was procedurally barred because it could have been raised on direct appeal, and in fact had been raised by defendant in his pro se appellate brief, and (2) the claim was meritless and did not entitle defendant to an evidentiary hearing because defendant had "voluntarily waived his Miranda rights before making the statements he now claims should have been ruled inadmissible[, and] defendant testified at trial that he had read and understood his rights before waiving them."
Judge Natal further held that defendant
does not support his allegations that counsel was ineffective with regard to the Miranda hearing with any certifications or affidavits, nor does he indicate what other witnesses should have been called at the Miranda hearing or to what these "witnesses" would have testified. [Defendant's] trial attorney conducted cross-examination of the State's witness at the Miranda hearing, and asked additional questions on re-cross, but [defendant] does not indicate what other questions his attorney should have asked to support his allegation that counsel was deficient for only conducting a "limited" cross-examination. The State had ample evidence of [defendant's] guilt, even without his statements to investigators. Accordingly, [defendant] cannot show his trial counsel's performance was deficient, nor can he show he was prejudiced as a result. Therefore, [defendant] has not made a prima facie case for ineffective assistance of counsel and this claim does not merit an evidentiary hearing.After reviewing the record, we agree with Judge Natal's analysis and find this claim of error meritless.
We also reject defendant's various claims that Judge Natal erred by only hearing the testimony of some witnesses and not others, and that Judge Natal misapplied his discretion by utilizing prima facie standard that was "too restrictive." Both claims are without substance.
Judge Natal heard testimony only from the witnesses for whom defendant submitted an affidavit or certification, as required by Rule 3:22-10(c). Defendant's failure to submit certifications as to the expected testimony of the other witnesses would not warrant an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 163 N.J. 199 (1999). Furthermore, Judge Natal properly applied the Strickland/Fritz test for a prima facie case of ineffective assistance of counsel and determined that defendant did not satisfy either prong of the test. We agree that defendant failed to establish that counsel's performance was deficient and that the deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52.
The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Fritz 105 N.J. 42, 52 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).