Opinion
DOCKET NO. A-5951-12T2
11-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN VELEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Todd L. Hinds, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-03-0818 and 10-05-1122. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Todd L. Hinds, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Steven Velez appeals from the Law Division's March 4, 2013 order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. He argues:
DEFENDANT IS ENTITLED TO AN EVIDENTIA[R]Y HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
We have considered defendant's argument in light of our review of the record and applicable legal principles. We affirm.
In March 2009, an Essex County Grand Jury charged defendant under Indictment No. 09-03-0818 (2009 indictment) with: third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In May 2010, defendant was tried by a jury on the foregoing charges.
Count one and a motor vehicle summons were dismissed on motion by the State.
At the beginning of the trial, the prosecutor told the jury in her opening statement that:
You know that . . . defendant is charged with unlawful possession of a weapon, as well as possession of a weapon [for an] unlawful purpose. But this case is more than just those charges. This case is about recklessness and lawlessness in the city of Irvington.
After openings, the State called its witnesses. Captain Dwayne Mitchell of the Irvington Police Department testified that, on December 5, 2008, he witnessed defendant fire a handgun on New Street in Irvington. Mitchell, while off-duty and traveling as a passenger in a vehicle stopped at a traffic light, saw defendant and another individual walking as defendant drew the gun "and fired three times." Mitchell immediately contacted police headquarters, reported "shots fired," and attempted to follow defendant, who "put the gun in his right front pocket" and ran towards nearby Crescent Lane. Upon responding to Crescent Lane, Mitchell "observed [defendant] fling what appeared to be a weapon from his pocket." He advised Officer Brian Rice that defendant flung the gun "away from his body" and "up in the air," and Rice ultimately recovered a gun from atop a maintenance shed, which police later identified as the object discarded by defendant. Mitchell did not recall reporting defendant "threw the gun on the roof."
During Mitchell's cross-examination, defense counsel stated "I want to talk about this gang thing. You have a gang database." Before the witness responded and following a side bar conference, defense counsel proceeded to a new line of questioning and did not raise any questions regarding gangs.
After the State rested, defendant testified. He stated that, at the time of the alleged incident, he was in Irvington on the corner of Springfield and New Street picking up food with a friend from a local pizzeria. As the two individuals subsequently walked towards defendant's grandfather's house, Rice drew his weapon and instructed defendant "to get on the ground." Rice handcuffed defendant, placed him in a patrol vehicle, and transported him to police headquarters, where defendant was informed he was under arrest for possessing a handgun. Defendant denied that he possessed or fired a handgun on the date of his arrest.
Later, during the prosecutor's closing statements, she told the jury that:
I stated to you in my opening remarks that this case was about recklessness and lawlessness. And nothing has changed, not one thing. Irvington, the township of Irvington should not be treated like it's the O.K. Corral. You just go into downtown and have a gun, boom, boom, boom. For the grace of God, no one was shot, no property was damaged that was seen. But . . . a risk was there.
The jury returned a verdict convicting defendant on count two and acquitting him on count three.
The day before the verdict, defendant was separately charged under Essex County Indictment No. 10-05-1122 (2010 indictment) with: second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of a defaced firearm, N.J.S.A. 2C:39- 3(d) (count three); fourth-degree obstruction of law, N.J.S.A. 2C:29-1 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count five).
The 2010 indictment's underlying events occurred in Irvington on January 22, 2010, and involved defendant's possession of a handgun displaying a defaced serial number.
After defendant's conviction under the 2009 indictment, he pled guilty, pursuant to a plea agreement, to counts one, three, and five of the 2010 indictment, in exchange for the dismissal of counts two and four and the State's recommendation of aggregate concurrent sentences on both indictments of six years with three years of parole ineligibility.
On July 20, 2010, defendant was sentenced on both indictments. Defense counsel requested the sentencing court's adherence to the State's recommendation. While counsel initially stated that no mitigating factors applied, the sentencing judge nonetheless prompted counsel to address the presence of any mitigating factors. In arguing mitigating factor ten applied, counsel asserted that defendant was likely to respond positively to a period of parole, which he equated to a probationary term. Counsel further averred a finding of mitigating factor twelve was warranted, alleging that defendant's entry of a guilty plea on the 2010 indictment signified his willingness to cooperate with law enforcement. Also, in raising mitigating factor thirteen, counsel maintained that defendant's youth during commission of the crimes rendered his conduct substantially influenced by a more mature individual. Additionally, the judge treated counsel suggesting that defendant's custodial sentence imposed a hardship on his infant child as defendant asserting mitigating factor eleven.
N.J.S.A. 2C:44-1(b)(10).
N.J.S.A. 2C:44-1(b)(12).
N.J.S.A. 2C:44-1(b)(13).
N.J.S.A. 2C:44-1(b)(11).
The judge ultimately found aggravating factors three, six, and nine, did not find any mitigating factors, and determined those aggravating factors preponderated over the mitigating factors. The court sentenced defendant on count two of the 2009 indictment to a six year term of incarceration with three years of parole ineligibility. On the 2010 indictment, defendant was sentenced on count one to a six year term of imprisonment with three years of parole ineligibility; on count three to a five year term of imprisonment; and on count five to a five year term of imprisonment. All sentences were ordered to run concurrently.
N.J.S.A. 2C:44-1(a)(3), (6), and (9).
Defendant appealed his sentence, which was heard on our excessive sentence oral argument calendar, R. 2:9-11, in January 2012. After the panel remanded one count for resentencing, defendant's aggregate sentence remained unaffected.
Defendant filed a petition for PCR on March 27, 2012. Judge Peter J. Vazquez denied defendant's petition, setting forth his reasons in a comprehensive eleven page written decision. In denying defendant's petition, the judge determined defendant failed to demonstrate a prima facie showing of ineffective assistance of counsel. The PCR judge observed defendant's trial counsel failed to object to the prosecutor's opening and closing statements, but provided that the statements properly "focuse[d] on defendant's recklessness and lawfulness in possessing [a] handgun unlawfully." The judge found the statements to be "relatively infrequent" in the context of the three day trial and, in light of his instructions to the jury and the evidence weighing against defendant, they lacked the propensity to influence the jury's decision. Judge Vazquez similarly found that defense counsel's fleeting mention of gangs to the State's witness in a question to which the State objected and the witness provided no answer constituted trial strategy and did not improperly influence the jury's decision. Further, in rejecting defendant's contention that trial counsel failed to argue applicable mitigating factors at sentencing, the judge recognized counsel did argue several mitigating factors, which were ultimately deemed inapplicable for the reasons identified in his written opinion.
A copy of defendant's petition is not included in the record on appeal. --------
Finally, the judge determined that, even if trial counsel's performance was deficient, defendant did not "suffer any prejudice." The judge observed that defendant's charges included two weapons charges under separate indictments, which carried mandatory periods of incarceration and parole ineligibility, and that defendant benefited from the imposition of concurrent sentences.
On appeal, defendant argues the PCR judge erred in denying an evidentiary hearing on defendant's petition, alleging he made a prima facie showing of ineffective assistance of counsel. He highlights three grounds upon which counsel's performance was ineffective. First, defendant claims the prosecutor's aforementioned statements during opening and closing arguments caused prejudice by "improperly attempt[ing] to play on the passions and emotions of the jury." Next, defendant contends his counsel's "inexplicable decision to introduce gang evidence at trial" prejudiced his representation. Finally, defendant avers his counsel's performance was ineffective because he only argued the existence of mitigating factors after prompting by the PCR judge. In response, the State argues an evidentiary hearing was properly denied because defendant failed to make a prima facie showing of ineffective assistance of counsel. The State submits the prosecutor's statements did not rise to the level of misconduct such that defense counsel's failure to object constituted ineffective assistance. Further, the State argues that defense counsel's mention of "gang" thing" and "gang database" was trivial and failed to rise to the level of deficient performance. Finally, the State asserts that defense counsel's failure to exhaust all mitigating factors did not cause prejudice to defendant, as his counsel, in fact, raised several mitigating factors.
Our review of an order denying PCR involves consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We accord no deference to a PCR court's interpretations of law. State v. Nash, 212 N.J. 518, 540-41 (2013). Where the PCR court has not held an evidentiary hearing, we need not defer to "the factual inferences the [PCR judge] has drawn from the documentary record," State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014), because credibility determinations are not implicated. Harris, supra, 181 N.J. at 421. Thus, we review the PCR court's "factual findings and legal conclusions" de novo. Ibid.
"PCR is [New Jersey's] analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014). A PCR proceeding safeguards against unjust convictions, Nash, supra, 212 N.J. at 540, and represents "a defendant's last opportunity to challenge the fairness and reliability of a criminal verdict in our state system." State v. O'Neil, 219 N.J. 598, 609-10 (2014) (citations and internal quotation marks omitted). Pursuant to Rule 3:22-2(a), a PCR petition "is cognizable if based upon . . . [a] substantial denial in the conviction proceedings of defendant's [constitutional] rights."
Claims of ineffective assistance of counsel "are particularly suited for post-conviction review." Jones, supra, 219 N.J. at 311 (citation and internal quotation marks omitted); see R. 3:22-4(a)(2). In order to set aside a conviction based upon ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland test requires the defendant to "prove, by a preponderance of the evidence, that (1) counsel performed deficiently . . . and (2) defendant suffered prejudice as a result." State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) (citing Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698); see State v. Gaitan, 209 N.J. 339, 350 (2012) (reciting preponderance of the evidence standard of proof), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Under the first prong of the Strickland test, a defendant is obligated to "show that counsel's performance fell below an objective standard of reasonableness, such that he [or she] was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." State v. Hess, 207 N.J. 123, 146 (2011) (final alteration in original) (citation and internal quotation marks omitted). There exists "a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his [or her] responsibilities." Nash, supra, 212 N.J. at 542 (citation and internal quotation marks omitted). The defendant overcomes this presumption "by proving that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." Gaitan, supra, 209 N.J. at 350 (citation and internal quotation marks omitted). Our inquiry is not whether "counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. We neither "look[] at events through the distorting lens of hindsight" nor "second-guess[] reasonable decisions made by counsel." Ibid.
To satisfy the second prong of the Strickland test, a defendant must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" L.A., supra, 433 N.J. Super. at 14 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Jones, supra, 219 N.J. at 310 (citation and internal quotation marks omitted). Therefore, we examine "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." L.A., supra, 433 N.J. Super. at 14 (citation and internal quotation marks omitted).
A defendant is not entitled to an evidentiary hearing on a claim of ineffective assistance of counsel unless he or she "establish[es] a prima facie case for relief, material issues of disputed fact, and . . . [that the] hearing is necessary to resolve" his or her contentions. O'Donnell, supra, 435 N.J. Super. at 370 (citing R. 3:22-10(b)); see Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). To present such a prima facie case, the defendant must show "'a reasonable likelihood that his or her claim . . . will ultimately succeed on the merits.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)). "[B]ald assertions are not enough" to satisfy that showing, but instead, "the defendant must allege facts sufficient to demonstrate counsel's alleged substandard performance." Jones, supra, 219 N.J. at 311-12 (citation and internal quotation marks omitted); see Porter, supra, 216 N.J. at 355 (explaining "a defendant is not entitled to an evidentiary hearing if the allegations are too vague, conclusory, or speculative" (citation and internal quotation marks omitted)); see also R. 3:22-10(c) (requiring factual assertions be based on personal knowledge and supported by a certification or affidavit of the declarant before an evidentiary hearing is granted). In "determining the propriety of conducting an evidentiary hearing," we "view the facts in the light most favorable to the defendant." Jones, supra, 219 N.J. at 311.
Applying these standards to defendant's arguments, we conclude defendant failed to establish a prima facie case of ineffectiveness of counsel to warrant an evidentiary hearing. We affirm substantially for the reasons stated in Judge Vazquez's well-reasoned and thorough written decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION