Opinion
DOCKET NO. A-5775-14T2
02-06-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSHUA BURGOS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0696. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Joshua Burgos appeals from a July 8, 2015 Criminal Part order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In April 2008, a Middlesex County Grand Jury charged defendant and seven co-conspirators in a seven-count indictment with first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) and 2C:5-2 (count one); two counts of first-degree attempted murder, N.J.S.A. 2C:11-3(a) and 2C:5-1 (counts two and three); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b)(1) and 2C:5-2 (count four); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts five and six); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) and 2C:44-3(h)(count seven). Following a six-day trial, a jury found defendant guilty of counts one, three, four, five, six, and seven. The court sentenced defendant to an aggregate twenty-five-year custodial term.
The seven co-defendants pled guilty.
On direct appeal, we affirmed defendant's conviction but remanded for resentencing. State v. Burgos, No. A-3879-09 (App. Div. Jan. 28, 2013) (slip op. at 3-4). The Supreme Court denied certification. State v. Burgos, 215 N.J. 486 (2013).
The court resentenced defendant to an aggregate fifteen-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Six months after the Supreme Court denied certification, defendant filed his PCR petition. In his petition, defendant alleged his trial counsel was ineffective because counsel "[c]onceded guilt in summation and referred to matters outside of the record that [d]efendant 'knows.'" Following briefing and oral argument, Judge Barry Weisberg denied defendant's petition in a July 8, 2015 order accompanied by a "Statement of Reasons." This appeal followed.
The facts underlying defendant's convictions are detailed in our previous opinion and need not be recounted in their entirety. We repeat only those facts relevant to the issues on this appeal:
On December 22, 2007, while at a party at his cousin Valentin's house on Harrington Street in Perth Amboy, defendant and Savage began arguing with Rodriguez. Defendant's gold chain was broken in the altercation. Rodriguez left the party and went to New Brunswick Avenue in Perth Amboy where his uncle, Dennis, resided. Believing Rodriguez was in possession of his chain, defendant, along with co-defendants, made several threatening phone calls to Rodriguez. According to Rodriguez, he told defendant he would return the chain and drove back to Harrington Avenue, but defendants were hostile to him and unreceptive to his suggestion to call a truce. Rodriguez thus returned to his uncle's house. Ultimately, defendant determined he would go there with a show of force to retrieve his chain.
Two vehicles departed from Harrington Street. Valentin drove a Mercury Mountaineer SUV containing defendant, Hoffman, Olivares and Van Dyke. Vazquez drove a Toyota Corolla containing Otero and Savage. The cars drove to Dennis' house, where someone tossed a trash can at Rodriguez's car, then proceeded to a Hess gas station where defendant exited the SUV and entered a black BMW that had met them there. The three-car caravan then proceeded to New Brunswick Avenue.
As Rodriguez and Dennis stepped outside to check the damage to Rodriguez's car, Dennis testified he saw a car back up on New Brunswick Avenue, from which two shots were fired, and he was struck in the abdomen and lower left leg. Rodriguez saw the SUV and a smaller vehicle behind it and testified the shots came from the driver's side of the SUV. The first bullet permanently lodged in Dennis' right hip. Dr. Tinti performed a femoral artery bypass and inserted a titanium rod from Dennis' knee to his ankle to repair his fractured tibia. She explained that he could have bled to death had he not received the emergency surgery.
When defendants were brought in for questioning, each codefendant told police defendant had called his "boys from New York" to bring "burners," a street name for guns. All six codefendants who testified said that defendant was riding in the BMW when two gunshots were fired from that car.
[Burgos, supra, No. A-3879-09 (slip op. at 4-6).]
On this appeal, defendant raises a single issue:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL ARISING OUT OF TRIAL COUNSEL'S SUMMATION WHICH IRREPARABLY PREJUDICED THE DEFENSE.
Defendant asserts his trial counsel was ineffective for conceding in summation defendant's guilt of aggravated assault, and for referring to defendant's alleged statement telling others to bring "burners." Defendant further asserts his counsel's reference to "burners" somehow implied that the information concerning "burners" came from defendant. Defendant insists that by making such a comment, trial counsel violated the attorney-client privilege.
In rejecting defendant's argument concerning his counsel's concession as to aggravated assault, Judge Weisberg explained:
There were seven co-defendants who testified against Mr. Burgos. Their testimony, however reluctant, along with the other evidence was more than overwhelming that Mr. Burgos was in one of the cars at the shooting and that he was the one who summoned the people who brought the guns. To simply deny all involvement would have been to risk losing all credibility with the jury. Instead, defense counsel attempted to direct the jury to the third degree aggravated assault by conceding and talking about "significant" bodily injury which is the statutory criteria for third degree aggravated assault. This tied into the lesser included charge on the jury verdict sheet in question 6b. If the jury had accepted this and found only third degree aggravated
assault the defendant would have stood convicted of a non NERA offense that could have resulted in some form of probation or a relatively limited time in state prison. Under the circumstances of this case such an outcome could only be viewed as highly favorable to Mr. Burgos. The fact that this approach was not successful does not in hindsight render it ineffective with the strictures of Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As the Appellate Division pointed out in declining to consider the ineffective assistance of counsel issue on direct appeal, "we note, for example, that six co-defendants testified defendant was in the BMW from which the shots were fired and defense counsel had to acknowledge some of the weaknesses in this case." [Burgos, supra, No. A-3879-09 (slip op. at 23)].
Six co-defendants testified against defendant, as the judge later noted in his opinion. --------
We affirm, substantially for the reasons given by Judge Weisberg. We add only that matters falling under the purview of "trial strategy" do not support a claim of ineffective assistance of counsel. State v. Fritz, 105 N.J. 42, 54 (1987) (citations omitted).
Defendant's claim that his trial counsel violated the attorney-client privilege when commenting on defendant's alleged statement to a co-defendant to bring "burners" is 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