Opinion
DOCKET NO. A-3419-13T2
04-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE L. GALLARDO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for defendant (Adam W. Toraya, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0599. Joseph E. Krakora, Public Defender, attorney for defendant (Adam W. Toraya, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM4
Defendant Jose L. Gallardo appeals from the Law Division's January 13, 2013 order that denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We provide necessary context by referencing our prior opinion setting forth the overwhelming evidence of defendant's guilt that was adduced at trial. State v. Gallardo, No. A-0754-08 (App. Div. Feb. 3, 2011).
On March 23, 2006, at approximately 9:15 p.m., Atul Patel was working at the Colonial liquor store in Linden. Patel observed three people enter the store. One of them, a woman, bought something and quickly left. The other two men stayed in the store speaking Spanish amongst themselves. One of the men walked outside and re-entered the store with a third man, who, joined by the other two men, came around the store's counter and brandished a gun at Patel as he stood by the cash register. Patel became "very scared" and raised his hands, covering his face as all the men began to "beat[] [him]" and threatened to shoot him. Patel's screams for help caused all three men to run out of the store without taking any money or merchandise.
Two of the men, including the one holding the gun, wore rubber gloves. . . . Patel testified that the men wore hats: ". . . one ha[d] a Yankee woolen hat."[] Patel believed the man with the Yankee hat was one of the first two men to enter the store, and was the man who exited the store and came back in with the third man who had the gun.
After the individuals left, Patel called the Linden police and awaited their arrival. Sergeant Michael Babulski testified that the victim told him the store's surveillance camera may have recorded the incident. Patel testified that he and Babulski viewed the recording, but, before the tape could be preserved by an outside service provider, the system reset and the recording was essentially erased. Babulski, however, maintained that he never viewed the
recording with Patel because he feared the tape might be accidentally erased. Detective Andrew Spano also testified that he did not view the recording and that his efforts to contact the service provider to preserve the video were fruitless. Defendant and the State stipulated that the system recycled "every 72 hours," thus erasing the footage, and that this automatic process could not be altered.
Kim Jones was in his car stopped at a traffic light across from the liquor store when some activity grabbed his attention. Jones had an unobstructed view of the door of the store and saw a "young lady" exit and "jump[]" into an SUV. Jones then saw two "Spanish[-]looking gentlemen." The first exited the liquor store and "ran around the side of the building." The second "r[a]n from the store," but "h[eld] the door closed so someone couldn't get out." Jones saw a black car drive around the corner from the store and heard the driver blow its horn. The second man let go of the store door and, along with the first man, "jumped in the vehicle." Jones then saw a man he believed to be the store owner using his phone outside the store.
Jones called the Linden Police Department and followed the black car as it proceeded toward the Garden State Parkway. Jones provided the police with its license plate number. He then saw the black car run a red light at an intersection where it was struck by a black SUV. Jones could not identify defendant as one of the occupants of the car.
Lieutenant Kevin Foley of the Union County Prosecutor's Office was driving the black SUV involved in the collision with the black car, a Nissan Altima. Foley could see one of the passengers motion for the driver to back up and drive away. In court, Foley
identified defendant as the driver of the Altima.
Foley pursued the Altima toward the Garden State Parkway and "radio[ed] out a description of the vehicle, [and its] plate." He saw "two white objects [being] discarded" from the Altima as they "flutter[ed]" to the ground. A subsequent police search of that area resulted in the recovery of "two . . . latex white gloves."
The Altima exited the Parkway and stopped in a "desolate" industrial area surrounded by woods and trees. Foley parked about "50 yards" away and two of the occupants exited the Altima and began walking toward his car. Foley exited his SUV, showed his police badge and screamed "stay where you are." The two men began to run toward Foley, who returned to the SUV for his own safety. The two men then ran into the woods. Defendant, now alone and standing by the Altima's car door, began screaming in Spanish, jumped in the car, and sped away.
Foley gave chase, following defendant as he drove "very erratic[ally]" at high speed. Defendant stopped the car on Railroad Avenue in Carteret. He exited the vehicle and ran toward the front porch of a house, discarding items of clothing along the way. Defendant began banging and kicking the front door. Other officers soon arrived on the scene and assisted Foley in arresting defendant.
The officers retrieved the discarded clothing that included a dark-blue Yankee hat, a hooded sweatshirt and a "dark color ski cap with [an] interlocking N.Y. [emblem]." The officers also secured the vehicle's registration certificate; the Altima was registered to defendant. A woman, later identified as defendant's wife,
soon opened the front door of the house. In Spanish, defendant told her that "[he] didn't rob that liquor store, the other two guys did."
Foley and several other officers subsequently searched the wooded industrial area near Woodbridge where defendant had stopped the car. They recovered a "replica handgun."
[Gallardo, supra, slip op. at 5-9]
Patel made no in-court identification of defendant, but testified that he identified one of the men in the store when shown to him by police in Carteret approximately one hour after the incident. Id. at 10. Babulski also could not identify defendant in court but did say that Patel identified the man, whose name was Jose Gallardo, as one of the robbers. Ibid.
The jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm for an unlawful purpose. N.J.S.A. 2C:39-4(e). Defendant was sentenced to a ten-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 2. We affirmed defendant's conviction and the sentence imposed, remanding the matter solely for correction of the judgment of conviction. Id. at 5. We expressly preserved defendant's claims of ineffective assistance of counsel (IAC) for a subsequent PCR petition. Id. at 23-24. Defendant's petition for certification was denied by the Supreme Court. State v Gallardo, 208 N.J. 600 (2011).
Defendant filed a timely pro se PCR petition. In a supplemental certification, defendant alleged, among other things, that trial counsel failed to call the company that installed and maintained the video surveillance system at the liquor store. In another pro se certification and brief, defendant contended that the State acted in bad faith by losing or destroying the videotape, and reiterated that trial counsel was ineffective in investigating the circumstances surrounding the videotape. He also argued that trial counsel provided ineffective assistance by not impeaching Patel through the use of prior inconsistent statements. In his brief, assigned counsel incorporated all of defendant's pro se claims and argued that trial counsel was ineffective for failing to investigate the loss of the videotape and using Patel's prior inconsistent statements.
In support, defendant attached a report from an investigator who spoke to John Paulino, a representative from the surveillance system company. Paulino recalled responding to the liquor store and looking at the monitor, but he could not remember if he made a copy of the tape or was ever asked to do so. Paulino also told the investigator he was not sure if the system was working on the date of the robbery, because he recalled having to replace the monitor. Also attached to the brief were copies of reports taken by a defense investigator who spoke to Patel and Jones before trial.
After considering oral argument, the PCR judge, who was not the trial judge, rendered an oral decision on the record and entered the order under review denying defendant's petition. This appeal followed.
Before us, defendant argues
POINT ONEWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE TRIAL COURT ERRED IN DENYING . . . 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 AT THE TRIAL LEVEL.
A. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO INVESTIGATE THE LOSS OF THE VIDEO RECORDING AND THEN IN AGREEING TO THE STIPULATION OF FACTS ABOUT THE LOSS.
B. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO USE PRIOR INCONSISTENT STATEMENTS OF MR. PATEL TO SHOW THAT THERE WAS REASONABLE DOUBT THAT A ROBBERY OCCURRED.
To establish an IAC claim, a defendant must satisfy the two-pronged test formulated 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). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
To satisfy prong one, [a defendant] ha[s] to overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities. [I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is virtually unchallengeable. Mere dissatisfaction with a counsel's exercise of judgment is insufficient to warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted) (third alteration in original).]
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires that a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). We apply these well-known principles to the specific arguments raised on appeal.
Defendant's primary contention regarding the videotape is that counsel should not have agreed to stipulate that the system automatically recycled every seventy-two hours. He claims that doing so "completely exonerated the police of their failure to properly and completely investigate the crime." Defendant asserts he "should be afforded an evidentiary hearing to explore the[] issue." We disagree.
Initially, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008); see also R. 3:22-10(e)(3) (providing that no evidentiary hearing shall be held "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success"). More importantly, Patel's testimony was inconsistent as to whether the system recycled every twenty-four or seventy-two hours, and Patel's claim that investigating officer Babulski looked at the tape was belied by the officer's testimony.
We acknowledge that Spano was permitted to testify after the stipulation was entered and over defense counsel's objection. However, the trial judge permitted the State to call Spano precisely because defense counsel had effectively planted the seed that police ineptitude led to the loss of critical evidence.
Additionally, the defense investigator's report furnished with the PCR materials fails to establish how frequently the tape actually recycled, or even if the system was working on the day in question. In other words, it does not support defendant's claim that trial counsel's ineffective assistance exonerated the officers' failure to preserve relevant, possibly exculpatory, evidence.
Lastly, even if the videotape supported defendant's claim that he did not directly participate in the robbery inside Patel's store, the other evidence in the case overwhelmingly proved that defendant drove the getaway car. Thus, even if defendant successfully demonstrated that trial counsel's performance was deficient, he failed to meet the second prong of the Strickland/Fritz test.
Defendant also argues that trial counsel provided ineffective assistance because he "failed to cross[-]examine Patel with prior inconsistent statements," specifically the unsworn statements Patel made to defendant's investigator before trial. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following brief comments.
As already noted, in order to demonstrate deficient performance under prong one of the Strickland/Fritz standard, defendant needed to demonstrate that trial counsel's strategic decision regarding the cross-examination of Patel was made without proper investigation or was otherwise not entitled to the strong presumption that it resulted from the exercise of reasonable professional judgment. Nash, supra, 212 N.J. at 542. Here, as the PCR judge noted, defense counsel vigorously cross-examined Patel and exposed a number of contradictions between his trial testimony and his prior statement to police. Patel's trial testimony also suffered from being disjointed, non-responsive and contradictory at points. Any further inconsistencies contained in the statement Patel made to the defense investigator were either fully explored in this manner or otherwise insignificant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION