Opinion
DOCKET NO. A-1855-11T2
05-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO HENRIQUEZ, Defendant- Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-12-1754.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Julio Henriquez appeals the July 29, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On July 28, 2008, defendant was sentenced to an aggregate term of five years' imprisonment, subject to twenty-seven months of parole ineligibility, pursuant to a negotiated plea on two offenses charged in a multi-count indictment: third-degree possession with intent to distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7, and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The convictions and sentence were affirmed on appeal and the Supreme Court denied certification. State v. Henriquez, No. A-1736-08 (App. Div. Feb. 26, 2010), certif. denied, 202 N.J. 346 (2010).
At approximately 6:30 p.m. on August 29, 2006, Perth Amboy police went to defendant's home to conduct an interview because the victim of a shooting named him as one of two possible assailants. The victim also told investigators that defendant was known to carry a 9 mm handgun. When they arrived at defendant's address, the officers saw him exit his front door, descend a flight of exterior stairs, and begin crossing the street while walking towards the officers' unmarked car. All the while, defendant, whose street name was "Homicide," repeatedly touched his hands to his waistband, adjusted his clothing, and glanced up and down the street.
Concerned that defendant was armed, the officers quickly approached him. Although not uniformed, the officers' badges hung around their necks. They held defendant's arms, and asked him to state his name; he responded "Julio." At that point, one of the officers placed his hand on defendant's waistband where he believed the weapon was hidden. He felt the butt of a gun, and removed the weapon. Upon a further search of defendant's person, four plastic bags of marijuana were located.
Defendant consented to the search of his home, where over 130 grams of marijuana were found, and he later made incriminatory statements. On the direct appeal, the potential issues raised by the consent search and defendant's inculpatory statements were not reached because he conceded that "their validity depends solely on whether the seizure of the handgun was legal." State v. Henriquez, supra, slip op. at 5.
We affirmed the denial of defendant's motion to suppress evidence for the reasons stated by Judge DeVesa, adding that the warrantless arrest was lawful as the officers had probable cause and, in any event, the frisk was supported by the well-established principles first enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). During the suppression hearing, only one of the two officers testified regarding the search at all, and only very briefly, to the effect that defendant agreed to the search and signed the consent form after being told he could do so "if he wishe[d]."
Defendant also testified at the suppression hearing. He claimed that when the officers confronted him on the street, they said they were going to obtain a search warrant. He responded that he did not want to cause his mother to have "a heart attack at 3:00 in the morning," should the officers execute a warrant. He added on cross-examination that they "said they was [sic] going to knock down my mother's door." Defendant explained his consent as also motivated by his interest in being present when the search was conducted.
On appeal, defendant raises arguments regarding ineffectiveness of his trial attorney, his appellate counsel, and, of course, his PCR counsel, not presented to the PCR judge:
POINT ONE
THE FAILURE OF TRIAL COUNSEL TO CHALLENGE DEFENDANT'S PURPORTED CONSENT TO SEARCH HIS HOME AS HAVING BEEN COERCED AND GIVEN WITHOUT DEFENDANT KNOWING HE HAD THE RIGHT TO REFUSE TO GIVE CONSENT, AND OF APPELLATE COUNSEL TO RAISE THE ISSUE ON DIRECT APPEAL, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (PARTIALLY RAISED BELOW).
POINT TWO
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT THREE
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
Tempting as it is to decide this PCR on the abundant procedural bars, we elect not to do so. A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).
Admittedly, the officer who obtained the consent to search testified very briefly about it — only that defendant was told he had the option to sign and that he did so. It was defendant himself who sank the ship during the suppression hearing, explaining that he signed the consent in order to spare his mother and satisfy his preference in having the search conducted in his presence. When pressed about his decision, he added that he did not want the officers to break down his mother's door. But his stated reasons do not undercut the voluntariness of his consent. Even if he agreed in order to avoid possible emotional harm to his mother and damage to her property, that is indeed a choice. See State v. Johnson, 68 N.J. 349, 352 (1975). Defendant was under arrest when he consented; however, that fact alone does not constitute coercion. Nor does being told that if he did not consent, a warrant would be obtained, negate the voluntariness of the consent given that the officers had probable cause.
The officer's statement was not a threat, but "a fair prediction of events that would follow . . . . [and the consent] the result of a free (albeit discomfiting) choice, even though it was given while [he] was detained against [his] will." State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993).
Similarly, in State v. Smith, 291 N.J. Super. 245, 259-60 (App. Div. 1996), rev'd on other grounds, 155 N.J. 83 (1998), a consent was deemed valid despite the fact the occupant was told that a warrant would be obtained and the police might have to break down the door. The occupant, who feared eviction if the apartment was damaged, agreed to the search. We found his consent was nonetheless voluntary because the officers had probable cause and "no threat was uttered." Id. at 260.
Just like in Cancel and Smith, this defendant chose between two unpleasant alternatives. Defendant could have refused. But he wanted to protect his mother's health and the front door of her apartment, as well as be present during the search. These reasons were not comfortable but he knew he had the right to simply refuse. Defendant just opted not to do so.
If there is no basis for finding the consent involuntary, the decision not to raise the issue made by all prior counsel falls within the universe of "reasonable professional assistance" defined by Strickland. Failure to raise an issue that would not have affected the outcome is not ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Evidentiary hearings are necessary when a defendant demonstrates a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). Since defendant's contentions fall short, no hearing is required.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION