Opinion
DOCKET NO. A-5069-09T3
04-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEJANDRO JARAMILLO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Melissa Szymansky, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-01-0140.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Melissa Szymansky, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Alejandro Jaramillo appeals from the order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. He argues the trial court erred by denying his application for an evidentiary hearing and the opportunity to prove his trial counsel did not properly investigate his case, and did not call witnesses at trial helpful to his defense. We affirm.
The facts underlying defendant's conviction are set forth in our opinion disposing of his direct appeal, State v. Jaramillo, No. A-0204-06 (App. Div. August 25, 2008), and need not be repeated here in their entirety. Briefly: "[D]efendant was an off-duty police officer when he struck the seventeen-year-old victim, Jose Luis Ives, on July 16, 2003. Defendant insist[ed] he threw one 'single defensive blow to the jaw' of the victim resulting in an 'unprotected fall to the street,' and causing the victim's head to strike the ground." Id. (slip op. at 4). Three eyewitnesses contradicted defendant.
Jorge [Ives], Ivan [Ives] and Franklin [Zambrano] testified that defendant appeared in the parking lot, approached the four boys with a section of a broken broomstick, stated he was an off-duty police officer, and, in an angry tone, asked or yelled whether or why they were messing around with his car. The three boys said that defendant swung the stick at Franklin, but Franklin jumped out of the way, and the stick caught and "cut his shirt."
Defendant then "grabbed" Ivan and pointed the stick at his neck. According to Jorge, defendant then said he was an off-duty police officer and "that means he could kick our asses." Franklin testified that defendant said as an off-duty officer "he could beat the shit out of you." Jorge and
Ivan recalled that defendant told the boys to leave.
The four boys left the parking lot, met Jose Luis and Cathy [Zambrano], and walked Cathy and Franklin home. Jorge and Ivan testified that as they, Jose Luis and Castillo were thereafter returning to the Ives's home, defendant and defendant's girlfriend were following them. The group stopped in front of the Ives's building, where defendant approached Jose Luis and gave him "a hard look." Jorge and Ivan both recalled that Jose Luis asked "what happened," and that defendant punched Jose Luis in his jaw. The brothers said that Jose Luis landed on his back, unconscious, and that defendant hit Jose Luis' head against the pavement when Jose Luis tried to get up. According to Ivan, as Jose Luis tried to "stand up to regain consciousness, [defendant] slammed his head against the concrete," and "banged [his] head against the ground."
[Id. (slip op. at 6-7).]
Tried to a jury on a ten-count indictment, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and three counts of second-degree official misconduct, N.J.S.A. 2C:30-2. He was sentenced to an eight-year prison term with an eighty-five percent period of parole ineligibility for the aggravated assault conviction, and to concurrent seven-year sentences for each of the official misconduct convictions. We affirmed the judgment of conviction and sentences on direct appeal. Id. (slip op. at 44). The Supreme Court denied certification. State v. Jaramillo, 197 N.J. 16 (2008).
Defendant filed a PCR petition on November 23, 2009. In his pro se brief, defendant argued:
POINT ICounsel was appointed to assist defendant and filed a supplemental brief, arguing, trial counsel was ineffective for failing to investigate and defendant was entitled to an evidentiary hearing.
THE COURT MUST GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST.
POINT II
DEFENSE COUNSEL REFUSED TO CALL KEY [WITNESS] AT TIME OF THE TRIAL AND KNEW SUCH WITNESS HELD KEY INFORMATION WHICH WOULD HAVE EXONERATED DEFENDANT AND [] HAD A JURY BEEN MADE AWARE SUCH WITNESS EXISTED DEFENDANT WOULD HAVE BEEN EXONERATED OF ALL CHARGES.
POINT III
DEFENDANT'S COUNSEL WAS GROSSLY INEFFECTIVE IN HIS PREPARATION OF THIS CASE IN NOT RETAINING A MALPRACTICE ATTORNEY TO REVIEW THE ACTIONS OF JERSEY CITY MEDICAL CENTER[.] PETITIONER SUBMITS THAT IF MALPRACTICE WAS COMMITTED [] WHAT BETTER WAY FOR JERSEY CITY MEDICAL CENTER TO HIDE ITS CONTRIBUTION TO THE DEATH OF THE ALLEGED VICTIM.
POINT IV
THE STATE[']S KEY MEDICAL EXAMINER DR. BADEN WAS A PURCHASED TESTIMONY WHO REPORTED AND TESTIFIED IN A MANNER TO SILENCE THE TRUTH AND CONCEAL THE POSSIBILITY THAT JERSEY CITY MEDICAL CENTER COMMITTED [] MALPRACTICE TO RENDER PETITIONER GUILTY AND DEFENDANT['S] ACTIONS WERE THE DIRECT CAUSE OF IVES['S] DEATH.
POINT V
THE UNION CITY POLICE DEPARTMENT VIOLATED ALL DEPARTMENTAL POLICY AND PROCEDURES ASSOCIATED TO THIS CASE AND BECAUSE OF THOSE VIOLATIONS COMPROMISED THE INTEGRITY OF THE INVESTIGATION AND FAILURE TO FOLLOW-UP WIT[H] AN OPERATION REPORT UNTIL TWO AND A HALF YEARS AFTER THE FACT.
POINT VI
THE CUMULATIVE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
POINT VII
DEFENDANT'S [MITIGATING] AND AGGRAVATING FACTORS WERE NEVER TAKEN INTO ACCOUNT. THE [MITIGATING] FACTORS CLEARLY OUTWEIGH THE AGGRAVATING FACTORS.
In a written opinion, Judge Kevin G. Callahan denied defendant's PCR petition. Defendant appealed from Judge Callahan's memorializing order and now presents for our consideration the following arguments:
POINT ONE
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS TRIAL COUNSEL WAS INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. CUMULATIVE ERROR.
C. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord. State v. Fritz, 105 N.J. 42, 58 (1987).
Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states in pertinent part:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputedAdditionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.
fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.
We affirm, substantially for the reasons given by Judge Callahan in his thorough and well-reasoned decision. Defendant's arguments warrant no further discussion in a written opinion. R. 2:11-3(e)(2).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION