Opinion
DOCKET NO. A-1032-14T2
02-10-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR J. MARRERO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Guadagno and Suter. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1630. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Victor J. Marrero appeals from the June 6, 2014 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant claims his trial and appellate counsel were ineffective in failing to argue that his arrest was illegal and his statements to police should have been suppressed. He also claims his trial counsel was ineffective in failing to argue that the seizure of his sneakers was illegal. Finding no error, we affirm the judgment denying the PCR petition.
Tried to a jury, defendant was convicted of the murder of Roberto Feliciano by striking him on the head and body with a pipe while a co-defendant, Robin Perez, stabbed him forty-four times with a knife. Judge Bernard E. DeLury, Jr., who presided at trial, sentenced defendant to a fifty-year term of imprisonment.
Defendant appealed. We affirmed his convictions but vacated his sentence and remanded for resentencing. State v. Marrero, No. A-2951-09 (App. Div. May 27, 2011). On remand, Judge DeLury imposed a forty-nine-year sentence. Defendant again appealed. After hearing his arguments on an excessive sentencing oral argument calendar, we affirmed. The Supreme Court denied certification.
Defendant filed a pro se petition for PCR. Subsequently, a counseled brief was filed in support of defendant's petition. Judge DeLury heard argument on June 6, 2014, and entered an order accompanied by a written decision denying the petition.
On appeal, defendant raises three points:
POINT I
THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO ARGUE AT THE SUPPRESSION HEARING THAT HIS ARREST WAS ILLEGAL AND THAT HIS STATEMENT WAS THE FRUIT OF THE POISONOUS TREE, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL.
POINT II
THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO ARGUE THAT THE SEIZURE OF HIS SNEAKERS WAS ILLEGAL AND SHOULD HAVE BEEN SUPPRESSED.
POINT III
THE INTERESTS OF JUSTICE MANDATE A REMAND FOR A FULL EVIDENTIARY HEARING ON ALL ISSUES RAISED IN THE POST-CONVICTION RELIEF MOTION.
We are not persuaded by any of these arguments and we affirm the denial of the PCR petition substantially for the reasons contained in Judge DeLury's thoughtful and comprehensive written decision dated June 18, 2014. We add only these brief comments.
Judge DeLury noted that many of the arguments raised by defendant, including the challenge to the admission of his statement to police, were adjudicated on the merits in our 2011 opinion. We agree that defendant is barred from advancing that claim in a PCR. R. 3:22-5. Additionally, defendant failed to challenge the admission of his sneakers at trial or on appeal, therefore that claim is also procedurally barred. R. 3:22-3, R. 3:22-4.
We agree with Judge DeLury that defendant's trial counsel provided a "vigorously conducted defense" and the record contains "strong" evidence supporting the jury's verdict. Defendant has failed to demonstrate deficient performance by either trial or appellate counsel and actual prejudice, as required under the well-established standards expressed in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984), and adopted by our Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under these circumstances, Judge DeLury was not required to conduct an evidentiary hearing on defendant's PCR application. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION