Opinion
DOCKET NO. A-4389-13T1
01-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK ROIGE, a/k/a DEMETRIO FERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0469. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Mark Roige appeals from the October 25, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. On January 28, 2008, E.B. was walking home from the train station in Rahway when she was followed by a man who grabbed her from behind, covered her mouth, and demanded money and her backpack, which contained a laptop, cellphone, wallet, camera, book and keys. E.B. resisted and grabbed the assailant's face and neck, causing scratches and drawing blood. During the struggle, the backpack strap broke and the assailant fled with it. The police arrived within minutes of the attack. E.B. provided a description of her assailant and direction in which he fled.
We use initials for the victim and witnesses in order to protect their identities.
While looking for the suspect, a police officer saw an individual, later identified as defendant, who matched the description E.B. provided, and detained him for questioning. The officer saw that defendant was sweating profusely, breathing heavily, and had fresh blood on his neck and middle finger of his left hand. Photographs of defendant's hands taken that night showed they were injured and bloody.
Approximately ten minutes after the attack, the police transported E.B. to where defendant was apprehended. She positively identified him as her assailant and later positively identified him in court. E.B.'s backpack and its contents were later recovered from a nearby yard. A DNA analysis of E.B.'s backpack revealed the presence of defendant's blood.
T.T., a neighborhood resident, testified he reported to a police officer that he saw a man run through his backyard, jump over a fence, and continue running. The officer took him to see the person who had been apprehended about a block from his home. T.T. positively identified defendant as the same individual he saw run through his backyard.
Two other witnesses, S.G. and C.P., gave statements to the police that they saw a man hop over their neighbor's fence and run across the street and into a backyard. C.P. also said he saw an SUV drive by four or five times, but did not know if the driver was waiting for the man they had seen. Both witnesses gave a description of the man they saw running, which matched the description of the suspect provided by E.B. and T.T. S.G. and C.P. did not testify at the trial.
Defendant testified that he was walking home from the home of a friend, J.D., when a man carrying a backpack approached him and said that he looked like someone who knew about electronics. Defendant rummaged through the backpack with his left hand, but did not buy anything. He then continued walking and was detained by the police. Defendant also testified that he was employed at a floral warehouse where he often cut his hands, and he denied taking the backpack or running through backyards.
Following a Wade hearing on his motion to suppress his out-of-court identification, a jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1. Judge Joseph P. Donohue granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and imposed a thirteen-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Roige, No. A-0781-09 (App. Div. Mar. 22, 2012), certif. denied, 212 N.J. 287 (2012).
Defendant filed a PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by failing to call S.G., C.P., J.D., and his employer, J.B., at trial. He asserted that S.G. and C.P. could testify that they saw a man climb over their neighbor's fence and then run off, but did not identify him, and they could also testify that they saw another man in an SUV right next to where E.B.'s items were found. Defendant also asserted that J.D. could have verified that he was at J.D.'s home and could not have been at or near the train station when the robbery occurred, and J.B. could have explained how the cuts on his hands were a common occurrence in his line of work. Defendant submitted no affidavits from these purported witnesses.
Defendant also raised other arguments that are not pertinent to this appeal. --------
Judge Donohue denied defendant's PCR petition. The judge noted there were no supporting affidavits, and found that defendant's argument was too speculative to warrant an evidentiary hearing. The judge determined that the evidence against defendant, including two positive identifications and DNA evidence, was overwhelming, and that even if trial counsel erred in failing to call these witnesses, it would not have changed the outcome. This appeal followed. On appeal, defendant raises the same arguments he raised before Judge Donohue.
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness."[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170.
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in original) (citations omitted).]
Deciding which witnesses to call to the stand is "'an art,'" and we must be "'highly deferential'" to such choices. State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)). Furthermore,
[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will by subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.Where the defendant asserts that his attorney failed to call witnesses who would have exculpated him, "he must assert the facts that would have been revealed, 'supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting Cummings, supra, 321 N.J. Super. at 170).
[Id. at 320-21 (citation omitted).]
Here, defendant supplied no affidavits from any of the purported witnesses. Thus, his PCR petition was supported by nothing more than bald assertions. In addition, the fact that defendant may have had cuts on his hands from his employment was not exculpatory. It matter not where defendant cut his hand. What matter was that his blood was found on E.B.'s backpack. Further, the statements of S.G. and C.P. proved nothing more than they saw another individual in the neighborhood. This evidence does not raise a reasonable doubt as to defendant's guilt.
We are satisfied that defendant failed to present a prima facie case of ineffective assistance of counsel to warrant an evidentiary hearing. Even assuming that trial counsel's performance was deficient, given the overwhelming evidence of defendant's guilt, the outcome would not have been different.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION