Opinion
DOCKET NO. A-3735-10T2
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILFREDO RUIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-963.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
In this appeal, defendant argues that the trial judge erred in denying his petition for post-conviction relief (PCR), which asserted a denial of the effective assistance of counsel. We find no merit in defendant's arguments and affirm.
At the conclusion of a three-day trial, defendant was convicted by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree child endangering, N.J.S.A. 2C:24-4(a), and later sentenced to concurrent nine-year prison terms that the trial judge later amended to concurrent seven-year prison terms. The judge also imposed a parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In his direct appeal, defendant argued: that the verdict was against the weight of the evidence; that he was entitled to a new trial; that the judge erred in failing to grant a motion for an acquittal on certain counts; that the indictment should have been dismissed for various reasons; that defendant was entitled to the judge's in camera review of alleged relevant Division of Youth and Family Services records, juvenile court records and psychiatric records regarding the victim; that the cumulative effect of these alleged errors warranted a new trial; and that defendant was entitled to a modification of the sentence. With the exception of modifying the judgment of conviction to eliminate the NERA component, we affirmed. State v. Ruiz, No. A-4756-06 (App. Div. July 24, 2008). The Supreme Court denied defendant's petition for certification. 196 N.J. 601 (2008).
On May 10, 2010, defendant filed a PCR petition containing no specific factual contentions. Appointed counsel later supported the PCR petition with a brief, which contains factual allegations unsupported by any certification of defendant or any other person with knowledge of the facts asserted. That would have been reason enough for the PCR judge to deny the petition. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Nevertheless, the PCR judge analyzed the factual allegations and denied relief without conducting an evidentiary hearing.
The judge first rejected the contention that defendant's trial attorney erroneously advised him not to testify. As the PCR judge found, there were tactical reasons for that decision,such as defendant's past criminal history that would have been utilized by the State in cross-examination. In addition, the PCR judge observed that defendant was examined by the court, outside the presence of the jury, regarding his decision not to testify and defendant expressed no disagreement with his counsel's advice. The judge also rejected defendant's arguments that his trial attorney: failed to develop a trial strategy; failed to call several witnesses, including character witnesses; allegedly did not meet with defendant at the jail; did not interview the victim; and failed to seek dismissal of the indictment at the close of the State's case. Defendant appeals, arguing:
A claim of ineffectiveness lacks merit when the attorney's tactical advice falls within reasonable professional norms. State v. Arthur, 184 N.J. 307, 319 (2005).
Defendant did not submit certifications from these witnesses, a circumstance fatal to his claim in this regard. Cummings, supra, 321 N.J. Super. at 170.
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THE TRIAL COURT ERRED IN DENYING THE 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.We affirm substantially for the reasons set forth by the PCR judge in his oral opinion of December 10, 2010.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post-Conviction Relief.
B. The Defendant Failed To Receive Adequate Legal Representation From Trial Counsel As A Result Of Trial Counsel's Advice Convincing Him Not To Testify At Trial.
C. The Defendant Failed To Receive Adequate Legal Representation From Trial Counsel As A Result Of His Failure To Call Several Crucial Witnesses On The Defendant's Behalf.
D. Trial Counsel Was Remiss By Failing To Develop A Sound And Meaningful Trial Strategy To Present To The Jury On His Client's Behalf.
E. Since The Defendant Presented A Prima Facie Case Of Ineffective Assistance Of Counsel, The Trial Court Erred In Denying His Petition Without Affording Him An Evidentiary Hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELLATE DIVISION