Opinion
DOCKET NO. A-3579-09T3
09-27-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCUS VARGAS, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, 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NOT FOR PUBLICATION WITHOUT THE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 Fuentes, Gilroy and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-09-1338.
Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Marcus Vargas appeals form the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
A jury convicted defendant of murder, N.J.S.A. 2C:11-3(a)(1) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of first degree robbery, N.J.S.A. 2C:15-1. These crimes arise from the murder of Edwin Figueroa and the robbery of his companion, Lysandra Mercado, on July 2, 1997, in the City of Perth Amboy. After applying the doctrine of merger, the court sentenced defendant on April 14, 2000 to an aggregate term of life imprisonment with seventy-six and one quarter years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the required statutory fines and penalties, and ordered restitution to the victims.
The conviction of felony murder was merged with the conviction of murder, and the convictions of conspiracy to commit armed robbery and possession of a weapon for an unlawful purpose were merged with the two first degree robbery convictions.
On defendant's direct appeal, we affirmed the convictions, but modified the sentences by vacating from the merged convictions the NERA parole disqualifier, restitution, and certain statutory fines and penalties. State v. Vargas, No. A-5478-99 (App. Div. Feb. 21, 2003) (slip op. at 18). The Supreme Court denied defendant's petition for certification. State v. Vargas, 177 N.J. 224 (2003). On remand, the court re-sentenced defendant to an aggregate term of thirty years without parole.
In lieu of reciting the facts that gave rise to these crimes, we incorporate by reference the factual recitation included in the opinion that decided defendant's direct appeal. Vargas, supra, No. A-5478-99 (slip op. at 2-6). On February 17, 2004, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel.
After considering the arguments of counsel, the trial court denied defendant's petition without conducting an evidentiary hearing. The court memorialized its decision in an order dated October 18, 2006, and a letter-opinion dated September 25, 2006. On defendant's appeal, we reversed and remanded for the court to conduct an evidentiary hearing to determine whether trial counsel's decision not to call a particular witness denied defendant's right to effective legal representation. State v. Vargas, No. A-2104-06 (App. Div. Mar. 10, 2009) (slip op. at 6).
On September 25, 2009, the court conducted an evidentiary hearing at which defendant and his trial attorney testified. After considering this evidence, Judge Lorraine Pullen entered an order, supported by a memorandum of opinion, denying defendant's PCR petition.
Defendant now appeals raising the following arguments.
POINT IIn his supplemental brief, defendant makes the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DECISION BY TRIAL COUNSEL NOT TO CALL MS. MARTINEZ AS A DEFENSE WITNESS RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A)
TRIAL COUNSEL WAS INEFFECTIVE FOR DECEIVING A DEFENSE WITNESS WITH NON-EXISTENT COURT RULES.
(B)
TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO THE COACHING OF A STATE'S WITNESS.
POINT I
THE TRIAL COURT ERRED IN DENYING APPELLANT RELIEF FROM HIS EVIDENTIARY HEARING AS THE FACTS INDICATED NOT ONLY INFORMATION WITHHELD BY TRIAL COUNSEL IN VARGAS DEFENSE[.], BUT THAT THE FACTS CONSIDERED
WOULD HAVE CHANGED THE OUT COME [sic] OF THE TRIAL. (COUNSEL'S STRATEGY WAS LESS THAN COMPETENT AND THUS CAN NOT [sic] SATISFY THE PREJUDICE PRONG) ALSO RAISED BELOW.
POINT II
THE APPELLANT SUBMITS THAT THERE WAS A CONFLICT OF INTEREST[] WHERE COUNSEL APPOINTED ON REMAND MICHAEL G. PAUL, ESQ. WAS RE-APPOINTED AFTER VARGAS HAD CLAIMED DURING INITIAL APPEAL OF PCR UNDER DOCKET NO. A-2104-06T4 THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY INVESTIGATE DURING INITIAL P.C.R. AND SHOULD NOT HAVE BEEN RE-APPOINTED AS COUNSEL.
We reject these arguments and affirm substantially for the reasons expressed by Judge Pullen in her memorandum of opinion. The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution provide defendant with the right to receive the effective assistance of counsel. In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as the standard to evaluate claims alleging ineffective assistance of counsel. Under Strickland's two-pronged test,
[a] reviewing court first must determine whether counsel's performance 'fell below an objective standard of reasonableness,' Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether there exists 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. The first prong is satisfied by a showing that counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
* * * *
The second prong is satisfied by a defendant showing 'there is 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. The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached. Ibid.
[State v. Chew, 179 N.J. 186, 203-04 (2004)].
Here, defendant's trial counsel testified at the evidentiary hearing that, as a matter of trial strategy, he decided not to call a particular witness based on his assessment of potential credibility problems with the witness's statement. Counsel explained his concerns were based on the jury's apparent negative response to another alleged alibi witness's testimony. Because defendant admitted to shooting the victim, the defense strategy was that defendant was coerced into confessing.
We apply the Strickland standard and review the reasonableness of counsel's assistance with "'a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Judge Pullen applied this standard of review and accepted trial counsel's explanation as reasonable trial strategy. We discern no legal reason to disagree.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION