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State v. Sotomayer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GIOVANNI SOTOMAYER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-11-1723.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Parker and R. B. Coleman.

Defendant Giovanni Sotomayer appeals from an order issued by the Superior Court of New Jersey, Law Division, Hudson County, on March 1, 2006, denying his petition for post-conviction relief (PCR). We have considered defendant's contentions on appeal, and we affirm in part and remand in part.

On February 27, February 28, March 1 and March 2, 2001, defendant was tried before Judge Paul M. Pascale and a jury. The jury found defendant guilty of first degree kidnapping, N.J.S.A. 2C:13-1b, first degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a, third degree criminal restraint, N.J.S.A. 2C:13-2, second degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, fourth degree possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d, and third degree terroristic threats, N.J.S.A. 2C:12-3b. Although acquitted of second and third degree aggravated assault, the jury found defendant guilty of simple assault, a lesser-included offense.

The court merged several of the offenses at sentencing, and sentenced defendant to twenty-five years imprisonment for first degree kidnapping with a No Early Release Act (NERA) stipulation of eighty-five percent to be served before parole eligibility. On the charge of attempted aggravated sexual assault, the court imposed a sentence of ten years with eighty-five percent to be served before parole eligibility. Lastly, Judge Pascale sentenced defendant to a five-year prison term with two and a half years of parole ineligibility for the unlawful possession of a weapon. These sentences were to be served concurrently.

On direct appeal, this court affirmed both the conviction and sentencing in an unpublished per curiam opinion, State v. Sotomayer, No. A-2653-01T4, (App. Div. May 30, 2003), and on October 16, 2003, the New Jersey Supreme Court denied defendant's petition for certification. State v. Sotomayor, 178 N.J. 31 (2003).

Defendant thereafter filed, pro se, a petition seeking PCR with the Law Division, claiming that he received ineffective assistance of counsel. As this was defendant's first petition for PCR, he was assigned counsel. After hearing oral argument, the trial court denied the petition on February 16, 2006. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I: THE COURT ERRED IN DENYING MR. SOTOMAYER'S PETITION FOR POST CONVICTION RELIEF WHICH ESTABLISHED THAT MR. SOTOMAYER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART.I, PAR.10.

A. MR. SOTOMAYER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE AND SUBPOENA WITNESSES ON HIS BEHALF.

B. MR. SOTOMAYER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL ATTORNEY IMPROPERLY ADVISED HIM NOT TO TESTIFY ON HIS OWN BEHALF.

C. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO CHALLENGE THE ASSERTION THAT MR. SOTOMAYER WAS FROM EL SALVADOR OR HAD AN EL SALVADORIAN ACCENT.

D. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO CONFRONT DEFENSE WITNESSES WITH A PHOTOGRAPH OF MARTA RIVAS.

E. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOR APPELLATE COUNSEL, WHERE TRIAL COUNSEL FAILED TO PROPERLY OBJECT TO THE COURT CLERK ENTERING THE JURY ROOM DURING DELIBERATIONS TO PLAY BACK PORTIONS OF THE TAPED JURY CHARGE, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL.

F. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL SINCE COUNSEL FAILED TO OFFER INTO EVIDENCE MARTA RIVAS' MEDICAL REPORT CONTAINING PERMISSIBLE HEARSAY.

G. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO CORRECT MR. SOTOMAYER'S ILLEGAL SENTENCE ON COUNT EIGHT OF THE INDICTMENT.

H. MR. SOTOMAYER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE AND THE DENIAL OF A FAIR TRIAL.

POINT II: MR SOTOMAYER ESTABLISHED IN HIS PETITION FOR POST CONVICTION RELIEF A PRIMA FACIE CASE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND THE PCR COURT ERRED IN DENYING MR. SOTOMAYER'S REQUEST FOR AN EVIDENTIARY HEARING.

To make the requisite prima facie showing of ineffective assistance of counsel, defendant must show a "reasonable likelihood of succeeding under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and adopted by this Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (internal quotation marks omitted). Under the second prong, defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 698 (internal quotation marks omitted). To be prejudicial, the defendant must demonstrate "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. To be granted relief, defendant must establish his claim "by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted).

The great majority of "errors" asserted by or on behalf of petitioner can be attributed to viable trial strategies. As stated in State v. Loftin, "the defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." 191 N.J. 172, 198 (2007) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). For example, one of defendant's central contentions is that he and the victim were having an ongoing sexual relationship and that trial counsel should have introduced evidence to show that he and she knew one another and had been seen together. This case did not turn on photographic identification of the victim or a voice identification of defendant. Several defense witnesses, in fact, testified that they had previously seen defendant with a woman fitting a description of the victim. The victim was in court and visible to the jury during the trial, so the introduction of photographs of the victim for purposes of identification would have been superfluous. Moreover, there were eyewitnesses to certain aspects of the incident, so that the reliability and, hence, the probative value of evidence concerning defendant's accent, that is, whether defendant had a Puerto Rican or El Salvadorian accent, would have significantly affected the outcome of the case.

Defendant contends that counsel improperly advised him not to testify on his own behalf. "'[I]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages of doing so or not doing so.'" State v. Savage, 120 N.J. 594, 630 (1999) (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1989)). Ultimately, however, the decision whether to testify rests with the defendant. Id. at 631. The record demonstrates that the court questioned defendant concerning his decision not to testify, and based upon our review of the exchange, we are satisfied that defendant knowingly and voluntarily decided not to testify after discussing the advantages and disadvantages with counsel.

Similarly, counsel's failure to object to a tape-recorded playback of jury instructions did not constitute ineffective assistance of counsel. Defendant accurately observes that ex parte communications between the judge and jury are greatly discouraged. State v. Basit, 378 N.J. Super. 125, 134 (App. Div. 2005). "It goes without saying that every readback and the exchanges accompanying it must be recorded in full." State v. Wilson, 165 N.J. 657, 662 (2000). There was, however, no live readback in this case. Here, the jury simply heard the exact tape recording of the instructions that had been presented to them earlier in open court. Therefore, there was no risk of an inadvertent deviation or inconsistency, and the defendant could have suffered no prejudice from counsel's failure to object on this matter.

In regard to defendant's other claims of ineffective assistance of counsel, we do not find sufficient merit in those claims to warrant discussion in a written opinion. R. 2:11-3(e)(2). None of the alleged ineffectiveness of counsel was sufficiently deficient to bring about a different case outcome.

Defendant urges, in the alternative, that an evidentiary hearing should have convened to investigate the effectiveness of both trial and appellate counsel. The trial court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. However, the defendant must first demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 157 (1992), certif. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). As discussed above, defendant failed to satisfy the two-prong test of Strickland/Fritz. Because defendant did not demonstrate a reasonable likelihood that the outcome of the trial or appeal would have differed but for counsel's conduct.

Finally, defendant does correctly assert that the judgment of conviction improperly characterized count eight, unlawful possession of a weapon, as a third degree offense. Pursuant to N.J.S.A. 2C:39-5d, that crime is graded as a crime of the fourth degree. Therefore, we remand to the trial court for resentencing, so that the judgment of conviction can be corrected and to insure that sentence imposed for count eight is within the statutory range of a fourth degree crime. See N.J.S.A. 2C:43-6(4).

The conviction is affirmed but the matter is remanded for resentencing in accordance with this opinion.

20071025

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