On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-10-1051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Sabatino and Alvarez.
Defendant, Ventura Rodriguez, appeals from an April 7, 2006, order denying his petition for post-conviction relief (PCR) following the conclusion of an evidentiary hearing. We affirm.
After a jury trial, defendant, who absented himself from the trial after receiving in-court notification, was convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count one)*fn1 ; first degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count two); and possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a), and N.J.S.A. 2C:2-6 (count three). Defendant, who was mandatory extended term eligible, was sentenced to twenty-five years with parole ineligibility of twelve and one-half years on count two.
N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7. The remaining counts were merged. Defendant appealed, and in an unreported decision, we affirmed defendant's conviction. State v. Rodriguez, No. A-2150-01 (App. Div. Dec. 16, 2003). Defendant's petition for certification was denied on March 2, 2004. State v. Rodriguez, 179 N.J. 369 (2004).
Defendant's pro se PCR application raised ten points of alleged error. The supplemental brief subsequently filed by assigned counsel raised two issues, which were the only points addressed by the motion judge. In addition to urging reversal of the PCR decision, it is further contended the motion court's failure to consider the ten additional points was also error.
We recite the facts pertinent to this appeal. On April 17, 1996, a package containing approximately seven ounces of cocaine addressed to a "Lori Martinez" in Paterson was intercepted and searched by the United States Customs Office at JFK airport. Hector Jimenez, employed in a dual capacity for the United States Customs and the Passaic County Prosecutor's Office, was notified of the arrival of the package. The package was later delivered to the Passaic County Prosecutor's Office in Paterson. When the name on the box could not be matched with the address, Jimenez decided to conduct a controlled delivery, during which he would pose as a postal inspector and attempt to deliver the package. Jimenez scheduled the controlled delivery for April 24 at the River Street Station in Paterson, the post office assigned to receive mail for the address listed on the package. The post office was within a block of the Blessed Sacrament School. A woman who identified herself as Lori Martinez attempted to pick up the package and was informed it was still en route. She returned that afternoon, displayed identification, and was given the package. She was immediately apprehended. The woman told Jimenez that her real name was Maria Alvarez and that she was picking up the package for two men waiting outside in a red car. She agreed to cooperate, and approached the vehicle in which defendant was a passenger with an empty box. The driver, who was standing outside the car, exclaimed, "No, no, no, that's not my package," as Alvarez attempted to give it to him. He then jumped into the car and drove away, followed by police. Both occupants of the vehicle fled on foot when a crash ended the chase.
Alvarez explained to Jimenez that defendant asked her to pick up a package for him at the post office. Alvarez was acquainted with defendant because she had her son's hair cut in his barber shop, located on the first floor of her apartment building. She had been offered drugs and beer in exchange for her work as a courier. Defendant accompanied her when she obtained false identification in the name of Lori Martinez. Alvarez did not know defendant by any name other than "Ventura."
Jimenez later went to the barber shop and noticed a magazine with an advertisement for the shop containing defendant's picture, which Jimenez recognized as the passenger in the red vehicle.
During the cross-examination of Alvarez at trial, defense counsel elicited the fact that she could be sentenced on the charges, to which she had entered a guilty plea, from between ten to twenty years in prison. She acknowledged that under the terms of the plea agreement she would only serve fifteen years in prison, five without parole. She admitted that when she entered her guilty plea, the judge advised her that she could be sentenced to as little as ten years with parole ineligibility. Defense counsel did not ask her about the actual sentence he knew she had received, ten years without parole ineligibility.
In his closing, defense counsel referred to the photographs admitted into evidence as "mug shots," and told the jury that defendant had been previously arrested. The defense theory was that defendant had been misidentified by Jimenez, who simply picked out his photograph after Alvarez gave him the name "Ventura."
After an evidentiary hearing, the PCR motion judge found that defendant had not established that trial or appellate counsel's performance was so deficient as to make a prima facie case of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d ...