On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-10-02371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 16, 2008
Before Judges Axelrad and Messano.
Following an in absentia Miranda*fn1 hearing and trial on August 4 and 5, 2003, defendant Aristedes Nolasco was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and second-degree eluding, N.J.S.A. 2C:29-2b. Defendant was sentenced in 2006 to an eighteen-year custodial term on the first-degree drug conviction with a nine-year period of parole ineligibility, and a consecutive four-year term on the eluding conviction.*fn2
At trial, the State presented the testimony of several police officers that they observed defendant driving his automobile into a motel parking lot that was under surveillance; dropping off a passenger, co-defendant Carlino Bello a/k/a Carmine Vello; and handing him a black plastic bag later determined to contain at least 525 grams (18 ounces) of cocaine. Co-defendant was apprehended and later pled guilty to the drug charges. When defendant observed the officers, he peeled out of the parking spot and sped away, leading them on a chase around the parking lot. Defendant then drove over a concrete divider, barely avoiding a collision with a police car. Defendant was forced to stop his vehicle when two marked police cars blocked his exit onto Route 46. Defendant finally complied with repeated orders to unlock his vehicle door and exit, after which he was arrested and transported to headquarters. After waiving his Miranda rights, defendant confessed to Detective David Borzotta that he agreed to drive co-defendant to make the cocaine transaction, that he picked up co-defendant who placed a black plastic bag underneath the passenger seat of the automobile, and that for his role in the transaction defendant was to be paid $1000. Defendant also apologized to the officer for panicking and fleeing from the police.
At the suppression hearing, Detective Borzotta testified he had defendant demonstrate he could read English by reading the first line of the Miranda form. The officer explained that although defendant had a Spanish accent, he had no trouble understanding defendant's English and did not believe they had any problem communicating with one another. Defense counsel argued there was doubt as to whether the language barrier might have caused a problem with defendant understanding the oral questions. The court found the detective credible and denied defendant's request to suppress his confession.
On appeal, defendant argues that trial counsel was ineffective in failing to present a witness at the suppression hearing or trial "concerning [a]ppellant's inability to speak and understand English sufficiently at the time of his arrest in order to make a knowing and voluntary waiver of his Miranda warnings and to discredit the testimony that appellant understood the rights given in English and that he gave a statement in English." Accordingly, defendant argues his conviction should be reversed and remanded for a Miranda hearing and a new trial. Alternatively, defendant challenges his sentence as excessive and requests a remand for resentencing.
The State responds that convincing testimony regarding defendant's alleged inability to understand what the police told him in English could only come from defendant, who, by voluntarily absenting himself from the suppression hearing and trial, waived his right to present such testimony. The State further asserts defendant's ineffectiveness claim should be presented by way of a petition for post-conviction relief (PCR) rather than on direct appeal. Moreover, the State contends defendant's ineffective assistance of counsel claim fails on the merits as it does not satisfy the two-prong test of Strickland v. Washington.*fn3 As to defendant's second argument, the State contends defendant's sentence is supported by appropriate findings of aggravating factors #3, #6, and #9*fn4 and no mitigating factors, and is not excessive.
We reject on direct appeal defendant's claim of ineffective assistance of his trial counsel. Ineffective assistance claims, generally, are more appropriately raised in a collateral proceeding "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Our affirmance of defendant's conviction and sentence is without prejudice to any post-conviction relief petition he may pursue on the basis of ineffective assistance of trial counsel. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Defendant received an aggregate twenty-two year term with a nine-year period of parole ineligibility. We note that although defendant was found guilty of second-degree eluding and the jury made a specific finding he operated a car in a manner that would cause death or serious bodily injury, defendant received the benefit of receiving only a four-year sentence, which is a term appropriate for a third-degree crime, which was not appealed by the State. We are satisfied the trial court's findings on the aggravating and mitigating factors were supported by the record, the judge properly followed and applied the sentencing guidelines and criteria, and defendant's sentence does not constitute an abuse of discretion; nor is it manifestly excessive, unduly punitive, or shock our judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).