February 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEONEL REYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-02-12-3039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 24, 2007
Before Judges Wefing and Parker.
Defendant Leonel Reyes appeals from an order entered on October 30, 2006 denying his petition for post-conviction relief (PCR). We affirm in part and reverse in part.
On September 5, 2003, a judgment of conviction was entered after a jury found defendant guilty of second degree robbery. N.J.S.A. 2C:15-1. He was sentenced to a term of seven years subject to three years parole ineligibility. We affirmed on November 1, 2004, A-0517-03T3, decided November 1, 2004, and the Supreme Court denied defendant's petition for certification on March 1, 2005. State v. Reyes, 183 N.J. 213 (2005).
The charges against defendant arose out of an incident that occurred on Saturday, November 9, 2002, when Stellianos Lazaridis was returning home from his job as a supervisor of a nightclub in the Bronx. On weekends when the club receipts were between $15,000 and $20,000, he drove from the Bronx to the club owner's home, left the receipts there and returned to his home in Cliffside Park. At about 5:30 a.m. on the Saturday in question, Lazaridis drove around the block near his home to make sure no one had followed him. He parked his car, and when he got out a man wearing a black jacket and a baseball cap, later identified as co-defendant Frias Ozonia, suddenly appeared "from nowhere." When Lazaridis stopped and changed direction, so did Frias. When Lazaridis asked Frias what he wanted, Frias displayed a knife. Lazaridis saw the knife, ran, screamed "police" and called 9-1-1 on the cell phone he had in his hand. At that point, defendant was running toward Lazaridis with his hand in his pocket. As Lazaridis was running away, he turned and saw Frias talking with another man, later identified as defendant.
In response to Lazaridis' 9-1-1 call, Cliffside Park Police Officer Pasquale Dorito arrived on the scene and found Lazaridis excited and nervous. After Lazaridis told Dorito what had happened and described the two men, Dorito drove around the area with Lazaridis but did not locate the suspects. Another Cliffside Park Police Officer, Michael Messenger, was on patrol that morning and heard the description of the two suspects over the police radio. When Messenger saw two men resembling the suspects walking on Palisade Avenue, he told them to stop. The men complied and Messenger asked them what they were doing in the area. One of the men told the officer that they had taken a cab to visit a girlfriend in Passaic but were dropped off in Cliffside Park. They did not explain why they were in the area at 5:30 a.m. or why the cab had dropped them off at that particular place.
When Messenger notified police headquarters that he had stopped the two men, another officer picked up Lazaridis and drove him to the scene where Lazaridis immediately identified defendant and Frias as the man with the knife.
In his PCR petition, defendant's principal claim was that trial counsel was ineffective because she did not allow defendant to testify on his own behalf. Defendant was served by an interpreter during trial. He submitted a certification stating that his attorney gave him a form to fill out and, although he claimed he could not understand it, signed his name indicating that he did not wish to testify. He claimed in his PCR petition that he was "confused about what line to sign and signed not only the lines reserved for my signature, but also on the line reserved for my attorney's signature as well." The trial judge asked him, however, whether he wanted to testify and he answered that he did not.
Defendant claimed in his PCR certification that he told his attorney from the beginning that he wanted to testify because he had no criminal history. At the PCR hearing, defendant testified that when the judge asked him if he wanted to testify at trial, he started to answer "yes," but his "attorney pinched my ear and told me that I did not have to testify because the prosecutor would ask me a lot of questions and try to confuse me." Defendant further stated that he "felt pressured by my attorney and felt that I did not have a choice so I told the judge that I would not testify." He stated that he was so unhappy with his trial counsel that he immediately fired her and retained another attorney who represented him at sentencing and on appeal.
At the PCR hearing, the judge allowed defendant to testify as to what he would have said about the allegations at trial:
THE DEFENDANT: (Through interpreter) Well, that night I remember I was going to visit a person, I was at 391 on Main Street in Passaic, but I should have come earlier, not at the time I came, and I did that because I was drunk, I was under the [e]ffects of a drug and that was the only mistake that I made and that's why I'm in prison. I'm a regular person just like everyone else here in this room, I've never robbed anyone in my whole life. Since I'm 18, I've worked and there's proof of that, and everything was clear, I don't know how the jury could have thought this, even the victim - even the victim had said that they had never been robbed. I feel very uncomfortable with the situation because I've lost my family, I've lost my life. I hope that for the benefit of justice in this state, consideration could be given to the evidence that is there. I don't steal. Thank you.
In this appeal, defendant argues that:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY FAILING TO COUNSEL DEFENDANT ON HIS RIGHT TO TESTIFY AS A WITNESS ON HIS OWN BEHALF AND OTHER INADEQUACIES AND WAS DENIED EFFECTIVE APPELLATE REPRESENTATION BECAUSE THIS ISSUE WAS NOT RAISED
DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED "OTHER CRIME EVIDENCE" WHICH HAD NO RELEVANCE TO THE INSTANT CASE AND DID NOT GIVE AN APPROPRIATE JURY INSTRUCTION
After hearing defendant's testimony and the arguments of counsel, the PCR judge rendered a written decision in which he addressed and rejected each point raised by defendant. With respect to defendant's argument that trial counsel refused to let him testify, the PCR judge found:
Defendant's certification and brief suggest that from the beginning of the proceedings against him, defendant indicated to his attorney his desire to testify. At the close of the State's case, defendant was asked to sign a waiver of his right to testify. That form, appended to defendant's brief, provides three signature lines: one for if he elects to have the "election not to testify" charge given to the jury, one waiving his right to have the charge given to the jury, and a third for defendant's attorney to sign acknowledging that he or she has advised his or her client of their right to have the court inform the jury of defendant's absolute right not to testify. Defendant signed the first two lines and began to sign the third, but stopped. His attorney signed on the second half of that third line.
Defendant argues that his signature on all three lines is proof that he was confused as to his choice. To bolster his claim, defendant indicates that he had no serious criminal history that could be used to impeach him. Defendant acknowledges in his certification that in addition to filling out this form, the Court asked whether he wanted to testify. Defendant contends that he was about to answer "yes" but "[his] attorney pinched [his] ear and told [him] that [he] did not have to testify because the prosecutor would ask [him] a lot of questions and try to confuse [him]." Consequently, defendant answered that he did not want to testify. He now asserts that he felt pressured into answering in this manner.
Without substantially more, petitioner's accusations are baseless. As the State's brief points out, this was a joint trial. The [c]court addressed each defendant individually and asked whether he wanted to testify on his own behalf and explained the consequences of waiving that particular right. Additionally, the attorneys representing the defendants are seasoned counselors who have represented numerous defendants in countless trials and other proceedings before this and other courts in this vicinage. Without compelling proof of the defense attorney's bad faith or substantial evidence of an overt effort to deny the defendant the right to testify, the claim is without merit. Moreover, although the decision whether or not to testify is ultimately up to the client, it is the function of the defense attorney to provide strategic counsel whether such a decision would be wise. In this case the defense attorney clearly believed that the defendant should not testify, and apparently made that clear to defendant. Defendant then heeded that advice.
To allow petitioner, who acknowledges that he exercised his right not to testify, now to claim he was denied the right to testify would fill court dockets with PCR applications from defendants making similar arguments without any greater proof. Defendant's verbal assent to waive his right to testify combined with his knowledge of his right to testify and his written waiver, signed by his attorney, suggest that defendant knowingly, intelligently and voluntarily waived his right to testify.
The fact that defendant's attorney never raised the issue on appeal is of little moment particularly in light of the above facts. Although the right to testify is deemed fundamental under our constitution, defendant's waiver was sufficient.
On a petition for post conviction relief, the Court cannot presume prejudice absent sufficient proof put forth by defendant as to what he would have testified to, and the additional facts that would have been adduced. See Fritz, 105 N.J. at 53. Accordingly, petitioner's request for relief on this ground must be denied. (Emphasis added).
While we agree with the PCR judge's decision on all of the other issues raised by defendant, in our view, defendant's claim that trial counsel interfered with his right to testify should be determined after an evidentiary hearing.*fn1
In order to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success in establishing deficient performance by the attorney and a reasonable probability that the outcome would have been different but for counsel's unprofessional error. State v. Preciose, 129 N.J. 451, 463-64 (1992) (discussing the standard established in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987)). "In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)." State v. Castagna, 376 N.J. Super. 323, 360 (App. Div.), certif. granted, 185 N.J. 35 (2005). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Ibid. (quoting State v. Dennis, 43 N.J. 418, 428 (1964)).
In order to establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood that his claim will ultimately succeed on the merits. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. Ibid. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." Id. at 158 (citations omitted). In other words, defendant must do more than make bald assertions that he was denied the effective assistance of counsel; he or she must allege facts sufficient to demonstrate counsel's purported substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then can a judge determine whether a prima facie case has been made.
Here, defendant made a specific allegation as to trial counsel's conduct, rather than a vague, non-specific assertion. In addition to defendant's claim that his attorney pinched his ear to keep him from testifying, defendant testified through an interpreter and was unfamiliar with the procedures, as indicated by his signing all three lines on the waiver form. While it may seem incredible that "seasoned" trial counsel would pinch a defendant's ear in open court to dissuade his testimony, it is, nevertheless, a fact question that should be decided after a hearing at which trial counsel can respond to the allegation. A judge should not vouch for the attorney's experience or credibility. See generally Boyd v. State, 321 Md. 69, 76-77. Trial counsel may have had sound strategic reasons for advising defendant not to testify but such reasons can only be determined after an evidentiary hearing.
While defendant's proffered testimony does not offer an alibi, it would be subject to the jury's determination of credibility, and could reasonably (to more closely mirror the Strickland language) affect the outcome of trial. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Accordingly, we remand for an evidentiary hearing solely on the question of whether trial counsel improperly deprived defendant of his right to testify.
In all other respects, the denial of PCR is affirmed. Affirmed in part; reversed and remanded in part.