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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...