February 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HIPOLITO SALAZAR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-10-1590.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2008
Before Judges Cuff and Simonelli.
Defendant Hipolito Salazar is serving a seven-year term of imprisonment subject to an 85% No Early Release Act*fn1 parole ineligibility term following his conviction of second degree sexual assault. Defendant appeals from the denial of his petition for post-conviction relief. We affirm.
On appeal, defendant raises the following argument:
PETITIONER WAS ENTITLED TO POST CONVICTION RELIEF AS HE DID NOT RECEIVE HIS CONSTITUTIONALLY GUARANTEED ASSISTANCE OF COUNSEL.
THE COURT ERRED IN NOT GRANTING THE POST CONVICTION MOTION OF PETITIONER RECEIVED AS HE DID NOT RECEIVE HIS CONSTITUTIONALLY GUARANTEED ASSISTANCE OF COUNSEL.
THE COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING TO DETERMINE IF PETITIONER RECEIVED HIS CONSTITUTIONALLY GUARANTEED ASSISTANCE OF COUNSEL.
The essence of defendant's claim of ineffective assistance of counsel is that his trial attorney erred in advancing a defense of consensual sexual relations between defendant and the victim and that prescribed medications interfered with his ability to consult with counsel on the first day of trial. He also suggests that the alternative defense should have been a medical impossibility.
Judge DePascale, who also presided at defendant's trial, denied the petition for post-conviction relief. After reviewing the governing standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), Judge DePascale found that defendant failed to establish a prima facie case of ineffective assistance of counsel, thereby negating the need for an evidentiary hearing. The judge stated that "[n]either at trial, or in Defendant's Petition, did [defendant] set forth any specific claim regarding any particular medication or its affect upon him that in any way impaired his ability to confer with Counsel." The judge also noted that he offered to adjourn the trial because he had been informed that defendant did not feel well. He explained that he "did it because I felt it was the decent thing to do, not because arguments had been advanced which in any way indicated that [ ] Defendant was for medical or any other reasons unable to confer with Counsel or unable to proceed." Moreover, the judge noted that the cross-examination of the victim continued on the second day of trial.
As to defendant's claim that trial counsel failed to investigate his alleged impotency, the trial judge held that the investigative report filed in support of the petition "does not even establish [defendant] was a patient of the doctor who was questioned. . . . There is no credible evidence before me that such records ever existed, or what the[ir] content may have been."
Finally, Judge DePascale addressed defendant's contention that his attorney advanced the consensual sex defense without consultation with, and the permission of, defendant. The judge related that defendant, while represented by another attorney, pled guilty to sexual assault. Following the plea, defendant discharged his attorney and retained another attorney, who filed a motion to vacate his guilty plea. In support of that motion, defendant submitted a certification that stated that his prior attorney never discussed with him the "element of 'affirmative permission' and/or 'absence of affirmative permission'" as a defense to the charge of sexual assault. Then, defendant certified that he "never denied the act of sexual intercourse with [the victim]" and had explained to his prior attorney that the conduct was consensual. Based on this certification, Judge DePascale vacated the guilty plea and the matter proceeded to trial with the attorney who had filed the motion to vacate the guilty plea. In short, as found by Judge DePascale, this assertion that defendant had not authorized his trial attorney to advance a defense of consensual sexual relations is utterly without merit.
We affirm substantially for the reasons expressed by Judge DePascale in his comprehensive October 19, 2006 oral opinion.