November 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHAN COTTO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 00-05-0453-I/B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2008
Before Judges Lisa and Reisner.
Defendant Nathan Cotto appeals from a March 28, 2007 order denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons stated by Judge Geiger in his comprehensive written opinion issued on March 28, 2007.
In connection with a particularly brutal armed robbery committed against defendant's pregnant former girlfriend, Tiffany Mutcherson, and Tiffany's sister Tina, defendant was convicted by a jury on charges of first-degree robbery, N.J.S.A. 2C:15-1a(1), associated weapons offenses, terroristic threats, and assault. Because the trial evidence was reviewed in detail in Judge Geiger's opinion, and in opinions issued on defendant's prior appeals, we provide only a brief summary. On February 5, 2000, defendant and an accomplice forced their way into Tiffany's apartment, beat and kicked the pregnant Tiffany, terrorized Tiffany and Tina, and threatened Tina's young children. The robbers took some money from the apartment, and left taking Tina with them. They eventually released her. Although the intruders wore masks, Tiffany recognized defendant when his mask slipped. The intruder whom she identified also knew where Tiffany kept her money in the apartment and knew the name of Tina's son.
In addition to charging defendant with robbing Tina and Tiffany in Tiffany's apartment, the State had also charged defendant with robbing Miguel Rosado, who had been standing in front of the apartment building at the time. Rosado claimed that two masked men robbed him on February 5, 2000, after rushing out of the apartment building, presumably right after the Mutcherson robbery. He also claimed that he had seen the same two men previously, as they first entered the building, when they were not masked. Shown a photo array by police on July 27, 2001, Rosado was unable to identify defendant as one of the robbers, stating that defendant was "too heavy" to have been the person he saw; Rosado also identified a photo of someone else whom he contended was involved in the robbery.
On the other hand, in an interview on July 24, 2001, Rosado had admitted to the police that the day after the robbery, a person named "Lucky" had approached Rosado, and told him that Lucky's friend Cotto was the person who robbed him. Lucky also told Rosado "that the defendant told 'Lucky' to tell [Rosado] not to press charges against [Cotto]." Before defendant's trial on the Mutcherson robbery, the State agreed to dismiss the charges based on the Rosado robbery, and both sides agreed that they would not refer to the Rosado incident during the trial.
We affirmed defendant's conviction on direct appeal, State v. Cotto, Docket No. A-5566-01 (App. Div. Nov. 20, 2003). On defendant's petition for certification, the Supreme Court affirmed the conviction as well, State v. Cotto, 182 N.J. 316 (2005), rejecting issues defendant raised concerning an identification instruction, admission of excited utterances, precluding evidence of third-party guilt, and admission of out- of-court statements. The Court found several trial errors but concluded that they were harmless.
In his PCR petition, defendant claimed ineffective assistance of counsel and prosecutorial misconduct. Significantly, in his petition, defendant submitted his own certification but produced no certification or other legally competent evidence from Rosado concerning whether defendant robbed him.
In a twenty-three page written opinion, Judge Geiger rejected defendant's PCR arguments that trial counsel should have moved to dismiss the indictment; that trial counsel should have further "explored" the identification of defendant by Rosado; that trial counsel failed to object to hearsay, the admission of which the Supreme Court already ruled was harmless error; and that trial counsel failed to develop the same third-party guilt evidence that the Supreme Court rejected on direct appeal. Judge Geiger also rejected several other claims, including prosecutorial misconduct, either because they were previously raised unsuccessfully before the Supreme Court or because they were clearly without merit.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE PCR COURT ERRED IN FAILING TO FIND THAT DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: THE PCR COURT ERRED IN FAILING TO FIND THE PROSECUTOR'S ACTIONS BEFORE AND DURING THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT REQUIRING REVERSAL OF DEFENDANT'S CONVICTION AND DISMISSAL OF THE INDICTMENT.
Defendant raises once again the Rosado identification issue, his counsel's failure to explore possible evidence that two people named Terry Morgan and "Corrupt" committed the robbery, counsel's failure to move to dismiss the indictment, counsel's failure to object to hearsay statements by Tina Mutcherson, defendant's inability to call Ralph Morgan as a witness to possible third-party guilt, and alleged prosecutorial misconduct. Having reviewed the record, we conclude that all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
Judge Geiger correctly concluded that defendant failed to present a prima facie case of ineffective assistance of counsel so as to require an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 463-64 (1992). Defendant's principal argument is that Rosado was a key witness whose testimony would have exculpated him. However, defendant failed to provide the PCR court with a certification from Rosado concerning what Rosado saw on the night of the robbery. Hence, other than the two police reports, there was no evidence as to what Rosado's testimony would have been had he been a witness at defendant's trial.
The police reports establish that the prosecution had a good faith basis to dismiss the charges against defendant, because Rosado identified someone else as having robbed him. On the other hand, the defense would not have wanted to call Rosado because he might have testified to defendant's efforts to intimidate him. Without some further legally competent evidence as to whether Rosado would have implicated or exculpated defendant, there was no proof that any error by counsel deprived defendant of a fair trial, and hence there was no prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 463-64. See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v Fritz, 105 N.J. 42, 52, 58 (1987).
We also find no merit in defendant's contentions concerning Ralph Morgan, an individual who had no relevant personal knowledge concerning the Mutcherson robbery. Morgan's statement that someone named "Corrupt" might have committed the crime was based on speculation. We find no error in the trial court's refusal to let Morgan testify to his suppositions.
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