February 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL DELGADO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-11-3440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant Daniel Delgado appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.
Following a retrial*fn1, a jury convicted defendant of the murder of Daniel Cortez, N.J.S.A. 2C:11-3(a)(1)(2) (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (count three). The trial court merged count three into count one and sentenced defendant to a forty-year prison term with a thirty-year period of parole ineligibility on count one, and a concurrent five-year term on count two.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Delgado, No. A-379-01 (App. Div. July 7, 2005). After granting defendant's petition for certification, the Supreme Court affirmed our determination on July 31, 2006. State v. Delgado, 188 N.J. 48 (2006).
Defendant filed his PCR application asserting due process violations resulted from the prosecutor's alleged presentation of false witness testimony. Additionally, defendant argued trial counsel was ineffective based upon his alleged failure to present the testimony of the initial investigating detective who attempted to secure a witness's identification of the van driven by the perpetrator. The PCR judge concluded the application was procedurally barred and substantively without merit. The PCR court denied defendant's petition without an evidentiary hearing.
On appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE WAS DENIED DUE PROCESS OF LAW AT TRIAL BY VIRTUE OF THE PROSECUTOR'S KNOWING PRESENTATION OF FALSE TESTIMONY FROM TWO OF HER WITNESSES AS WELL AS HER FAILURE TO CORRECT THEIR TESTIMONY AFTER IT WAS ELICITED.
A. FACTUAL INTRODUCTION
B. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF THE PROSECUTOR'S CONDUCT WITH RESPECT TO THE TESTIMONY OF AL BUCCI AND RICHARD MUNOZ, AND THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT SUCH RELIEF.
THE TRIAL COURT ERRED BY FAILING TO AFFORD THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION AND THE TRIAL COURT ERRED BY FAILING TO AFFORD HIM SUCH A HEARING.
THE DEFENDANT'S CONTENTIONS EMBODIED IN HIS PETITION FOR POST CONVICTION RELIEF WERE NOT PROCEDURALLY BARRED BY RULE 3:22-4.
Defendant's challenge centers on the pre-trial identifications made by two trial witnesses. On the day of the murder, eleven year-old Richie Munoz, who lived in a second floor apartment above his cousin, the victim, heard shots and saw a man standing over his cousin. When asked to identify the perpetrator from a photographic array that day, Munoz did not conclusively identify defendant. At trial, Munoz stated he chose two photographs of men who looked similar, but he was not certain because he was "scared and nervous" when first shown the photographs. Munoz stated he just "made a choice" because he "wanted to get it over with." The police showed the same array to Munoz a little more than seven months later when he positively identified defendant. Munoz was steadfast in his trial identification.
Another witness, Al Bucci, lived two doors down from the victim's house on the day in question. Bucci was outside warming his van when he heard gunshots. After he ran into his building and looked out the apartment window, he saw "a maroon van" and a black car, behind which one man was shooting another man. Bucci observed the van's license plate and provided police with a partial plate number. Approximately two days later, the police showed Bucci pictures of a vehicle, but he could not conclude the photographs depicted the van he saw. When Bucci was shown the actual van, he was "75% sure" it was the van he viewed at the scene. Seven months later, Bucci was shown a photo array of six vehicles and chose defendant's van. Bucci could not make an identification at the grand jury hearing.
Detective Michael DeMaio interviewed Bucci on the morning of the murder. Detective DeMaio was the officer who initially showed Bucci the van photographs and drove Bucci to see the suspected van. When Bucci could not make a positive identification, DeMaio did not generate a police report. A different detective later reinterviewed Bucci and conducted the identification.
Defendant's first challenge suggests he is entitled to a new trial because the prosecutor knowingly presented "false" testimony of Bucci and Munoz and did not correct the testimony once elicited. See State v. Cahill, 125 N.J. Super. 492, 496 (App. Div. 1973) (new trial granted when prosecutor failed to correct false statements of State's witness even though defense knew of their falsity).
PCR applications provide the means to challenge issues impacting the legality of a conviction, which cannot be raised on direct appeal. A PCR petition may not be used "to challenge the sufficiency of evidence used to convict a defendant." State v. McQuaid, 147 N.J. 464, 483 (1997). Such relief should be pursued on direct appeal. Thus, a defendant "may not use post-conviction relief to assert a new claim that could have been raised on direct appeal." Ibid.; R. 3:22-4.
Further, defendant's due process challenges, arising from the conflicting out-of-court identifications by the witnesses, including Munoz and Bucci, and pre-trial Wade*fn2 hearing to determine the admissibility of the identifications, were the subject of our opinion and that of the Supreme Court. The fact that defendant now restates his arguments to characterize the witness statements as falsehoods does not change the character of the challenge previously reviewed and rejected. R. 3:22-5.
Defendant additionally alleges ineffective assistance of trial counsel who did not call Detective DeMaio as a witness to challenge Bucci's credibility. Following our review of the record, we are not persuaded by defendant's argument.
In order to establish ineffective assistance of counsel, a defendant must prove: 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid.
Measured by this standard, defendant failed to establish a prima facie case of ineffective assistance of trial counsel. Counsel assailed Bucci on cross-examination and argued to the jury the identifications of the van were unreliable and unduly suggestive. The State made clear Bucci was unable to positively identify the van when first asked. Accordingly, we conclude Detective DeMaio's testimony, if presented, could not have realistically affected the verdict. State v. Norman, 151 N.J. 5, 30 (1997). In fact, Detective DeMaio's testimony could have added weight to the "compelling" evidence amassed by the State. Delgado, supra, slip op. at 2.
We are satisfied Judge Petrolle's factual finding that defendant failed to establish a prima facie claim of ineffective assistance of trial counsel is amply supported by sufficient credible evidence, which we have no occasion to disturb. State v. Johnson, 42 N.J. 142, 162 (1964).