On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-09-1338.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Graves and Grall.
Defendant Marcus Vargas appeals from the denial of his petition for post-conviction relief. On direct appeal this court affirmed defendant's convictions for murder, N.J.S.A. 2C:11-3, two counts of first-degree robbery, N.J.S.A. 2C:15-1, and related charges that were merged at the time of sentencing. State v. Vargas, No. A-5478-99 (App. Div. Feb. 21, 2003). The Supreme Court denied his subsequent petition for certification. 177 N.J. 224 (2003). Defendant filed his petition for post-conviction relief on February 17, 2004, and the trial court denied that petition on September 25, 2006.
On appeal defendant contends that he established a prima facie case of ineffective assistance of counsel based on defense counsel's failure to call a witness who would have testified that a co-defendant admitted to commission of the homicide. He argues that the trial court should have conducted an evidentiary hearing before ruling on his petition. We agree.
The following facts are essential to our evaluation of defendant's claim. The victims of the crimes were Edwin Figueroa and Lysandra Mercado. Vargas, supra, slip op. at 1, 4. Figueroa and Mercado were walking in Perth Amboy and were followed by a group of men who robbed them at gunpoint. When Figueroa urged the men not to hurt Mercado, one of the perpetrators shot and killed him. Id. at 4.
Defendant, Norberto Caraballo, Patrick D'Aiuto and Dennis Galan were charged with the crimes. Id. at 4-5. During the investigation, all three of his co-defendants told the detectives that defendant shot Figueroa. Defendant gave the detective a different account of the crime. He claimed that he decided not to participate in the robbery, walked away from the others and saw Caraballo shoot the victim. Id. at 5. Defendant alone was charged with murder; his co-defendants were charged with felony murder. Id. at 14. D'Aiuto and Galan testified for the State at trial; neither defendant nor Caraballo testified. Id. at 5.
Defendant's only witnesses at trial were an investigator who testified about other persons the police had suspected and a woman who gave testimony to establish that defendant was with her and not at the scene of these crimes. Id. at 6. "[T]he defense's theory of the case" was that the detective who obtained defendant's statement coerced him "into making a false statement placing him[self] at the scene of the crimes, when instead he was with his girlfriend." Id. at 7.
When defendant's alibi witness completed her testimony, defense counsel advised the court that he had one more witness, Martinez. Counsel proffered that Martinez would testify that on two separate occasions she heard Caraballo admit he was the person who shot Figueroa. The trial court granted the assistant prosecutor's request for a hearing on the admissibility of Martinez's testimony, but, for reasons not stated on the record, defense counsel abandoned his plan to call Martinez and rested the case for the defense.
Among the allegations defendant made in support of his claim of ineffective assistance at the oral argument on his petition for post-conviction relief was an assertion that his trial attorney opted not to present the testimony of a witness, presumably Martinez, who was in the courthouse and would have testified that Caraballo admitted to shooting Figueroa. Through counsel, defendant asserted that his trial attorney told defendant and his witness that she could not testify.
Defendant's post-conviction relief counsel asked for an adjournment to permit the defense to locate the witness, and the prosecutor indicated the State had no objection. The trial court denied the request but agreed to withhold decision on the merits of defendant's petition for one month in order to allow defense counsel to attempt to locate the witness.
Following receipt of an additional "submission" within one month of the argument,*fn1 the trial court issued a written decision rejecting defendant's claim of ineffective assistance on the ground that a defense attorney's decision to call a witness is a tactical one that a court should not second-guess.
An evidentiary hearing on a petition for post-conviction relief asserting ineffective assistance of counsel is required when a defendant has established a prima facie case of "deficient performance" and "a reasonable probability" that the result would have been different if counsel had not made "unprofessional errors." State v. Preciose, 129 N.J. 451, 462-64 (1992). In deciding whether a defendant has established a prima facie case, courts must "view the facts in ...