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State v. Figueroa

July 15, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERALDO FIGUEROA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-05-2215.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Skillman and Espinosa.

Defendant Geraldo Figueroa appeals from the denial of his petition for post-conviction relief. We affirm.

Figueroa was convicted of first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d) (count two); and third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count three). He was sentenced to eighteen years' incarceration on count one, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, which mandated that he serve eighty-five percent of his sentence before becoming eligible for parole. A concurrent term of eighteen months was imposed on count two. Count three was merged with count one.

Two witnesses identified defendant as the man who committed an armed robbery at a laundromat in Newark on February 5, 2001.

Maria Vidal, an employee of the laundromat, testified that the robber spent two to three hours in the laundromat before the robbery. He placed a kitchen knife to her neck, forced her to the floor, dragged her to the office, and, speaking in Spanish, demanded money. After obtaining about $100, the robber kicked Ms. Vidal, told her not to get up until he had gone, and then left.

Ms. Vidal described the robber to police as a thin Hispanic male, about five feet, seven inches tall. She said that he was wearing blue jeans, sneakers, a black jacket and had socks on his hands. Ms. Vidal also described the robber as having some facial hair. At trial, defense counsel confronted her with a statement she had given to the police in which she stated that the robber had a full beard.

Ms. Vidal did not identify any photograph when she was first shown books of photographs by a detective. After the police received an anonymous tip, another photo array was compiled that included a photograph of defendant. On this occasion, Ms. Vidal became excited and positively identified defendant's photograph.

Bincento Abiles, an inspector for the City of Newark Water Department, was assigned to inspect the water meter for the laundromat on the day of the robbery. He was present at the laundromat, waiting for the owner to arrive, for approximately forty minutes. While there, he observed a man sitting on a bench and walking back and forth to the window. He identified defendant in court as the man he saw in the laundromat on the day of the robbery.

A defense investigator, Rolando Velazquez, testified regarding an interview he conducted of Mr. Abiles. According to Mr. Velazquez, Mr. Abiles told him that the man he observed in the laundromat was five feet seven or eight inches tall.

At trial, defendant testified and maintained his innocence. He stated that he is six feet tall. He also testified that he washed his clothes twice a week at the laundromat that was robbed and recognized Ms. Vidal from these occasions.

On direct appeal, defendant argued that he was denied the effective assistance of counsel because: (1) he was denied his right to confront a "surprise witness" who was called in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963); and (2) his counsel "failed to perfect" an alibi defense. This court noted that the defense investigator interviewed the "surprise witness," Inspector Abiles, four days before trial. ...


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