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State v. Tirado

July 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GRACIANO TIRADO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-06-0810.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2009

Before Judges Parker and LeWinn.

Defendant Graciano Tirado appeals from the March 14, 2007 order of the trial court denying his petition for post- conviction relief (PCR). For the reasons that follow, we affirm.

Tried to a jury in 2003, defendant was convicted of first- degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a). On December 12, 2003, defendant received a sentence of thirty years on the murder count, with a thirty-year parole ineligibility period, and a concurrent ten-year sentence on the weapons count, with a five-year parole ineligibility period.

Defendant appealed. We affirmed his convictions but remanded for amendment of the judgment of conviction to reflect the merger of the weapons count into the murder count. State v. Tirado, No. A-5072-03 (App. Div. February 6, 2006) (slip op. at 13). The Supreme Court denied defendant's petition for certification. State v. Tirado, 186 N.J. 607 (2006).

On May 26, 2006, defendant filed a pro se PCR petition claiming that he was denied effective assistance of trial and appellate counsel.*fn1 PCR counsel was assigned and filed a brief, in which counsel acknowledged that defendant shot the victim, Zoila Mena, his ex-girlfriend, "twice in the back and in her left temple." The victim's son called the police and defendant awaited their arrival at the scene.

Defendant thereafter made a full confession to the police on the same evening as the shooting. At trial, defendant offered psychiatric testimony to the effect that he could not have acted purposefully because he "was functionally illiterate" and his heavy "ingestion of alcohol[] impaired his reasoning to the extent that he acted recklessly"; however, a State psychiatrist refuted that opinion. State v. Tirado, supra, slip op. at 3, 4.

Defendant claimed that trial counsel was ineffective for failing to call witnesses to corroborate his intoxication defense. Defendant presented no evidence during the PCR proceedings, however, that any such witnesses existed and were available to testify at the time of trial.

At the PCR hearing, counsel argued:

In this matter I think the major issue, as it pertains to the defense of the defendant[,] dealt with the intoxication defense, . . . and the point I wish to make, which I put in the brief, w[as] simply there were no witnesses brought forth by counsel for the defendant, and I think that in terms of preparing this case[,] counsel should have made more effort to find, locate or obtain individuals who could corroborate the defense of intoxication since it clearly was a major issue.

In denying relief, Judge Frederick P. DeVesa found as follows:

The facts of the case are simply that on February 9 of 2002[,] the defendant was waiting at the home of his ex-girlfriend on the front porch and she arrived at that location and it was mid[-]afternoon, I believe, and as she arrived at that location he simply walked up behind her and shot her twice and caused her death. He also threatened her son who came to aid, if you will, and then ultimately the police were called at that time. The defendant ...


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