August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE REYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 84-11-1051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Yannotti and Lyons.
Defendant Jose Reyes appeals from an order entered by the trial court on October 13, 2006, denying his motion for the production of certain records pertaining to the sentencing of Zabulon Rodriguez ("Rodriguez"). We affirm.
We briefly summarize the relevant facts. In 1984, a Passaic County grand jury charged defendant with: burglary, N.J.S.A. 2C:18-2 (count one); burglary, N.J.S.A. 2C:18-2b(1) and (2) (count two); murder, N.J.S.A. 2C:11-3a(1) and (2) (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); aggravated assault, N.J.S.A. 2C:12-1b(1) and (2) (counts five, nine and twelve); terroristic threats, N.J.S.A. 2C:12-3a and b (counts six and ten); attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2a(3), (4) and (6) (count seven); attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (counts eight and eleven); and possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4 (count thirteen). The events that led to these charges were summarized by the Supreme Court in State v. Reyes, 140 N.J. 344, 346-49 (1995).
Trial in the matter commenced on June 16, 1986. Id. at 350. After the State rested its case, the trial court dismissed count one, charging burglary. Id. at 351. Defendant was found not guilty on count seven, in which he was charged with attempted aggravated assault. Ibid. He was found guilty of the remaining charges. Ibid. Defendant was sentenced to an aggregate term of eighty years of imprisonment with a forty-five year period of parole ineligibility. Ibid.
Defendant's direct appeal focused primarily on the jury charge on voluntary intoxication, which defendant "argued shifted the burden of proving voluntary intoxication to the defense." Id. at 352. We affirmed defendant's convictions. Ibid. The Supreme Court denied defendant's petition for certification. Ibid.
In August 1991, defendant filed a petition for post-conviction relief ("PCR"). Ibid. He argued that the trial court's instruction to the jury on diminished capacity was unconstitutional. Ibid. Defendant further argued that he was denied the effective assistance of counsel because his trial attorney did not object to the charge and his appellate counsel did not raise the issue on appeal. Id. at 352-53. The trial court denied PCR. Id. at 353. We reversed, but the Supreme Court affirmed the denial of PCR finding that, although the jury charge was erroneous, the error was harmless. Id. at 353, 366.
Thereafter, defendant filed a petition for habeas corpus in the United States District Court. On May 3, 1996, the court denied the petition. The Court of Appeals for the Third Circuit declined review on April 15, 1997.
In June 2002, defendant filed a second PCR petition, in which he alleged that he had been denied the effective assistance of counsel because his trial attorney did not prepare his case properly; failed to advise him concerning his right to testify; and failed to inform him concerning certain possible defenses because he was allegedly "under medication" at the time of trial. State v. Reyes, No. A-1999-04 (App. Div. Sept. 6, 2006) (slip op. at 6).
Defendant also argued that the consecutive sentences imposed by the trial court were illegal and that the trial court should have found certain mitigating factors. Ibid. In addition, defendant argued that the State improperly failed to provide the defense with the criminal histories of two persons who testified at trial, Teresita Martinez ("Martinez") and Rodriguez. Id. at 7.
The trial court denied defendant's petition. Id. at 7-8. Defendant appealed and argued, among other things, that his right to due process was violated by the State's failure to provide him with Rodriguez's and Martinez's criminal histories at the time of trial. Id. at 8. We affirmed the denial of PCR, noting that the PCR court had reviewed the "rap" sheets for Rodriguez and Martinez and concluded that the State had provided defendant with all of the relevant information concerning the criminal histories of those witnesses. Id. at 15-17. The PCR court had also noted that the State had represented that there were no promises made to or agreements with Rodriguez. Id. at 17.
It appears that, while defendant's appeal from the denial of his second PCR petition was pending, defendant made a request for copies of the transcript of Rodriguez's plea hearing on September 12, 1986, and Rodriguez's sentencing on December 5, 1986. By letter dated March 4, 2005, the supervisor of the official court reporters for the Passaic County Courthouse informed defendant that the reporter's notes of the September 12, 1986 proceeding could not be found. The supervisor also informed defendant that the record of the sentencing proceeding had been sealed and a transcript could not be provided without a court order.
Thereafter, defendant filed a pro se motion in the trial court seeking an order requiring the custodian of records to produce transcripts of Rodriguez's September 12, 1986 plea hearing and Rodriguez's sentencing on December 5, 1986. Defendant asserted that if these transcripts were sealed, they should be unsealed and produced so that he could inspect and/or copy them.
In support of this motion, defendant said that Rodriguez was initially one of the State's witnesses at his trial but he eventually testified for defendant. Defendant asserted that, at the time of trial, two indictments were pending against Rodriguez, to which he pled not guilty. After defendant's trial, Rodriguez entered his guilty plea to both indictments and he was sentenced in December 1986.
On October 2, 2006, the trial court considered defendant's motion. Defendant's attorney argued that the production of transcripts of Rodriguez's plea hearing and sentencing were required because defendant suspected that Rodriguez may have been "in some way . . . involved with the prosecutors" at the time of the trial. Defendant's attorney also argued that Rodriguez's trial testimony may have been "tainted" if Rodriguez and the prosecutors were engaged in ongoing communications and plea negotiations at the time. Counsel stated that Rodriguez may have believed that he would be "rewarded" if he gave testimony adverse to defendant.
The trial court placed its decision on the record. The court found that the issue of whether defendant had been provided with all relevant information regarding Rodriguez's criminal history had been addressed by the PCR court when it ruled on defendant's second PCR petition. The court noted that the Appellate Division had affirmed the denial of defendant's second PCR petition. Accordingly, the trial court entered an order dated October 13, 2006, denying defendant's motion. This appeal followed.
Defendant argues that the trial court erred by denying his motion. He asserts that the State should be ordered to provide him with "full and complete transcripts[.]" He says that, to the extent that there is a sealed portion of the December 5, 1986 sentencing transcript, it should be transcribed and provided to him. He further asserts that the court reporter should be ordered to conduct a "thorough, documented search" for the transcript of the plea hearing and provide a transcript of that proceeding as well.
We have carefully considered the record in light of these contentions. We are convinced that defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We therefore affirm the order of October 13, 2006, denying defendant's motion substantially for the reasons stated by the trial court in its decision on the record.
As stated previously, by letter dated March 4, 2005, the supervisor of the official court reporters for the Passaic County Courthouse informed defendant that, after a diligent search, the record of Rodriguez's September 12, 1986 plea hearing could not be found. Thus, even if we were inclined to order the production of a transcript of the September 12, 1986 proceeding, we could not do so. There also is no point in ordering the court reporter to make a further search for the records of the September 12, 1986 proceeding because a search had already been undertaken.
Furthermore, in her letter of March 4, 2005, the supervisor stated that a transcription of the December 5, 1986 sentencing proceeding could not be prepared because it had been sealed by order of the court. We note that, the record before us includes a transcript of the December 5, 1986 proceeding. It appears to be complete although the State's brief suggests that some portion of the record was sealed. Moreover, the transcript indicates that there were some discussions with the judge in chambers but it is unclear whether the discussions were recorded.
In any event, we are convinced that the trial court did not err by denying defendant's motion. We agree with the trial court that the issue of whether defendant had been provided with all relevant information concerning Rodriguez's criminal history was fully explored in defendant's second PCR petition. In affirming the PCR court's order denying defendant's petition for PCR, we noted that the PCR court had determined that the State had provided Rodriguez's full criminal history to defendant before his trial and, moreover, the State had represented that it had not made any promises or agreements with Rodriguez prior to defendant's trial.
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