On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 11, 2009
Before Judges Lihotz and Baxter.
Defendant Lorenzo Barrenechea appeals from a January 22, 2008 order that denied his first petition for post-conviction relief (PCR). On appeal, he maintains that the judge ignored much of the salient testimony elicited at the evidentiary hearing on defendant's petition and erroneously concluded that trial counsel's handling of defendant's suppression motion satisfied applicable Sixth Amendment standards for effective assistance of counsel. We affirm.
On January 2, 2002, several Elizabeth police officers went to 158 Park Place to arrest defendant on a parole violation warrant. The officers knocked, and defendant's girlfriend, Adrienne Alvarez, opened the door. The officers displayed a photograph of defendant and asked her if she knew where he was. According to the testimony of Detective James Mooney at the suppression hearing,*fn1 Alvarez pointed over her shoulder into the house. The officers found defendant asleep in a second floor bedroom. After searching defendant's pants, officers found approximately $1,000 in the pocket. They also observed a large bag of cocaine in plain view.
Mooney testified that before departing, the officers asked Alvarez to consent to a search of the bedroom. He acknowledged telling her they "wouldn't feel safe in letting her children back in the room without checking for drugs and weapons." Mooney read and explained the consent form to Alvarez, and advised her that she was not required to sign the form and had a right to refuse consent. After Alvarez gave written consent, Mooney and the other officers found a loaded semiautomatic weapon in a closet in the bedroom. The motion judge, who was not the same judge who presided at the PCR proceeding, denied defendant's motion to suppress, finding that the uncontroverted testimony established that Alvarez had voluntarily provided consent to search her apartment.*fn2 The judge specifically concluded that the officers did not threaten Alvarez with removal of her children or with a DYFS complaint before she consented to the search. Defense counsel did not call Alvarez or any other witnesses at the suppression hearing.
Defendant was convicted at trial of second-degree possession of cocaine with intent to distribute and second-degree possession of a firearm while committing a drug distribution offense. Alvarez testified at the trial. The record does not contain the transcript of any of the trial testimony. We do know, however, that Alvarez willingly appeared at the courthouse on the first day that defense counsel requested, but she was not called to the stand that day. When Alvarez had not appeared the next day by 11:30 a.m., the trial judge sent a sheriff's officer to apprehend her and bring her to court. We affirmed defendant's conviction on direct appeal, but remanded for resentencing. State v. Barrenechea, No. A-6259-03 (App. Div. March 20, 2006). The Court denied defendant's petition for certification. State v. Barrenechea, 187 N.J. 82 (2006).
In October 2006, defendant filed the PCR petition that is the subject of this appeal. He supported his petition with an affidavit from Alvarez in which she stated that she consented to the search only because police threatened to arrest her and remove her children if she did not sign the consent to search form. Her testimony at the PCR hearing was consistent with her affidavit. Alvarez also testified at the PCR hearing that she had called defendant's trial attorney more than twenty times at defendant's request prior to the suppression hearing but, according to Alvarez, he never returned her calls. She contended she was willing to testify on defendant's behalf and would have done so had trial counsel asked. At the time of the PCR hearing, Alvarez was living in Florida and had apparently returned to New Jersey to testify, although she was living in Elizabeth at the time of the suppression motion and defendant's trial.
The State called defendant's trial counsel, who testified that he made the decision not to present Alvarez as a witness at the suppression hearing because, after meeting with her and speaking to her several times, he did not find her to be a credible witness. Trial counsel testified that Alvarez "seemed very reluctant to even get involved in the case." He did, however, acknowledge that Alvarez told him in his office and over the telephone "that she thought that the police were putting her [under] pressure because of [her] kids." Nonetheless, trial counsel explained "he [didn't] think she was credible because she had contradicted herself even in [his] office."
Having decided that Alvarez would not be helpful, trial counsel chose instead to establish that Alvarez's consent was coerced solely through cross-examination of Detective Mooney. According to trial counsel, defendant agreed with that strategy. At the PCR hearing, defendant testified to the contrary, maintaining that he told his trial attorney he wanted Alvarez to testify at the motion to suppress.
At the conclusion of the PCR hearing, Judge Triarsi denied defendant's PCR petition. He specifically found trial counsel's testimony to be credible, concluding that counsel interviewed Alvarez prior to the motion to suppress. The judge also specifically found that trial counsel explained to defendant that Alvarez would not be helpful if called as a witness at the suppression hearing.
In contrast, the judge rejected the testimony that Alvarez offered at the PCR hearing, finding that she lacked credibility. The judge placed considerable weight on Alvarez's failure to appear to testify at trial on the second day, which resulted in the judge ordering the Sheriff's Department "to find her. To bring her in. To force her to testify." Because of Alvarez's distinct lack of cooperation at the trial, the judge found that her later claim at the PCR hearing -- that she would gladly have testified at the suppression hearing if asked to do so -- "rings hollow." The judge also rejected Alvarez's testimony that she telephoned trial counsel ...