November 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELIGIO D. BUENO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-0537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Graves and Newman.
Defendant Eligio Bueno appeals from an order dated October 19, 2007, denying his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was convicted of murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2); second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); and fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(2). When the trial court sentenced defendant on September 17, 2004, it noted "Mr. Bueno has shown no remorse for this senseless killing of Rasheim Rock Reed" and concluded "an extensive period" of incarceration was necessary and appropriate "for the protection of the public." After defendant's conviction for possession of a handgun for an unlawful purpose was merged into his murder conviction, he was sentenced to fifty-five years in state prison, subject to an eighty-five percent parole ineligibility term under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a consecutive one-year term for resisting arrest.
Defendant appealed and we affirmed his judgment of conviction and sentence in an unreported opinion. State v. Bueno, No. A-1394-04 (June 1, 2006). The Supreme Court denied defendant's petition for certification. 188 N.J. 356 (2006). The facts underlying defendant's convictions were summarized in our prior decision and need not be repeated here.
Defendant elected to testify at his trial and denied shooting Reed. Defendant claimed he was ten or fifteen feet in front of Reed when Reed was shot by a "black guy," and that he ran because "[p]anic just kicked in."
On his direct appeal, defendant claimed the prosecutor's questions during cross-examination violated his "right to remain silent" by focusing on his "failure to tell the police that he had witnessed the shooting," and his failure to provide the police with a description of the shooter. We found, however, that the prosecutor's questions regarding a telephone conversation defendant had with the police while he was not in custody did not violate his right to remain silent. See State v. Brown, 118 N.J. 595, 613 (1990) ("[E]vidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination."); see also State v. Brown, 190 N.J. 144, 158-59 (2007) ("[W]hen there is no governmental compulsion associated with defendant's pre-arrest conduct or silence, when the defendant testifies at trial, and when the objective circumstances demonstrate that a reasonable person in defendant's position would have acted differently, the State may attempt to impeach defendant on that pre-arrest conduct or silence.").
Defendant filed a PCR application on December 12, 2006, which was heard on October 19, 2007. Following oral argument, Judge Mulvihill, who also presided over defendant's jury trial, stated his reasons for denying defendant's petition in a comprehensive oral decision. An order memorializing his decision was entered the same day.
On appeal, defendant presents the following argument:
THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF BY FINDING THAT HIS ALLEGATION THAT HIS TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE PROSECUTOR'S CROSS-EXAMINATION ON THE APPELLANT'S PRE-ARREST SILENCE WAS BARRED AS HAVING BEEN ADDRESSED ON DIRECT APPEAL.
We reject this argument and affirm the denial of defendant's petition substantially for the reasons stated by Judge Mulvihill on October 19, 2007. As Judge Mulvihill indicated, this court previously rejected defendant's claim that "the questions asked of [him] violated his right to remain silent." Thus, that issue was procedurally barred by Rule 3:22-5. See State v. Preciose, 129 N.J. 451, 476 (1992) ("[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review."). Moreover, based upon this court's rejection of defendant's pre-arrest silence claim, it is clear that defendant's trial attorney was not ineffective for failing to present evidentiary arguments that would not have been successful.
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