February 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MORILLO MARINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-08-1680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant was convicted of second- degree kidnapping, N.J.S.A. 2C:13-1b; six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and N.J.S.A. 2C:14-2a(5); and six counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. Following imposition of sentence, defendant appealed. We affirmed the conviction but remanded for resentencing. State v. Marinez, 370 N.J. Super. 49 (App. Div.), certif. denied, 182 N.J. 142 (2004). On remand, defendant was sentenced to a prison term of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, with the sentences on the other counts to run concurrent. In addition, the judge imposed the mandated fines, penalties and Megan's Law restrictions. Thereafter, defendant filed a petition for post-conviction relief (PCR). In a comprehensive written opinion, Judge Carroll in the Law Division, denied the petition. Defendant appeals, and we affirm.
We quote the facts as set forth in Judge Carroll's opinion:
On October 1, 1999, the victim, a twenty-two year old female was working as a waitress at Jarolyn's Bar in Queens, NY. At the conclusion of her shift, approximately 5:45 a.m., the defendant asked the victim if she wanted a ride home so that she did not have to pay for a taxi. She accepted and entered the vehicle's front passenger seat. Two additional males got into the rear seats of the vehicle. Defendant drove one of the men home and the victim questioned when she would be taken home as they approached the George Washington Bridge. She began to yell and wave her arms at which time the male in the rear seat, later determined to be an individual named Forti, held her wrists from behind her to restrain her movement. The victim was taken to the Skyview Motel in Fort Lee, NJ. The defendant went to the office to register for a room while Forti secured the victim in the vehicle. The defendant provided his driver's license to the hotel clerk in order to obtain the room and a copy of his license was made before it was returned to him. The victim at this time was yelling and trying to get anyone's attention. Two cleaning persons were in the parking lot at some point. Thereafter, the victim was brought into the room and assaulted. Forti pulled off the victim's clothes, pushed her down onto the bed, and fondled her breasts and vagina while the defendant held her down. Forti then penetrated the victim's vagina with his penis. During this time, the defendant fondled her breasts and digitally penetrated her vagina. The victim continuously screamed and at one point people in the next room started to bang on the wall. Forti threatened the victim but the defendant stated that they should go because he registered for the room in his name and did not want to get caught. The victim got dressed and was led back to the vehicle. Forti threatened to kill the victim and the defendant offered her money and urged her not to call the police. Eventually, the victim was dropped off near her home.
When the victim got home, she showered and changed her clothes. At approximately 9:00 a.m., she called 911 and reported what happened. An officer of the NYPD responded to the victim's home to conduct an investigation. An EMS worker was summoned who performed a physical examination upon which bruising was discovered on the victim's wrists as well as a hematoma of the eye area. It was later learned that the incident actually occurred in Fort Lee, NJ at the Skyview Motel; thus Fort Lee police handled the remaining investigation.
Officers questioned the hotel clerk regarding the incident and the hotel clerk provided the copy of the defendant's identification. The victim gave a formal statement to police and identified defendant as Lingo, her boss at Jarolyn's Bar. The defendant was subsequently arrested and charged with kidnapping and aggravated sexual assault.
In his pro-se petition, defendant raised the following issues:
POINT I A. The Defendant, Morillo Marinez Was Denied His Right To Effective Assistance of Counsel Which Resulted In His Conviction And Severe Sentence When Trial Counsel failed to Call Any Witnesses, Failed To Challenge The Oral And Written Statements By Petitioner, All In Violation Of the Fifth, Sixth And Fourteenth Amendments To The State And Federal Constitutions, Requiring The Reversal Of The Conviction And An Order Granting Defendant A New Trial.
POINT II Petitioner Was Denied His Right To A Fair And Impartial Trial When The prosecutor Usurped Her Authority And Personally Attacked The Defenses' [sic] Only Witness, The Petitioner, Depriving Petitioner Of His Right To Testify In Violation Of The Fifth, Sixth and Fourteenth Amendments To Both The New Jersey And United States Constitutions, Requiring A Reversal Of His Convictions And A New Trial.
POINT III The Defendant, Morillo Marinez, Was Denied His Right To Trial By Jury When The Court Failed To Charge The Jury On N.J.S.A. 2C:2-3, Causation, Which Resulted In His Convictions For Rape, Sexual Assault and Kidnapping.
In addition, counsel filed a supplemental brief in support and of the petition and raised the following issue:
POINT I: DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE ATTORNEY FAILED TO CHALLENGE THE TRIAL JUDGE'S RULINGS LIMITING THE QUESTIONS WHICH HIS ATTORNEY COULD ASK HIM WHEN HE TESTIFIED IN HIS OWN DEFENSE (Supplementing Point II of Defendant's Pro Se Brief).
In his opinion, Judge Carroll rejected the arguments set forth in Points II and III of defendant's petition, concluding that they were procedurally barred by R. 3:22-4, as they were issues that were appropriate for the direct appeal and had not been raised. As to the ineffectiveness of counsel, the judge concluded that defendant had failed to establish such ineffectiveness and denied relief. On appeal, defendant asserts:
POINT I -THE COURT ERRED IN FINDING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY R. 3:22-4.
POINT II -THE COURT ERRED IN DENYING POST- CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS EVIDENCE AND A PRETRIAL MOTION TO PRECLUDE ADMISSION OF THE DEFENDANT'S INCULPATORY STATEMENTS; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE INADEQUATE JURY CHARGE ON "CAUSATION;" AND TRIAL COUNSEL'S FAILURE TO CHALLENGE THE PROSECUTOR'S IMPROPER "LEADING QUESTION" OBJECTIONS; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLATE COUNSEL WAS INEFFECT [SIC] INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.
(A) THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
(B) THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
POINT III -THE COURT'S RULING DENYING POST- CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
POINT IV -DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE MEMORANDUM OF LAW IN SUPPORT OF POST-CONVICTION RELIEF.
We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d at 693; The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
In assessing the first prong, a court must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks omitted). In considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of professional assistance." Ibid. (internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (internal quotation marks omitted). As the Supreme Court observed:
an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.
[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).] As stated above, the second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S.Ct. at 2067, 80 L.Ed. 2d 696-97). In order to prove this, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Further, "the Law Division should, in the first instance, hear PCR petitions raising claims of ineffective appellate counsel. Gaither, supra, 396 N.J. Super. at 508 (citing State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994)). Also, under Rule 3:22-4:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Judge Carroll correctly noted that the issues raised by defendant were either cognizable in the direct appeal. Issues raised regarding the prosecutor's conduct or the challenge to the jury instruction have no place in a PCR. These were properly before the court on a direct appeal, and those addressing ineffectiveness of counsel were properly before the court.
Defendant argues that exceptions (b) and (c) apply, and the judge erred by precluding consideration of these issues. We disagree. Nothing suggested by defendant supports the view that the exceptions apply. Nothing in this record suggests a fundamental injustice or violation of constitutional principles that require invocation of the exception provisions. See State v. Mitchell, 126 N.J. 565, 583-89 (1992) (stating that as the exceptions to the rule are both ample and flexible, if the circumstances of a case do not fall under a given exception, the court should not relax the rules as they are imposed for a purpose).
Defendant focuses on the first prong of Strickland. Other than references to the motel workers, who apparently were no longer available, defendant fails to demonstrate how the alleged ineffectiveness would meet the second prong of Strickland. In sum, nothing is presented to establish circumstances requiring our intervention. We affirm substantially for the reasons set forth in Judge Carroll's thoughtful and thorough written opinion of March 28, 2008.
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