On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-06-1286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 3, 2010
Before Judges Cuff and Payne.
Defendant Carmelo Herrera appeals from the denial of his petition for post-conviction relief (PCR). He is serving a thirty-year prison term subject to a No Early Release Act*fn1 85% parole ineligibility term following his conviction of first degree carjacking, N.J.S.A. 2C:15-2, and third degree receiving stolen property, N.J.S.A. 2C:20-7. We affirm.
Following his conviction, defendant appealed and we affirmed his convictions but remanded for resentencing. State v. Herrera, No. A-818-03 (App. Div. Feb. 23, 2005) (slip op. at 18). The Supreme Court affirmed. 187 N.J. 493 (2006). Following resentencing, defendant appealed his sentence, and we affirmed. State v. Herrera, No. A-6589-04 (App. Div. June 4, 2007).
Defendant's initial petition for PCR was dismissed as premature. Following disposition of his direct appeal by the Supreme Court, resentencing as originally directed by this court, and appellate review of the sentence, defendant filed this petition. Assigned counsel submitted a brief on defendant's behalf.
In his petition, defendant asserted that trial counsel failed to properly prepare for trial. Specifically, defendant alleged that trial counsel did not conduct a proper pre-trial investigation, failed to fashion an effective defense, and failed to challenge the identification procedures utilized by the police. He asserted these omissions deprived him of his constitutionally guaranteed right to the effective assistance of counsel.
In the brief submitted in support of defendant's petition, counsel argued that defendant wanted to testify at trial but trial counsel pressured him to remain silent. Counsel also asserted that trial counsel failed to request an intoxication charge that had ample factual support. He reiterated that trial counsel should have requested a more effective identification charge and should have conducted a more thorough investigation of the charges. Finally, assigned PCR counsel asserted that trial counsel did not adequately argue mitigating factors at sentencing. Neither the pro se petition nor the brief submitted by counsel are supported by certifications of defendant or third parties or expert reports.
In a comprehensive written opinion, Judge Kevin G. Callahan held that the petition was timely. The judge determined, however, that defendant failed to establish a prima facie case of ineffective assistance of counsel. He determined that the trial transcripts do not support defendant's contention that he was pressured or coerced to remain silent at trial. The judge also determined that trial counsel performed an adequate investigation and constructed a defense informed by that investigation.
As to the intoxication defense, Judge Callahan held that the failure to pursue this defense was a strategic decision by counsel. Such decisions are insulated from collateral attack in a PCR petition. Moreover, the judge noted that defendant asserted he was not the man who stole the car, and he was the victim of a misidentification. Therefore, Judge Callahan emphasized that the intoxication defense contradicted and undermined the defense. The judge also held that a cross-racial identification*fn2 was unnecessary in this caes because defendant and the victim were ethnically or racially similar. Furthermore, the victim had seen defendant many times prior to this incident.
Judge Callahan also held that the mitigating factors presently advocated by defendant to reduce this sentence have no factual support. Furthermore, the judge held that the contention that appellate counsel should have urged as error the omission of a trespassing charge was without merit. The judge observed that the events underlying the charges against defendant "go above and beyond the scope of . . . trespass."
On appeal, defendant raises the following arguments:
POINT I -THE COURT ABUSED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT HIS SIXTH AMENDMENT RIGHTS TO CONFRONTATION AND COMPULSORY PROCESS, AND HIS FOURTEENTH AMENDMENT RIGHT TO DUE ...