May 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN A. REYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-11-1054.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 26, 2010
Before Judges Rodríguez and Reisner.
Defendant Juan A. Reyes appeals from a December 5, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
In connection with the armed robbery of a Checkers Drive-In Restaurant in Paterson, defendant was convicted of first degree robbery, N.J.S.A. 2C:15-1b, and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. He was acquitted of unlawful possession of a weapon. Defendant was sentenced to twelve years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction and the sentence on direct appeal. State v. Reyes, No. A-5011-01 (App. Div.), certif. denied, 178 N.J. 251 (2003).
We summarized the evidence in our opinion on defendant's direct appeal. In brief, two men robbed the Checkers restaurant at gunpoint. Shortly after the robbers fled from the premises, the store manager called 9-1-1 and activated an alarm. The police responded within a few minutes. The manager described the robbers, and the police quickly located and arrested defendant and co-defendant Adnan Manla about a block away from the restaurant. The restaurant manager was taken to the scene of the arrest and identified both men. He later also identified both defendants from photographs at the police station. The trial judge ruled at a Wade*fn1 hearing that the identification was admissible. In very detailed trial testimony, the manager described the robbery and identified the defendants as the robbers.
On his direct appeal, defendant raised the following arguments, all of which we considered and rejected as without merit:
POINT I: THE EYEWITNESS IDENTIFICATION WAS TAINTED AND THEREFORE THE CASE MUST BE THROWN OUT UNDER WADE.
POINT II: THE PROSECUTOR'S SUMMATION WAS IMPROPERLY PREJUDICIAL. (Not Raised Below)
POINT III: THERE WAS INSUFFICIENT EVIDENCE FOR THE CONVICTION.
POINT IV: THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE ADMISSIBLE EVIDENCE. (NOT RAISED BELOW)
POINT V: THE COURT SHOULD HAVE SUBSTITUTED THE ALTERNATE JURORS FOR THOSE JURORS WHO ASKED TO BE EXCUSED. THE FAILURE TO DO SO PRESSURED THESE TWO JURORS TO DISPOSE OF THIS CASE.
In his PCR petition, defendant raised many of the same arguments. He contended to the PCR court that:
POINT I: THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II: THE PROSECUTOR'S SUMMATION WAS IMPROPER AND PREJUDICIAL.
POINT III: THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY.
POINT IV: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT V: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT VI: THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.
POINT VII: AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF HIS PETITION FOR POST CONVICTION RELIEF.
POINT VIII: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.
POINT IX: THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION.
In a comprehensive written opinion dated December 3, 2007, Judge Subryan rejected all of those contentions. He concluded that defendant's Points I and II were barred by Rule 3:22-5, because they were raised and rejected on direct appeal. He found that defendant's objection to the jury charge was without merit, because defendant was not tried as an accomplice.*fn2 Judge Subryan next addressed defendant's arguments concerning his trial counsel. He found no proof of ineffective assistance of counsel in defendant's allegations that his counsel had been unavailable to meet with him on several occasions; or that his counsel did not discuss certain discovery materials with him, although defendant had been provided with those materials. Judge Subryan further found that the trial record was "in direct contradiction" to defendant's contention that his attorney improperly dissuaded him from testifying at the trial. At the trial, defendant was questioned at length on the issue and unequivocally stated that he had discussed the issue extensively with his attorney; that he understood that the decision to testify was exclusively his and not that of his counsel; that he knew he could not later accuse his counsel of not letting him testify; and that he had decided not to testify.
The judge also found no merit in defendant's contentions that the trial attorney failed to object to jury instructions on accomplice liability and did not object to the prosecutor's summation; that he did not move for a new trial; and that he discussed aspects of the trial in the presence of the co- defendant and his attorney. He also rejected defendant's allegations that his appellate counsel was ineffective, concluding that the grounds Petitioner now alleges are (1) the same as the grounds for appellate review or (2) could . . . have been brought on direct appeal or (3) are so meritless that appellate counsel would not have argued [them] on direct appeal.
The judge further rejected defendant's challenge to his NERA sentence premised on State v. Natale, 184 N.J. 458 (2005), a case which was not decided at the time of either defendant's sentencing or his direct appeal, and which has only pipeline retroactivity. Id. at 494.
On this appeal from the denial of his PCR petition, defendant presents the following points for our consideration:
POINT I: THE LOWER COURT'S ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Was Ineffective In Regards To The Charge To The Jury.
B. Trial Counsel Failed To Object To The Prosecutor's Inappropriate Comments During Summation.
C. Trial Counsel Failed To Consult With Defendant In A Meaningful Manner.
D. Trial Counsel Deprived Defendant Of The Opportunity To Testify.
E. Trial Counsel Failed To File A Motion For A New Trial.
POINT II: THE LOWER COURT'S ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III: THE LOWER COURT'S ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE.
POINT IV: THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY AND THE LOWER COURT'S ORDER MUST THEREFORE BE REVERSED.
POINT V: THE IMPOSITION OF THE SENTENCE WAS IMPROPER, ILLEGAL AND UNCONSTITUTIONAL AND THE LOWER COURT MUST THEREFORE BE REVERSED.
POINT VI: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LOWER COURT'S ORDER MUST THEREFORE BE REVERSED.
POINT VII: THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE SUMMATION, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE LOWER COURT'S ORDER MUST THEREFORE BE REVERSED.
POINT VIII: THE LOWER COURT'S ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT IX: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT'S ORDER MUST THEREFORE BE REVERSED.
We conclude that all of these points are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). We affirm substantially for the reasons stated in Judge Subryan's thorough and cogent opinion. We add the following comments.
To establish a prima facie case of ineffective assistance of counsel, a defendant must do more than present "bald assertions." State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999). In this case, the PCR petition was not supported by any legally competent evidence, beyond a certification from defendant contending that on several occasions his attorney was not available to meet with him and did not review the discovery materials with him.
Defendant did not explain how that affected the outcome of the trial. Further, although defendant contended that his attorney pressured him into waiving his right to testify at the trial, defendant did not indicate what he would have said if he had testified. Nor did he assert in his certification that he did not commit the robbery. We also agree with Judge Subryan that the trial record, which we have reviewed, thoroughly undermines defendant's allegation that he did not knowingly and voluntarily waive his right to testify.
We agree with Judge Subryan that defendant did not present a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462 (1992). The judge therefore correctly denied defendant's request for an evidentiary hearing on his PCR petition. See ibid.