May 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERTO RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-10-1330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Fuentes and Simonelli.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of PCR counsel. We affirm.
A grand jury indicted defendant for first-degree armed robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from defendant's forcible removal of two gold necklaces from the victim and his use of a knife.
A jury convicted defendant of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1, and acquitted defendant of the other charges. The trial judge sentenced defendant to a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments and penalty and ordered restitution.
Defendant appealed his conviction and sentence. We affirmed in an unreported opinion. State v. Rodriquez, No. A-5677-03 (App. Div. July 29, 2005). Our Supreme Court denied certification. State v. Rodriguez, 185 N.J. 597 (2005).
Defendant then filed a PCR petition, alleging that trial counsel was ineffective in failing to consult with him through an interpreter before and during trial, and to competently cross-examine State witnesses.
The trial judge held a plenary hearing, at which trial counsel and defendant testified. In a written opinion rendered August 22, 2007, the judge denied the petition, finding credible counsel's testimony that he had communicated with defendant through an interpreter before trial, that defendant understood the charges and his defense and was well-aware of counsel's trial strategy, and that counsel reviewed the plea offer with defendant, properly prepared the matter for trial, and properly examined witnesses. The judge also found that defendant had an interpreter for all court proceedings.
On appeal, defendant contends that the record does not support the trial judge's decision. He also contends that PCR counsel was ineffective in failing to establish trial counsel's ignorance of defendant's real name, and in failing to emphasize trial counsel's inability to remember the names of the interpreters assisting trial counsel when he met with defendant at the Middlesex County Adult Correction Center.
We give deference to the PCR court's factual findings on a PCR petition when supported by adequate, substantial and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004). We give no deference to and are not bound by the PCR court's legal conclusions, which we review de novo. Ibid. (citing Toll Bros., Inc. v Twp of W. Windsor, 173 N.J. 502, 549 (2002). "And for mixed questions of law and fact, we give deference, under Rova Farms [Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)], to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings." Id. at 416 (citing State v. Marshall, 148 N.J. 89, 185 (1997)).
Also, a defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel has the heavy burden of proving that trial counsel committed serious professional errors, and that those errors prejudiced him or her by causing an unfair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1084). Prejudice is shown by proof creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Judicial scrutiny of counsel's performance must be highly deferential. A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. State v. Fritz, 105 N.J. 42, 60-61 (1987). That standard does not require "the best of attorneys," but rather that the attorney not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
We have considered defendant's arguments in light of the record and applicable law. We are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We defer to Judge Stolte's factual findings, which are amply supported by the record, and affirm substantially for the reasons expressed in her written decision rendered August 22, 2007. However, we make the following comments.
A defendant who cannot speak or understand English has a constitutional right to the assistance of an interpreter at trial. State v. Guzman, 313 N.J. Super. 363, 377-78 cert. denied, 156 N.J. 424 (1998); State v. Kounelis, 258 N.J. Super 420, 426 certif. denied, 133 N.J. 429 (1992). Defendant had an interpreter throughout the trial and for all other court proceedings. Although defendant cites no authority that his right to an interpreter extends beyond trial, we are satisfied that trial counsel's out-of-court communications with defendant were sufficient to safeguard defendant's constitutional rights. Defendant cites no authority that trial counsel's alleged failure to know defendant's real name or the interpreters' names requires a contrary result.
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