July 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBINSON MADERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-04-0528.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2010
Before Judges Yannotti and Chambers.
Defendant was tried before a jury and found guilty of first degree armed robbery, N.J.S.A. 2C:15-1; third degree theft by unlawful taking of movable property, N.J.S.A. 2C:20-3(a); first degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The court sentenced defendant to an aggregate twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated June 5, 2009. We affirm.
At trial, the State presented evidence which established that on November 14, 2007, shortly after 8:00 p.m., two individuals approached Peter Policastro and his wife Shirley Policastro as they exited their vehicle at their residence in Cliffside Park. One of the individuals was armed with a handgun. He pointed the weapon at Mr. Policastro and told him to put his hands up.
The man with the gun told Mr. Policastro to give him his wallet. Mr. Policastro handed his wallet to him. The other assailant threw Mrs. Policastro down on the ground and demanded that she give him her rings. She refused. He then struck Mrs. Policastro with his fist on the right side of her head four or five times.
The second man again demanded that Mrs. Policastro give him her rings and said that he would kill her if she did not turn them over. He struck Mrs. Policastro again and tried to remove the rings forcibly. The first man pointed the gun at her. Mrs. Policastro finally took off her rings and handed them to the second man. The two men ran away.
The following day, Mr. Policastro identified defendant as the man who pointed the gun at him and his wife during the robbery. Thereafter, defendant was arrested. At the time, defendant was engaged in a romantic relationship with Mr. Policastro's ex-wife, Lina Policastro.
Defendant denied that he committed the robbery. He testified that, on the night of the robbery, he left work at his father's grocery store around 6:30 p.m. He stated that he went to a barbershop in Union City. He left the barbershop and took a 7:15 p.m. bus, then caught a 7:32 p.m. bus to Edgewater. Defendant said that he arrived at Lina's house "two minutes before 8:00[p.m.]" He testified that he remained there until the following morning.
At the time of the robbery, two of Lina's children, A.B. and J.B., were residing with her at her home. A.B. testified that defendant arrived at her home at approximately 8:00 p.m. and did not leave the house until the following day. Defendant's father testified that on November 14, 2007, defendant worked at his store until about 6:35 p.m. In addition, defendant's barber stated that defendant was at his shop in Union City until about 7:15 p.m.
In this appeal, defendant raises the following arguments for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE IS ESTABLISHED AS TO THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CALL [LINA] POLICASTRO AND [J.B.] TO TESTIFY AS ALIBI WITNESSES.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE ALL AVAILABLE EVIDENCE.
TRIAL COUNSEL WAS INEFFECTIVE WHEN SHE FAILED TO CALL THE DISPATCHER AS A WITNESS FOR THE DEFENSE.
TRIAL COUNSEL WAS INEFFECTIVE IN NOT CROSS EXAMINING PETER POLICASTRO WITH REGARD TO A PRIOR CRIMINAL CONVICTION.
THIS COURT SHOULD GRANT DEFENDANT RELIEF ON THE BASIS OF CUMULATIVE ERROR.
TRIAL COUNSEL WAS INEFFECTIVE IN NOT ARGUING FOR A MOTION FOR ACQUITTAL AND NEW TRIAL AND THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION NOT WITHSTANDING TRIAL COUNSEL'S LACK OF ARGUMENT.
As noted, defendant maintains that he was denied the effective assistance of trial counsel. In order to prevail on such a claim, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court for considering ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
The Strickland test first requires that a defendant establish that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). The Strickland test next requires that the defendant establish that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). To establish prejudice, the defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
Defendant maintains that he was denied the effective assistance of counsel because his attorney failed to call J.B. as an alibi witness. We disagree.
As we stated previously, at trial, defense counsel presented testimony from Lina's daughter, A.B., who stated that defendant arrived at Lina's home at 8:00 p.m. on November 14, 2007, and remained there until the following morning. If J.B. had been called as a witness, and testified as defendant suggests, he would have only confirmed A.B.'s testimony. Therefore, J.B.'s testimony would have been cumulative. We are satisfied that defendant's attorney was not deficient in failing to present J.B. as a witness.
In addition, defendant contends that defense counsel erred by failing to call Lina Policastro as an alibi witness. Again, we disagree. If Lina Policastro had testified that defendant was with her at home at 8:00 p.m. on November 14, 2007, as defendant suggests, she would have been confronted with a statement that she gave to a detective the day after the robbery.
Lina Policastro told the detective that defendant was at her home until 8:00 p.m. on the night of the robbery. The State maintains that such testimony would have allowed it to argue that defendant had sufficient time to go to the Policastro home and commit the robbery. We are satisfied that defendant's attorney was not deficient in failing to call Lina Policastro as a witness.
Defendant additionally argues that his trial attorney was ineffective because he did not obtain evidence to establish certain facts, specifically that: Mr. Policastro knew and could identify him; the detectives and police officers involved in the investigation knew him; and Mr. Policastro had previously seen defendant and Lina together. We find no merit in these contentions.
We note that defendant gave the police a statement two days after the robbery and told the police that he had seen Mr. Policastro only once, from a distance, from "car to car[,]" at the bottom of a hill. Defendant said that this was the only time he had seen Mr. Policastro face to face, and he had never spoken "to the guy[.]"
Thus, defendant's statement to the police essentially corroborated Mr. Policastro's testimony that he had never seen defendant until the day of the crime. Moreover, defendant has not established that testimony that he was known to the police prior to the events of November 14, 2007, would have led to a different result in this case.
Defendant further argues that his attorney was ineffective because he did not call the police dispatcher as a witness. Defendant contends that there was conflicting testimony as to whether Mr. Policastro described the robbers as "two black guys." However, at trial, the court played the 9-1-1 audiotape outside the presence of the jury. It appears that on the tape, the dispatcher referred to "two black males" but Mr. Policastro could not be heard on the tape making that statement. Moreover, both Mr. Policastro and his wife had described the perpetrator with the gun as a Hispanic man.
Defendant also contends that his attorney was ineffective because he failed to question Mr. Policastro concerning a 1979 criminal conviction. It appears that Mr. Policastro was convicted of violating certain food inspection laws and fined $500. We are satisfied that, had counsel attempted to question Mr. Policastro concerning this conviction, the court would properly have precluded counsel from doing so pursuant to N.J.R.E. 609 because the conviction was remote in time.
In addition, defendant contends that his counsel should have elicited testimony from J.B. regarding Mr. Policastro's character and reputation. Defendant asserts that his attorney should have had J.B. testify as to certain specific instances of Mr. Policastro's misconduct. However, the record shows that the court precluded counsel from eliciting such testimony. Moreover, the court's ruling was correct.
N.J.R.E. 405 provides in pertinent part that, "[w]hen evidence of character or a trait of character of a person is admissible, it may be proved by evidence of reputation, evidence in the form of opinion, or evidence of conviction of a crime which tends to prove the trait." Under this rule, J.B. could have offered his opinion regarding Mr. Policastro's character and reputation but he could not testify concerning the specific incidents of misconduct on the part of Mr. Policastro because those incidents were not the subject of a criminal conviction.
Finally, defendant contends that counsel ineffectively argued his motions for acquittal and a new trial. He also contends that the court erred by denying those motions. We find no merit in either argument. Here, the State presented sufficient evidence from which the jury could reasonably find beyond a reasonable doubt that defendant committed the offenses for which he was convicted. State v. Reyes, 50 N.J. 454, 458-59 (1967). The court properly denied the motions, and the result of the proceeding would not have been different if counsel had argued the motions differently.
We have considered defendant's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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