July 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL A. ALQUINO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-07-0986.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2010
Before Judges Lisa and Alvarez.
This is an appeal from the denial of defendant Miguel A. Alquino's petition for post-conviction relief (PCR) without an evidentiary hearing. We reject defendant's contentions and affirm.
On October 21, 1999, a jury convicted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three); and first-degree robbery, N.J.S.A. 2C:15-1 (count four). Defendant was tried in absentia and not taken into custody on the arrest warrant which issued for his failure to appear until years later. At sentencing on June 20, 2003, the trial judge merged counts one and three into count four. He imposed a custodial term of ten years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent five-year term was imposed on count two. Defendant's direct appeal was denied in an unpublished opinion and his petition for certification was also denied on April 13, 2006. State v. Alquino, No. A-2275-03 (App. Div. Feb. 7, 2006), certif. denied, 186 N.J. 605 (2006).
Defendant filed for PCR relief on August 7, 2006, and he was assigned counsel on August 18, 2006. The oral decision and written order denying defendant's motion was rendered on June 15, 2007.
The facts need not be set forth at length, as they are fully narrated in the direct appeal opinion and are not necessary to this decision. Details related to defendant's failure to appear at trial, however, as well as his identification by the victim, are relevant.
Essentially, the victim, Kenneth Spence, caught defendant in the act of attempting to steal his truck radio. During the ensuing confrontation, defendant grabbed a tire iron and asked the victim in a threatening manner, "You want to be dead[?]" Spence told defendant to leave and immediately called police. Spence gave a detailed description of the driver and the car to the officer who responded to the scene, including license plate information.
A neighbor with whom Spence had been discussing the incident "called to him" shortly thereafter to say that the perpetrator's car had just driven by. Spence got into his truck and followed. When the vehicle stopped at a nearby parking lot, Spence called the authorities from a public telephone. The car was gone when he returned, but as he drove down the street, he came upon the arrest scene. Spence saw that police had someone in custody, and as he approached the scene, Spence recognized the person he had seen in his truck. Spence said he recognized the person "[a]bsolutely."
Spence also testified that the parking lot where defendant stopped his vehicle was three-quarters of a mile from Spence's home. The distance took him approximately two minutes to traverse. Spence's identification of defendant at the arrest scene, by his reckoning, occurred within moments of his call to police.
According to police, the call from the victim about the attempted burglary came approximately one hour before the call from the victim stating that the thief's vehicle was parked in a nearby lot. Defendant was apprehended moments after the second call from the victim, and the victim arrived on the scene within moments of the officers stopping defendant's car. A tire iron was found on the floor of the vehicle driven by defendant.
Initially, defendant refused to sign the trial memorandum. On June 28, 1999, however, a second trial memorandum was prepared that he did sign which indicated the trial date was now set for September 8, 1999. That trial memorandum included a notification pursuant to State v. Hudson, 119 N.J. 165, 182 (1990), and Rule 3:16(b), explaining defendant's obligation to appear for trial and that the case would proceed even if he were not present. The trial did not take place on the initial scheduled date.
On October 18, 1999, the trial court told defendant while he was in court and on the record that trial "may take place this week." The court instructed defendant to call his attorney to see if he needed to appear in court on October 20, a Wednesday. The court further advised defendant that if his case was not heard that week, he was absolutely due back in court for trial on Monday, October 25.
Trial commenced on October 20, 1999, without defendant. When asked about his client's absence, counsel said:
I contacted my client. I told him to be here this morning. His daughter answered the phone and indicated that . . . he was not there. I advised the daughter that he must be present at his trial and will begin this morning.
He did leave . . . a message on my voice mail, indicating what the status was. And I said that we're on trial, call me.
The court decided to proceed with trial; the assistant prosecutor provided defense counsel with defendant's work number. Counsel left additional messages with defendant's family members, although he was concerned that because of the language barrier, as they spoke Spanish and he did not, that the messages might not have been conveyed. At the start of the trial, the court, at defense counsel's request, agreed not to refer to defendant's absence in front of the jury because of the possibility that defendant might appear.
Although the court did not give the identification instruction at the close of the trial, nor was it requested to do so, the court did give the Model Jury Charge on defendant's failure to appear at trial. See Model Jury Charge (Criminal), "Identification: In-Court and Out-Of-Court Identifications" (2007); Model Jury Charge (Criminal), "Defendant's Absence From Trial" (2004).
Defendant now raises the following points:
DEFENDANT DID NOT WAIVE HIS RIGHT TO APPEAR AT TRIAL AND THE TRIAL IN ABSENTIA WAS IN CLEAR VIOLATION OF NEW JERSEY RULE 3:16 AND THE UNITED STATES AND NEW JERSEY CONSTITUTIONS, THEREFORE THE COURT ERRED IN DENYING DEFENDANT POST CONVICTION RELIEF.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST A WADE*fn1 HEARING AND FAILURE TO REQUEST THE MODEL JURY CHARGE ON IDENTIFICATION IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.
As the PCR court noted, "defendant was notified of . . . three different trial dates. The first two dates were given to defendant [in writing] by way of trial memorandum." The notification included in the memorandum clearly explained the consequences of a failure to appear. As the court further noted, it was explained to defendant that the trial would begin either the week of October 18, 1999, or the following Monday, October 25, and defendant did not appear on either occasion. His attorney reached out to him, but defendant did not respond. Furthermore, when defendant was sentenced after his arrest in October 2002, defense counsel argued at sentencing that defendant failed to appear because he was in a foreign country alone and "was just scared out of his mind."
When a defendant is tried in absentia, the key question is whether he has "received adequate notice of the date, time and place of trial, and the right to be present" as well as the "consequences of a failure to appear." Hudson, supra, 119 N.J. at 180, 182. The purpose of this notification is to ensure that a defendant's waiver of his right to be present at trial was made knowingly, voluntarily, and intelligently before conducting a trial in absentia. See id. at 183-84. See also R. 3:16(b).
It is defendant's burden of proof to establish that he was justified in being absent from trial or was not properly noticed of his trial date. State v. Finklea, 147 N.J. 211, 220 (1996). Here, the record reflects several attempts by defense counsel to reach out to defendant after written notification of the trial dates, and precise instruction by the court. Even if defendant could successfully claim that he was unaware of the actual start date of the trial, he nonetheless failed to appear on Monday, October 25, the certain trial date. Thus, we are satisfied that defendant was properly noticed, and therefore voluntarily waived his right to be present. As defendant explained at sentencing: "Maybe I made a great mistake by not appearing and the only truth is that I was afraid. I was scared. Now I am scared, also." The conduct of the trial in defendant's absence is not a basis for PCR relief.
Under the familiar test on an ineffective assistance of counsel claim, a defendant must first demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "that there is 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. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We also note preliminarily that where an identification is reliable and conducted in a fundamentally fair fashion, prior identifications made out-of-court will be admitted even where ordinarily barred by the hearsay rule. N.J.R.E. 803(a)(3). If there is a suggestion that an out-of-court identification process has been impermissibly suggestive, a Wade hearing is appropriate. See Pressler, Current N.J. Court Rules, comment 3.6.2 on R. 3:4-2 (2010).
Defendant's second contention on appeal is that counsel was ineffective because he failed to request a Wade hearing. But defendant makes no proffer of any circumstance that indicated the necessity for such a hearing. And absent such a proffer, no hearing is automatically required. See Cummings, supra, 321 N.J. Super. at 170. This claim is therefore a bald assertion, insufficient to establish a prima facie case. Ibid. Certainly, a show-up is always inherently suggestive. State v. Herrera, 187 N.J. 493, 504 (2006). But in this case, the identification occurred within approximately an hour of the crime. The victim's description matched defendant's appearance, his vehicle, and the tire iron found on the floor of the car. There was no basis for a Wade hearing to have been conducted, and any request would have been denied. Hence, it was not ineffective for counsel to have failed to request a Wade hearing - neither was it an unprofessional error nor would it have had any effect on the outcome.
Defendant also asserts that he received ineffective assistance of counsel because no identification instruction was given. Obviously, such an instruction should have been requested and should have been given, even if not requested. In these circumstances, it cannot be fairly said, however, that but for this error the result of the proceeding would have been different. See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The victim's identification of defendant was very close in time to the event and he accurately described both the car and weapon. It would be unfounded speculation on our part to assume that the outcome would have been different if the instruction had been given. Accordingly, we find that even if the failure to give the identification instruction was error, this error would not have changed the outcome and was harmless. See R. 2:10-2. Therefore, the Strickland test has not been satisfied.
Because none of defendant's contentions have any merit, much less constitute a prima facie case, no evidentiary hearing was required. See Preciose, supra, 129 N.J. at 462; Cummings, supra, 321 N.J. Super. at 169-70. Therefore, the motion judge's decision not to grant an evidentiary hearing will also be affirmed.