On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-03-0323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
Defendant Jose Dominguez appeals the denial of his petition for post conviction relief (PCR). We affirm the denial, but remand for resentencing.
On November 19, 2003, Dominguez was convicted by a jury of fourth-degree unlawful possession of a weapon (a knife) under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and first-degree armed robbery, N.J.S.A. 2C:15-1. On February 13, 2004, he was sentenced on the robbery conviction to an extended term of twenty-five years with twelve years of parole ineligibility and, following merger of the weapons convictions, to a concurrent ten-year extended term with a five-year parole disqualifier on the charge of possession of a knife for an unlawful purpose. Dominguez appealed from his conviction and sentence. We affirmed the conviction, but remanded for resentencing. State v. Dominguez, No. A-4768-03 (App. Div. June 27, 2006). We determined that both of the weapons offenses should have been merged into the robbery, as a result of which merger only one extended term sentence should have been imposed. Id. at 9-10.
The Supreme Court denied certification. State v. Dominguez, 189 N.J. 103 (2006).
On the sentencing remand, however, the matter went to a different judge. He misinterpreted the remand as having been based on State v. Natale, 184 N.J. 458 (2005). On September 28, 2006, he imposed the same sentence, which included the two extended terms we had already held were inappropriate.
Consequently, we again remand for resentencing on the robbery count only. The remaining counts are to be merged into the robbery.
In our opinion affirming the conviction, we described the facts underlying the conviction as follows:
Evidence at trial was sufficient to demonstrate that defendant entered the kitchen of a Chili's restaurant at 8:00 a.m. and demanded money and car keys from the restaurant's manager, while holding a Chili's steak knife in his hand. Defendant, who testified on his own behalf, denied any attempted theft, and claimed that he entered the restaurant's kitchen to obtain a cup of coffee before the restaurant officially opened. He claimed that he grabbed the knife in self-defense when he became concerned for his safety as the result of the aggressive conduct of the restaurant's employees and defendant's confinement by them in the restaurant's security cage at the entrance to the kitchen. Defendant was arrested by the police at the scene. A Chili's steak knife was retrieved by the police from the floor inside the restaurant.
[Dominguez, supra, slip op. at 3-4.]
Dominguez filed his PCR petition on September 6, 2007. An amended petition was filed on February 19, 2008. The PCR judge determined that an evidentiary hearing was required. That hearing was held on November 6, 2008.
Dominguez argued that his trial counsel was ineffective for failing to investigate intoxication and mental defenses, failing to request appropriate jury charges, and conceding defendant's guilt in summation. His PCR counsel also argued that trial counsel was ineffective for failing to conduct an effective cross-examination of the State's main witnesses using their prior inconsistent statements, and presenting defendant's testimony without reference to defendant's intoxication and mental illness. The PCR judge limited the evidentiary hearing to the issue of trial counsel's failure to investigate and raise an intoxication or insanity defense.
Trial attorney Joel Friedman testified at the PCR hearing that he began representing Dominguez in January 2003 as a pool attorney for the Public Defender's Office. Friedman was aware at the time that Dominguez had previously been represented by another attorney. Friedman did not "have any independent recollection" of whether he had ever discussed the case with prior counsel. Friedman recalled seeing a report in the file from an expert regarding an insanity or diminished capacity defense, although he could not recall who had prepared the report. When asked whether he had spoke to Dominguez about these defenses, Friedman replied, " . . . I'm sure I would have reached out to him. I don't recall the - the conversation though." Friedman identified two letters written by the prior attorney to the trial judge, indicating that the expert who had prepared the report, Dr. John Liccardo, would be available to testify for trial in April 2001.
In the report, Liccardo noted that, after Dominguez was arrested for the robbery, he exhibited behavior that raised questions about his mental health. Dominguez was transferred to the Ann Klein Forensic Center for evaluation and treatment. Based on his June 27, 2000, interview with Dominguez and his review of numerous reports and past medical and social history, Liccardo determined that Dominguez:
. . . is an intellectually limited young man who suffers from a major psychiatric illness, most likely a Schizoaffective Disorder, chronic type (in tenuous remission at the time of this exam). In addition to this he also has a history of Polysubstance (alcohol, marijuana, PCP) abuse/dependence and reportedly has not sought treatment for either of these serious problems.
In addition, Liccardo concluded that, at the time defendant committed the robbery, he was responding to hallucinations and "suffering from a mental disease of such severity that he did not recognize the nature and quality of his actions or that they were wrong."
Friedman acknowledged that Liccardo's report provided a basis for an insanity defense. He "guess[ed]" that he discussed the report and the possibility of an insanity defense with Dominguez on "three or four, maybe five" occasions. He did not testify as to the nature of his advice to Dominguez. Friedman did not recall whether he had been aware at the time that Dominguez had been hospitalized for psychiatric treatment and evaluation while the case was pending, although the information is reflected on the first page of Liccardo's report. He further maintained that "[t]his wasn't the kind of case when I would just spend five minutes with somebody and run upstairs to Court." Friedman admitted he was "not sure" that he ever actually spoke to Liccardo about the case.
Dominguez and Friedman appeared in court on May 12, 2003.
Dominguez waived the insanity defense on the record. The following exchange between Dominguez and Friedman took place at that time:
MR. FRIEDMAN: Mr. Dominguez, are you under the influence of any medication or drugs today?
MR. FRIEDMAN: When you are speaking here today --
MR. FRIEDMAN: -- do you feel like you understand what we're doing here today?
MR. FRIEDMAN: You have filled out with me, and signed, and dated, a trial memorandum, ...