On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-05-2512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 10, 2010
Before Judges C.L. Miniman and Waugh.
Defendant James Hernandez appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b. The second-degree weapons offense was merged into the murder conviction for purposes of sentencing, and defendant was sentenced to thirty years in prison without parole, to be served consecutively to a sentence he was serving at the time of sentencing on another indictment. He was also sentenced on August 21, 1998, to a term of five years on the third-degree weapons offense, to be served concurrently with the sentence on the murder conviction. We affirm.
On October 10, 1996, Ian Vega was celebrating a birthday in a restaurant in Newark with his girlfriend and her family. Around 9:00 p.m. while Vega was standing outside the restaurant getting some air, defendant shot him in the head with a .25-caliber handgun. The bullet entered his brain near the hairline over the left temporal region, travelled through his brain, and lodged in his skull in the right parietal-occipital subdural lobe.
An eyewitness testified that she saw defendant, whom she knew, having an argument with Vega, whom she did not know. Because the argument was in Spanish, she could not understand what was being said and crossed the street to avoid them. Then, she heard a gun shot, turned around, and saw Vega falling to the ground and defendant looking up and down the street, then running away. She did not give a statement to the police at this time, offering to do so several months later to help her incarcerated boyfriend.
Defendant was arrested the following year on unrelated charges and gave a statement to the police in which he admitted to the shooting. He claimed he shot at Vega for self-protection. Defendant testified at trial that he had been involved in dealing drugs in Newark and had been involved in about fifteen incidents in which rival drug dealers and "some kids from High Street" tried to kill him and did kill several of his partners.
Defendant testified that Vega asked him, "What the fuck [he] was looking at." Defendant explained, "The guy was bigger than me, and I thought we [were] going to get into a confrontation, so I put my hands up, and he reached in his back pockets, and I thought he was going to pull something out--a knife or something, so I just backed up, and turned around, and just shot him, and I ran . . . ." Defendant said he was only trying to scare Vega, not shoot him. He admitted he told his cousin Moses Guzman to hold the gun, that he had "shot at someone." He denied telling him that "he had a beef with the [guy] and had to shoot him."
Defense witness Sonya Soto, who was with Guzman at the time, testified that after she heard a shot, defendant came running down the street and called Guzman to go with him. When Guzman returned, he told Soto that defendant had shot someone and had given him the gun and told him to hide it. The gun was never recovered. There was no evidence at the scene that gave the investigating officer reason to believe that Vega had a weapon. When the case went to the jury, it convicted defendant on all charges. He was sentenced on August 21, 1998.
On direct appeal from his convictions and sentences, defendant raised the following issues for our consideration:
POINT I -- MID-TRIAL PUBLICITY, AND THE JUDGE'S FAILURE TO INSTRUCT JURORS AS TO PUBLICITY BEFORE TRIAL BEGAN, UNDERMINED DEFENDANT'S RIGHT TO TRIAL BY [A] FAIR AND IMPARTIAL JURY.
POINT II -- THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT IMPROPERLY DENIED THE DEFENDANT'S MOTION FOR [A] NEW TRIAL.
POINT III -- THE TRIAL COURT'S COMMENTS DURING DEFENSE COUNSEL'S SUMMATION WERE UNDULY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL, THEREBY CONSTITUTING REVERSIBLE ERROR.
POINT IV -- DEFENSE COUNSEL'S FAILURE TO PROPERLY PREPARE FOR TRIAL, AND THE FAILURE TO PROPERLY IMPEACH THE STATE'S WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. DEFENSE COUNSEL FAILED TO ADEQUATELY PREPARE FOR TRIAL.
B. DEFENSE COUNSEL['S] FAILURE TO PROPERLY CROSS-EXAMINE AND IMPEACH STATE'S EYEWITNESS.
[State v. Hernandez, No. A-787-98 (App. Div. Jan. 20, 2000) (slip op. at 4-5).]
With respect to Point IV(A), defendant asserted that his trial counsel did not consult with him while he was at the Garden State Youth Correctional Facility until just prior to trial. In fact, he ultimately wrote to the public defender's office requesting that he be assigned new counsel, but his request was denied. While he was awaiting trial, an investigator from the public defender's office, Angel Santiago, interviewed several witnesses who had personal knowledge regarding defendant's history as it related to numerous recent shootings and attempts on his life in the months and years prior to the shooting of Vega. Each witness would testify to incidents of attacks, stabbings, or shootings perpetrated on defendant that they had witnessed. This testimony would have been proffered to establish that defendant had a legitimate and reasonable fear for his safety and life and that was inconsistent with knowing or purposeful murder. Based on this prospective testimony, defendant intended to rely on General Principles of Justification, N.J.S.A. 2C:3-1, and Lack of Requisite State of Mind, N.J.S.A. 2C:4-2, as to which Rule 3:12-1 written notice was required no later than seven days before the arraignment/status conference, although for good cause shown that deadline could be extended. No such written notice was submitted.
On the first day of trial, July 13, 1998, after the jury was selected, the following colloquy took place:
THE COURT: . . . You know we have Rule 3[:]12-1 that talks about notice of certain specific criminal code provisions. . . . Are we involved in this?
[THE PROSECUTOR]: Yes, Judge. Your Honor recognizes, I think, from our last appearance the lack of ...