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State v. Polanco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JACINTO ROMAN POLANCO, A/K/A JACINTO P. ROMAN, JACENTO ROMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 02-04-0986; 00-06-1248.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 6, 2010

Before Judges Stern and Wefing.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged in two separate indictments. In Indictment 00-06-1248, he was charged with one count of attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; two counts of aggravated assault, one in the second degree, N.J.S.A. 2C:12-1b(1), and one in the third degree, N.J.S.A. 2C:12-1b(2); unlawful possession of a weapon, N.J.S.A. 2C:39-4d; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d. In Indictment 02-04-0986, he was charged with two counts of distribution of cocaine within five hundred feet of a public park, a crime of the second degree, N.J.S.A. 2C:35-7.1; three counts of possession of cocaine, a crime of the third degree, N.J.S.A. 2C:35-10a(1); and two counts of distribution of cocaine, a crime of the third degree, N.J.S.A. 2C:35-5a(1),-5b(3).

Defendant was tried before a jury on the first indictment and was found guilty of two counts of aggravated assault, unlawful possession of a weapon and possession of a weapon for an unlawful purpose; he was found not guilty of attempted murder. Thereafter, he entered a negotiated plea of guilty to the two counts of second-degree distribution of cocaine within five hundred feet of a public park, and the remaining counts of that indictment were dismissed.

At sentencing, the trial court granted the State's motion to sentence defendant to an extended-term sentence as a persistent offender and, after merging the third-degree conviction for aggravated assault into the second-degree conviction, it imposed an aggregate sentence of ten years in prison, subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act ("NERA"). For defendant's two drug-related convictions, the trial court sentenced defendant to two concurrent eight-year terms in prison, each with a three-year period of parole ineligibility, to be served concurrently with the sentence for aggravated assault.

Defendant appealed his convictions and sentence under Indictment 00-06-1248, and we affirmed his convictions but remanded for resentencing. State v. Polanco, No. A-2566-03T4 (App. Div. Nov. 16, 2005).

Defendant thereafter filed a petition for post-conviction relief. After hearing oral argument, the trial court denied that petition without having conducted a plenary hearing. This appeal followed.

In our earlier opinion, we summarized the facts underlying defendant's conviction for aggravated assault:

The aggravated assault charge arose from an incident on April 24, 2000. At that time, both defendant and the victim, Elvin Sanabria, were working as barbers at the Latin Barbers Hair Cutting Shop in Englewood. Due to an apparent dispute over a customer, defendant and Sanabria had an altercation, and defendant stabbed Sanabria nineteen or twenty times with a screwdriver. Sanabria was admitted to the Intensive Care Unit at Englewood Hospital, but he did not have insurance and he was discharged the next day. [slip op. at 5-6.]

Defendant raises the following contentions on appeal.

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.

C. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.

D. THE SENTENCE IMPOSED BY THE TRIAL COURT IS UNSUPPORTED BY THE STATUTORY AGGRAVATING AND MITIGATING FACTORS.

E. THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF JURY CHARGE IMPROPRIETIES.

F. THE NUMEROUS INSTANCES OF IMPROPRIETY WITH REGARD TO THE INTERPRETATION DURING THE JURY CHARGE REQUIRES REVERSAL.

G. THE COURT ERRED DURING JURY DELIBERATIONS IN ITS HANDLING OF JURY QUESTIONS.

H. THE STIPULATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY.

I. DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE WAS SEVERELY PREJUDICED BY COMMENTS MADE IN THE PROSECUTOR'S SUMMATION.

J. APPELLATE COUNSEL WAS INEFFECTIVE.

K. CUMULATIVE ERROR.

We note at the outset that the legal principles underlying a defendant's contention that he received ineffective assistance from the attorney representing him in connection with his criminal matters are well known. The United States Supreme Court articulated the basic test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). There are two prongs to the test: a defendant must first establish that the performance of his attorney was deficient and then establish that he was actually prejudiced by that deficient performance. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Not any error by an attorney during the course of representation will suffice; the error must be one so serious that it deprived defendant of a fair trial. Ibid. Both prongs of the test must be met before a defendant is entitled to relief. New Jersey has adopted this same two-prong test as a matter of our own constitutional jurisprudence. State v. Fritz, 105 N.J. 42, 52 (1987).

Subpoints A and B of defendant's brief set forth certain general principles of law; they do not raise specific contentions that call for a legal ruling. We decline to deal with the substance of defendant's contentions in the next two subpoints, C and D, which deal with the sentence imposed upon defendant. Not only are these arguments barred by Rule 3:22-5, since we previously affirmed defendant's sentence on his direct appeal, but our review of the Department of Corrections webpage reveals that defendant has since been released from custody. See State v. Flores, 228 N.J. 586 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

Subpoint E raises challenges to the jury charge that the trial court gave in this matter. Defendant's arguments in this regard are barred as well. Defendant raised specific challenges to the trial court's jury charge on his direct appeal, and we rejected those arguments. R. 3:22-5. To the extent that defendant seeks to raise additional arguments with respect to the court's instructions, he is barred by Rule 3:22-4. Those additional arguments, moreover, such as that the trial court committed error by providing the jury with a written copy of its instructions, or that the trial court committed error by not repeating the legal definition of a term on each occasion it was used after the initial definition, lack merit. R. 2:11-3(e)(2).

In Subpoint F, defendant contends that problems were encountered with the interpreter's ability to follow the trial court as it gave its instructions to the jury. To the extent that this assertion raises any viable claim, it should have been presented on direct appeal. R. 3:22-4. Defendant has yet to articulate, however, how this deprived him of a fair trial.

We reach the same conclusion with respect to Subpoint G, in which defendant points to three incidents during the jury's deliberations. The jury sent a note with the following two questions: "How long were [the victim and defendant] working together before the incident?" and "What year was the phone call to the police made by [defendant]?" Initially, the jury was instructed to rely on its own recollection. Later, after counsel conferred, the court instructed the jury that it had reviewed its own notes, that counsel had conferred and stipulated on the dates and so informed the jury. The trial court also instructed the jury it was not bound by this stipulation but could make its own factual determination. Defendant has not provided any explanation of how, in his view, he suffered prejudice from this action. We reject this contention both under Rule 3:22-4 and Rule 2:11-3(e)(2).

The second incident has to do with the fact that alternate jurors were in the court room when the trial court, during the panel's deliberations, was handling other matters. The alternate jurors never participated in deliberations on defendant's case, and there is no merit to his argument before us with respect to this contention. R. 3:22-4; R. 2:11-3(e)(2).

The third incident revolves around the manner in which the trial court responded to another question from the jury with respect to the elements of second-degree aggravated assault, serious bodily injury. We reach the same disposition. R. 3:22-4; R. 2:11-3(e)(2).

Defendant's Subpoint H repeats the first contention argued in connection with Subpoint G. It requires no further comment.

Defendant's Subpoint I complains of remarks made by the prosecutor in his summation. Defendant argued in his direct appeal that his conviction should be reversed because of improper comments by the prosecutor in his summation, and we rejected that assertion. Defendant's argument has achieved no greater strength through repetition. R. 3:22-5; R. 2:11-3(e)(2).

Defendant's final arguments, that his appellate attorney was ineffective and that the principle of cumulative error, State v. Orecchio, 16 N.J. 125 (1954), entitle him to relief, are of no greater weight or value.

The order under review is affirmed.

20100802

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