On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-08-1440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Payne and Baxter.
Defendant Jong Moon Choe appeals from a March 6, 2009 order that denied his petition for post-conviction relief (PCR). Following his March 7, 2003 conviction on a charge of murdering his wife, defendant filed a PCR petition in which he asserted that trial counsel rendered ineffective assistance by failing to raise the defense of justifiable use of force for self protection (self-defense). Even if we were to accept defendant's contention that trial counsel was required to interpose such a defense, we reject defendant's claim that this omission led to a conviction on the charge of first-degree murder that would have been avoided had the defense of self-defense been raised. We affirm.
In January 1997, defendant and his wife, Tok Sun Pae, had been married for approximately ten years and were experiencing marital difficulties. In the early part of January 1997, Pae told defendant she was planning to drive to Winburne, Pennsylvania to visit her friend Myra. On January 15, 1997, Pae's brother, Deuk Kil Pae, received a telephone call from Myra expressing concern because Pae had not arrived at her house as expected. After receiving that telephone call, Deuk asked defendant to call police and report his sister missing. Deuk did not call police himself because he had difficulty speaking and understanding English.
The next day, January 16, 1997, defendant reported his wife as missing to the Little Ferry Police Department. Defendant provided a description of his wife to Captain Dennis Hofmann and told him the type of car she had been driving. Hofmann testified that he spoke to defendant in English and had no trouble communicating with defendant, who was Korean. Four days later, on January 20, 1997, Hofmann called defendant asking whether he had heard from his wife or received any information about her whereabouts. Defendant said he had not.
The next day, Investigator Mark Bendul of the Bergen County Prosecutor's Office, who was fluent in Korean, spoke with defendant at Little Ferry Police headquarters. After greeting defendant in Korean, the two conversed in English, with defendant speaking English and not asking Bendul to speak to him in Korean. Among other things, defendant told Bendul that he suspected his wife was having an affair and that the two had been arguing because Pae had not been putting much effort into their liquor store business. Defendant insisted that on the Monday his wife had left to visit Myra in Pennsylvania, she had come to the liquor store at approximately 1:00 or 2:00 p.m., left for a few hours, and returned at approximately 6:00 p.m., after which she told him she was leaving for Pennsylvania. Defendant told Bendul he had not seen his wife since.
On January 30, 1997, as part of the investigation into Pae's disappearance, Detective John Palotta of the Bergen County Prosecutor's Office contacted the New York State Investigative Review Systems database to find out if the van Pae had been driving at the time of her disappearance had been seized or ticketed anywhere in New York State. By searching the database, Palotta located the vehicle at 149th Street in Manhattan and learned that two parking tickets had been left on the windshield of the vehicle.
After police found Pae's van, Detective Bendul and Investigator Greg Donatello, also from the Prosecutor's Office, went to defendant's liquor store, told defendant his wife's van had been located, and asked him to come to the Prosecutor's Office for an interview. Bendul issued defendant Miranda*fn1
warnings, in Korean, both orally and in writing.
At the beginning of the interview, Bendul and Palotta told defendant that Salvatore Gonzalez, who worked in defendant's liquor store, had told investigators that although he had not seen Pae on the Monday she left for Pennsylvania, defendant had repeatedly tried to convince him he was wrong and that he had indeed seen her on that day. Upon being confronted with this information, defendant called Gonzalez a liar and became very nervous. He began to stutter and, for the first time, asserted he could not understand English and began to speak in Korean.
The detectives continued to question defendant, with Detective Bendul translating. When Palotta and Bendul asked defendant if his wife might be missing due to an accident, defendant responded, "it wasn't an accident." Aware that defendant was a religious man, they emphasized to defendant the importance of his wife receiving a proper church burial.
At that juncture, defendant asked what was going to happen to him, to his son and to his store. He expressed concern about how he would be viewed in the Korean community. The detectives responded to defendant's inquiries by telling him they "just wanted to know where he put his wife's body." Defendant began crying and assured them he would tell them where her body could be found.
After one and one-half hours, defendant admitted he killed his wife while she was sleeping. He said he put her body in plastic bags, drove to a parking lot in Fort Lee and left her body behind the post office. He also admitted he drove his wife's van to New York and abandoned it to give the appearance that she had been missing. Defendant told Palotta and Bendul that after abandoning his wife's van on 149th Street, he took a cab back to Little Ferry. He drew a map showing them where his wife's body could ...