February 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARCADIO ANDELIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 03-04-336, 03-09-374, and 03-09-842.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Parrillo and Yannotti.
Defendant Arcadio Andeliz appeals from an order of the Law Division denying his motion for post-conviction relief (PCR).
Tried by a jury jointly on three indictments, defendant was convicted of one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(4); and one count of third- degree witness tampering, N.J.S.A. 2C:28-5a. The State's proofs demonstrated that defendant, then forty-eight years old, engaged in an ongoing sexual relationship with a fifteen-year old girl who worked for him and was the daughter of a friend. There was a positive DNA match between defendant's semen and a sample retrieved from the victim's vagina. Upon being read his Miranda*fn1 rights, defendant gave a statement to the police admitting a sexual relationship between him and the victim. In addition, three handwritten notes from defendant to the victim describe his affection for her and four pieces of jewelry that he had given her. This correspondence also indicates that, when charged with these offenses, defendant attempted to induce the victim to testify that he had no such relationship with her. Coupled with the victim's in-court testimony, the evidence against defendant was overwhelming.
Defendant was sentenced to an aggregate nineteen-year prison term, subject to the parole ineligibility and mandatory parole provisions of the No Early Release Act, N.J.S.A. 2C:43- 7.2, Community Supervision For Life, and other requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19. No appeal was taken by defendant from his conviction or sentence.
Defendant filed a timely PCR petition in which he claimed trial counsel was ineffective for (1) failing to use the services of a Spanish interpreter in his pre-trial meetings with defendant; (2) failing to conduct an independent investigation of the matter; and (3) dissuading defendant from testifying. The PCR judge denied the petition, including its request for an evidentiary hearing, holding that defendant failed to establish a prima facie case of ineffective assistance of counsel. The judge reasoned:
Except for his self-serving statements, defendant failed to provide certifications to demonstrate that there was discoverable evidence prior to trial that had the likelihood of successfully rebutting the State's overwhelming evidence; and he failed to provide any evidence that his decision not to testify was the result of his attorney's coercion and refusal to allow defendant to testify at trial.
Noticeably absent in this matter is any claim by the defendant that his trial counsel failed to file a specific pre-trial motion or raise a specific defense. Also absent is any claim that specific witnesses were available to testify on defendant's behalf. Further absent is any claim that trial counsel should have retained an expert witness, but failed to do so.
Although defendant claims that trial counsel undertook no independent investigation of the veracity of the victim's version of the facts or the State's case in general, defendant does not proffer what such investigation would have revealed or its impact on the result. Indeed, during oral argument, PCR counsel was unable to point out any evidence that such investigation would have uncovered. Instead, defendant makes only unsupported and generalized conclusory allegations.
Similarly, with respect to defendant's claim that trial counsel did not utilize a Spanish interpreter during their pre-trial meetings at the jail, defendant does not specify any impact resulting from the absence of an interpreter. By way of example, he does not offer the names of any witnesses or any exculpatory facts which would have been communicated to trial counsel but for the absence of an interpreter. Nor does defendant disclose any facts which could have been used during trial counsel's cross-examination of the victim or any of the State's other witnesses. Put simply, defendant has not shown any useful information which would have surfaced during the meetings had an interpreter been used, or the purported impact value of such information.
Finally, defendant argues that trial counsel refused to allow him to testify at trial. The record demonstrates otherwise.
The fact that defense counsel may have told defendant not to testify at trial, even if true, does not make out a cognizable claim for post-conviction relief.
On appeal, defendant raises the following issues:
I. DEFENDANT'S TRIAL ATTORNEY WAS PER-SE INEFFECTIVE BECAUSE HE CONDUCTED PRETRIAL MEETINGS WITH DEFENDANT WITHOUT THE AID OF AN INTERPRETER.
II. IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
III. IN THE EVENT THIS COURT CONCLUDES THAT PCR COUNSEL DID NOT PRESENT A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO AN EVIDENTIARY HEARING, DEFENDANT SUBMITS THAT PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO DO SO.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated in Judge Geiger's letter opinion of August 6, 2008.