On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Reisner and Sabatino.
This appeal arises out of the trial court's denial of post-conviction relief ("PCR") to defendant, Ramon Almonte. Defendant claims that he is entitled to PCR relief because the lawyer representing him at his 2006 jury trial was allegedly ineffective in various respects. The trial court rejected defendant's claims of ineffectiveness, and so do we. For the reasons that follow, the dismissal of defendant's PCR petition is affirmed.
We need not repeat at length the salient facts, which are detailed in our unpublished opinion on direct appeal sustaining defendant's convictions of conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a, and two related weapons offenses, N.J.S.A. 2C:39-5d and 2C:39-4d. State v. Almonte, No. A-2152-06 (App. Div. Apr. 4), certif. denied, 196 N.J. 86 (2008).
As our prior opinion noted, defendant's offenses arose out a violent encounter between two rival gangs, i.e., "Los Trinitarios" and the "60th Street" gang, outside of a gas station in West New York. During that encounter, one of the 60th Street members, Garmair Brown, was stabbed to death and two of Brown's companions, Christopher Navarro and Brian Powell, were stabbed and injured. The attack was organized by Los Trinitarios in response to the stabbing a few months earlier of one of their members, Luis Carlos Arias, apparently by men in the 60th Street gang.
The fatal melee occurred following the Dominican Day Parade in West New York on August 24, 2003. Defendant was not accused of stabbing any of the victims himself. However, he admittedthat he got into the vehicle, which then headed to the gas station after the street encounter was planned, and that he brought with him a plywood board or stick that could be used as a weapon. He claims that he was intoxicated at the time, and that he had been coerced into taking part in the brawl by leaders of the gang.*fn1
After the jury found defendant guilty of conspiracy to commit murder and the weapons offenses, the trial judge imposed a twenty-year sentence on the conspiracy count and concurrent eighteen-month sentences on the weapons counts. In our opinion on direct appeal, we upheld the convictions, but remanded for resentencing to enable the merger of the weapons offenses. Almonte, supra, (slip op. at 19).
In August 2008, defendant filed a PCR petition, alleging that his trial counsel had been constitutionally ineffective. The PCR petition was referred to Judge Fred Theemling, the same judge who had presided over defendant's jury trial. After conducting a limited evidentiary hearing, at which both defendant and his trial attorney testified, Judge Theemling rejected the PCR application.
In appealing the trial court's rejection of his PCR claims, defendant raises the following points:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE BY FAILING TO CONSULT ADEQUATELY WITH DEFENDANT AND/OR BY NOT PURSUING A COERCION, OR DURESS, DEFENSE; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED DUE TO TRIAL COUNSEL'S FAILURE TO PURSUE AN INTOXICATION DEFENSE.
A. Trial Counsel's Failure To Consult Adequately With Defendant Mandates A Reversal Of His Convictions.
B. Trial Counsel's Failure to Pursue A Coercion, Or Duress, Defense Mandates A ...