On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Defendant, Hector Serrano, who was convicted of aggravated assault and other offenses after a jury trial, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). The thrust of defendant's PCR appeal is that he was deprived of the effective assistance of counsel because no direct appeal was filed on his behalf from his conviction and sentence. For the reasons that follow, we affirm the denial of defendant's petition.
I. The State's proofs at defendant's three-day trial adduced the following pertinent facts. In essence, the evidence showed that defendant shot and wounded two individuals on November 18, 2004, during a street altercation in Newark involving two of his relatives and several other persons.
The street altercation emanated from an ongoing dispute between defendant's niece, Jocibel Rodriguez, and her former roommate, Justina Martinez.*fn1 On the day of the shooting, Rodriguez planned to pick up her belongings from Martinez's residence. Having heard of Rodriguez's plans, defendant drove a blue Oldsmobile to Martinez's home in Newark. The Oldsmobile was owned by Iris Escalara,*fn2 another of defendant's nieces. Escalara testified that she had sent defendant with her car to help Rodriguez gather her belongings. Two other family members, Angel Rivera*fn3 and Vanessa Roman, rode in the Oldsmobile with defendant. Defendant was carrying a handgun with him.
Defendant arrived at Martinez's residence after Rodriguez had already been transported there in a vehicle driven by her cousin, Noel Fraguada. Fraguada's girlfriend, Maria Santos, was also in his vehicle. Santos was two months pregnant at the time.
An argument at the residence began before defendant's contingent arrived there. By the time that defendant arrived, the argument had escalated into a fight. According to Rodriguez, when she got to the residence to retrieve her belongings, she encountered five young women who were waiting there for her. At least two of Martinez's friends, Iesha Nieves and Vanessa Valenciano, took part in Martinez's side of the altercation.
Rivera got out of the Oldsmobile, which defendant then parked. Martinez began to chase Rivera with a baseball bat. Rivera had been involved in a previous altercation with Martinez, in which Martinez and her friends had allegedly "jumped" Rivera.
During the course of the altercation, defendant was seen firing
several shots. Two people were struck by the gunfire. The first was
Santos, who was hit in the abdomen. Santos was hospitalized for seven
days and underwent surgery. Fortunately, the fetus she was carrying
survived the shooting. The second victim was Efron Rosa,*fn4
who was not involved in the altercation, but had been passing
by on a bicycle. Rosa was shot in the mouth. He spent seventeen days
in the hospital and, although he survived the shooting, he sustained
After the shots were fired, defendant and Rivera left the scene in the Oldsmobile. A bystander, Jose Ponce, telephoned the police. Ponce reported that he saw "a guy fire two shots into a crowd," and then get into a vehicle and leave the scene. Ponce, who had followed the shooter, told the police that he had seen the Oldsmobile pull into the parking lot of a funeral home not far from the shooting scene.
Following the lead provided by Ponce, police officers went to the funeral home, where they observed defendant and Rivera in the back parking lot. They saw defendant, once he noticed them, toss a handgun over a retaining wall. The police then took defendant and Rivera into custody. They thereafter located the handgun where it had been tossed.
A grand jury subsequently indicted defendant, charging him with conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b (count one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two and three); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a ...