On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-09-1338.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Fuentes, Gilroy and Nugent.
Defendant Marcus Vargas appeals form the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
A jury convicted defendant of murder, N.J.S.A. 2C:11- 3(a)(1) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of first degree robbery, N.J.S.A. 2C:15-1. These crimes arise from the murder of Edwin Figueroa and the robbery of his companion, Lysandra Mercado, on July 2, 1997, in the City of Perth Amboy. After applying the doctrine of merger,*fn1 the court sentenced defendant on April 14, 2000 to an aggregate term of life imprisonment with seventy-six and one quarter years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the required statutory fines and penalties, and ordered restitution to the victims.
On defendant's direct appeal, we affirmed the convictions, but modified the sentences by vacating from the merged convictions the NERA parole disqualifier, restitution, and certain statutory fines and penalties. State v. Vargas, No. A- 5478-99 (App. Div. Feb. 21, 2003) (slip op. at 18). The Supreme Court denied defendant's petition for certification. State v. Vargas, 177 N.J. 224 (2003). On remand, the court re-sentenced defendant to an aggregate term of thirty years without parole. In lieu of reciting the facts that gave rise to these crimes, we incorporate by reference the factual recitation included in the opinion that decided defendant's direct appeal. Vargas, supra, No. A-5478-99 (slip op. at 2-6). On February 17, 2004, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel.
After considering the arguments of counsel, the trial court denied defendant's petition without conducting an evidentiary hearing. The court memorialized its decision in an order dated October 18, 2006, and a letter-opinion dated September 25, 2006. On defendant's appeal, we reversed and remanded for the court to conduct an evidentiary hearing to determine whether trial counsel's decision not to call a particular witness denied defendant's right to effective legal representation. State v. Vargas, No. A-2104-06 (App. Div. Mar. 10, 2009) (slip op. at 6).
On September 25, 2009, the court conducted an evidentiary hearing at which defendant and his trial attorney testified. After considering this evidence, Judge Lorraine Pullen entered an order, supported by a memorandum of opinion, denying defendant's PCR petition.
Defendant now appeals raising the following arguments.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DECISION BY TRIAL COUNSEL NOT TO CALL MS. MARTINEZ AS A DEFENSE WITNESS RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...