On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-11-1594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Alvarez and Hoffman.
Defendant Oseas Pons was convicted after trial by jury of multiple counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and related offenses, including kidnapping, N.J.S.A. 2C:13-1. On October 8, 2004, he was sentenced to an aggregate term of thirty-five years of imprisonment subject to the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).
Defendant's convictions and sentence were affirmed on appeal. State v. Pons, No. A-2437-04 (App. Div. Oct. 3, 2007). The Supreme Court denied certification on December 5, 2007. State v. Pons, 193 N.J. 276 (2007).
Defendant thereafter filed a petition for post-conviction relief (PCR) based on a claim of ineffective assistance of counsel and was granted an evidentiary hearing. After the completion of the hearing on September 25, 2009, the petition was denied. This appeal follows, and we affirm.
The nature of defendant's crimes is detailed in the opinion issued on defendant's direct appeal. Suffice it to say that defendant, along with others, including his co-defendants Emilio Giron and Eric Quintanilla, forcibly raped three women on three separate dates. During the second and third assaults, a box cutter and a knife, respectively, or only knives, were used as weapons.
Quintanilla confessed to the second assault, and implicated Giron, Giron's brother Carlos, and defendant. Quintanilla also confessed to the third attack, this time implicating defendant, Giron, Carlos, and a man named Luis. Quintanilla entered into a plea agreement with the State and testified at trial against defendant.*fn1 On cross-examination, however, he denied having seen defendant engage in sexual acts with either victim. As part of its case-in-chief, the State read into the record Quintanilla's plea transcript, in which he testified under oath he saw defendant engage in sexual acts with the third victim.
The first victim identified defendant and Quintanilla in photo arrays and identified defendant in court. The second victim identified defendant from a photo array as the assailant who held a box cutter to her throat while she stood at a payphone, sexually assaulted her, and took her purse.
The judge denied the PCR petition because, in his view, defendant could not establish that any prejudice resulted from his attorney's competent and vigorous representation, particularly in light of the "overwhelming" nature of the State's proofs. The judge found that trial counsel met with his client on many occasions; extensively prepared for trial, including reviewing all the victims' statements with defendant; vigorously attacked the credibility of all three victims, all of whom had prior criminal histories; and developed a trial strategy with his client. In fact, when defendant was offered a plea agreement in the midst of trial, defendant told his attorney that he thought the trial was going well and thus he rejected the offer. Additionally, at trial the judge engaged in a colloquy with defendant on his decision not to testify, made despite his lack of a prior criminal record.
Ultimately, the motion judge concluded that trial counsel was "fully prepared, was vigorous, was involved, and there was no [ineffectiveness] of counsel. . . . It just didn't work." Therefore, since the Strickland*fn2 test was not met, he denied the petition.
On appeal, defendant asserts the following points for ...