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State of New Jersey v. Jose Rodriguez

May 21, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE RODRIGUEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-01-0109.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2012

Before Judges Grall and Alvarez.

Defendant Jose Rodriguez appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of two counts of second-degree eluding, N.J.S.A. 2C:29-2(b), and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). The trial court sentenced defendant on January 5, 2007, to a term of nine years of imprisonment for the first eluding conviction and a consecutive eight-year term for the second, resulting in an aggregate term of seventeen years. The court also imposed concurrent fifteen-month and 365-day sentences, respectively, for the fourth-degree aggravated assaults. On appeal, we affirmed. State v. Rodriguez, No. A-0811-07 (App. Div. June 12, 2009), certif. denied, 200 N.J. 473 (2009).

We recount the facts described in the unpublished opinion issued on defendant's direct appeal. The convictions resulted from defendant's attempts to flee police on two separate dates. On October 23, 2005, while in Montville, police stopped defendant's vehicle while investigating a report of a fight among the vehicle's passengers. The passengers were removed from the car; defendant remained behind the wheel. When asked for identification, defendant only produced an insurance card, and initially complied with the instruction to turn off the engine and step outside of the car. He then got back in the vehicle without permission, supposedly to look for additional identification but drove away instead, dragging one of the four officers alongside. A second officer ran from the front of the car to avoid being run over and was struck by an open door as it passed him. The officers eventually abandoned the chase, during which defendant drove at speeds as high as 120 miles per hour.

A baseball cap with "LA" insignia, which defendant had been wearing during the encounter, was found at the scene of the initial stop. Police were able to identify defendant by viewing a convenience store video from a nearby gas station he had patronized before the stop.

Three days later on October 26, 2005, police spotted defendant in the same vehicle, this time in Newark. When officers attempted to pull him over, defendant fled, this time driving at speeds of up to 100 miles per hour. The chase ended when his car crashed and he was arrested as he tried to run away. Defendant was wearing the same fleece upper garment as in the convenience store video.

Following the Supreme Court's denial of certification on his direct appeal, defendant filed a timely PCR petition. He raised numerous points for the motion judge's consideration, both pro se and in his attorney's submissions.

The PCR judge denied the petition in part because several of defendant's legal arguments had already been considered on direct appeal, and therefore could not be revisited. See R. 3:22-5. Applying the Strickland standard to defendant's remaining contentions, the judge then concluded he had failed to establish a prima facie case of ineffective assistance of counsel and was therefore not entitled to a hearing. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

On appeal, defendant raises the following points for our consideration:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY DEFICIENT WHERE HE DID NOT ATTEMPT TO PLACE BEFORE THE JURY THE DEFENDANT'S FACIAL SCAR BECAUSE HE INCORRECTLY BELIEVED TO DO SO WOULD HAVE IMPLICATED THE DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION POINT TWO THE FAILURE TO REQUEST A JURY CHARGE REGARDING IDENTIFICATION, WHILE NOT PLAIN ERROR, WAS INEFFECTIVE ASSISTANCE OF COUNSEL POINT THREE THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF In order for defendant to establish entitlement to PCR on the grounds of ineffective assistance of counsel, he is obligated to show not only that counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See Strickland, supra, 466 U.S. at 687, 104 ...


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