On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-5524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
This is an appeal from an order denying post-conviction relief (PCR) without an evidentiary hearing. Defendant argues the trial court erred in rejecting his claim of ineffective assistance of trial and appellate counsel, and, alternatively, finding his PCR petition time-barred. Defendant asserts his trial attorney was ineffective because: he failed to conduct a sufficient pre-trial investigation to enable him to impeach the State's witnesses and to support an alibi defense; he suffered from a conflict of interest; and he failed to protect defendant's right to remain silent. Defendant raises numerous additional issues in a supplemental pro se brief, in which he also asserts his PCR counsel was ineffective and failed to fulfill his obligations under Rule 3:22-6(d). We affirm.
An Essex County jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and additional weapons and theft charges, in connection with the November 4, 2002 fatal shooting and robbery of a Newark cab driver. After appropriate mergers, Judge Peter J. VAZQUEZ sentenced defendant, in an August 6, 2004 judgment of conviction, to an aggregate forty-five years, with a parole- ineligibility term of eighty-five percent pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction, but remanded solely for correction of the judgment of conviction (JOC) involving the penalties imposed. State v. DaSilva, No. A-2039-06 (App. Div. July 8, 2009), and the Supreme Court denied certification on October 21, 2009. State v. DaSilva, 201 N.J. 145 (2009).
We summarized the essential facts in our previous opinion.
The charges against defendant arose out of an incident in the early morning hours of November 4, 2002, in which Felix Chininin, a twenty-year-old Newark cab driver, was shot in the head and killed, apparently during a robbery of a portable DVD player he had in his cab and the cab fare he had collected during his shift.
There were no eyewitnesses to the shooting but, shortly thereafter, a passerby who did not know Chininin saw him staggering in the street, his head bloody. The witness notified police, who responded immediately. Chininin was transported to the hospital where he died shortly thereafter. At 5:30 a.m. that morning, Chininin's cab was reported parked in a driveway in Elizabeth. A few days later, an anonymous caller to the cab company identified defendant as the shooter. The caller said she was a relative of defendant's.
Investigators ultimately identified defendant . . . . Chininin was shot with a gun identified from ballistic tests as having been stolen from a Newark police officer who lived in the same building as defendant. Defendant had sold the gun to an acquaintance after the shooting. The acquaintance was subsequently arrested and linked defendant to the gun.
When he was arrested on May 4, 2003, defendant was staying at the Belleville Motor Lodge under another person's name. He was in possession of a Brazilian passport, credit cards and social security cards, all in the names of other people. He had also recently bleached his hair blond and was apparently preparing to flee to Brazil.
Defendant testified at trial and denied all of the allegations but did admit to sending his family to Brazil, stealing a passport and social security card, and changing his appearance.
[DaSilva, supra, (Slip op. at 2-3).]
On July 29, 2009, shortly after our decision on defendant's direct appeal, defendant apparently executed a pro se verified petition for PCR. The return receipt was signed by the court on August 3, 2009, but the petition itself was stamped received by the Criminal Division Manager on August 10, 2009. The sole basis for relief stated in the initial petition was, "[I]neffective Assistance of counsel Denied Defendant of a fair Trial[.] The convictions should be Reversed And the Matter Remanded for Retrial."
The trial court then sua sponte dismissed the petition without prejudice by order entered August 31, 2009, on the grounds that an appeal was pending.*fn1
According to the trial court, defendant again filed a PCR petition on January 11, 2010. However, the record before us does not include that filing.*fn2
The record does include a pro se verified petition dated May 25, 2010, which asserts again defendant was denied his Sixth Amendment right to the effective assistance of trial and appellate counsel, but provides no other cognizable evidence. We surmise that an undated pro se brief included in the record was filed along with the May 2010 petition. In that pro se brief, defendant argued, without evidential support, that trial counsel failed to protect his right to remain silent; failed to present proof of an alibi; and appellate counsel failed to properly present issues to the court.
Defendant also argued, without a certification, that he was denied effective assistance of counsel because his trial attorney, Ronald S. Sampson, substituted on the eve of trial for Paul Bergrin, with whom Sampson was associated, and who had been charged with various criminal offenses. Defendant argued that he objected to Sampson's assumption of trial responsibilities, but provided no cognizable evidence of when and how he registered that objection.
He claimed Sampson was unprepared to try the case, failed to perform a pretrial investigation, "fail[ed] to challenge the denial of an alibi defense under the correct legal standard and principles of law, fail[ed] to develop a viable defense, or to subject the state's case to an adversarial testing." He asserted Sampson failed to investigate the State's witnesses, Carlos Marquinez, Alexis Tixi, Jaime Solano, Josephine Garcia and Gloria Nieves. He argued Sampson's substitution for Bergrin constituted a conflict of interest.
An amended petition prepared by counsel and dated June 9, 2010, but lacking a signed verification, simply stated, "Petitioner alleges ineffective assistance of counsel because counsel failed to adequately investigate, to present an alibi defense, to call favorable witnesses and to advise Petition[er] to remain silent." The amended petition was supported by a brief. Although our record includes only excerpts of the brief, included is the table of contents that reflects that counsel filed a forty-six-page brief, a twenty-five-page facts section, a legal argument that, aside from asserting that defendant's petition was not procedurally barred, mirrored points in defendant's pro se brief, but lacked any further evidential support. The points were:
PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES IS NOT BARRED BY R. 3:22 ET SEQ.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROTECT PETITIONER'S RIGHT TO REMAIN SILENT.
B. TRIAL COUNSEL FAILED TO DO ANY INVESTIGATION PRIOR TO TRIAL AND AS A RESULT FAILED TO CALL FAVORABLE WITNESSES AND INTERPOSE AN ALIBI DEFENSE.
C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A NOTICE OF ALIBI DEFENSE AND TO USE AN ALIBI DEFENSE.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF ...