August 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARISTEDES NOLASCO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-10-2371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012
Before Judges Graves and J. N. Harris.
Defendant Aristedes Nolasco appeals from an order dated December 14, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in a three-count indictment with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); and second-degree eluding, N.J.S.A. 2C:29-2(b) (count three). Following an in absentia Miranda*fn1 hearing and jury trial, defendant was convicted on all three counts on August 5, 2003. After law enforcement authorities eventually located defendant, the court sentenced him to an aggregate twenty-two-year term of imprisonment with a nine-year period of parole ineligibility on October 6, 2006.
Defendant appealed from the judgment of conviction entered in the Law Division, and we affirmed in an unpublished opinion.*fn2
In our prior opinion, we summarized the facts of the case as follows:
At trial, the State presented the testimony of several police officers that they observed defendant driving his automobile into a motel parking lot that was under surveillance; dropping off a passenger, co-defendant Carlino Bello a/k/a Carmine Vello; and handing him a black plastic bag later determined to contain at least 525 grams (18 ounces) of cocaine. Co-defendant was apprehended and later pled guilty to the drug charges. When defendant observed the officers, he peeled out of the parking spot and sped away, leading them on a chase around the parking lot. Defendant then drove over a concrete divider, barely avoiding a collision with a police car. Defendant was forced to stop his vehicle when two marked police cars blocked his exit onto Route 46. Defendant finally complied with repeated orders to unlock his vehicle door and exit, after which he was arrested and transported to headquarters. After waiving his Miranda rights, defendant confessed to Detective David Borzotta that he agreed to drive co-defendant who placed a black plastic bag underneath the passenger seat of the automobile, and that for his role in the transaction defendant was to be paid $1000. Defendant also apologized to the officer for panicking and fleeing from the police.
On his direct appeal, defendant claimed he was denied his constitutional right to the effective assistance of counsel because his attorney failed to present testimony that would have shown he was unable "to speak and understand English sufficiently at the time of his arrest" to knowingly and voluntarily waive his Miranda warnings. Id. at 3-4. We affirmed without prejudice to defendant's right to file a PCR petition alleging that trial counsel was ineffective. Id. at 5.
In a PCR petition filed on July 2, 2008, defendant alleged his trial attorney was deficient because he failed to: (1) object to the court's lack of jurisdiction; (2) file pretrial motions; (3) explore an entrapment defense; (4) object to the Miranda form going into evidence; (5) request that side-bar conferences be recorded; (6) request a jury instruction regarding defendant's absence and his right not to testify; (7) object to the court's jury instruction on flight; (8) object to the prosecutor's comments during summation; (9) move to dismiss the eluding charge; (10) investigate material fact witnesses; (11) request fingerprints and DNA testing of the "black plastic bag and money taken from the crime scene"; and (12) present testimony from Norma (Perez Castilio), (Naomi) Jackson, Sonia Cruz, Jennifer Cruz, Luis Diaz, and the court appointed interpreter to support defendant's claim that he did not understand English well enough to have waived his Miranda rights.
Following a non-evidentiary hearing on December 11, 2009, the PCR court stated its reasons for denying defendant's petition in a twenty-three page written decision. With regard to defendant's argument that his attorney was deficient for failing to present testimony to support defendant's claim that he did not knowingly and voluntarily waive his Miranda rights, the court's findings were as follows:
In order to be valid, a waiver of a person's right to remain silent must be made "voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, 444 (1966). In New Jersey, the State must establish a waiver beyond a reasonable doubt. State v. Johnson, 116 N.J. 99 (1989); State v. Yough, 49 N.J. 587, 600 (1967). In this case, the record clearly indicates that such a showing was made. The detective who took [defendant's] statement testified at both the Miranda hearing and trial that he communicated with [defendant] in English and that the defendant had no trouble understanding him. The detective read [defendant] his rights aloud and asked whether [he] understood each one. [Defendant] indicated that he did, and the detective then asked him to read the first line of the rights form aloud in English. [Defendant] did so. The detective then asked [him] to read the entire rights form while writing the word "yes" next to each right and initialing it. [Defendant] did so and printed and signed his name on the bottom of the form. Also, the detective was able to take [defendant's] entire statement without communicating in any other language than English. With the benefit of having heard the testimony, the trial court was able to make a sound judgment as to the voluntariness of [defendant's] Miranda waiver. As a result, this Court finds that based on the extensive record established in the trial court, it is clear that [defendant's] Miranda waiver was voluntary, knowingly, and intelligently given.
[Defendant's] application for post-conviction relief on the grounds that he did not voluntarily waive his Miranda rights is denied. [Record citations omitted.]
The PCR court also concluded that defendant's other claims were without merit and barred by Rule 3:22-4 because they were not raised in defendant's direct appeal. Thus, the court determined that defendant failed to establish a prima facie claim that either his trial attorney or his appellate attorney was ineffective. The court's decision was memorialized in an order entered on December 14, 2009.
On appeal from the denial of his petition, defendant presents the following arguments:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.
Based on our review of the record and the applicable law, we have concluded that these arguments do not warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz test.*fn3 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In the present matter, there is no evidence that defendant ever told his trial attorney about the potential witnesses he identified in his PCR petition. Furthermore, while cross-examining Detective Borzotta, trial counsel emphasized that defendant spoke with "a Spanish accent" and, therefore, without a tape-recorded statement of defendant's voice, it was not possible to determine whether defendant spoke "English well enough to be understood" and well enough to have waived his Miranda rights. Under these circumstances, we agree that defendant was not entitled to an evidentiary hearing because he did not present sufficient evidence to establish a prima facie claim that either his trial attorney or his appellate attorney was ineffective. Preciose, supra, 129 N.J. at 462-63.
In his second point, defendant argues for the first time that "post-conviction counsel's deficient performance materially contributed to the denial of post-conviction relief, thereby constituting ineffective assistance of counsel." Appellate courts do not ordinarily consider issues that were not presented to the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and the present record is insufficient to evaluate defendant's allegations. Therefore, we affirm without prejudice to any further relief that defendant may pursue based on his claim that he was denied the effective assistance of counsel in the PCR proceedings.