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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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Defendant appealed from the judgment of conviction entered in the Law Division, and we affirmed in an unpublished opinion.*fn2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 ...