On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-0568.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2012
Before Judges Fisher and St. John.
Defendant appeals the denial of his post-conviction relief (PCR) petition. We affirm in part and remand in part. At the conclusion of a trial in 2004, defendant was convicted of: second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). After the merger of the aggravated assault convictions, defendant was sentenced to a seven-year prison term, subject to an eighty-five percent period of parole ineligibility. The judge also imposed four-year prison terms on the endangering and weapon convictions that were ordered to run concurrently to each other and concurrently to the prison term imposed on the aggravated assault conviction. In his direct appeal, defendant argued that the trial judge erroneously found that the assault victim was competent to testify and provide information regarding an element of second- degree aggravated assault and, also, that the judge's findings regarding aggravating and mitigating circumstances were unsupported by the record. We rejected these arguments and affirmed. State v. Avilez-Vasquez, No. A-4505-04 (App. Div. Apr. 13, 2007).*fn1 The Supreme Court denied defendant's petition for certification. 192 N.J. 477 (2007).
In 2008, defendant filed a pro se PCR petition, which was later amended upon the appointment of counsel. Defendant argued to the trial court*fn2 that his trial attorney was ineffective: (1) in failing to call co-defendant Emilio Hernandez to testify; (2) in failing to seek a mistrial or other relief when the victim's mother blurted out in Spanish during trial that "this guy killed my son"; (3) in failing to retain medical experts to opine on the victim's competency to testify; and (4) in representing defendant when counsel also represented the mother of defendant's child in a custody dispute while defendant was awaiting trial on these charges. Additionally, defendant argued in the trial court that the attorney who represented him in his direct appeal was ineffective in failing to raise issues concerning both the outburst of the victim's mother and the judge's response to a jury question that, in defendant's view, "overemphasized" the meaning of attempt.*fn3
After oral argument, the trial judge ruled on some of defendant's contentions but, as to two -- the circumstances surrounding counsel's failure to call Emilio Hernandez to testify and trial counsel's purported representation of the mother of defendant's child in a custody matter -- the judge soundly determined that an evidentiary hearing was required to develop the record. At the conclusion of the two-day evidentiary hearing, the judge rejected defendant's ineffective- assistance-of-counsel argument regarding the failure to call Emilio Hernandez as a witness; he did not, however, rule on the conflict issue.
In appealing the denial of his PCR petition, defendant first argues:
THE TRIAL COURT COMMITTED ERROR IN FAILING TO ADDRESS OR RULE ON THE ISSUE OF A CONFLICT OF INTEREST.
We agree that the trial judge mistakenly overlooked the conflict issue. As a result, we must remand for the judge's findings and ruling.
The PCR proceedings mainly focused on defendant's failure to call Emilio Hernandez as a witness. Defendant claims that this failure and other related circumstances deprived him of the effective assistance of counsel under the following second point of his brief:
THE LOWER COURT ERRED AND MIS-APPLIED ITS DISCRETION IN CONCLUDING THAT THE DEFENDANT'S TRIAL ATTORNEY WAS NOT INEFFECTIVE FOR FAILING TO CALL THE CO-DEFENDANT AS A WITNESS.
We find insufficient merit in this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), adding only the following comments, prefaced first by a short summary of the evidence adduced at trial.
As explained in our opinion regarding defendant's direct appeal, testimony established that Jose Hernandez and Claribel Hernandez, who were dating, had an argument on February 2, 2003, during which Jose assaulted Claribel and pulled her down the steps of her home by her hair. Avilez-Vasquez, supra, slip op. at 3-4. Claribel escaped and later enlisted her brother Emilio Hernandez and their cousin, defendant, to go with her to a particular location in Perth Amboy, where they found Jose standing on a street corner. Id. at 4. While defendant and Emilio hid, Claribel approached Jose and hugged him, acting as if nothing was amiss between them. Ibid. Claribel, however, gave a signal, and Emilio and defendant emerg[ed] from the darkness. Emilio struck [Jose] in the head with a ...