December 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS GONZALEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-18-1985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012 -
Before Judges Yannotti, Harris and Hoffman.
Defendant Carlos Gonzalez a/k/a Hugo Velez appeals from a November 17, 2010 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On October 9, 1990, defendant escaped from the New Jersey Training School for Boys, where he was serving a juvenile disposition under the name Carlos Gonzalez. The Juvenile Justice Commission listed defendant's birth date as July 21, 1972. Defendant's actual birth date is January 3, 1967.
On May 4, 1991, defendant stabbed Jose Garcia in the stomach. An eyewitness reported to the police that Carlos Gonzalez, also known as Hugo Velez, was the assailant. The Camden County Prosecutor's Office (CCPO) investigated the incident and learned from defendant's employer that he presented a social security card with the name "Hugo R. Velez Martin" when he applied for a job. CCPO also learned that he received municipal welfare under the name Hugo Velez.
On August 14, 1991, a Camden County grand jury indicted defendant for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count two); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count four); and two counts of terroristic threats, contrary to N.J.S.A. 2C:12-3(a) (counts five and six).
When defendant failed to appear at two pretrial proceedings for the indictment, the court issued bench warrants for his arrest. CCPO attempted to locate defendant using both names - Carlos Gonzalez and Hugo Velez - without success.
On July 5, 1993, defendant was apprehended and later placed into custody at the Garden State Youth Correctional Facility. The facility released him in May 1995. At the time, the Juvenile Justice Commission did not have defendant's social security number on file.
In 1996, a Camden County grand jury indicted defendant on charges related to a sexual assault. A witness identified him by a photograph taken in connection with a previous arrest. CCPO did not realize defendant was the same person as the suspect in the 1991 stabbing case.
The same year, authorities in Puerto Rico informed CCPO that they had the suspect in the sexual assault case in custody in Puerto Rico on robbery charges. No further communication occurred between CCPO and authorities in Puerto Rico until 2005, when the fugitive unit learned defendant was serving a prison sentence in Puerto Rico. Subsequently, CCPO filed a detainer based on the sexual assault charges, resulting in defendant's return to New Jersey on a governor's warrant. N.J.S.A. 2A:160-6 to -35.
After defendant's return to New Jersey, CCPO realized that defendant was the suspect in both the sexual assault case and the stabbing case. The CCPO attributed the delay in this realization to defendant's use of a false name, false social security number, and a false birth date at the time of the stabbing in 1991.
The trial relating to the charges stemming from the stabbing incident began on February 28, 2007. Before the trial started, the State dismissed counts five and six due to its inability to prosecute because of the passage of time. Defendant's attorney then moved orally to dismiss the remaining counts of the indictment, claiming violation of defendant's right to a speedy trial. The trial judge denied the motion. On March 6, 2007, the jury returned a guilty verdict on the four remaining counts of the indictment.
On April 19, 2007, defendant appeared for sentencing. At that time, the trial judge merged counts two and three with count one and sentenced defendant to ten years imprisonment with a five year period of parole ineligibility on count one. On count four defendant received an eighteen month concurrent sentence. Defendant's sentence was to run concurrently with his sentence in the sexual assault case and the sentence he was serving in Puerto Rico.
On June 14, 2010, defendant filed a verified petition for PCR. On September 15, 2010, defendant's attorney filed a brief in support of defendant's petition. On November 17, 2010, Judge Irvin J. Snyder issued an order denying defendant's petition accompanied by a written opinion.
On December 20, 2010 defendant filed a notice of appeal. On appeal, defendant argues:
POINT I: DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, [DEFENDANT] WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.
After review of the record and applicable law, we find defendant's arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Snyder's thorough written opinion. We add the following comments.
PCR "proceedings are not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979); R. 3:22-3. Generally, if a defendant fails to raise an issue on direct appeal, but could have done so, the issue may not be raised by way of a PCR petition. State v. McQuaid, 147 N.J. 464, 483 (citing R. 3:22-4). "In the absence of the timely raising of an issue available on direct appeal or a constitutional infringement, relief will be granted in such proceedings only in exceptional circumstances involving a showing of fundamental injustice." Cerbo, supra, 78 N.J. at 605.
Here, at the pre-trial conference, defendant raised the issue of his right to a speedy trial by way of motion, which the trial judge denied. Defendant asserts no valid reason as to why he did not pursue a direct appeal based on the denial of that motion. In fact, defendant did not file any direct appeal. Through his PCR petition, defendant raised the speedy trial issue in the guise of an ineffective assistance of counsel claim. Thus, the PCR court correctly found this issue to be procedurally barred.
Even if defendant's claims were not procedurally barred, we find the PCR petition was correctly denied because his claim lacks substantive merit. We reject defendant's assertion that his trial counsel was ineffective for failing to properly raise the speedy trial issue.
To establish a prima facie case for ineffective assistance of counsel, the defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Prejudice means "a reasonable probability" the deficient performance "materially contributed to defendant's conviction." Fritz, supra, 105 N.J. at 58.
In determining whether a criminal defendant's right to a speedy trial was violated, we apply the same balancing test as federal courts. The factors to be considered are: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how defendant has asserted his right to a speedy trial; and (4) the prejudice defendant incurred as a result of the delay. State v. Szima, 70 N.J. 196, 201 (1976) (adopting the United States Supreme Court's balancing test from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 101 (1972)). The test is flexible in its application and the court applying the test may balance additional factors it deems appropriate as well. Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2191, 33 L. Ed. at 118-19.
In this case, defendant was indicted in 1991 and tried in 2007. Facially, this sixteen year delay appears to be lengthy; however, it is defendant, not the State, that caused the delay. This fact alone outweighs all other factors. Defendant used two identities, which made it difficult for CCPO to locate him. Along with using the false name "Hugo Velez," defendant used a false social security number and a false birth date. Although defendant was apprehended subsequent to his indictment for the stabbing, CCPO did not realize at the time that Carlos Gonzalez and Hugo Velez were the same person. The record contains no evidence of contact between the Juvenile Justice Commission and CCPO. CCPO did not determine defendant used Hugo Velez as an alias until after his return to New Jersey from Puerto Rico in 2005. While one can argue that CCPO should have realized this sooner, defendant cannot blame CCPO for the delay caused by his use of an alias and false identifying information.
Additionally, the record contains no evidence of prejudice to defendant due to the delay of his trial; in fact, defendant actually benefited from it. CCPO dismissed two counts of the indictment because a witness could not be located due to the passage of time. While defendant claimed he could no longer find a witness to the incident, he failed to present a certification stating that the witness was unavailable and would have testified on his behalf.
Because defendant's speedy trial claim lacks substantive merit, he cannot legitimately claim that his trial counsel was ineffective by raising the issue orally, rather than briefing it. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
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