NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013.
On appeal before the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1180.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Fasciale.
Defendant Angel Martinez, who was convicted of carjacking and other crimes in a 2006 jury trial, appeals the trial court's May 3, 2011 order denying his petition for post-conviction relief ("PCR"). In his petition, defendant alleged that he was deprived of the effective assistance of both his trial and plea counsel in various respects. For the reasons that follow, we affirm the trial court's order in substantial part, but remand for an evidentiary hearing as to defendant's specific claim that he was denied effective representation in the advice he received about the State's pretrial plea offer.
Defendant's convictions arose out of an August 2003 incident in Newark, in which a cab driver was attacked and robbed by two passengers. We incorporate by reference the underlying facts that are described at length in our unpublished opinion affirming defendant's convictions on direct appeal. State v. Martinez, No. A-1766-06 (App. Div. July 20, 2009), certif. denied, 200 N.J. 502 (2009).
Briefly stated, on August 29, 2003, at approximately 11:30 p.m., the victim, taxi driver Giovanny Mino, was dispatched to pick up passengers on Bloomfield Avenue in Newark. Mino picked up two men and drove them to James and Nesbit Streets, as requested. When the cab arrived at its destination, one of the men told Mino to "park on the side of the street." Given the nature of the neighborhood, Mino became apprehensive and turned on the overhead light inside the cab. The man sitting on the passenger side of the rear seat immediately turned the light off, and the other passenger, seated behind Mino, grabbed him around the neck. Id. at 3.
The man on the passenger side moved to the front seat and held Mino down, as the other man stabbed him with a screwdriver from behind in the shoulder and neck. Pleading with the men not to kill him, Mino offered them his money, but the two assailants continued their assault and ripped the cab driver's money from him. Eventually, Mino was able to grab the screwdriver from the man in the back seat. He opened the door and ran as the man in the front seat drove the cab away. Id. at 4.
Mino ran to the police station located on Nesbit Street. He was taken by ambulance to the hospital, where he was treated for his wounds. After leaving the hospital the next day, Mino returned to the police station, gave a statement, and provided a description of his assailants. While there, Mino viewed "a lot" of photographs from picture albums in an attempt to identify his assailants, but was unable to do so. Id. at 4.
Mino was subsequently contacted by Police Detective Jose Danoys on September 1, 2003, who informed him that a suspect had been located, and asked Mino to come to the station to view additional photographs. Mino assumed that he would be able to identify his assailants in these new photographs. He was shown six photos and he identified the sixth one as that of the person who was in the front seat, had held him down, and had driven the cab away when he fled. Mino immediately recognized this man because he was a regular customer of the cab company and in the past he would call requesting to be picked up from Pennington Street. Id. at 4-5.
On March 30, 2004, defendant was charged by an Essex County Grand Jury under Indictment No. 04-03-1180 with the following offenses: conspiracy to commit robbery and carjacking, N.J.S.A. 2C:5-2, 2C:15-1, 2C:15-2 (Count One); robbery, N.J.S.A. 2C:15-1 (Count Two); carjacking, N.J.S.A. 2C:15-2 (Count Three); aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Four); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six).
On August 4, 2005, a pretrial hearing was held before the trial court to review defendant's position concerning the State's plea offer. In exchange for a guilty plea to Counts Two and Four of Indictment No. 04-03-1180 (arising from the incident in the cab) and Counts One, Three, and Six of Indictment No. 04-04-1248 (a separate indictment involving a different incident), the State offered to recommend that defendant serve a total of fifteen years imprisonment with an eighty-five percent parole disqualifier. After consulting with his trial counsel and being questioned by the judge in open court, defendant rejected the plea offer and proceeded to trial on Indictment No. 04-03-1180.
The trial was held over several days in January and February 2006. The State presented the eyewitness testimony of the victim, Mino, as well as testimony from Newark Police Officer Danoys, Newark Special Police Officer Wardell Mitchell, and Detective Antonio Badim. Defendant did not testify. The only witness he presented was Detective Vincent Cordi, who testified only to the fact that he had previously been in the company of defendant and had noticed that he had a substantial tattoo.
The jury returned a guilty verdict on Counts One through Four, and a not guilty verdict on counts Five and Six. The trial court denied defendant's motions for a new trial and ...