June 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANDRE L. GONZALEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-07-2800.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Maven.
After a 2005 jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1. He was sentenced to a twelve-year term of imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's conviction was affirmed on direct appeal in an unpublished opinion. State v. Gonzalez, No. A-1256-05 (App. Div. Dec. 7, 2007).
In September 2008, defendant filed a petition for post-conviction relief ("PCR"), alleging ineffective assistance of counsel. In particular, defendant contended that his trial attorney failed to conduct an adequate investigation of an alibi defense; failed to perform a DNA analysis of a wig found at the crime scene; improperly advised defendant not to testify on his own behalf; and failed to argue in summation that the State had failed to prove its case beyond a reasonable doubt because the State had never tested the wig for DNA evidence.
The PCR judge, Hon. Richard F. Wells, J.S.C.,  conducted a multi-day evidentiary hearing at which defendant, his aunt, and defendant's former trial attorney testified. After hearing those witnesses, Judge Wells rejected defendant's PCR petition in all respects. Among other things, Judge Wells found that defendant's proposed alibi witness, his aunt, was not credible. Furthermore, Judge Wells found that the claims of ineffectiveness regarding the wig were procedurally barred, and that no prejudice to defendant was shown because the wig could have been worn by a co-perpetrator.
In his present appeal, defendant argues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to conduct an adequate investigation of an alibi defense.
B. Trial counsel failed to perform a DNA analysis of the wig.
C. Trial counsel was ineffective because he advised defendant not to testify on his own behalf.
D. Trial counsel failed to argue in summation that the State had not proved its case beyond a reasonable doubt since the State never tested the wig for DNA evidence.
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIM[S] ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
The relevant standards are well-established. A person accused of crimes is constitutionally guaranteed the effective assistance of legal counsel in his defense.
Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 692-93 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id . at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also
State v. Fritz , 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
Strickland , supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. "[C]omplaints merely of matters of trial strategy will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 42, 54 (1987) (internal quotation omitted); see also
State v. Perry , 124 N.J. 128, 153 (1991).
Applying these standards here, we affirm the denial of defendant's petition, substantially for the cogent reasons set forth in Judge Wells's detailed written opinion dated January 7, 2011. Only a few comments are in order.
As defendant's trial counsel credibly testified, DNA testing of the wig would not necessarily have been exculpatory because it was unclear which robber had been wearing the wig. Defendant's claim that such testing would have proven his innocence is purely speculative.
Trial counsel's decision to not call defendant's aunt to testify as an alibi witness was a classic judgment within the zone of trial strategy. See State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting a court's review of a defense attorney's decision whether to call a witness should be "highly deferential"). In any event, the PCR judge, who heard the aunt's account at the evidentiary hearing, found her not credible. The judge noted, among other things, that the aunt's "demeanor on the stand was one of hostility and agitation." Moreover, as defendant's relative, the aunt had "an obvious interest in the outcome of the case." Similarly, trial counsel acted within his discretion in not urging defendant himself, who the PCR judge likewise found not credible, to take the stand before the jury. There was no deficient performance by counsel, nor any actual prejudice, with respect to these sensible tactical decisions.
Defendant's pro se claims of prosecutorial misconduct were addressed on direct appeal and thus correctly barred by the PCR court. R. 3:22-5. His unsupported verdict claim could and should have been raised on that appeal, so it is now likewise barred. R. 3:22-4.