June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JANNY NIEVES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-01-0229.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Yannotti.
Defendant Janny Nieves appeals from an order entered by the Law Division on August 30, 2011, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2); and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4. Defendant's motion to suppress certain statements he made to law enforcement was denied. Thereafter, defendant was tried before a jury.
At the trial, the State presented evidence, which established that Yadira Obando (Obando) and defendant were involved in a romantic relationship, and Obando became pregnant with defendant's child. She gave birth to J.N. in February 2001. In April 2001, defendant and Obando moved to an apartment in Newark, which they shared with others.
Obando testified that she and defendant constantly argued and often engaged in physical altercations, in which defendant would strike her. She said defendant hit the child and often shook her to get her to stop crying. At some point prior to July 17, 2001, defendant told Obando that he dropped the baby. The baby was not reacting, but defendant and Obando did not take the child to see a doctor. The child seemed to recover.
J.N. was not well on July 17, 2001, and Obando and defendant took the child to the emergency room of a hospital in Newark. A pediatric nurse examined the child, and she seemed to be in good physical condition, but appeared to have an ear infection and upper respiratory congestion. The nurse consulted with a doctor and medication was prescribed.
According to Obando, sometime between July 17, 2001 and July 21, 2001, defendant struck J.N. in the back. However, neither defendant nor Obando took the child to the hospital after this incident. On July 21 or 22, the child was lethargic and she was vomiting. Obando said that on July 23, defendant struck her and also struck J.N. Obando left defendant alone with the child in their bedroom.
Thirty minutes later, Obando returned to feed the child. She said defendant was holding the baby and appeared to be trying to get the child to react. The baby's eyes were closed and she would not open them. Obando and defendant took the child to the hospital. The child was not breathing. She was transported to Beth Israel Hospital and placed in a pediatric intensive care unit (ICU). The child died on July 26, 2001.
The State presented medical testimony indicating that J.N. had a bruise on the right side of her brain, a right temporal fracture and multiple right parietal fractures. The child also had multiple rib fractures, injuries to her liver and adrenal bruising. Dr. Timothy Yeh (Dr. Yeh), the attending physician at the pediatric ICU at Beth Israel where J.N. was treated, testified that the injuries occurred at different times and were not accidental.
Dr. Yeh testified that J.N.'s injuries were consistent with being shaken. The child's brain injuries were caused by significant force, by direct impact or shaking. He opined that the rib fractures were caused by a squeezing type of force. He said the injuries to the child's liver and adrenal bruising were caused by an impact to her back or abdomen.
Dr. Wayne Williams, the Assistant Medical Examiner in the Regional Medical Examiner's Office in Newark, performed the autopsy on July 27, 2001. He stated that the cause of death was blunt force injuries to the child's head, chest and abdomen.
The jury found defendant not guilty of murder, but guilty of a lesser-included offense, first-degree aggravated manslaughter. The jury also found defendant guilty of second-degree endangering the welfare of a child.
The trial court later denied defendant's motion for a new trial and sentenced defendant to twenty-five years of imprisonment on the aggravated manslaughter charge, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a concurrent, eight-year term on the endangering charge, and imposed various monetary sanctions.
Defendant appealed from the judgment of conviction dated February 9, 2004, and raised the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S STATEMENTS TO THE POLICE TO BE INTRODUCED INTO EVIDENCE.
THE TRIAL COURT ERRED IN IMPROPERLY RESTRICTING DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE STATE'S PRIMARY WITNESS AGAINST DEFENDANT.
THE TRIAL COURT ERRED IN PERMITTING DR. KOTZAMPALITRIS TO TESTIFY AS AN EXPERT WITNESS.
THE TRIAL COURT ERRED IN FAILING TO CHARGE AGGRAVATED ASSAULT. (Not Raised Below).
THE TRIAL COURT ERRED IN CHARGING ACCOMPLICE LIABILITY.
THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.
THE SENTENCE IMPOSED BY THE TRIAL COURT VIOLATES DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.
We affirmed defendant's conviction but remanded the matter for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). State v. Nieves, No. A-4274-03 (App. Div. Oct. 4, 2005) (slip op. at 3-4). Thereafter, the trial court imposed the same sentence.
Defendant appealed from the amended judgment of conviction dated January 3, 2006, and his appeal was heard on the court's excessive sentence calendar. Defendant's sentence was affirmed. State v. Nieves, No. A-1541-06 (App. Div. Oct. 15, 2008). The Supreme Court denied defendant's petition for certification. State v. Nieves, 198 N.J. 314 (2009).
On March 13, 2009, defendant filed a pro se PCR petition and supporting brief. The court appointed PCR counsel for defendant. Defendant argued that (1) his petition was not procedurally barred; (2) he was denied his right to a jury trial because the trial judge failed to charge the jury regarding causation; (3) he was denied his right to a fair trial and due process of law because the court failed to determine whether an excused juror had tainted the other jury members and failed to properly instruct the jury on manslaughter; and (4) he was denied the effective assistance of counsel.
The PCR court filed a written opinion dated August 30, 2011, in which it concluded that defendant's claims were barred by Rule 3:22-12(a)(1) and Rule 3:22-4(a). The court additionally determined that if defendant's claims were not procedurally barred, they failed on their merits. The court entered an order dated August 30, 2011, denying PCR. This appeal followed.
Defendant raises the following argument for our consideration:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
A. The Petition Should Not Have Been Time-Barred.
B. Defendant's Ineffectiveness Claim Was Cognizable.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL, DUE TO TRIAL COUNSEL'S FAILURE TO PURSUE EXCULPATORY WITNESSES.
We are satisfied from our review of the record that the PCR court correctly determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. Defendant's arguments to the contrary are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). However, we add the following brief comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). First, the defendant must show that his attorney "'made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693).
Second, the defendant must show that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). The defendant must establish that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698).
Defendant alleged that his attorney was deficient because he failed to call two witnesses in his defense, specifically Edwin Arca and his brother Eduardo Arca. The PCR court correctly rejected this claim.
Determining which witnesses to call to testify is one of the most difficult strategic decisions a trial attorney must make. State v. Arthur, 184 N.J. 307, 320 (2005).
A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art, " and a court's review of such a decision should be "highly deferential."
[Id. at 320-21 (citations omitted).]
Here, the PCR court correctly found that defendant was not denied the effective assistance of counsel because counsel did not call the Arca brothers at trial. Edwin Arca and his paramour shared the apartment with defendant and Obando at the time relevant to this case. According to defendant, Edwin would have testified that he did not mistreat or hurt the baby; however, Edwin was not present when defendant struck the child. Moreover, Eduardo never resided with defendant and his family.
The record therefore supports the PCR court's finding that the decision not to call these witnesses to testify at trial was objectively reasonable and defendant was not prejudiced by the absence of their testimony As the court determined defendant has not shown that the result here would have been different if the Arca brothers had testified in his defense
We are also satisfied that because defendant had not presented a prima facie case of ineffective assistance of counsel the PCR court properly determined that an evidentiary hearing was not required State v Preciose 129 N.J. 451 462 (1992)
In view of our decision that the PCR court correctly determined that defendant had not established that he was denied the effective assistance of counsel we need not address defendant's argument that the court erred by finding that his petition was procedurally barred