September 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANGEL L. VARGAS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-03-0179.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Ashrafi.
Defendant Angel Vargas appeals from a February 14, 2012 order denying his petition for post-conviction relief (PCR). We affirm.
Following a trial in December 2008, a jury found defendant guilty of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree aggravated assault by causing serious bodily injury to Hugo Narvaez, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault by causing significant bodily injury to Martin Cortez, N.J.S.A. 2C:12-1(b)(7); and two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). After appropriate mergers, the court sentenced defendant to concurrent fifteen-year terms of imprisonment for each of the armed robbery convictions, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2.
At approximately 1:00 a.m. on September 10, 2006, Hugo Narvaez and Martin Cortez were stabbed several times during the course of a robbery that occurred outside the Chestnut Square apartments in Vineland. Both men were severely injured. Nine days later, when defendant was questioned by the police, he initially denied he was at the scene of the crimes. However, defendant subsequently admitted he was at the scene and that his co-defendant, Josue Olivo, was the person who stabbed the victims while defendant was acting as the lookout. According to defendant, Olivo got $13 from the victims and used it to buy crack cocaine.
Defendant was tried separately and was the only witness for the defense. Defendant testified he told Olivo to stop stabbing the victims, but defendant did not do anything else to stop Olivo because he did not want "to be the next victim." In addition, defendant testified on cross-examination that he only agreed to be the lookout because he knew Olivo had a knife, and defendant felt his "life was in danger." Defendant admitted, however, he never mentioned in his statement to the police that Olivo threatened him.
On his direct appeal, defendant presented four arguments:
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO LOWER COURT'S FAILURE TO PRECLUDE EXPERT TESTIMONY CONCERNING MEDICAL TREATMENT OF THE VICTIM.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT HAD TO PREPARE A SUMMARY OF PROPOSED TESTIMONY OF A DEFENSE WITNESS, CO-DEFENDANT JOSUE OLIVO, DENYING THE DEFENDANT THE RIGHT TO A [FAIR] TRIAL.
THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON THE DEFENSE OF DURESS.
THE COURT IMPROPERLY DESIGNATED A JUROR TO BE AN ALTERNATE, IN CONTRAVENTION OF NEW JERSEY STATUTE AND COURT RULE REQUIRING THAT ALTERNATE JURORS BE RANDOMLY SELECTED IN THE PRESENCE OF THE JURY.
We affirmed defendant's convictions and sentence in an unpublished opinion, State v. Vargas, No. A-4845-08 (App. Div. Nov. 19, 2010), and the Supreme Court denied defendant's petition for certification. 205 N.J. 520 (2011). The State's proofs were summarized in our prior opinion and need not be repeated here.
In our prior opinion, we concluded that defendant failed to establish a sufficient basis for a jury instruction on the affirmative defense of duress:
Here, defendant did not allege that Olivo had threatened or used any force against him. Rather, defendant decided to act as Olivo's lookout only because he saw a knife in Olivo's pocket. Without more evidence, a person of reasonable firmness would not have viewed the mere presence of the knife as a threat forcing him to participate in the armed robbery of two victims. Under the objective criteria for the affirmative defense, defendant was under no direct threat by Olivo to act as he did. In addition, defendant's conduct after the robberies and assaults in remaining with Olivo contradicted his claim that he was coerced to participate in the crimes.
Defendant filed a petition for PCR on June 3, 2011, and assigned counsel filed a letter brief on his behalf alleging defendant's trial attorney was ineffective for not asserting duress as a defense. Following oral argument on February 14, 2012, the court determined "defendant's attorney did not commit error by failing to present duress as an affirmative defense, " and the court denied defendant's petition.
In this appeal from the denial of his petition, defendant presents the following argument:
DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.
Specifically, defendant claims "[i]nadequate pretrial communication and investigation by defense counsel compromised defendant's ability to avail himself of the duress defense." In response, the State argues there is "absolutely no evidence in the record that defendant was threatened" by Olivo, and defense counsel was not ineffective "for failing to advise the defendant to perjure himself." We have concluded from our review of the record that defendant's argument is clearly without merit. R. 2: 11-3(e)(2). We add only the following comments.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-10). An evidentiary hearing is not warranted unless defendant presents a prima facie claim and the facts supporting the claim are not part of the trial record. Ibid. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test.
Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J.Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
In the present matter, defendant's videotaped statement to the police, which was admitted into evidence, provides strong proof that he knowingly and purposefully participated as an accomplice to the crimes by acting as a lookout. Moreover, there is no factual support in the record to show that Olivo "used or threatened unlawful force" against defendant. State v. Morris, 242 N.J.Super. 532, 542 (App. Div. 1990), certif. denied, 127 N.J. 321 (1992). Thus, there is no factual support for a duress defense, and trial counsel was not ineffective or deficient for failing to argue that defendant acted under duress.