NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1682-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDY REYES,
Defendant-Appellant. _______________________
Submitted March 12, 2024 – Decided August 2, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 15-03- 0237.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Andy Reyes, along with four co-defendants, was indicted for
two counts of first-degree conspiracy to commit murder, two counts of first-
degree murder, two counts of second-degree weapons offenses, felony murder,
first-degree conspiracy to commit robbery, fourth-degree unlawful possession
of a weapon, and third-degree possession of for an unlawful purpose. Two
murders occurred two weeks apart in August 2014: first, a shooting by a co-
defendant and, second, a stabbing by defendant.
The State initially offered defendant a plea deal recommending that he
receive an aggregate sentence of sixty years with sixty years of parole
ineligibility. He rejected the offer––essentially a life sentence for the twenty-
year-old defendant––and negotiated an agreement to plead to two amended
counts of aggravated manslaughter in exchange for concurrent prison terms of
thirty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The sentences would run concurrently to a Middlesex County offense. The plea
agreement did not require defendant to testify against his co-defendants.
During his plea colloquy, defendant, upon questioning from trial counsel
(first counsel), admitted to reviewing the significant amount of discovery with
first counsel, and voluntarily and knowingly pled guilty to two counts of
A-1682-22 2 aggravated manslaughter. Defendant advised the trial court he did not need any
more time to consider the plea agreement.
At sentencing a month-and-a-half later, first counsel informed the court
that defendant wanted to withdraw his guilty plea and an application to be
relieved as counsel was forthcoming. The court declined to postpone sentencing
despite counsel's position that he was "not ready." Defendant was thus
sentenced in accordance with the plea agreement. Four days later, first counsel
moved to withdraw defendant's guilty plea. The next day, he moved to be
relieved as counsel.
The court granted first counsel's motion to be relieved as counsel. After
second counsel was assigned to represent defendant, she moved to withdraw
defendant's guilty plea.
On October 7, 2016, after defendant's sentence was vacated, the parties
argued the motion to withdraw defendant's guilty plea. Second counsel asserted
the plea agreement was secured through the State's erroneous reliance on a
surveillance video which did not show defendant's involvement in the first
murder. The State responded that the video was only used to identify the car
and never maintained it depicted defendant in the car. By identifying the car,
the State was able to connect a co-defendant to the crime and later defendant
A-1682-22 3 and the two other co-defendants. Moreover, the State contended it had
substantial evidence of defendant's guilt through defendant's DNA on clothing
he was seen wearing in pictures of the crime scene, the victim's blood on his
clothing, and defendant's written confession. The court commented the motion
had shortcomings, and, if even if granted, the State would not reopen plea
negotiations, exposing defendant to a life sentence if he was found guilty of the
stabbing murder. Second counsel's subsequent request for a recess to consult
with defendant was granted. When court resumed, second counsel advised that
defendant was withdrawing his motion and resentencing could proceed.
Defendant confirmed counsel's representation and stated he had enough time to
talk to counsel about his decision.
During sentencing, second counsel did not argue for a prison term less
than the State's recommendation. Finding sentencing aggravating factors three,
six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), "qualitatively outweigh[ed]"
mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), the court imposed the
recommended sentence.
Almost five years later, defendant filed a petition for post-conviction
relief (PCR), claiming first counsel was ineffective by advising him to plead
guilty before requesting and obtaining all discovery from the State and
A-1682-22 4 investigating the matter. Defendant also claimed first counsel was ineffective
at his first sentencing hearing by failing to argue for a lesser prison term than
set forth in the plea agreement. Although the trial court vacated that sentence
and resentenced him, defendant contended first counsel's inaction impacted
resentencing. As to second counsel, defendant claimed she was also ineffective
for not seeking a lesser prison term by arguing for the application of mitigating
factors four––"substantial grounds tending to excuse or justify the defendant's
conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4)—and
thirteen––"conduct of a youthful defendant was substantially influenced by
another person more mature than the defendant," N.J.S.A. 2C:44-1(b)(13). He
also claimed second counsel failed to investigate potential mitigating
circumstances concerning defendant's inpatient psychiatric treatment. The PCR
judge rejected defendant's contentions and rendered a written opinion and an
order denying the petition without an evidentiary hearing.
Defendant appeals, contending:
DEFENDANT-PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL ALLOWED DEFENDANT TO PLEAD GUILTY BEFORE OBTAINING ALL DISCOVERY AND FOR FAILING TO ADVOCATE FOR HIM AT
A-1682-22 5 SENTENCING. ULTIMATELY THE COURT ERRED WHEN IT DENIED THE PETITION.
Based upon our de novo review of the PCR judge's factual findings made
without an evidentiary hearing and legal conclusions, State v. Belton, 452 N.J.
Super. 528, 536 (App. Div. 2017), we are unpersuaded by these arguments and
affirm substantially for the cogent reasons explained in his decision.
In rejecting defendant's claims of ineffective assistance of counsel, the
judge applied the two-prong Strickland test that defendant had to show: one,
"counsel's performance was deficient"; and two, "the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). "An attorney's representation is deficient
when it '[falls] below an objective standard of reasonableness.'" State v. O'Neil,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1682-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDY REYES,
Defendant-Appellant. _______________________
Submitted March 12, 2024 – Decided August 2, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 15-03- 0237.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Andy Reyes, along with four co-defendants, was indicted for
two counts of first-degree conspiracy to commit murder, two counts of first-
degree murder, two counts of second-degree weapons offenses, felony murder,
first-degree conspiracy to commit robbery, fourth-degree unlawful possession
of a weapon, and third-degree possession of for an unlawful purpose. Two
murders occurred two weeks apart in August 2014: first, a shooting by a co-
defendant and, second, a stabbing by defendant.
The State initially offered defendant a plea deal recommending that he
receive an aggregate sentence of sixty years with sixty years of parole
ineligibility. He rejected the offer––essentially a life sentence for the twenty-
year-old defendant––and negotiated an agreement to plead to two amended
counts of aggravated manslaughter in exchange for concurrent prison terms of
thirty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The sentences would run concurrently to a Middlesex County offense. The plea
agreement did not require defendant to testify against his co-defendants.
During his plea colloquy, defendant, upon questioning from trial counsel
(first counsel), admitted to reviewing the significant amount of discovery with
first counsel, and voluntarily and knowingly pled guilty to two counts of
A-1682-22 2 aggravated manslaughter. Defendant advised the trial court he did not need any
more time to consider the plea agreement.
At sentencing a month-and-a-half later, first counsel informed the court
that defendant wanted to withdraw his guilty plea and an application to be
relieved as counsel was forthcoming. The court declined to postpone sentencing
despite counsel's position that he was "not ready." Defendant was thus
sentenced in accordance with the plea agreement. Four days later, first counsel
moved to withdraw defendant's guilty plea. The next day, he moved to be
relieved as counsel.
The court granted first counsel's motion to be relieved as counsel. After
second counsel was assigned to represent defendant, she moved to withdraw
defendant's guilty plea.
On October 7, 2016, after defendant's sentence was vacated, the parties
argued the motion to withdraw defendant's guilty plea. Second counsel asserted
the plea agreement was secured through the State's erroneous reliance on a
surveillance video which did not show defendant's involvement in the first
murder. The State responded that the video was only used to identify the car
and never maintained it depicted defendant in the car. By identifying the car,
the State was able to connect a co-defendant to the crime and later defendant
A-1682-22 3 and the two other co-defendants. Moreover, the State contended it had
substantial evidence of defendant's guilt through defendant's DNA on clothing
he was seen wearing in pictures of the crime scene, the victim's blood on his
clothing, and defendant's written confession. The court commented the motion
had shortcomings, and, if even if granted, the State would not reopen plea
negotiations, exposing defendant to a life sentence if he was found guilty of the
stabbing murder. Second counsel's subsequent request for a recess to consult
with defendant was granted. When court resumed, second counsel advised that
defendant was withdrawing his motion and resentencing could proceed.
Defendant confirmed counsel's representation and stated he had enough time to
talk to counsel about his decision.
During sentencing, second counsel did not argue for a prison term less
than the State's recommendation. Finding sentencing aggravating factors three,
six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), "qualitatively outweigh[ed]"
mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), the court imposed the
recommended sentence.
Almost five years later, defendant filed a petition for post-conviction
relief (PCR), claiming first counsel was ineffective by advising him to plead
guilty before requesting and obtaining all discovery from the State and
A-1682-22 4 investigating the matter. Defendant also claimed first counsel was ineffective
at his first sentencing hearing by failing to argue for a lesser prison term than
set forth in the plea agreement. Although the trial court vacated that sentence
and resentenced him, defendant contended first counsel's inaction impacted
resentencing. As to second counsel, defendant claimed she was also ineffective
for not seeking a lesser prison term by arguing for the application of mitigating
factors four––"substantial grounds tending to excuse or justify the defendant's
conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4)—and
thirteen––"conduct of a youthful defendant was substantially influenced by
another person more mature than the defendant," N.J.S.A. 2C:44-1(b)(13). He
also claimed second counsel failed to investigate potential mitigating
circumstances concerning defendant's inpatient psychiatric treatment. The PCR
judge rejected defendant's contentions and rendered a written opinion and an
order denying the petition without an evidentiary hearing.
Defendant appeals, contending:
DEFENDANT-PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL ALLOWED DEFENDANT TO PLEAD GUILTY BEFORE OBTAINING ALL DISCOVERY AND FOR FAILING TO ADVOCATE FOR HIM AT
A-1682-22 5 SENTENCING. ULTIMATELY THE COURT ERRED WHEN IT DENIED THE PETITION.
Based upon our de novo review of the PCR judge's factual findings made
without an evidentiary hearing and legal conclusions, State v. Belton, 452 N.J.
Super. 528, 536 (App. Div. 2017), we are unpersuaded by these arguments and
affirm substantially for the cogent reasons explained in his decision.
In rejecting defendant's claims of ineffective assistance of counsel, the
judge applied the two-prong Strickland test that defendant had to show: one,
"counsel's performance was deficient"; and two, "the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). "An attorney's representation is deficient
when it '[falls] below an objective standard of reasonableness.'" State v. O'Neil,
219 N.J. 598, 611 (2014) (alteration in original) (quoting Strickland, 466 U.S.
at 688). Prejudice requires "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Ibid. (quoting Strickland, 466 U.S. at 694).
With respect to defendant's charge that first counsel failed to fully
investigate, forcing him to pled guilty, the PCR judge found it lacked merit
"because the plea transcript indicates [defendant's] knowledge of the [plea] deal,
his voluntariness, . . . his intelligent consent to it," and he needed no additional
A-1682-22 6 time to review discovery as he "thoroughly reviewed [it]." Citing State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), the judge found
defendant's contention that the surveillance video was neither presented to nor
considered by first counsel was a bald assertion, not supported by an affidavit
or certification by someone with personal knowledge. Indeed, the record belied
the assertion that the surveillance video was not part of the discovery provided
to the defense. Moreover, the judge acknowledged it was uncontroverted that
the State did not rely on the video to identify defendant but used it to identify
and locate the car used to commit the crimes. As to first counsel's representation
at sentencing, the PCR judge determined it had no bearing on defendant's
ultimate sentence because the trial court resentenced defendant after relieving
first counsel.
Defendant renews the arguments regarding first counsel's performance
spurned by the PCR judge. We discern no reason to disturb the judge's ruling
as defendant failed to establish a prima facie case of ineffective assistance by
not reviewing all discovery with him and not properly investigating all viable
defenses. Defendant's bald assertion that first counsel did not receive all
discovery is an insufficient basis for PCR. Nothing in the record supports this
assertion. There is no sound reason to allow an evidentiary hearing given the
A-1682-22 7 lack of an affidavit or certification supporting defendant's contention. See State
v. Marshall, 148 N.J. 89, 158. ("[A]n evidentiary hearing should not be granted
for the purpose of permitting a defendant to investigate whether the State has
failed to deliver discoverable materials to the defendant."). There are no
material facts relevant to defendant's claims that need to be resolved in an
evidentiary heraing. State v. Porter, 216 N.J. 343, 354 (2013). Furthermore,
considering the uncontroverted evidence establishing defendant's guilt––
forensic and confessional––and the generous plea agreement negotiated by
counsel, defendant has not shown how he was prejudiced by the first counsel's
performance.
Turning to defendant's claims that neither first counsel or second counsel
failed to seek a lesser sentence by arguing mitigating factor four and the effects
of mental illness, the PCR judge found defendant's mental condition was known
to the court through the presentence report and there was no indication that had
the argument been raised, it would have impacted his sentence. In support, the
court relied upon State v. Rivera, where our high Court did not apply a
mitigating factor to defendant's sentence, despite "her pre-sentence investigation
[which] revealed prolonged exposure to alcohol and prescription drugs, as well
as a history of treatment at several mental health facilities." 249 N.J. 285, 294
A-1682-22 8 (2021). The PCR judge also found defendant showed no prejudicial impact––
he would not have pled guilty or would have received a lighter sentence––from
either counsel's decision not to argue mitigating factors four and thirteen given
defendant's sentence was thirty years less than the State's offer due to first
counsel's negotiation. We discern no reason to disturb the judge's ruling as
defendant failed to establish a prima facie case of ineffective assistance at
sentencing.
A defense counsel retains and has the obligation to exercise the
"unfettered right to argue in favor of a lesser sentence than that contemplated by
the negotiated plea agreement." State v. Briggs, 349 N.J. Super. 496, 501 (App.
Div. 2002). Indeed, our Supreme Court has that found counsel's "failure to
present mitigating evidence or argue for mitigating factors was ineffective
assistance of counsel—even within the confines of the plea agreement." State
v. Hess, 207 N.J. 123, 154 (2011).
Nonetheless, defendant's plea agreement was, by any objective analysis,
extremely favorable: dismissal of two murder charges and related offenses with
exposure to life sentences; and pleading to an amended charge of two aggravated
manslaughter offenses with concurrent thirty years NERA sentences. Defendant
made no showing the unargued mitigating factors would have reduced his
A-1682-22 9 sentence. There was no evidence supporting defendant's contention he suffered
from any cognitive or psychiatric disability to sustain mitigating factor four
applied. Considering the two manslaughter offenses were committed weeks
apart, the facts do not demonstrate a lack of impulsivity and lack of calculated
behavior that would warrant application of mitigating factor thirteen should
have been applied. See State v. Torres, 313 N.J. Super. 129, 162-64 (App. Div.
1998) (finding no abuse of discretion where sentencing court did not consider
defendant's youth as a mitigating factor because defendant planned and carried
out a "cold-blooded, execution-style murder" of the victim with "meticulous
detail" and "malevolence").
Yet, even if counsel were ineffective for not raising defendant's youth as
a mitigating factor, the argument did not have a reasonable probability of
reducing defendant's sentence. See Strickland, 466 U.S. at 694; Fritz, 105 N.J.
at 52. In sum, defense counsel's failure to raise an unavailing argument that
defendant's sentence should have been lighter does not amount to deficient
performance based on the record before us. See State v. Worlock, 117 N.J. 596,
625 (1990) ("The failure to raise unsuccessful legal arguments does not
constitute ineffective assistance of counsel." (first citing Strickland, 466 U.S. at
688; and then citing Fritz, 105 N.J. at 52)).
A-1682-22 10 To the extent we have not addressed any of defendant's arguments it is
because we have concluded that they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1682-22 11