NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0914-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAMON VEGA, a/k/a TONY RAMON,
Defendant-Appellant.
Submitted May 7, 2025 – Decided July 17, 2025
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-10-2876.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Raymond Vega appeals from the trial court's October 18, 2023
order denying his application for post-conviction relief (PCR). Based on our
review of the record and the applicable legal principles, we affirm.
I.
A.
In 2016, defendant was indicted and initially charged with thirty counts.
Following the dismissal of certain charges, defendant was charged with the
following twenty-two counts: (1) second-degree conspiracy to distribute a
controlled dangerous substance (CDS), N.J.S.A. 2C:5-2; (2) third-degree
possession of CDS (cocaine), N.J.S.A. 2C:35-10(a); (3) first-degree possession
of CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5(a)(l), (b)(l); (4)
third-degree possession of CDS with intent to distribute near school property
(cocaine), N.J.S.A. 2C:35-7(a); (5) second-degree possession of CDS with intent
to distribute near public property (cocaine), N.J.S.A. 2C:35-7.l(a); (6) fourth-
degree possession of CDS (marijuana), N.J.S.A. 2C:35-10(a); (7) first-degree
possession of CDS with intent to distribute (marijuana), N.J.S.A. 2C:35-5(a)(l),
(b)(l0)(b); (8) third-degree possession of CDS with intent to distribute near
school property (marijuana), N.J.S.A. 2C:35-7(a); (9) second-degree possession
of CDS with intent to distribute near public property (marijuana), N.J.S.A.
A-0914-23 2 2C:35-7.l(a); (10) third-degree possession of CDS (ecstasy), N.J.S.A. 2C:35-
10(a); (11) second-degree possession of CDS with intent to distribute (ecstasy),
N.J.S.A. 2C:35-5(a)(l), (b)(l); (12) third-degree possession of CDS with intent
to distribute near school property (ecstasy), N.J.S.A. 2C:35-7(a); (13) second-
degree possession of CDS with intent to distribute near public property
(ecstasy), N.J.S.A. 2C:35-7.l(a); (14) third-degree possession of CDS
(oxycodone), N.J.S.A. 2C:35-10(a); (15) third-degree possession of CDS with
intent to distribute (oxycodone), N.J.S.A. 2C:35-5(a)(l), (b)(l); (16) third-degree
possession of CDS with intent to distribute near school property (oxycodone),
N.J.S.A. 2C:35-7(a); (17) second-degree possession of CDS with intent to
distribute near public property (oxycodone), N.J.S.A. 2C:35-7.l(a); (18) fourth-
degree possession of drug paraphernalia, N.J.S.A. 2C:36-3; (19) second-degree
possession of a firearm while committing a CDS violation (shotgun), N.J.S.A.
2C:39-4.1(a); (20) third-degree possession of a sawed-off shotgun, N.J.S.A.
2C:39-3(b); (21) second-degree possession of a firearm while committing a CDS
violation (double-barrel shotgun), N.J.S.A. 2C:39-4.1(a); and (22) fourth-degree
possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
Defendant was ultimately convicted of counts one through seventeen, and
acquitted on the remaining charges. In August 2018, after appropriate mergers,
A-0914-23 3 defendant was sentenced to an extended thirty-two-year term in prison, with a
sixteen-year period of parole ineligibility on count three. In July 2022, the court
entered a corrected judgment of conviction regarding count three, imposing a
flat thirty-two-year prison sentence. 1
In January 2022, we affirmed defendant's conviction and sentence. State
v. Vega, No. A-0681-18 (App. Div. Jan. 19, 2022) (slip op. at 7). The Supreme
Court subsequently denied defendant's petition for certification. State v. Vega,
251 N.J. 35 (2022).
In June 2022, defendant filed a PCR petition, and in May 2023, counsel
filed a supplemental brief in support of defendant's petition. The PCR court
conducted oral argument, and on October 18, 2023, issued an order and
accompanying opinion denying defendant's PCR petition. It further denied
defendant's request for an evidentiary hearing.
We derive the following facts from the trial record. Following an
investigation conducted by the Essex County Sheriff's Office regarding
1 Defendant's sentence was amended to reflect the removal of the mandatory parole disqualifier, consistent with the Attorney General Law Enforcement Directive 2021-4. See Off. of the Att'y Gen., Law Enf't Directive No. 2021-4, Directive Revising Statewide Guidelines Concerning the Waiver of Mandatory Minimum Sentences in Non-Violent Drug Cases Pursuant to N.J.S.A. 2C:35-12 (Apr. 19, 2021). A-0914-23 4 narcotics-related activities of defendant and co-defendant Adalberto Garcia,
Sergeant Christopher Bozios obtained a search warrant for defendant's residence
in Newark and subsequently participated in the search on August 23, 2016.
Video surveillance was played for the jury, depicting police arriving at the
residence and Sergeant Bozios and another officer running towards a shed
behind the residence, where defendant and Garcia were standing. Defendant
was holding a black plastic bag, which he handed to Garcia, who in turn threw
the bag into the shed. Defendant and Garcia were both arrested. Sergeant
Bozios subsequently located three bags of cocaine on the floor of the shed, along
with the black bag tossed by Garcia, which contained marijuana, cocaine,
oxycodone, and Dibutylone.
Sergeant Bozios testified defendant lived in the basement of the apartment
building. On the third floor, police seized two shotguns, a bullet-proof vest, a
pair of handcuffs, and ammunition. They further located a black shoebox which
contained digital scales, prescription bottles, and rolling paper. Large quantities
of marijuana and a large brick wrapped in aluminum foil filled with powder
cocaine were retrieved from the third-floor apartment refrigerator.
Police also recovered video surveillance from the residence. This
surveillance was played during trial and showed numerous individuals,
A-0914-23 5 including defendant, moving in and out of the driveway and shed in the days
leading up to the execution of the search warrant. Sergeant Bozios did not
observe defendant entering the third floor of the residence in the videos he
reviewed.
Forensic scientist John Yang, an expert for the State, testified the State
seized twenty-nine grams of oxycodone, 2,273 grams (or five pounds) of
marijuana, 996 grams (or thirty-five ounces) of cocaine, and 997 grams of
Dibutylone. Detective Rashaan Johnson of the Essex County Prosecutor's
Office testified as an expert in narcotics distribution. He testified regarding
various forms of narcotics and the packaging and distribution of narcotics.
B.
The self-represented PCR submission and counselled brief raised
numerous claims. We address only those claims relevant to defendant's appeal.
Defendant argued his trial counsel was ineffective for failing to
investigate the legal occupancy or tenancy of the third floor, that appellate
counsel failed to raise an issue on direct appeal regarding a jury instruction as
to the occupancy of the third floor, and that trial counsel was ineffective for
failing to argue against aggravating factor nine—the need for deterrence—at
sentencing.
A-0914-23 6 The PCR court first addressed defendant's argument that trial counsel
failed to investigate and call certain witnesses regarding who owned the
premises and who the registered tenants were for each apartment. The PCR
court was unpersuaded by the argument because it noted, "defendant was
acquitted of all charges related to possession of the CDS, paraphernalia, and
firearms located in the third-floor apartment. Defendant was found guilty for
[the] CDS in the shed and not the CDS in the third-floor apartment." The PCR
court further explained, "[t]his shows the jury did not find beyond a reasonable
doubt [d]efendant possessed any items in the third-floor apartment." The court
concluded the argument was without merit because trial counsel succeeded in
raising a reasonable doubt.
Regarding the jury instruction issue, during jury deliberations, the jury
asked the court, "[i]s there any proof that [defendant] ha[d] any legal occupancy
of the third floor?" Trial counsel argued the court should not merely reinstruct
the jury as to the definition of possession, but did not clearly articulate what the
instruction should be. The court ultimately instructed the jury that its duty as
the finder of fact was to determine whether defendant possessed the items on the
third floor based on the evidence presented in the case. The PCR court noted
that because defendant was found not guilty of the charges regarding any items
A-0914-23 7 found in the third-floor apartment, "[a]ppellate counsels' failure to raise this
issue was not unreasonable."
The court next addressed defendant's argument that trial counsel was
ineffective for failing to argue against aggravating factor nine at the sentencing
hearing. The court noted trial counsel "argued multiple possible mitigating
factors" and "reasonably argued against the State's proffered aggravating
factors." The court concluded, "defendant has failed to establish any reasonable
likelihood the sentencing court would have found a mitigating factor, not found,
or placed lesser weight on any aggravating factors, or that the court would have
sentenced [d]efendant towards the low-end of the extended term range." In
short, the court noted it was unconvinced defendant's arguments would have
impacted the outcome of the sentencing.
The PCR court concluded, "because [defendant] has failed to establish a
prima facie showing of ineffective assistance of counsel[,] there does not exist
a 'reasonable likelihood' of success under the Strickland/Fritz2 test.
Accordingly, [defendant] [wa]s not entitled to an evidentiary hearing."
2 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). A-0914-23 8 II.
Defendant raises the following points on appeal:
POINT I
REVERSAL IS REQUIRED BECAUSE THE PCR COURT'S FINDING THAT THE JURY ACQUITTED THE DEFENDANT OF THE CONTRABAND LOCATED IN THE THIRD-FLOOR APARTMENT WAS IN ERROR.
POINT II
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHERE APPELLATE COUNSEL FAILED TO RAISE ON DIRECT APPEAL THE ISSUE CONCERNING JURY INSTRUCTIONS.
POINT III
THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE []HE ESTABLISHED A PRIMA FACIE CASE OF [INEFFECTIVE ASSISTANCE OF COUNSEL] DUE TO TRIAL COUNSEL'S FAILURE TO ARGUE AGAINST AN AGGRAVATING FACTOR, NAMELY THE NEED FOR SPECIFIC DETERRENCE.
We review a PCR court's conclusions of law de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). We must affirm the PCR court's factual findings unless
they are not supported by "sufficient credible evidence in the record." Id. at
540. A judge's decision to deny a PCR petition without an evidentiary hearing
A-0914-23 9 is reviewed under an abuse of discretion standard; however, we may review the
factual inferences and legal conclusions drawn by the court de novo. State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall,
148 N.J. 89, 157-58 (1997)); State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment"; and (2) "the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 58 (adopting the
Strickland two-prong test in New Jersey). A defendant must establish both
prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350
(2012).
As to the first prong, the Constitution requires "reasonably effective
assistance," so an attorney's performance may not be attacked unless they did
not act "within the range of competence demanded of attorneys in criminal
cases," and instead "fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 687-88 (quoting McMann v. Richardson, 397 U.S. 759,
771 (1970)) (internal quotation marks omitted). When assessing the first
A-0914-23 10 Strickland prong, "[j]udicial scrutiny of counsel's performance must be highly
deferential," and "every effort [must] be made to eliminate the distorting effects
of hindsight." Id. at 689. "Merely because a trial strategy fails does not mean
that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999) (citing
State v. Davis, 116 N.J. 341, 357 (1989)). Thus, a reviewing court "must indulge
a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance," and "the defendant must overcome the
presumption that, under the circumstances, the challenged action [by counsel]
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Further, the court must not focus
on the defendant's dissatisfaction with "counsel's exercise of judgment during
the trial . . . . while ignoring the totality of counsel's performance in the context
of the State's evidence of [the] defendant's guilt." State v. Castagna, 187 N.J.
293, 314 (2006).
For the second prong of the Strickland test, "the defendant must show that
the deficient performance prejudiced the defense" because "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." 466 U.S. at 687, 694. This means
"counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
A-0914-23 11 whose result is reliable." Id. at 687. "[A] court need not determine whether
counsel's performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies." Marshall, 148 N.J. at 261
(quoting Strickland, 466 U.S. at 697). "If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed." Strickland, 466 U.S.
at 697.
A petitioner is not automatically entitled to an evidentiary hearing merely
by filing for PCR. State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides that
defendants are entitled to evidentiary hearings on PCR petitions only if: (1) they
establish "a prima facie case in support of [PCR]," (2) "there are material issues
of disputed fact that cannot be resolved by reference to the existing record," and
(3) "an evidentiary hearing is necessary to resolve the claims for relief." In order
to establish a prima facie case, a "defendant must demonstrate a reasonable
likelihood that his or her claim, viewing the facts alleged in the light most
favorable to the defendant, will ultimately succeed on the merits." Ibid.; see
also Marshall, 148 N.J. at 158. Thus, to obtain an evidentiary hearing on a PCR
petition based upon claims of ineffective assistance of counsel, a defendant must
A-0914-23 12 make a showing of both deficient performance and actual prejudice. State v.
Preciose, 129 N.J. 451, 463-64 (1992).
Conversely, Rule 3:22-10(e) states
[a] court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court's analysis of the defendant's entitlement to [PCR];
(2) if the defendant's allegations are too vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success as required by R[ule] 3:22-10(b).
Thus, "in order to establish a prima facie claim, a petitioner must do more than
make bald assertions that he was denied the effective assistance of counsel."
Cummings, 321 N.J. Super. at 170 (italicization omitted). "[R]ather, the
defendant 'must allege facts sufficient to demonstrate counsel's alleged
substandard performance.'" State v. Jones, 219 N.J. 298, 312 (2014) (quoting
Porter, 216 N.J. at 355).
A-0914-23 13 A.
Defendant argues the PCR court incorrectly determined defendant's
argument that trial counsel failed to ascertain or call as witnesses the owners or
registered tenants of the third floor was "baseless when the jury acquitted him
of the contraband located therein." Defendant notes there was "distribution
weight of cocaine located in the third-floor apartment" and there was
"reasonable probability that this issue could have affected the outcome of the
case," and defendant had a right to present this evidence at a hearing to support
his position. Although trial counsel's strategy at trial was that defendant did not
rent or occupy the third-floor apartment, defendant contends "reasonably
competent trial counsel would [have] utilize[d] an investigator to pursue this
information to support his claim." Defendant notes the jury verdict sheet does
not differentiate between the drugs located in the third-floor apartment and those
found in the shed.
Defendant argues that by not performing an investigation and calling "key
witnesses" regarding who owned or rented the third-floor apartment, he was
deprived of "crucial evidence showing that he had no connection to the third-
floor apartment," contrary to "the prosecution's claim that he possessed cocaine
found in the apartment."
A-0914-23 14 Defense counsel at trial argued in closing that defendant was never seen
on the third floor and had no connection to the third floor. Counsel also pointed
out that one of the officers had mistakenly indicated that defendant was seen in
the video on the third floor. He noted the officer later conceded he made a
mistake in one of his reports. Defense counsel also argued the contraband on
the third floor was "just not" defendant's, stating "[i]f the State is able to put
together some information as to [defendant] being on the third floor, . . . we're
waiting for it. Because we didn't hear it in testimony." Co-defendant's counsel
also emphasized there was no indication defendant was ever seen on the third
floor.
Although we affirm the PCR court's order, we do so for a different reason
than those stated by the court. See Hayes v. Delamotte, 231 N.J. 373, 387 (2018)
(applying the well-settled principle "that appeals are taken from orders . . . and
not from opinions," and that orders may be affirmed for reasons different from
those set forth by the trial court (quoting Do-Wop Corp. v. City of Rahway, 168
N.J. 191, 199 (2001))). We part company with the trial court regarding its
rationale that the jury did not find that defendant possessed any items in the
third-floor apartment and was only "found guilty for [the] CDS in the shed and
not the CDS in the third-floor apartment." We conclude a court cannot discern
A-0914-23 15 from the jury verdict alone, in the absence of a specific question, how the jury
considered the evidence regarding the cocaine found on the third floor with
respect to defendant's conviction. The jury was not asked to make a specific
determination as to only the cocaine in the shed alone or from the third floor. It
is not the trial court's or this court's province to speculate what the jury
considered in reaching its verdict.
"An ineffective assistance of counsel claim may occur when counsel fails
to conduct an adequate pre-trial investigation." Porter, 216 N.J. at 352. This is
because "counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." State v.
Chew, 179 N.J. 186, 217 (2004) (quoting State v. Savage, 120 N.J. 594, 618
(1990)).
A PCR petitioner asserting his trial attorney inadequately investigated
potential witnesses "must do more than make bald assertions"; rather, he is
required to assert facts regarding what "an investigation would have revealed,
supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification." Cummings, 321 N.J. Super.
at 170. "Even a suspicious or questionable affidavit supporting a PCR petition
A-0914-23 16 'must be tested for credibility and cannot be summarily rejected.'" Porter, 216
N.J. at 355 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)).
Defendant has not presented facts regarding what an investigation would
have revealed. He does not identify what witnesses should have been
interviewed and what those witnesses would have testified about had they been
called. No affidavits or certifications were submitted in support of defendant's
PCR application identifying the favorable testimony that would have been
revealed had certain witnesses been interviewed. These bald, unsupported,
conclusory allegations do not provide a basis for PCR.
Defendant asserts appellate counsel was ineffective for failing "to raise
the issue of counsel's request for a more detailed jury instruction" regarding "the
jury's question about proof of defendant's legal occupancy of the third -floor
apartment." He notes the trial court determined this issue was essentially moot
because the jury acquitted defendant of possession of any items.
Claims of ineffective assistance of appellate counsel must assert that
errors existed at the trial level that could have been ascertained by appellate
counsel's review of the record, but were never raised as issues on appeal. See
State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on
A-0914-23 17 ineffective assistance of appellate counsel, it must be established that appellate
counsel failed to raise an issue that would have constituted reversible error on
direct appeal. See id. at 361. Appellate counsel will not be found ineffective if
counsel's failure to appeal the issue could not have prejudiced the defendant
because the appellate court would have found, either, that no error had occurred
or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State
v. Harris, 181 N.J. 391, 499 (2004).
After receiving the jury question, the trial court engaged in the following
colloquy with counsel:
THE COURT: All right, this is the note. "Is there any proof that [defendant] has any legal occupancy of the third floor?"; that's the question.
[First Assistant Prosecutor]: The only evidence is what's in the case, Judge and I think that's the question. I don't think we can answer that question for them, it's what they saw in the evidence.
[Second Assistant Prosecutor]: Agreed.
....
[THE COURT:] All right, . . . we as the [c]ourt or the litigants, I don't believe can make a determination to the jury of what evidence there is. That's their job. What we can do is direct [their] attention to the operable legal definition which is possession.
[First Assistant Prosecutor]: I agree.
A-0914-23 18 THE COURT: Counsel?
[First Assistant Prosecutor]: Judge, I would simply say it's up to your memory and your application of the relevant law. That's -- I would just put it that way.
[Counsel for co-defendant Garcia]: Judge, I agree. I think . . . the applicable question is possession; you're right. And if you would re-instruct them on possession or just say "you've been instructed to as what the definition of possession is.["] They have the charge, they don't need an instruction.
[First Assistant Prosecutor]: "You have been instructed as to what the definition of possession is" is fine for me, Judge.
THE COURT: [Defendant's counsel]?
[Defendant's counsel]: I agree.
THE COURT: All right. All right we are going to bring up the two alternates. I intend to do that, let's bring up the two alternates.
After initially agreeing with the court's suggestion as to how to answer the
question, defense trial counsel raised an issue:
THE COURT: All right, we're back on the record. [Defendant's counsel]?
[Defendant's counsel]: Yeah, my problem is that, that's the jurors province. As lawyers, you know, we can say that's possession, but they're using the word legal occupancy. We don't know where the[ir] mind-set is. It's their duty to . . . determine the facts and we have
A-0914-23 19 given you the law; okay, and then let them figure it out, they're smart people.
THE COURT: All right, what does the free-floating concept . . . of legal occupancy have in this case. Just the concept of legal occupancy, . . . what significance does that have?
[Defendant's counsel]: The concept of legal occupancy would go toward ownership, would go for control and custody which the Prosecutor is arguing --
THE COURT: Which goes to possession, that's the only operative legal definition that I think reasonably . . . has any logical relevance to it. . . . [I]t is the question of the third floor and so they're looking for some guidance. We are not telling them what the answer is, we can't . . . that's your job. All right, but in performing your duty to apply to facts as you find them to be to the law has been instructed, . . . the [c]ourt has given you a definition of possession and you should apply that definition in conjunction with all the other instructions I gave you.
What . . . they're looking - [defendant's counsel], they're looking to the [c]ourt and to [c]ounsel for some help to do their job. And I don't think we are tilting it one way or the other by responding in that way because that's the only nexus to what legal occupancy means. Who cares who occupied it, it only matters who possessed it at the time of the charge, so if that's your objection, I'm strongly inclined to overrule it.
[Defendant's counsel]: Overrule it.
THE COURT: What does the State think?
A-0914-23 20 [First Assistant Prosecutor]: Judge, I agree with Your Honor in this regard. That is the only question -- that is what this question[] is begging, is what do we deal with the third floor and the only question that is relevant in this consideration is whether or not -- not whether they had a legal lease to the building or the property but whether they had possession of it and therefor the items inside. That's the only issue that's properly before them.
[Second Assistant Prosecutor]: I think [defendant's counsel's] concern[] is that the [c]ourt not say something to the effect of "don't worry about legal occupancy" and the [c]ourt's not going to do that. They're just going to say look at the definition of possession and apply it. That's all he's going to do.
THE COURT: All right, [defendant's counsel] put his objection on the record, . . . I'm inclined to instruct consistently what I indicated to counsel, preserved your objection.
The court then proceeded to give the jury the following response to its question:
THE COURT: All right, the [c]ourt has received a correspondence from the jury, it is marked C-11, received today 12-15-17 at about 12:20. It reads as follows, "Is there any proof that Mr. Vega has any legal occupancy of the third floor?"
Okay. I'll respond to this in a couple of levels. One; you begin "Is there any proof," [t]hat's your job, you're the finders of the facts, you determine what the proofs are -- what the proofs are that exist or don't exist so that's sort of like that google question, don't ask that, all right, so what the proofs are you determine ladies and gentlemen what the proofs are.
A-0914-23 21 You refer to a legal occupancy. . . . [Y]our duty as jurors as I've told you from the very beginning is to find the facts as you determine them to be -- you find what the proofs are and apply it to the law in the structure that I gave to the . . . jury charges.
[I]n the jury charge the [c]ourt gave you the definition of possession. You will apply . . . it to the facts or absence of the facts to determine the existence of that element of possession. You are to view that, based upon all the evidence and that charge of possession -- review of all the charges that I gave you in the case.
That's my response to your inquiry.
Defendant does not specifically articulate what further instruction the court
should have given. Rather, he asserts the court should have asked for
"clarification of the question because it could not be determined what specific
answer should have been given."
We determine the court appropriately answered the question posed by the
jury. If the jury needed further clarification, it could have asked another
question. Moreover, defendant does not dispute that the court properly
instructed the jury regarding constructive possession in the court's jury charge.
Accordingly, we conclude appellate counsel did not render ineffective assistance
because we determine that even if this issue was raised on appeal, it would not
A-0914-23 22 have constituted a reversible error. Therefore, the failure to argue this issue on
appeal could not have prejudiced defendant.
C.
Defendant next argues trial counsel was ineffective for failing to argue
against aggravating factor nine, the need to deter further criminal activity, at the
sentencing hearing. N.J.S.A. 2C:44-1(a)(9). He argues that counsel should have
"acknowledged that while the jury had spoken," and defendant was bound by
the verdict, he had a pending trial in the same county for another first-degree
charge of distributing CDS that involved a kilogram of cocaine, and he was
asserting his right to remain silent. He claims he could not accept responsibility
at the time of sentencing without potentially impacting his defense in the other
case.
We affirm substantially for the reasons set forth by the PCR court. The
"failure to present mitigating evidence or argue for mitigating factors " may
support a claim of ineffective assistance of counsel. State v. Hess, 207 N.J. 123,
154 (2011). However, mitigating and aggravating factors must be supported by
credible evidence in the record. State v. Dalziel, 182 N.J. 494, 505 (2005).
Deterrence remains "one of the most important factors in sentencing," State v.
Megargel, 143 N.J. 484, 501 (1996), and the need for deterrence directly
A-0914-23 23 correlates with the nature of the offense, State v. Fuentes, 217 N.J. 57, 79 (2014).
Given the serious nature of defendant's charges, it was appropriate for the trial
court to consider this factor. We are further satisfied that even if trial counsel
had argued against this factor, there is no reason to suggest the trial court would
not have still found that it applied under the facts of this case. Moreover, even
if the court did not find aggravating factor nine, it still would have found factors
three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another
offense, and six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal
record and seriousness of his convicted offenses, and that these factors would
have preponderated over the non-existing mitigating factors. Therefore, it
would not have impacted the outcome of this matter under prong two of
Strickland.
To the extent we have not addressed any other arguments raised by
defendant, we are satisfied they are without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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