STATE OF NEW JERSEY VS. ALEXANDER LARA (11-04-0912, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 9, 2021
• Docket: A-0616-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0616-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER LARA, a/k/a ALEXANDER BELEN and ALEXANDER BELEN LARA,

Defendant-Appellant. __________________________

Submitted February 22, 2021 – Decided March 9, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-0912.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs).

Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Maura M. Sullivan, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant appeals from a July 7, 2017 order denying his petition for post-

conviction relief (PCR) without an evidentiary hearing. Defendant maintains

his trial, appellate, and PCR counsel rendered ineffective assistance. Judge

Gwendolyn Blue entered the order under review and rendered a comprehensive

oral opinion.

A jury found defendant guilty of two counts of first-degree armed-

robbery, N.J.S.A. 2C:15-1(a)(1), (2) (counts five and nine); second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); second-

degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a), (d)

(count seven); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(4) (counts eight and ten); third-degree terroristic threats, N.J.S.A. 2C:12-

3(b) (count eleven); and second-degree conspiracy to commit robbery, N.J.S.A.

2C:5-2, 15-1(a)(1), (2) (count twelve). On April 12, 2013, the trial judge merged

counts seven, eight, ten, and eleven. The judge sentenced defendant to an

aggregate twenty-four years' incarceration subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2. We affirmed defendant's sentence but remanded to merge

the conspiracy conviction with the robbery counts, State v. Lara, No. A-1158-

13. (App. Div. Apr. 12, 2016), and the Supreme Court denied certification, State

A-0616-18 2 v. Lara, 227 N.J. 112 (2016). In September 2016, defendant filed a petition for

PCR, which Judge Blue denied without an evidentiary hearing. While his appeal

was pending, defendant moved for a limited remand to consider his pro se

arguments. On March 16, 2020, we granted the motion, directed that remand

proceedings occur within ninety days, and retained jurisdiction. On June 12,

2020, following a hearing for the purpose of the limited remand, Judge Blue

entered another order denying defendant's petition for PCR.

On appeal, defendant raises the following arguments for this court's

consideration:

POINT I

AS [DEFENDANT] HAS ESTABLISHED A PRIMA FACIE [CLAIM] OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HIS ATTORNEY FAILED TO ASK THE TRIAL COURT TO VOIR DIRE A JUROR WHO HAD LEFT DELIBERATIONS, THE PCR [JUDGE] ERRED WHEN [SHE] DENIED HIS PETITION FOR [PCR]. (Raised below).

POINT II

AS THERE WERE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY HEARING WAS REQUIRED. (Raised below).

POINT III

A-0616-18 3 AS THE PCR COUNSEL FAILED TO BRIEF AND THE PCR [JUDGE] FAILED TO CONSIDER POINTS I AND III RAISED IN [DEFENDANT]'S PRO SE PCR PETITION, A REMAND IS REQUIRED TO ADJUDICATE THESE TWO CLAIMS. (Not raised below).

We affirm substantially for the reasons set forth in Judge Blue's oral

opinion. We add the following remarks.

When a PCR judge does not hold an evidentiary hearing, this court's

standard of review is de novo as to both the factual inferences drawn by the

judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.

Super. 285, 294 (App. Div. 2016).

It is well-settled that PCR proceedings are not a substitute for a direct

appeal. R. 3:22-3; State v. Afanador, 151 N.J. 41, 50 (1997). "Ordinarily, PCR

enables a defendant to challenge the legality of a sentence or final judgment of

conviction by presenting contentions that could not have been raised on direct

appeal." Afanador, 151 N.J. at 49 (citing State v. McQuaid, 147 N.J. 464, 482-

83 (1997)). "PCR cannot be used to circumvent issues that could have, but were

not raised on appeal, unless the circumstances fall within one of three

exceptions." Id. at 50 (citing R. 3:22-4). Those exceptions are: (1) the ground

not previously asserted could not have been reasonably raised in any prior

proceeding; (2) enforcement of the bar, including one for ineffective assistance,

A-0616-18 4 would result in a fundamental injustice; or (3) denial of relief would be contrary

to a new rule of constitutional law under the United States or State of New Jersey

constitutions. R. 3:22-4(a)(1)-(3).

Pursuant to Rule 3:22-5, "[a] prior adjudication upon the merits of any

ground for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding" or "in any appeal taken from

such proceedings." "PCR will be precluded 'only if the issue is identical or

substantially equivalent' to the issue already adjudicated on the merits."

Afanador, 151 N.J. at 51 (quoting McQuaid, 147 N.J. at 484).

"The standard for an ineffective assistance of counsel claim is . . . the

same under both the United States and New Jersey Constitutions." State v.

Gideon, 244 N.J. 538, 550 (2021). To establish a prima facie claim of

ineffective assistance of counsel, a defendant must satisfy the two-pronged test

enumerated in Strickland v. Washington, 466 U.S. 668, 687 (1984), which our

Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the

first Strickland/Fritz prong, a defendant must establish that his counsel "made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The

A-0616-18 5 defendant must rebut the "strong presumption that counsel's conduct [fell]

within the wide range of reasonable professional assistance[.]" Id. at 689.

To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for the counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine the outcome." Id. at 694. "[I]f counsel's performance

has been so deficient as to create a reasonable probability that these deficiencies

materially contributed to defendant's conviction, the constitutional right will

have been violated." Fritz, 105 N.J. at 58.

For those claims that are properly presented in a PCR proceeding, Rule

3:22-10 recognizes the judge's discretion to conduct an evidentiary hearing.

State v. Preciose, 129 N.J. 451, 462 (1992). A defendant is only entitled to an

evidentiary hearing when he "'has presented a prima facie [claim] in support of

[PCR],'" meaning that a defendant must demonstrate "a reasonable likelihood

that his . . . claim will ultimately succeed on the merits." State v. Marshall, 148

N.J. 89, 158 (1997) (quoting Preciose, 129 N.J. at 463). A defendant must "do

more than make bald assertions that he was denied the effective assistance of

A-0616-18 6 counsel" to establish a prima facie claim entitling him to an evidentiary hearing.

State v. Cummings, 321 N.J. Super. 154, 170. (App. Div. 1999).

We reject defendant's argument that his trial counsel rendered ineffective

assistance. In his PCR petition, defendant claimed trial counsel was ineffective

for failing to request a voir dire of the deliberating juror who exited the jury

room, who "showed to be under extreme pressure by exiting," and said she could

not take it anymore. Defendant raised a substantively equivalent claim on direct

appeal, where he argued the trial judge erred when she responded to a Sheriff's

Officer's report that one of the jurors had run out of the jury room, said "I can't

take it anymore," and went back into the jury room. On that same claim, we

found that the trial judge had insufficient information to mandate such an

individual voir dire, and "[s]ignificantly, the [trial judge] gave each party the

opportunity to request a different course of action" but "[n]either party suggested

any alternative." Lara, (slip op. at 27). We concluded that there was no merit

to defendant's assertion of error by trial counsel, and, further, that the trial judge

did not err by failing to take a different course of action in response to the

Sheriff's Officer's report. Id. at 28. Thus, as the PCR judge emphasized,

defendant was doing no more than seeking "to raise this same issue disguised as

A-0616-18 7 an ineffective assistance of counsel claim," which Rule 3:22-4 precludes. As

such, defendant's claim is procedurally barred.

Even if defendant's claim was not barred, which is not the case, it is

meritless. Defendant presented no evidence showing how the comment tainted

the other jurors and submitted only a blanket statement of ineffective assistance

unsupported by any affidavits or certifications. Because defendant failed to

establish a prima facie claim of ineffective assistance as to this issue, the PCR

judge properly denied an evidentiary hearing.

We also reject defendant's argument that, because PCR counsel failed to

brief and the PCR judge failed to consider two points of his pro se petition, a

remand is required to adjudicate those claims. Those claims were: that trial

counsel's alleged failure to investigate a witness, Perry Craig (Craig), denied

defendant his right to present evidence of third-party guilt; and that trial and

appellate counsel were ineffective for failing to raise the allegedly erroneous

aggravated assault elements on the verdict sheet.

Counsel has a duty to make reasonable investigations or make a

reasonable decision which makes a particular investigation unnecessary.

Strickland, 466 U.S. at 691. Additionally, when a defendant's ineffective

assistance of counsel claim is based on a failure to investigate, he must assert

A-0616-18 8 the facts that would have been revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant, or a person making the

certification. State v. Porter, 216 N.J. 341, 353 (2013) (quoting Cummings, 321

N.J. Super. at 170).

As to defendant's claim pertaining to Craig, the PCR judge properly found

that defendant made only bald assertions that trial counsel failed to investigate

Craig's statement. The record makes clear that trial counsel adequately

investigated Craig's statement and presented a reasonable defense at trial. The

PCR judge stated that "counsel clearly sought in the cross-examination, as well

as in his summation to create a reasonable doubt through the use of Craig's own

testimony, while at the same time challenging the credibility of Craig's

testimony." Defendant did not submit in the affidavits or certifications what the

investigation would have discovered and failed to set forth any specific theory

of third-party guilt. Defendant therefore failed to show how the outcome would

have been different had counsel investigated further.

To the extent we have not otherwise specifically addressed any of

defendant's remaining arguments, we conclude they are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-0616-18 9