STATE OF NEW JERSEY VS. JORGE BULTRON (13-03-0588, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 6, 2020
• Docket: A-0540-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0540-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE BULTRON,

Defendant-Appellant. ______________________________

Submitted November 14, 2019 – Decided February 6, 2020

Before Judges Whipple and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-03-0588.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Alanna M. Jereb, Assistant Prosecutor, on the brief).

PER CURIAM Defendant, Jorge Bultron appeals from the trial court's May 4, 2018 order

denying his post-conviction relief (PCR) petition without an evidentiary hearing

and his motion for a new trial. We affirm.

Defendant raises the following points on appeal:

POINT I: DEFENDANT IS ENTITLED TO POST- CONVICTION RELIEF AND HIS CONVICTIONS MUST BE VACATED BASED UPON NEWLY DISCOVERED EVIDENCE.

POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL ENTITLING HIM TO [PCR] OR AN EVIDENTIARY HEARING ON THE ISSUE OF FAILURE OF COUNSEL [TO] FILE A MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT.

A. APPLICABLE LAW.

B. COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSER.

C. COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

A-0540-18T4 2 The facts surrounding the charged offenses are summarized in the direct

appeal, State v. Bultron, A-1396-14 (App. Div. December 15, 2016) (slip op. 1-

5), and we need not fully repeat them here. We focus our attention on

defendant's allegations in his PCR petition concerning the conduct of his trial

counsel and the allegations pertaining to newly discovered evidence in support

of his motion for a new trial.

On October 04, 2012, Officer Gregory Wojtowicz of the Jersey City

Police Department learned from a reliable confidential informant that Darrell

Priester would be purchasing drugs. Priester was stopped and arrested based

upon outstanding warrants. While Priester was being taken into custody, the

confidential informant told Wojtowicz that a Hispanic man named Jorge was on

his way to deliver a quantity of drugs to Priester near the High School.

Wojtowicz relayed the information to Officer Sheridan, who was already in the

area.

Within minutes of receiving the information, Sheridan observed a

Hispanic man, later identified as defendant, carrying a white plastic bag walking

on Brunswick Street with an unidentified black man. Sheridan watched the

individuals engage in conversation, and saw defendant show the black man what

appeared to be a brick of heroin. Based on his observations, Sheridan radioed

A-0540-18T4 3 the location of defendant and the other individual. Officers responded to the

scene. When an officer approached defendant, defendant threw the brick of

heroin to the ground and released the plastic bag. The officers retrieved both

items, which were later confirmed to be approximately 2500 glassine bags of

heroin. Defendant was arrested and Sheridan secured the other unidentified

man, who was later released. Defendant's motion for a new trial concerns the

identity of the unidentified man and the identity of the confidential informant.

Sheridan testified he ran a check to determine whether the unidentified

man had any outstanding warrants, however the record about the results is

unclear. Neither the unidentified individual nor the confidential informant were

named before trial.

On or around February 4, 2014, defendant filed a pro se motion to disclose

the identity of the confidential informant. On February 6, 2014, the court

forwarded the motion to his assigned counsel. The motion was never litigated.

Defendant's first trial resulted in a deadlocked jury.

In February 2014, defendant filed an emergent motion seeking, among

other things, an order compelling the State to produce discovery. The motion

judge granted the request for discovery. On May 21, 2014, defendant filed a

motion to renew his suppression motion, which the judge denied. On May 27

A-0540-18T4 4 and May 28, 2014, a second jury trial was held, and the jury returned a guilty

verdict on all counts. Defendant appealed his convictions and we affirmed.

In May 2017, defendant filed a pro se petition for PCR. Appointed

counsel thereafter filed a subsequent brief and a motion for a new trial based on

newly discovered evidence. The newly discovered evidence was a report

describing Investigator Dalton Bramwell's October 2016 interview of Priester in

prison, wherein Priester described how he concluded that the unidentified black

male observed with defendant was Priester's brother-in-law, Benny Drayton,

now deceased.

In February 2018, the trial court heard argument on defendant's petition

and motion for a new trial. In May 2018, the PCR court issued a written opinion

denying the defendant's motion for a new trial and petition for PCR. The PCR

court found the evidence proffered by defendant did not constitute reliable

newly discovered evidence, would not have invalidated other independent

evidence sufficient to sustain defendant's conviction, and she did not find

Priester's assertions credible. The PCR court also concluded defendant did not

establish a prima facie case of ineffective assistance of counsel. This appeal

followed.

I.

A-0540-18T4 5 Defendant's chief argument is that he is entitled to a new trial because

newly discovered evidence, the identity of the confidential informant,

demonstrates the police gave false testimony in the suppression hearing.

Defendant asserts had he been made aware of the identity of the confidential

informant the result of his trial would have been different.

The denial of a motion for a new trial will only be reversed on appeal if

there has been a clear abuse of discretion by the trial judge. State v. Puchalski,

45 N.J. 97, 107 (1965) (citation omitted). In State v. Carter, 85 N.J. 300, 314

(1981), the Supreme Court "repeated the well-established standard for granting

a new trial based on newly discovered evidence." State v. Nash, 212 N.J. 518,

549 (2013). To satisfy the standard for a new trial based on newly discovered

evidence, defendant must demonstrate the evidence is "1) material, and not

'merely' cumulative, impeaching, or contradictory; 2) that the evidence was

discovered after completion of the trial and was 'not discoverable by reasonable

diligence beforehand'; and 3) that the evidence 'would probably change the jury's

verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004).

All three prongs of the test must be established before a defendant is granted the

relief of a new trial. Ibid.

A-0540-18T4 6 "Newly discovered evidence must be reviewed with a certain degree of

circumspection to ensure that it is not the product of fabrication, and, if credible

and material, is of sufficient weight that it would probably alter the outcom e of

the verdict in a new trial." Id. at 187-88.

Here, nothing in the record warrants disturbing the PCR court's

determination that Priester's representation was not credible. As the court noted,

Priester's representation was based primarily on "connected dots," the

representation occurred more than five years after the events leading to the

arrest, and defendant brings forth no evidence corroborating this assertion.

Further, Priester's assertion directly contradicts Wojtowicz's testimony that he

knew the confidential informant and that the unidentified individual was not the

informant.

Moreover, even if we were to assume the unidentified individual and the

informant were the same person, this evidence is collateral and not likely to

change both the judge's determination in the suppression motion and the jury

verdict. In the direct appeal, Bultron, slip op. at 10-11, we determined there was

independent evidence sufficient to sustain defendant's convictions, specifically,

Sheridan's testimony that he personally observed defendant holding an object,

which was later identified to be a brick of heroin, and displaying it to the

A-0540-18T4 7 unidentified individual. Since defendant has failed to show the evidence would

probably change the jury verdict, the PCR court did not err in denying the motion

for a new trial.

II.

Defendant argues he received ineffective assistance during the criminal

proceedings because his counsel did not move for disclosure of the identity of

the confidential informant. Defendant contends this rendered him unable to call

the informant as a witness and ultimately, deprived him of his constitutional

right to confront his accuser and present a viable third-party liability defense.

Defendant further asserts his counsel was ineffective for failing to file a motion

of acquittal after the State's case.

To establish a claim for ineffective assistance of counsel, a defendant must

satisfy a two-part test: 1) defendant must show that his attorney's performance

was deficient; and 2) the "deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105

N.J. 42, 49-53 (1987) (adopting the standard in Strickland). In order to satisfy

this burden, the defendant "must do more than make bald assertions that he [or

she] was denied the effective assistance of counsel. He [or she] must allege

facts sufficient to demonstrate counsel's alleged substandard performance."

A-0540-18T4 8 State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "Judicial

scrutiny of counsel's performance must be highly deferential[,]" because there

are many ways to provide effective assistance. Strickland, 466 U.S. at 689. In

making a determination, courts must assess whether the attorney acted

reasonably under prevailing professional norms. State v. Gaitan, 209 N.J. 339,

350 (2012) (citations omitted). Under both prongs of Strickland, a defendant

carries the burden of proving their right to relief by a preponderance of evidence.

Ibid.

We defer to the PCR court's factual findings made after an evidentiary

hearing. See State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citations

omitted). However, when the PCR court chooses not to conduct an evidentiary

hearing, we review the factual inferences made by the PCR court de novo. We

also review de novo the court's conclusions of law. Ibid.

Here the PCR judge rejected defendant's assertion that his counsel failed

to adequately represent him because he failed to investigate the circumstances

of the unknown male as meritless. Defendant's trial counsel filed multiple

motions, including a motion to compel discovery to "find out who th e

unidentified black male was." After reviewing the record, the court found

counsel zealously argued that he needed the information to represent his client;

A-0540-18T4 9 however, despite his best efforts the trial judge determined defendant was not

being prejudiced by the lack of discovery. The court also acknowledged that

counsel even renewed his motion to suppress since the officers failed to identify

the unidentified individual. We agree with the judge's conclusions.

The identity of a confidential informant is privileged information that the

State need not disclose except under limited circumstances. N.J.R.E. 516; State

v. Sessoms, 413 N.J. Super. 338, 343 (App. Div. 2010). The State may be

required to disclose an informant's identity if "the judge finds that (a) the identity

of the person furnishing the information has already been otherwise disclosed

or (b) disclosure of his identity is essential to assure a fair determination of the

issues." N.J.R.E. 516.

In assessing whether a confidential informant's identity should be

revealed, the court's decision typically hinges on the role of the informant.

Compare State v. Boone, 125 N.J. Super. 112, 113-14 (App. Div. 1973) (finding

the State was privileged to protect the identity of an informant where a defendant

was charged with possession, a crime which the informant did not participate.);

and State v. Ifante, 116 N.J. Super. 252, 259 (App. Div. 1971) (upholding the

denial of defendant's motion for disclosure as "[t]he informant's participation

was not in the criminal activity for which defendant was convicted but rather in

A-0540-18T4 10 the investigation leading up to surveillance."); with State v. Roundtree, 118 N.J.

Super. 22, 32 (App. Div. 1971) (finding an informant's identity should have been

revealed as the informant was an active participant in the transaction and was a

material witness on the issue of defendant's guilt).

In State v. Milligan, 71 N.J. 373, 377-78 (1976), an informant introduced

an undercover narcotic agent to the defendant, who was charged with the

unlawful possession and distribution of heroin. The informant accompanied the

agent and defendant to the place where the heroin sale was transacted but did

not actually participate in the transaction. Id. at 378. There, the informant's

limited involvement in the crime, the speculative significance of his testimony ,

and the reasons offered for the disclosure of the informant's identity, did not

outweigh the State's interest in the free flow of information.

In State v. Oliver, 50 N.J. 39, 41-42 (1967), an informant accompanied an

officer to a tavern where the defendant allegedly engaged in bookmaking. The

State was not required to disclose the informant's identity as the informant

played no part in the criminal event. Id. at 42. The Court noted the informant

did not bet or induce the defendant to accept a bet from anyone. Ibid. The Court

stated that the defense was unable to show the informant's testimony was

necessary and the "defense could advance nothing more than an ungrounded

A-0540-18T4 11 hope that if the inform[ant] were called as a defense witness, he would say

something that would somehow discredit the trooper and lead to an acquittal."

Like the defendants in Milligan and Oliver, defendant did not prove why

the informant's testimony is necessary to his defense. The defendant's assertion

that the confidential informant and the unidentified male are the same person is

undoubtedly speculative as it is based solely on Priester "connecting the dots."

Moreover, the unidentified individual was neither observed making an exchange

with petitioner, nor did he have any money or contraband on him. Most notably,

no transaction ever took place between the unidentified individual and the

defendant and the unidentified individual was not presented as a witness. Since

the motion was unlikely to succeed, the failure to raise this motion is not an

ineffective assistance of counsel. See State v. Worlock, 117 N.J. 596, 625

(1990) ("failure to raise unsuccessful legal arguments does not constitute

ineffective assistance of counsel."). 1

Defendant also asserts his trial counsel rendered ineffective assistance by

failing to move for a judgment of acquittal at the close of the State's case. This

1 Since defendant has failed to establish the Strickland test, the PCR court is not obligated to grant an evidentiary hearing, and thus defendant's evidentiary hearing argument must fail. See Cummings, 321 N.J. Super. at 170. A-0540-18T4 12 claim is procedurally barred as defendant failed to raise the claim at a prior

proceeding. Rule 3:22-4, -5.

Affirmed.

A-0540-18T4 13