STATE OF NEW JERSEY VS. JUAN COLON (13-03-0344, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 28, 2021
• Docket: A-3767-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3767-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN COLON,

Defendant-Appellant. ________________________

Submitted May 17, 2021 – Decided May 28, 2021

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-03-0344.

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

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Matthew Samel, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from a March 6, 2020 order denying his petition for

post-conviction relief (PCR). Defendant maintains that his trial counsel

rendered ineffective assistance by failing to impeach the credibility of two

witnesses. Judge Robert Bingham, II, entered the order and rendered a fifteen-

page written opinion.

On appeal, defendant argues:

POINT I

THE PCR [JUDGE] ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR] WITHOUT AN EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE AT TRIAL BY FAILING TO IMPEACH THE CREDIBILITY OF THE ALLEGED EYE- WITNESSES ON CROSS-EXAMINATION.

We affirm substantially for the reasons expressed by Judge Bingham. We add

the following remarks.

When a PCR judge does not hold an evidentiary hearing—like here—this

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

the PCR judge from the record and the judge's legal conclusions. State v. Blake,

444 N.J. Super. 285, 294 (App. Div. 2016).

To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

2 A-3767-19 Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 105 N.J. 42, 58 (1987). To meet 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." 466 U.S. at 687. A defendant must rebut the "strong presumption

that counsel's conduct [fell] within the wide range of reasonable professional

assistance." Id. at 689. Thus, this court must consider whether counsel's

performance fell below an objective standard of reasonableness. Id. at 688.

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 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." 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.

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

3 A-3767-19 must demonstrate "a reasonable likelihood that his . . . claim will ultimately

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting

State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than

make bald assertions that he was denied the effective assistance of 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). A defendant bears the

burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350

(2012). This court will "view the facts in the light most favorable to a defendant

to determine whether a defendant has established a prima facie claim." Preciose,

129 N.J. at 462-63.

Defendant asserts that he indicated in his certification that he

communicated "specific avenues of attack to trial counsel and urged [counsel]

to utilize them in cross-examination of the[] witnesses." Defendant contends

that his now-ex-girlfriend, Curry, had a motive to fabricate an incriminating

story against him because "the relationship ended badly and she wanted to get

back at [him]." Defendant further contends that he advised trial counsel that

Kramer falsified her testimony because "she was . . . Curry's best friend and

wanted to help her." Defendant also argues trial counsel rendered ineffective

assistance by failing to impeach Curry's credibility as to her identification of the

4 A-3767-19 gun. Specifically, defendant argues that trial counsel could have impeached

Curry's credibility by confronting her with her formal statement to police in

which she provided a description of the gun, which contrasted her trial

testimony. All of defendant's argument pertaining to trial counsel's cross-

examination of the State's witnesses amount to bare, conclusory assertions,

which are insufficient to establish a prima facie claim of ineffective assistance

of counsel. Cummings, 321 N.J. Super. at 170.

Under the first Strickland/Fritz prong, there is no basis to conclude that

counsel's cross-examination of the State's witnesses was deficient. The PCR

judge properly rejected defendant's arguments given trial counsel's advocacy

throughout the proceedings. The record reflects that trial counsel set forth sound

trial strategy, cross-examined the State's witnesses to create doubt as to their

veracity, and highlighted a potential motive to fabricate their testimonies. Trial

counsel emphasized Curry and Kramer's friendship, Curry's romantic

relationship with defendant and others involved in the incident, and Kramer's

friendship with one of the victims to show that they had reason to lie about

defendant. Trial counsel also impeached Curry and Kramer's credibility by

questioning them about the fact that neither one of them called police after the

incident occurred and did not mention the shooting until two weeks later when

5 A-3767-19 police interviewed them in an unrelated matter. Trial counsel further challenged

the witnesses' recollection based on their location during the shooting, inability

to see the gun, and the stressful nature of the events. Trial counsel's performance

therefore did not fall below an objective standard of reasonableness. Strickland,

466 U.S. at 688.

Defendant's argument that the witnesses had motive to testify falsely is

conclusory, Cummings, 321 N.J. Super. at 170, and belied by the record. The

record shows that Curry was romantically involved with defendant both before

and after the incident, and that Kramer and Curry were friends. Outside of this,

there were no facts trial counsel failed to call upon to undermine the credibility

of either witness. Similarly, defendant certified that he told trial counsel to

confront Curry, who described the gun as automatic, with the ballistics report

that showed the bullet recovered was fired from a revolver. Such a presentation

would have been fruitless, however, because the record indicates that Curry was

never certain about the type of gun defendant fired.

Defendant also failed to establish prejudice under the second

Strickland/Fritz prong. Through trial counsel's advocacy, the jury acquitted

defendant of all charges related to Kramer and on the most serious attempted

murder charge against the other victim. Moreover, there existed ample evidence

6 A-3767-19 upon which to convict defendant on the charges the jury found him guilty of.

Defendant was confronted with reliable eyewitness testimony, his own

spontaneous admission to police that he tried to shoot one of the victim's braids

off, and physical evidence documented by police at the scene of the shooting,

namely a projectile found inside a wood beam. Defendant points to no additional

evidence outside of this record which would change the outcome.

Because defendant failed to establish a prima facie claim of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing and the judge

did not abuse his discretion by denying him one. Marshall, 148 N.J. at 158.

Affirmed.

7 A-3767-19