STATE OF NEW JERSEY VS. BRYAN CALIMANO-SUAREZ (13-11-0935, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1355-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYAN CALIMANO-SUAREZ,
a/k/a, BRYAN S.
CALIMANOSUAREZ, BRYAN
CALIMANO, BRYAN C. SUAREZ,
BRYAN S. SUAREZ, and
BRYAN S. CALIMANO,
Defendant-Appellant.
______________________________
Submitted February 23, 2021 – Decided April 23, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 13-11-0935.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Bryan Calimano-Suarez appeals from an August 29, 2019 order
denying his petition for post-conviction relief (PCR). He contends that his trial
counsel was ineffective by failing to object to arguments and comments made
by the prosecutor during closing arguments at trial. Having conducted a de novo
review of the record, we affirm substantially for the reasons explained by Judge
Robert Kirsch in his thorough written opinion denying the PCR petition .
A jury convicted defendant of third-degree aggravated criminal sexual
contact, N.J.S.A. 2C:14-3(a), and fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-3(b). At trial, the jury heard testimony from the victim, who
explained that she lived with her family and that defendant was staying at her
home since he had been thrown out of his residence. The victim testified that
while she was asleep, she felt someone touching the inside of her vagina; she
awoke and found defendant lying in front of her with his hand between her legs.
After the two convictions were merged, defendant was sentenced to time
served of 746 days and parole supervision for life. He filed a direct appeal,
arguing that the prosecutor engaged in misconduct during closing arguments.
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We rejected those arguments and affirmed defendant's convictions. State v.
Calimano-Suarez, No. A-1147-15 (App. Div. Jan. 26, 2018) (slip op. at 6-12).
In October 2018, defendant filed a petition for PCR. He was assigned
counsel and Judge Kirsch heard oral arguments. Thereafter, Judge Kirsch
entered an order denying the petition and issued a fourteen-page opinion
supporting that decision. Judge Kirsch correctly found that defendant's claims
concerning ineffective assistance of counsel were essentially the same claims
asserted and denied on his direct appeal. Accordingly, Judge Kirsch denied the
petition under Rule 3:22-5.
Judge Kirsch also addressed the merits of defendant's ineffective
assistance claims. The judge correctly found that defendant had failed to
establish either of the two prongs required for a showing of ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord State v. Fritz, 105 N.J. 42, 57-58 (1987). Finally, Judge Kirsch correctly
ruled that defendant was not entitled to an evidentiary hearing. State v. Porter,
216 N.J. 343, 355 (2013); State v. Preciose, 129 N.J. 451, 462 (1992).
On this appeal, defendant challenges the denial of his PCR petition on two
grounds:
POINT I – DEFENDANT'S PCR PETITION SHOULD
NOT HAVE BEEN PROCEDURALLY BARRED.
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POINT II – THIS MATTER MUST BE REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO OBJECT TO THE
PROSECUTION'S VOUCHING FOR AND
BOLSTERING [THE VICTIM'S] CREDIBILITY.
These are essentially the same arguments defendant presented to Judge
Kirsch. We reject the arguments for the reasons explained by Judge Kirsch in
his well-reasoned opinion. In short, Judge Kirsch correctly analyzed each of the
arguments presented by defendant, applied the well-established law, and
rejected the arguments both on procedural and substantive grounds. We agree
with the conclusions reached by Judge Kirsch.
Affirmed.
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