STATE OF NEW JERSEY VS. NOEL R. SURUY(11-12-1016, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5057-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NOEL R. SURUY,
a/k/a NOE R. SURY,
Defendant-Appellant.
______________________________
Submitted May 9, 2017 – Decided July 6, 2017
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-12-1016.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Noel R. Suruy, who pled guilty to four counts of
second-degree aggravated assault, appeals the June 2, 2015 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
Defendant testified to the following facts at his July 23,
2013 plea colloquy. Around 4:00 a.m. on August 14, 2011, defendant
attacked and severely injured four people with a machete in and
near the home of his ex-girlfriend, Y.R.1 Y.R.'s thirteen-year-
old daughter, eleven-year-old son, and a man in his early twenties
were in the home. Defendant entered and asked the daughter where
Y.R. was. When the daughter said she did not know, defendant
became angry, got his machete from inside the home, and attacked
her several times, causing lacerations on the back and side of her
head, the back of her ear, and her lip and chin area, as well as
injuries to her arms, her shoulder, and her finger. When the man
in the home tried to defend the daughter, defendant hit him with
the machete, swinging at his head to cause a serious injury but
lacerating his arm. Y.R.'s son escaped unharmed.
Defendant left the home and found Y.R. and another man
outside. Defendant believed this man was Y.R.'s paramour and
proceeded to attack them both with the machete many times.
Defendant intended to cause life-threatening injuries to both, but
1
We use initials to protect the identity of the victim.
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they both put up their arms to defend themselves. Y.R. suffered
two large open wounds and a broken arm which required permanent
plates and screws. Her companion received injuries on both of his
hands, his left arm, his left ear, and the back of his neck,
requiring multiple surgeries. Both have permanent scarring.
Defendant was charged with four counts of first-degree
attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); four counts of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-
degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree unlawful
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d); second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) or
(2); two counts of third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a), 9:6-1, and 9:6-3; and fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d).
On July 23, 2013, defendant pled guilty before Judge Marilyn
C. Clark to four counts of second-degree aggravated assault.
Defendant initially claimed that he was defending himself against
attacks from the two men and that he did not intend to harm Y.R.
and her daughter. The prosecutor refused to accept defendant's
statements as a factual basis, and trial counsel requested a recess
to speak with defendant. After conversing with his counsel over
the lunch break, defendant testified he intended to and did inflict
serious bodily injury against all four victims. Pursuant to the
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plea agreement, all other charges were dropped and the State
recommended a total sentence of fifteen years in prison, which
comprised two concurrent eight-year terms to run consecutively
with two concurrent seven-year terms, with an 85% period of parole
ineligibility.
In an October 2, 2013 judgment of conviction, Judge Clark
sentenced defendant to the recommended sentence pursuant to the
plea agreement. We affirmed defendant's sentence on our excessive
sentencing calendar, but our order remanded for entry of an amended
judgment of conviction to reflect the correct amount of jail
credits. State v. Suruy, No. A-3249-13 (App. Div. July 1, 2014).
Defendant filed a pro se PCR petition on July 24, 2014, which
was later supplemented by PCR counsel's letter-brief and
defendant's certification of facts. On June 2, 2015, Judge Clark
issued an oral decision on the record denying defendant's PCR
petition without an evidentiary hearing.
Defendant timely filed a notice of appeal on July 16, 2015.
He raises the following argument:
POINT I – THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
H[E]ARING TO FULLY ADDRESS HIS CONTENTION THAT
HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA
ON THE BASIS HE HAD FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL,
RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN
FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
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II.
Defendant argues he was entitled to an evidentiary hearing
on his ineffective assistance of counsel claim. A PCR court need
not grant an evidentiary hearing unless "'a defendant has presented
a prima facie [case] in support of post-conviction relief.'" State
v. Marshall, 148 N.J. 89, 158 (alteration in original) (citation
omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997). "To establish such a prima facie case, the defendant
must demonstrate a reasonable likelihood that his or her claim
will ultimately succeed on the merits." Ibid. The court must
view the facts "'in the light most favorable to defendant.'" Ibid.
(citation omitted); accord R. 3:22-10(b). As the PCR court did
not hold an evidentiary hearing, we "conduct a de novo review."
State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to
our standard of review.
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State
v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate
first that counsel's performance was deficient, i.e., that
'counsel made errors so serious that counsel was not functioning
as the "counsel" guaranteed the defendant by the Sixth
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Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693). The defendant must overcome a "strong presumption
that counsel rendered reasonable professional assistance." Ibid.
Second, "a defendant must also establish that the
ineffectiveness of his attorney prejudiced his defense. 'The
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Id. at 279-80 (quoting
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698). In the context of a guilty plea, the defendant must
show "'there is a reasonable probability that, but for counsel's
errors, [defendant] would not have pled guilty and would have
insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J.
129, 139 (2009) (citation omitted); accord Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
The defendant must also show "a decision to reject the plea bargain
would have been rational under the circumstances." Padilla v.
Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d
284, 297 (2010); see State v. Maldon, 422 N.J. Super. 475, 486
(App. Div. 2011).
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III.
In his certification, defendant claimed trial counsel was
ineffective because he did not use a Spanish interpreter during
their consultations. Defendant asserted that as a result, he and
trial counsel were "never on the same page." Defendant further
claims he told trial counsel "I wanted to go to trial on the
charges an[d] explain to the jury what truly happened." Defendant
claimed trial counsel "took full advantage of the language barrier
and viewed this as his opportunity to do the least amount of work
as possible."
Defendant's certification is contradicted by the record.
Defendant's testimony from the plea hearing reveals trial counsel
met with defendant many times. The PCR judge, who was the trial
judge, observed that trial counsel "did a great deal of work for
the defendant, including hiring the private investigator that
seems to have resulted in the plea [offer] going down [from twenty
years in prison] to 15 years." See State v. Martini, 160 N.J.
248, 266 (1999) ("[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." (quoting Strickland,
supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695)).
We cannot say these are the actions of an attorney who, as
7 A-5057-14T1
defendant describes in his certification, "just wanted to rush
[his] case along."
Regarding the alleged language barrier, defendant testified
during the plea hearing that he is a permanent resident, has been
in the United States for twenty-two years, spoke some English, and
could read English. Defendant testified that he went through the
indictment and the plea forms' questions with trial counsel, that
he understood them and that he was satisfied with trial counsel's
representation. The PCR judge noted defendant occasionally spoke
in English in pretrial hearings and at sentencing. The judge was
"absolutely convinced that the defendant is very fluent in English
and communicated with [trial counsel] in English and had absolutely
no difficulty in doing so."
In any event, defendant failed to show prejudice. Defendant
had a Spanish interpreter at every court proceeding. The PCR
court noted there were many status conferences where "all of [the]
issues were discussed at length" with defendant present. The plea
forms were written in both English and Spanish. Defendant
testified he initialed each page and signed the forms to show he
understood them and that he gave truthful answers. Defendant also
testified that he understood he could go to trial, that he could
testify, that trial counsel would represent him at trial, and that
he was giving up those rights by pleading guilty. Defendant
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testified his guilty plea was free and voluntary, and that no one
forced, threatened, or coerced him to plead guilty. The trial
court was satisfied defendant was pleading guilty freely and
voluntarily.
"Generally, representations made by a defendant at plea
hearings concerning the voluntariness of the decision to plead,
as well as any findings made by the trial court when accepting the
plea, constitute a 'formidable barrier' which defendant must
overcome[.]" State v. Simon, 161 N.J. 416, 444 (1999) (quoting
Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52
L. Ed. 2d 136, 147 (1977)). "That is so because [defendant's]
'[s]olemn declarations in open court carry a strong presumption
of verity.'" Ibid. (quoting Blackledge, supra, 431 U.S. at 74,
97 S. Ct. at 1629, 52 L. Ed. 2d at 147).
Moreover, the PCR judge had heard defendant's statements and
observed his demeanor at both the plea and sentencing hearings.
The judge stated she "remember[ed] this plea fairly well because
it was such a serious case." "In some cases, the judge's
recollection of the events at issue may enable [her] summarily to
dismiss a [post-conviction] motion." Blackledge, supra, 431 U.S.
at 74 n.4, 97 S. Ct. at 1629 n.4, 52 L. Ed. 2d at 147 n.4. Further,
Judge Clark reviewed the transcripts and found defendant's
accusations were "clearly dispelled by the plea and sentencing
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transcripts." The judge's observations are persuasive. See Simon,
supra, 161 N.J. at 444-45 (rejecting a defendant's claim that his
plea had been coerced, on the bases of his statements and the
court's observations at the plea hearing); State v. DiFrisco, 137
N.J. 434, 452-54 (1994) (rejecting on the same bases a defendant's
claim that he did not "understand the nature and consequences of
his plea"), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L.
Ed. 2d 873 (1996).
Defendant certified that trial counsel "failed to realize
that Count 2 charging my aggravated assault against Y.R. and Count
4 charging aggravated assault against [her daughter] was not
applicable" because he did not "intend to cause any bodily
injuries, or harm" to them, and his "intent was only to hurt the
unknown males . . . after being attacked first." However, at the
plea colloquy defendant testified he intended to cause Y.R. and
her daughter life-threatening injuries. Defendant also testified
that when he said the young man was "trying to attack" him, he
meant the young man was trying to defend Y.R.'s daughter from his
machete attack, and defendant did not want him to take the machete.
Defendant admitted he "lash[ed] out with the machete" as soon as
he encountered Y.R. and her companion. Indeed, defendant's own
certification of "what truly happened" suggested he was the
instigator.
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Defendant notes that at the plea colloquy, he initially
testified that "it was a fight and everybody got involved in the
fight," that "they got in the middle," and that "the person that
was with [Y.R.] got out and tried to attack me." However, the
trial court advised defendant: "Sir, nobody wants to put words in
your mouth, but if you want to plead guilty, you have to tell us
what happened." The court observed defendant "does not appear to
be answering questions" and "was not truly addressing the factual
basis." After defendant spoke with trial counsel, defendant
admitted his guilt in a thorough colloquy. The PCR judge who also
witnessed the plea colloquy could properly find defendant himself
had repudiated his prior attempts to blame the victims and deny
guilt. The judge did "not see any confusion" in the plea colloquy,
just "hesitancy to admit what he did."
Defendant certified trial counsel told him he "needed to
cooperate in order for the plea to be received," and defendant
only "cooperated" during the plea hearing because he was
"intimidated and very fearful that if [he] did not, the prosecutor
would give [him] more time." However, what trial counsel advised
defendant was accurate, as were defendant's fears: he faced four
first-degree attempted-murder charges each carrying a possible
twenty-year sentence, as well as six second-degree charges and
four other charges, under which he faced a total potential sentence
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far in excess of the fifteen-year sentence under the "very
favorable" plea offer defendant was jeopardizing by attempting to
avoid admitting guilt.
Finally, defendant asserted that trial counsel told him he
"had to plead guilty" and that he "felt pressured to do what my
attorney told me because I was scared." This assertion appeared
to reiterate trial counsel's advice and defendant's fears
discussed above. To the extent it alleged something else, it was
"too vague, conclusory, or speculative to warrant an evidentiary
hearing[.]" Marshall, supra, 148 N.J. at 158; see R. 3:22-
10(e)(2).
Thus, defendant failed to show "'there is a reasonable
probability'" he "'would not have pled guilty and would have
insisted on going to trial.'" Nunez-Valdez, supra, 200 N.J. at
139 (citation omitted). Moreover, defendant has not shown
rejecting the plea bargain would have been a "rational" decision
under his circumstances. Padilla, supra, 559 U.S. at 372, 130 S.
Ct. at 1485, 176 L. Ed. 2d at 297.
Defendant has not presented a prima facie case of ineffective
counsel in support of post-conviction relief. There is no
"reasonable likelihood that [defendant's] claim will ultimately
succeed on the merits." Marshall, supra, 148 N.J. at 158. Thus,
12 A-5057-14T1
the PCR court was not required to grant an evidentiary hearing and
properly exercised its discretion under R. 3:22-10.
Affirmed.
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