STATE OF NEW JERSEY v. CHRISTOPHER FIGUEROA (07-09-3171 ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2450-15T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    CHRISTOPHER FIGUEROA,
    Defendant-Appellant.
    _______________________________________
    Submitted May 25, 2017 – Decided June 20, 2017
    Before Judges Hoffman and O'Connor.
    On appeal from Superior Court of New Jersey,
    Law Division, Camden County, Indictment No.
    07-09-3171.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (David A. Gies, Designated
    Counsel, on the brief).
    Mary Eva Colalillo, Camden County
    Prosecutor, attorney for respondent (Patrick
    D. Isbill, Assistant Prosecutor, of counsel
    and on the brief).
    PER CURIAM
    Defendant Christopher Figueroa appeals from an October 26,
    2015 order denying his petition for post-conviction relief (PCR)
    without an evidentiary hearing.       We affirm.
    I.
    Charged with two counts of first-degree murder in addition
    to other offenses, in 2010 defendant pled guilty to one count of
    first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1).
    During the plea hearing, defendant admitted he was in a vehicle
    with two other men on March 8, 2007, when he purposely shot both
    in the head after a disagreement over money.       Consistent with
    the plea agreement, defendant was sentenced to a twenty-five-
    year term of imprisonment, with an eighty-five percent period of
    parole ineligibility, and the remaining charges were dismissed.
    Defendant did not file a direct appeal.
    In 2014, defendant filed a PCR petition as a self-
    represented litigant; a brief and amended petition were
    thereafter filed by his counsel.       The principal issues defendant
    raised relevant to this appeal were plea counsel was ineffective
    because he: (1) failed to file a motion to suppress statements
    defendant provided to law enforcement in violation of the Fifth
    Amendment;1 2) failed to investigate C.O., an alibi witness; (3)
    failed to take into consideration the recantation of a statement
    1
    U.S. Const. amend. V.
    2
    A-2450-15T3
    by R.M., a State witness; (4) advised defendant he had no
    alternative but to plead guilty; and (5) had a conflict of
    interest, which induced counsel to encourage defendant to plead
    guilty.    Defendant also argued he was entitled to withdraw his
    guilty plea because counsel's ineffectiveness forced him to
    enter the plea.
    In a lengthy, comprehensive opinion, the PCR court denied
    defendant's petition without an evidentiary hearing.    We briefly
    summarize the pertinent evidence.
    At 10:50 p.m. on March 8, 2007, the day defendant shot both
    men, officers from the Camden Police Department were dispatched
    to the location where there had been a report of an automobile
    accident.     The police found both victims dead in an overturned
    vehicle.
    One week later, defendant's live-in girlfriend, R.M., gave
    a statement to the police.     She reported defendant and co-
    defendant Jason Rodriguez entered her and defendant's home at
    midnight on March 9, 2007.     Defendant brought home a black,
    plastic bag from which he removed $20,000 in cash.     Defendant
    gave some cash to the co-defendant and stored the remainder in
    their home.    R.M. observed blood on defendant's shirt sleeve,
    and saw him remove and put his clothes in a plastic bag.
    3
    A-2450-15T3
    Defendant then told R.M. he was leaving to discard the clothing
    and a gun.
    R.M. further reported that, the following day, defendant
    returned home and told her he had been with the co-defendant and
    both victims the evening before.     The four planned to commit a
    robbery and obtain $20,000.   Defendant told R.M. he had an
    argument with one of the victims, and then shot both victims in
    the head.    At the time of the shooting, the car was still
    moving; the car struck a tree and flipped over.    Defendant
    managed to climb out of the car, taking $20,000 in cash that had
    been in the victims' possession.
    Defendant also told R.M. he discarded the gun and the
    clothes he was wearing at the time of the shooting.    He then
    gave R.M. $1,000 from the $20,000 he obtained the day before.
    R.M. deposited $1,000 into her bank account that day; the police
    later confirmed R.M. had in fact deposited this amount into her
    account on March 9, 2007.
    On March 10, 2007, defendant advised R.M. he had bought a
    van and was going to Brockton, Massachusetts, where he was going
    to stay with family.   He stated he wanted to leave New Jersey
    because he expected the police would be looking for him with
    respect to "the two dead bodies."    Thereafter, R.M. agreed to a
    4
    A-2450-15T3
    consent search of her home, where dried blood was found and
    tested.    The blood matched that of one of the victims.
    Approximately six months later, R.M. purportedly hand-wrote
    a statement recanting her previous one.    This unsigned document
    stated her first statement was written to hurt defendant because
    he had been unfaithful to her, and that defendant never told her
    he had committed the murders.   She also stated she wrote the
    first statement while recovering from a caesarian section, and
    was under the influence of Percocet, Ibuprofen, and Diazepam to
    control the pain.
    Approximately one month after the incident, C.O. contacted
    the police and also provided a statement.    She told the State's
    investigator she was defendant's girlfriend.    She reported that,
    on the evening of the incident, she received a telephone call
    from defendant between 10:00 p.m. and 10:30 p.m., advising he
    was coming over to her home.    She recalled the time of day
    because FOX News was on television at the time.
    C.O. then fell asleep and, at some later point, defendant
    arrived and stayed at her home until 8:00 a.m. the following
    day.   She did not know when he arrived at her home.   In 2015,
    eight years after she gave her first statement, C.O. purportedly
    told defendant's investigator defendant arrived at her home at
    5
    A-2450-15T3
    10:00 p.m. on the night of the incident, and spent the night in
    her home.
    Also relevant to the issues on appeal are the circumstances
    surrounding defendant's custodial interview by an investigator
    and detective from the Camden County Prosecutor's Office.     On
    March 17, 2007, defendant was arrested in Brockton for a parole
    violation.   The investigator and detective traveled to Brockton
    to conduct the interview.   As depicted on the video-recording of
    the interview, just before the interview, a Brockton police
    officer read defendant his rights pursuant to Arizona v.
    Miranda, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966).
    Defendant then signed a document which set forth the
    Miranda warnings and a statement advising he had a right to
    telephone an attorney, friends, or family at any time.
    Defendant also signed that portion of the form stating he was
    waiving his Miranda rights and was willing to speak to the
    police.   Defendant told the officer he understood he only had to
    answer questions if he wanted and could stop at any time.     The
    police also offered and defendant accepted water and crackers.
    Also depicted is the investigator and detective's
    interview, at the beginning of which defendant confirmed he
    received his Miranda rights and knew he did not have to speak to
    6
    A-2450-15T3
    them.   He also stated that despite his awareness he did not have
    to speak to them, he was willing to do so.
    At the outset of the interview, the investigator advised
    defendant she and the detective wanted to talk to him because he
    was implicated in both murders.   During the course of the
    interview, defendant admitted he stole money from drug dealers
    and had purchased two guns the week the victims were killed, but
    denied committing the subject homicides.
    Four times during the interview defendant complained he was
    cold.   The detective also commented it was cold in the interview
    room and noted defendant was not wearing pants but, as the PCR
    court observed, defendant was wearing a hooded sweatshirt, and
    other evidence revealed he was wearing "thermals."   At one point
    during the video-recording, defendant stood up and it is clear
    he was wearing pants of some nature.   The investigator and
    detective were not in heavier clothing, merely wearing suits.
    Defendant also commented he had been shot the previous December
    and was still recovering from his wounds, but at no time during
    the interview did he appear to be in pain or discomfort.
    Defendant was indicted six months later, in September 2007.
    One year later, his attorney moved to be relieved as counsel
    because defendant was not paying his bill in accordance with the
    retainer agreement, and was not participating in his defense.
    7
    A-2450-15T3
    Counsel later withdrew his motion.   Two years later, defendant
    pled guilty.
    The PCR court made the following findings. On the issue
    counsel was ineffective because he failed to file a motion to
    suppress defendant's interview with law enforcement, after
    reviewing the evidence and various decisional authority, the PCR
    court determined defendant knowingly and voluntarily waived his
    right to remain silent before he was interviewed.   Further, at
    no time during the four-hour interview was defendant coerced
    into or unable to resist making a statement he was unwilling to
    make.
    In addition to defendant explicitly stating he knew he did
    not have to answer any questions and could stop the interview at
    any time, the court observed the police were civil toward him.
    The court also noted defendant appeared comfortable and relaxed
    throughout the interview, and even "laugh[ed] and smile[d] and
    appear[ed] conversant with the . . . interviewers."   Thus, the
    court determined counsel had not been ineffective for failing to
    file a suppression motion, because there was no evidence
    defendant would have prevailed had he filed such motion.
    As for counsel's alleged failure to interview and evaluate
    R.M.'s credibility in light of her recantation, the court found
    the recantation inconsequential. The court also rejected the
    8
    A-2450-15T3
    claim C.O. allegedly made in 2015 that defendant was in her home
    by 10:00 p.m. on the night of the incident, because the document
    in which such claim was asserted was not created and signed by
    C.O. under oath.   See State v. Cummings, 
    321 N.J. Super. 154
    ,
    170 (App. Div.), certif. denied, 
    162 N.J. 199
     (1999) (holding
    when a defendant claims counsel inadequately investigated his or
    her case, defendant must assert facts supported by affidavits or
    certifications based upon the personal knowledge of the affiant
    or the person making the certification).
    In addition, the court found no evidence counsel had a
    conflict of interest while representing defendant, not to
    mention some two years elapsed from the filing of counsel's
    motion to be relieved and the time defendant pled guilty.
    Finally, after examining the factors in State v. Slater, 
    198 N.J. 145
     (2009), the court found no basis to grant defendant's
    motion to withdraw his guilty plea.
    II.
    On appeal, defendant raises the following points for our
    consideration.
    POINT I – THE FAILURE OF THE DEFENDANT'S
    TRIAL ATTORNEY TO INTERVIEW TWO WITNESSES,
    ONE OF WHOM PRESENTED THE DEFENDANT WITH AN
    ALIBI, OR TO PURSUE A SUPPRESSION MOTION
    LENDS CREDENCE TO THE DEFENDANT'S CLAIM THAT
    HIS TRIAL ATTORNEY'S PERSONAL INTERESTS
    MATERIALLY LIMITED HIS ABILITY TO CONSIDER,
    9
    A-2450-15T3
    RECOMMEND OR CARRY OUT THE MOST APPROPRIATE
    COURSE OF ACTION.
    POINT II – THE DEFENDANT'S TRIAL ATTORNEY
    WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE
    DID NOT PURSUE A SUPPRESSION MOTION ON FIFTH
    AMENDMENT GROUNDS.
    POINT III – REVERSAL OF THE PCR COURT'S
    DENIAL OF THE DEFENDANT'S MOTION TO WITHDRAW
    HIS GUILTY PLEA IS WARRANTED WHERE HIS TRIAL
    ATTORNEY WAS NOT IN POSITION TO REVIEW WITH
    HIM THE STRENGTHS AND WEAKNESSES OF THE
    EVIDENCE BECAUSE HE DID NOT INTERVIEW THE
    ALIBI WITNESS.
    Although not raised in a separate argument point, defendant also
    contends the PCR court erred by denying his motion to withdraw
    his guilty plea.
    Having reviewed the briefs and the record, we are not
    persuaded by any of defendant's arguments and affirm the denial
    of defendant's PCR petition for essentially the same reasons
    stated in the PCR court's oral decision.    However, we add the
    following comments.
    The standard for determining whether counsel's performance
    was ineffective for purposes of the Sixth Amendment was
    formulated in Strickland v. Washington, 
    466 U.S. 668
    , l04 S. Ct.
    2052, 
    80 L. Ed. 2d 674
     (1984), and adopted by our Supreme Court
    in State v. Fritz, 
    105 N.J. 42
     (l987).     In general, in order to
    prevail on a claim of ineffective assistance of counsel,
    defendant must meet the following two-prong test: (l) counsel
    10
    A-2450-15T3
    made errors so egregious he or she was not functioning
    effectively as guaranteed by the Sixth Amendment to the United
    States Constitution; and (2) the errors prejudiced defendant's
    rights to a fair trial such that there exists a "reasonable
    probability that, but for counsel's unprofessional errors, the
    result of the proceeding would have been different."
    Strickland, 
    supra,
     
    466 U.S. at 687, 694
    , l04 S. Ct. at 2064,
    2068, 
    80 L. Ed. 2d at 693, 698
    .
    If seeking to set aside a guilty plea based on ineffective
    assistance of counsel, the second prong a defendant must meet is
    "there is a reasonable probability that, but for counsel's
    errors, [the defendant] would not have pled guilty but would
    have insisted on going to trial."    State v. Nuñez-Valdéz, 
    200 N.J. 129
    , 139 (2009) (quoting State v. DiFrisco, 
    137 N.J. 434
    ,
    457 (1994)).
    Here, R.M.'s recantation had limited value, because her
    original statement was corroborated by other, objective
    evidence.   For example, in her first statement, R.M. claimed she
    saw blood on defendant's clothing within just a couple hours of
    the homicides.    Blood found in the home matched that of one of
    the victim's.    Further, her admission she deposited $1,000 of
    the $20,000 defendant reported taking from the victims after
    shooting them was confirmed by bank records.    Other evidence
    11
    A-2450-15T3
    neatly coincides with and lends credence to the claims she
    asserted in her first statement.    Given R.M.'s recantation would
    have had limited impact at trial, counsel cannot be faulted for
    recommending defendant accept the State's plea offer.
    Defendant asserts C.O.'s 2015 statement provided him an
    alibi.   First, the only statement C.O. made by the time
    defendant pled guilty was one in which no exonerating
    information was provided.   Second, the 2015 statement
    contradicts the first statement, making C.O.'s credibility
    suspect.   Unlike R.M.'s statements, where there was evidence to
    show her first statement was valid, there was no evidence C.O.'s
    second statement was reliable.     Third, C.O. did not certify or
    attest the contents of the 2015 statement were accurate.
    In addition, although we have not been provided with a
    transcript of his guilty plea, we are informed when the co-
    defendant pled guilty, he implicated defendant.     Shortly
    thereafter, defendant pled guilty, as well.
    Finally, on the question whether defendant should have
    filed a suppression motion, we merely add our Supreme Court has
    observed "[i]t is not ineffective assistance of counsel for
    defense counsel not to file a meritless motion."     State v.
    O'Neal, 
    190 N.J. 601
    , 619 (2007).    Here, defendant failed to
    show, as was his burden, his suppression claim was meritorious.
    12
    A-2450-15T3
    See State v. Fisher, 
    156 N.J. 494
    , 501 (1998).     He also failed
    to identify an incriminating statement from defendant's
    interview.
    In the final analysis, defendant failed to meet the first
    prong of the Strickland test.   Accordingly, we find no error by
    the PCR judge in rejecting defendant's claim his counsel's
    representation fell below professional norms.
    Finally, defendant, who was facing two life sentences,
    received a very favorable plea offer of twenty-five years
    imprisonment.   He has proffered no persuasive argument that, but
    for counsel's errors, he would not have pled guilty and would
    have insisted on going to trial.     That is, defendant failed to
    meet the second prong of the Strickland test.
    Affirmed.
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    A-2450-15T3