STATE OF NEW JERSEY VS. ALEXANDER ALFARO (08-09-2688, ESSEX COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1276-17T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    ALEXANDER ALFARO,
    Defendant-Appellant.
    _______________________________
    Submitted November 19, 2019 – Decided December 10, 2019
    Before Judges Fisher and Accurso.
    On appeal from the Superior Court of New Jersey, Law
    Division, Essex County, Indictment No. 08-09-2688.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Andrew Robert Burroughs, Designated
    Counsel, on the brief).
    Theodore N. Stephens II, Acting Essex County
    Prosecutor, attorney for respondent (Barbara A.
    Rosenkrans, Special Deputy Attorney General/Acting
    Assistant Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant was convicted in 2011 of murder, felony murder, conspiracy to
    commit robbery, and armed robbery, for his participation – along with five co-
    defendants – in the events on a Newark playground on the evening of August 4,
    2007, that left three dead and only one survivor. Defendant was sentenced to an
    aggregate prison term of 212 years. The evidence upon which defendant was
    convicted was outlined in our opinion disposing of defendant's direct ap peal –
    we rejected all the arguments he then raised – and need not be repeated here.
    State v. Alfaro, No. A-6163-10 (App. Div. Nov. 12, 2013), certif. denied, 
    217 N.J. 623
     (2014).
    The judge who presided over the lengthy trial also ruled on defendant's
    post-conviction relief (PCR) petition. To assist in his determination of the issues
    raised, the judge conducted a two-day evidentiary hearing in January 2017,
    during which defendant's trial and appellate counsel both testified, as did the
    two assistant prosecutors who represented the State at trial; defendant did not
    testify. By way of his March 10, 2017 written decision, the judge rejected all
    defendant's ineffective-assistance-of-counsel arguments in denying the PCR
    petition.
    Defendant appeals, arguing the judge erred in rejecting his claims that he
    was denied the effective assistance of counsel because his trial counsel: (1)
    A-1276-17T4
    2
    failed to convey the State's plea offer, and (2) failed to seek the removal of a
    juror. He argues the judge also erred in rejecting his ineffectiveness claim
    because his appellate counsel did not: (3) argue in the direct appeal that he was
    prejudiced by testimony about his tattoos; (4) argue in the direct appeal that the
    judge erred in precluding testimony about when defendant obtained a tattoo in
    light of the prosecution's suggestion that the dice tattoo 1 memorialized the
    murders; and (5) failed to argue either in this court on direct appeal or in seeking
    certification in the Supreme Court that State ex rel. P.M.P., 
    200 N.J. 166
     (2009),2
    should be applied retroactively so as to be applicable in this case. We find
    insufficient merit in these arguments to warrant further discussion in a written
    opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by
    1
    The tattoo was described as a pair of dice in flames showing the numbers one
    and three. On cross-examination, defendant was asked what the numbers stood
    for and he said "13," but equivocated when asked whether it reflected his
    membership in the MS-13 gang. The prosecutor then asked whether it referred
    "to the victims . . . [t]hree dead, one alive"? Defendant denied this.
    2
    The Court held in P.M.P., 
    200 N.J. at 178
    , that the issuance of juvenile
    complaints and a judicially approved arrest warrant triggered the critical stage
    in the proceeding, and, therefore, questioning the juvenile in the absence of
    counsel requires suppression of his subsequent statements. Defendant was
    sixteen at the time of the crimes; his custodial statements, which were admitted
    in evidence, were made prior to the Court's P.M.P. decision.
    A-1276-17T4
    3
    Judge Michael L. Ravin in his thorough and well-reasoned written decision. We
    add only the following few comments.
    In rejecting the first argument, the judge determined from the testimony
    provided by one of the assistant prosecutors that there were "no substantive plea
    negotiations," only "plea chatter." Moreover, the judge found "there was no
    realistic possibility of the parties reaching a plea agreement," because "the State
    would not accept a plea agreement that did not include [defendant] testifying
    against his codefendants," and, according to defense counsel, defendant "would
    not testify against his codefendant[s] for fear of repercussions." Also, because
    of the strength of the State's case, both assistant prosecutors testified at the PCR
    hearing that the State "had little interest in a plea agreement." We agree with
    the PCR judge, based on his findings derived from the testimony he found
    credible, that there was no evidence of trial counsel acting below professional
    norms in this regard.
    Defendant's second argument concerns trial counsel's decision not to seek
    a juror's removal. The testimony revealed that this juror stated during jury
    selection that she had never been accused of an offense; this statement proved
    untruthful because it was later learned that the juror had been so accused on
    three occasions. The PCR judge concluded that the reason for not seeking the
    A-1276-17T4
    4
    juror's removal represented a sound strategic approach to the situation.
    Strickland v. Washington, 
    466 U.S. 668
    , 689 (1984); State v. Pierre, 
    223 N.J. 560
    , 579 (2015). The prior charges against the juror were revealed to be minor
    in nature and, in the view of defendant's trial attorney, the juror was "treated
    harshly by [the prosecution] when questioned about her criminal history" during
    voir dire.    We have been presented with no principled reason for second-
    guessing the PCR judge's finding that defense counsel's strategy was objectively
    reasonable.
    We also agree with Judge Ravin's analysis as to the third and fourth
    arguments. There is no doubt that the prosecution had a right to elicit testimony
    regarding defendant's tattoos – defendant does not dispute this – and there was
    no abuse of discretion in the rulings that precluded testimony about when
    defendant obtained the dice tattoo to rebut a suggestion that the tattoo was
    intended to memorialize the killings. Even if there was a legitimate argument
    to be made about the tattoo questioning, we agree with the judge that this
    evidence "played an insignificant role in [defendant's] conviction, partic ularly
    given the strength of the State's evidence," so that appellate counsel's decision
    not to pursue this on appeal could not be held to be ineffective.
    A-1276-17T4
    5
    We lastly turn to the fifth argument, in which defendant contends appellate
    counsel was ineffective in failing to seek the Supreme Court's determination as
    to whether P.M.P. was correctly held inapplicable here because it represented a
    new rule that was only entitled to prospective application. In an interlocutory
    appeal pursued by both defendant and co-defendant Baskerville, we rejected
    defendant's arguments that P.M.P. should have been applied even though
    defendant's statement was given to police on August 10, 2007, and P.M.P. was
    decided by the Supreme Court nearly two years later, on July 29, 2009. State v.
    Baskerville, Nos. 4209-09 and 4410-09 (App. Div. Oct. 19, 2010) (slip op. at
    22-28). The Supreme Court thereafter denied defendant's motion for leave to
    appeal our ruling. Then, in defendant's direct appeal, we considered and rejected
    arguments that the statements should have been excluded for other reasons.
    Alfaro, slip op. at 12-15. The Court denied certification. 
    217 N.J. 286
    .
    It may be true that appellate counsel did not argue in defendant's petition
    for certification of our decision on the direct appeal that P.M.P. should have
    been applied here. But that argument was presented to the Supreme Court in
    defendant's earlier motion for leave to appeal our 2010 interlocutory decision.
    The Supreme Court denied that motion, thereby declining the opportunity to
    A-1276-17T4
    6
    consider the very argument that defendant now claims his appellate counsel
    should have reasserted in the later certification petition.
    We are also mindful that the Court had another opportunity to consider
    P.M.P.'s retroactivity after we held in an unrelated published decision that: "(1)
    P.M.P. announced a new rule; (2) its purpose is not furthered by retroactive
    application; (3) law enforcement officials, in good faith, have relied upon the
    old rule in conducting custodial interrogations of juveniles; and (4) without
    doubt, retroactive application would have a significant impact upon the
    administration of justice." State v. Hodge, 
    426 N.J. Super. 321
    , 325 (App. Div.
    2012). When Hodge was later convicted, he appealed and we affirmed by way
    of an unpublished opinion, State v. Hodge, No. A-1177-13 (App. Div. Apr. 29,
    2016), which was followed by the Supreme Court's denial of certification, 
    228 N.J. 426
     (2016).
    As can be seen, the Supreme Court twice declined the opportunity to
    consider our holdings that P.M.P. should only apply prospectively. So, it seems
    highly likely that the Court would not have granted certification to consider that
    issue had appellate counsel included such an argument in defendant's petition
    for certification after we decided the direct appeal. We conclude – as did the
    A-1276-17T4
    7
    PCR judge – that appellate counsel was not ineffective for failing to urge – for
    the second time – his argument that P.M.P. should be given retroactive effect.
    Affirmed.
    A-1276-17T4
    8
    

Document Info

Docket Number: A-1276-17T4

Filed Date: 12/10/2019

Precedential Status: Non-Precedential

Modified Date: 12/10/2019