STATE OF NEW JERSEY VS. JEAN P. MORALES (00-06-0676, UNION 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  •                                 NOT FOR PUBLICATION WITHOUT THE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-3923-17T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JEAN P. MORALES,
    Defendant-Appellant.
    ____________________________
    Submitted April 9, 2019 – Decided August 28, 2019
    Before Judges Rothstadt and Gilson.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment No. 00-06-0676.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Steven M. Gilson, Designated Counsel, on
    the brief).
    Michael A. Monahan, Acting Union County Prosecutor,
    attorney for respondent (Frank Lawrence Valdinoto,
    Special Deputy Attorney General/Acting Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Jean P. Morales appeals from the Law Division's March 22,
    2018 order denying his petition for post-conviction relief (PCR) without an
    evidentiary hearing. For the reasons that follow, we affirm.
    In 2007, a jury convicted defendant of aggravated manslaughter, N.J.S.A.
    2C:11-4(a) and weapons possession charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.
    2C:39-5(d), after it acquitted him of first-degree murder, N.J.S.A. 2C:11-3(a)(1)
    or -3(a)(2).1 On May 4, 2007, the trial judge merged the weapons offenses and
    imposed an aggregate sentence of thirty years, subject to the eighty-five percent
    parole disqualification provision of the No Early Release Act (NERA), N.J.S.A.
    2C:43-7.2.
    Defendant appealed and we affirmed his convictions and sentence in an
    unpublished opinion. State v. Morales, No. A-5846-06 (App. Div. Sept. 22,
    2010) (slip op. at 5-20). The Supreme Court denied his petition for certification.
    State v. Morales, 
    205 N.J. 101
    (2011).
    The facts underlying defendant's convictions are set forth in our opinion
    and need not be repeated at length here. See Morales, slip op. at 3-5. Suffice it
    1
    In 2002, a jury convicted defendant of all of the crimes for which he was
    indicted, including first-degree murder. However, we reversed due to the trial
    court's failure to sua sponte instruct the jury on passion/provocation
    manslaughter as a lesser-included offense. See State v. Castagna, 376 N.J.
    Super. 323, 331 (App. Div. 2005), rev'd on other grounds, 
    187 N.J. 293
    (2006).
    A-3923-17T2
    2
    to say, defendant's victim had been involved in an altercation at a bar where
    defendant was also a patron. The victim was pursued by a crowd of people,
    including defendant, who ultimately beat him until he fell to the ground. At that
    point, defendant dropped a twenty-five pound cement block on the victim's head,
    which caused injuries that left him in a coma for five months before he died. 
    Id. (slip op.
    at 4-5).
    Defendant filed a PCR petition on May 6, 2011, in which he argued that
    trial counsel failed to properly investigate his matter by not contacting potential
    witnesses who would have been helpful to his defense. See State v. Morales,
    No. A-3088-13 (App. Div. Apr. 15, 2016) (Morales II) (slip op. at 4). The PCR
    judge, who was also the judge at defendant's second trial, denied defendant's
    application on July 25, 2013, without providing him with an opportunity for oral
    argument or granting an evidentiary hearing. 
    Id. (slip op.
    at 2-3).
    Defendant appealed the denial of PCR and we affirmed in another
    unpublished opinion.     
    Id. (slip op.
    at 3-7).   However, the Supreme Court
    summarily reversed our decision and remanded the matter back to the trial judge
    because it found the PCR judge's reasons for not allowing oral argument to be
    insufficient. State v. Morales, 
    227 N.J. 373
    (2016).
    A-3923-17T2
    3
    Prior to the PCR judge's consideration of the matter on remand, on July
    17, 2017, defendant submitted a letter brief as a supplement to his original PCR
    brief, amending claims that counsel failed to investigate. He indicated that the
    supplemental information only became available following the appeal of the
    denial of his original PCR petition.
    The supplementary information related to one of the State's witnesses ,
    A.V.,2 who testified at trial that he and defendant were drinking heavily before
    they parted company and defendant went to the bar. A.V. later found out from
    defendant that he was involved in the victim's beating, although defendant could
    not initially recall what happened due to his intoxication, but subsequently
    remembered having the cement block. During direct and cross-examination at
    trial, A.V. testified to his numerous prior arrests and convictions, including
    seven convictions for indictable offenses, his then-current incarceration, and
    whether he was testifying in exchange for a promise of leniency as to pending
    charges.
    Defendant argued that trial counsel failed to conduct a general internet
    search, which would have uncovered that A.V. was "a drug lord who was
    overheard discussing illegal activities" involving a New Jersey State Trooper
    2
    We use initials to maintain witnesses' confidentiality.
    A-3923-17T2
    4
    and a multi-jurisdictional heroin ring operation, based out of Union County, in
    a later, unrelated matter. Moreover, defendant asserted that a search of the court
    system's criminal case database would have yielded information about A.V.'s
    guilty pleas to a second-degree resisting arrest/eluding offense and for
    involvement in the heroin ring operation.
    Defendant explained that he learned about this information while his
    appeal from the judge's earlier denial of PCR was pending from a cellmate who
    was one of A.V.'s co-defendants in the drug-related racketeering case. That
    individual gave defendant "a series of memos and police reports" from 2005
    from the Union County Prosecutor's Office. Defendant maintained that had trial
    counsel performed his due diligence, the jury would have been made more aware
    of the extent of A.V.'s status as a drug dealer. Defendant also explained that he
    attempted to file a pro se motion for a Brady3 violation, but his application would
    not be accepted due to the pending PCR appeal.
    The parties appeared before the PCR judge on February 23, 2018, for oral
    argument on defendant's petition. Defendant argued that the information about
    A.V. was readily available and counsel had an obligation to ask for discovery
    on the racketeering case, even if the State did not have an obligation to turn over
    3
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    A-3923-17T2
    5
    any documents. In opposition, the State argued that it was not its obligation to
    turn over the documents pertaining to A.V. It raised questions of admissibility
    under Rule 404(b) because of evidence rules precluding impeachment with
    specific acts of conduct.
    On March 22, 2018, the PCR judge denied defendant's petition. In a
    written decision that accompanied his order, the judge concluded that defendant
    failed to meet the first prong of Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984), as adopted by our Supreme Court in State v. Fritz, 
    105 N.J. 42
    , 58 (l987),
    which required a showing that counsel's performance fell below the prevailing
    standard. The judge found that testimony about defendant's intoxication from
    two potential witnesses identified in defendant's PCR petition, L.C. and B.T.,
    would be duplicative of A.V.'s and other witnesses' testimony. The judge found
    B.T., who was A.V.'s wife, was the only one who submitted an affidavit as to
    her knowledge, but even if L.C. submitted one too, neither would have added
    anything to defendant's case because his intoxication was "well documented" in
    the trial record.
    Turning to defendant's argument relating to A.V., the judge observed that
    during trial, A.V. testified about his prior indictable convictions. The judge
    A-3923-17T2
    6
    noted that A.V. was subjected to a thorough examination and testified as to his
    numerous convictions.
    The judge also found that defendant failed to meet the second Strickland
    prong, which required a demonstration that there was a reasonable probability
    that but for counsel's deficient performance, the result of the proceedings would
    have been different. He found no indication that B.T.'s or L.C.'s proposed
    testimonies would have impacted the outcome because the record already
    reflected defendant's level of intoxication. Moreover, there was no indication
    that A.V.'s connection to the heroin ring or details of his other charges would
    have impacted the outcome. The judge observed that "[t]here was overwhelming
    evidence that . . . defendant crushed the victim's head with a block," including
    testimony from other individuals who were present. For these reasons, the judge
    found that defendant failed to establish a prima facie case of ineffective
    assistance of counsel and was not entitled to an evidentiary hearing. This appeal
    followed.
    Defendant presents the following issues for our consideration in his
    appeal.
    POINT I
    THIS MATTER MUST BE REMANDED FOR AN
    EVIDENTIARY     HEARING     BECAUSE
    A-3923-17T2
    7
    DEFENDANT ESTABLISHED A PRIMA FACIE
    CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
    FOR   INADEQUATE    PREPARATION    AND
    INVESTIGATION.
    POINT II
    THIS MATTER MUST BE REMANDED FOR
    FINDINGS OF FACT AND CONCLUSIONS OF
    LAW REGARDING DEFENDANT'S BRADY
    CLAIM. (NOT RAISED BELOW).
    POINT III
    THIS MATTER MUST BE REMANDED FOR A NEW
    PCR HEARING FOR COUNSEL TO ADVANCE
    DEFENDANT'S BRADY CLAIM. (NOT RAISED
    BELOW).
    When a petition for PCR is decided without an evidentiary hearing, our
    review is de novo because claims of ineffective assistance of counsel generally
    give rise to legal issues. State v. Harris, 
    181 N.J. 391
    , 419 (2004). "[I]t is within
    our authority 'to conduct a de novo review of both the factual findings and legal
    conclusions of the PCR court.'" State v. Reevey, 
    417 N.J. Super. 134
    , 146-47
    (App. Div. 2010) (quoting 
    Harris, 181 N.J. at 421
    (2004)).
    Applying our de novo standard of review, we conclude that the PCR judge
    correctly denied defendant's petition substantially for the reasons expressed in
    the judge's thorough twenty-one page decision that accompanied his order
    denying relief. We add only the following comments.
    A-3923-17T2
    8
    In reaching his decision, the judge identified defendant's assertion of a
    Brady violation in the context of his PCR petition. The judge explained that
    according to defendant, had counsel properly investigated his claim, like his
    cellmate who provided him with information about the details of A.V.'s illicit
    drug activities, defendant could have obtained the same information for his trial
    if counsel pursued a Brady claim seeking production of the prosecutor's files in
    A.V.'s drug related racketeering matter.
    On appeal, defendant contends the PCR judge failed to address
    defendant's Brady based contention. He explains that "counsel did not explore
    the background of the charges from . . . [A.V.'s drug i]ndictment . . . ." He
    claims it would have demonstrated that A.V. was "a bona fide drug lord who
    was selling kilos of cocaine for a dirty [New Jersey] State Trooper Narcotics
    Detective." According to defendant, this information was available to trial
    counsel but he failed to investigate any aspect other than the charges and penal
    ties themselves.
    In order to establish a claim under Brady, a defendant must show: "(1)
    the prosecution suppressed evidence; (2) the evidence is favorable to the
    defense; and (3) the evidence is material." State v. Martini, 
    160 N.J. 248
    , 268
    (1999). Evidence is material "if there is a reasonable probability that, had the
    A-3923-17T2
    9
    evidence been disclosed to the defense, the result of the proceeding would have
    been different." State v. Parsons, 
    341 N.J. Super. 448
    , 455 (App. Div. 2001)
    (quoting United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)).          "The mere
    possibility that an item of undisclosed information might have helped the
    defense, or might have affected the outcome of the trial, does not establish
    'materiality' in the constitutional sense." United States v. Agurs, 
    427 U.S. 97
    ,
    109-10 (1976).
    Here, the PCR judge found that the information defendant received from
    his cellmate was not material in that the outcome of the trial would not have
    been different had it been disclosed. As the judge found, A.V. was subject to
    vigorous examination about his criminal background and therefore any
    additional information would not have impacted the outcome. Under these
    circumstances, although as defendant argues to us on appeal, the judge did not
    expressly state there was no Brady violation for trial counsel to have pursued,
    we discern the same by inference from his findings about the information not
    being material, assuming it was discoverable in the first instance.
    In sum, we are satisfied from our review of the record that defendant failed
    to make a prima facie showing of ineffectiveness of trial counsel under the
    Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an
    A-3923-17T2
    10
    evidentiary hearing was not warranted as to claims of ineffective assistance by
    trial counsel. See State v. Preciose, 
    129 N.J. 451
    , 462-63 (1992).
    Finally, to the extent defendant contends the matter must be remanded
    because PCR counsel was deficient in not properly advancing the Brady claim
    or any other claim, we conclude such matters are better considered in a second
    PCR petition. See R. 3:22-4(a)(2).
    Affirmed.
    A-3923-17T2
    11