STATE OF NEW JERSEY VS. RICHARD A. MUNOZ (11-02-0230, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0101-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD A. MUNOZ,
Defendant-Appellant.
________________________
Submitted March 6, 2019 – Decided August 23, 2019
Before Judges Fuentes and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 11-02-0230.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
On March 13, 2013, defendant Richard A. Munoz was tried before a jury
over four non-sequential days on the charges of murder, N.J.S.A. 2C:11-3(a)(1)
or (2), felony murder, N.J.S.A. 2C:11-3(a)(3), first degree robbery, N.J.S.A.
2C:15-1, third degree possession of a weapon (knife) for an unlawful purpose,
N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a knife, N.J.S.A.
2C:39-5(d). On March 23, 2013, the jury found defendant guilty of second
degree robbery as a lesser included offense of first degree armed robbery, and
acquitted him of all of the remaining charges.
On May 10, 2013, the court sentenced defendant to a term of eight years,
subject to an eighty-five percent period of parole ineligibility and three years of
parole supervision, as mandated by the No Early Release Act, N.J.S.A. 2C:43-
7.2. On direct appeal, we affirmed defendant's conviction and sentence, State
v. Munoz, No. A-5733-12 (App. Div. November 18, 2015), and the Supreme
Court denied his petition for certification. State v. Munoz, 224 N.J. 247 (2016).
We incorporate by reference the facts we described in our opinion affirming
defendant's conviction. Munoz, slip op. at 2-5.
On July 11, 2016, defendant filed a pro se post-conviction relief (PCR)
petition in which he argues the sentence imposed by the court was excessive and
that he did not receive a fair trial. The court assigned counsel to assist defendant
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prosecute the petition. PCR counsel thereafter filed an amended petition arguing
defendant received ineffective assistance by both trial and appellate counsel.
The matter came for oral argument before Judge Martha T. Mainor on
April 27, 2017. PCR counsel argued appellate counsel should have raised on
direct appeal that defendant was denied a fair trial based on the trial judge's bias,
as evidenced by the judge's comments and interactions with defense counsel in
the presence of the jury. Judge Mainor found defendant presented sufficient
grounds to warrant an evidentiary hearing pursuant to Rule 3:22-10(b). See
State v. Preciose, 129 N.J. 451, 462-63 (1992). The court conducted the
evidentiary hearing on June 22, 2017. The State called defendant's appellate
counsel as a witness. Defendant did not call any witnesses nor testify on his
own behalf. Judge Mainor found no grounds to find ineffective assistance of
counsel and denied defendant's PCR petition in an oral opinion delivered from
the bench.
Defendant now appeals from the order of the Criminal Part raising the
following arguments.
POINT I
TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST THE JUDGE RECUSE
HIMSELF FOR NUMEROUS CONTEMPT
THREATS AND THREAT UPON DEFENSE
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COUNSEL'S LICENSE TO PRACTICE, ALL WHICH
TAINTED THE JURY AND PREVENTED COUNSEL
FROM EXERCISING DEFENDANT'S
CONSTITUTIONAL RIGHT TO CONFRONT THE
WITNESS AGAINST HIM.
POINT II
APPELLATE COUNSEL WAS INEFFECTIVE FOR
NOT RAISING DEFENDANT'S CLAIM THAT
TRIAL COUNSEL'S FAILURE TO OBJECT TO THE
NUMEROUS COURT RULINGS AND
INTERJECTIONS THROUGHOUT THE TRIAL
PRODUCED A CUMULATIVE EFFECT OF BIAS
WARRANTNG A MISTRIAL.
We reject these arguments and affirm. This court reviews a claim of
ineffective assistance of counsel under the two-prong test established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,
58 (1987). First, defendant must demonstrate that defense counsel's
performance was deficient. Strickland, 466 U.S. at 687. Second, he must show
there exists "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694.
Judge Mainor conducted an evidentiary hearing where she considered the
testimony of defendant's appellate counsel and found no legal basis to question
her professional judgment in this case. The record developed at this hearing
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supports Judge Mainor's decision to deny defendant's PCR petition. We thus
affirm substantially for the reasons expressed by Judge Mainor in her oral
decision delivered on June 22, 2017.
Affirmed.
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