STATE OF NEW JERSEY VS. LEANDRO OLIVO-REINOSO (13-03-0148, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-2505-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEANDRO OLIVO-REINOSO,
a/k/a LEANDRO F. OLIVO and
LEANDRO F. REINOSO,
Defendant-Appellant.
_______________________________
Submitted December 4, 2018 – Decided January 17, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 13-03-
0148.
Andrew R. Burroughs, attorney for appellant.
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Alexander C. Mech, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the December 22, 2017 order that denied his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
We glean these facts from defendant's trial. On January 17, 2013,
Detective Alan McKay of the North Plainfield Police Department responded to
a report by Mitchell Castro that his Sony laptop and other personal electronic
items were missing from his apartment. Castro paid $600 for the computer. He
rented out a room in his apartment to Raymon Gonzalez, who lived there with
Michelle Olivo (Michelle), defendant's sister. 1 Gonzalez was suspected of
committing the theft, but he denied taking the laptop when questioned by the
police.
About two weeks later, McKay found the laptop's serial number on a
"pawn list," which showed it had been sold to a local pawn shop on January 19,
2013; he recovered the laptop and returned it to Castro. It had been wiped clean
of all programs, pictures and music. The shop's owner provided the police with
a transaction sheet, which showed he purchased it for $175. A copy of "Dijon
1
We refer to defendant's sister by her first name to avoid confusion because
defendant and she share the same surname.
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Pompey's" driver's license was attached to the transaction sheet. The store
owner hoped to resell the laptop for $250 to $270.
McKay contacted Pompey who admitted he had allowed his identification
to be used by defendant to sell the laptop. He denied any knowledge the laptop
was stolen. Pompey consented to participate in two "consensual overhears" 2
with defendant, that were recorded. During these calls, defendant denied
knowledge that the laptop was stolen, said he needed to use Pompey's
identification because he had left his at home, asserted the laptop was not his
but was "Raymon's," and then denied knowing Gonzalez's last name. Defendant
claimed the laptop was given to him to sell because "they want to get rid of it."
The police questioned defendant, who waived his Miranda3 rights. In his
statement to the police, defendant said Gonzalez brought the computer to his
apartment, which he shared with Roger Mejia, because he was trying to get rid
of it. Defendant thought the laptop was in good condition and that it was worth
"like around four hundred to three hundred and fifty dollars." He denied
knowing the laptop was stolen. Defendant also said he was estranged from
2
McKay testified that "[a] consensual overhear . . . is when a subject makes a
telephone call in your presence, and that telephone call is recorded."
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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Michelle and was no longer close with Gonzalez. Defendant told the police he
had loaned Gonzalez $100 the night before for bail and that Gonzalez told him
he could keep that amount if he sold the laptop. Defendant used Pompey's
identification to sell the laptop to the shop owner for $175 because defendant
had lost his wallet. Gonzalez and defendant had an argument when Gonzalez
learned defendant sold the laptop.
Gonzalez testified for the State. He knew defendant because he was dating
his sister. He acknowledged he stole Castro's laptop and other electronic items
because they had an argument. He testified that he showed the laptop to
defendant at defendant's apartment, and told him it was stolen. He knew
defendant fixed computers. About a week later, defendant told him he had
pawned the laptop. Although Gonzalez initially denied to the police that he stole
the laptop, he testified he eventually admitted taking it and lying to the police.
He previously had stolen two televisions from Costco when he worked there and
pled guilty to that theft. The defense did not call any witnesses.
Defendant was indicted on a single count of third-degree4 receiving stolen
property having value of more than $500, N.J.S.A. 2C:20-7. He was granted
4
Theft is a crime of the third degree if the amount involved exceeds $500 but
is less than $75,000; it is fourth degree if the amount involved is at least $200
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pre-trial intervention, but that was terminated in 2014 because he violated its
conditions. Following a jury trial, defendant was convicted in August 2014 of
fourth-degree receiving stolen property, N.J.S.A. 2C:20-7. He was sentenced in
October 2014 to three years of probation. He violated probation and was
sentenced in June 2016 to probation with an extended date. Defendant did not
file a direct appeal from his conviction or sentence.
Defendant filed a PCR petition in June 2017, alleging ineffective
assistance of counsel. He claims his counsel did not properly investigate the
case, and should have called alibi witnesses, who included his sister, Michelle,
and his roommate, Mejia. He claims his counsel did not effectively cross-
examine the State's witnesses and should not have conceded before the jury that
the value of the laptop was $250 because that fact all but assured he would be
deported based on a conviction.
Defendant's PCR petition was denied on December 20, 2017, following
oral argument. The PCR judge rejected defendant's request for an evidentiary
hearing. The PCR court found that defendant's trial counsel "fulfilled his duty"
to make a reasonable investigation. Counsel's decision not to call Mi chelle or
but does not exceed $500 and is a disorderly person's offense if the amount
involved is less than $200. N.J.S.A. 2C:20-2(b).
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Mejia as witnesses was a "strategic trial decision" that was "reasonable" and was
not because of an "inadequate investigation." The PCR court rejected
defendant's claim that his counsel should have more thoroughly cross-examined
Gonzalez. Gonzalez's credibility already had been undermined through cross-
examination where he admitted to lying. He "impeached" Gonzalez by asking
about his pending criminal cases, by asking if he was testifying pursuant to a
plea deal and by eliciting admissions from him.
The court found it was a "strategic choice" by defense counsel to say that
the laptop was worth $250 because there was testimony the laptop was worth up
to $600. "This concession preserved counsel's credibility and convinced the jury
not to convict defendant of third-degree receiving stolen property." The court
also found defendant did not satisfy the second prong under Strickland5 because
there was "sufficient evidence of defendant's guilt . . . to support a conviction."
The PCR court listed examples of inconsistent statements made by defendant.
The court found "counsel's decisions were all perfectly reasonable based on the
underlying facts of this case," and defendant had not shown that "but for
counsel's unprofessional errors, the outcome of the trial would have resolved
differently."
5
Strickland v. Washington, 466 U.S. 668 (1984).
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Defendant presents the following issues in his appeal.
POINT I
THE PCR COURT WAS WRONG WHEN IT DENIED
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE DEFENDANT
HAD PRESENTED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
(1) Defense counsel was ineffective by failing to
investigate the case.
(2) Because defense counsel failed to properly
investigate the case, he failed to effectively cross-
examine Raymon Gonzalez.
(3) Defense counsel prejudicially conceded the market
value of the stolen computer as $250.00.
(4) Defense counsel's cumulative errors denied
Defendant effective assistance of counsel.
POINT II
AS THERE WERE GENUINE ISSUES OF
MATERIAL FACTS IN DISPUTE, AN
EVIDENTIARY HEARING WAS REQUIRED.
We are not persuaded by these arguments and affirm.
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. at 668, and adopted by our Supreme Court in State v.
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Fritz, l05 N.J. 42 (l987). In order to prevail on an ineffective assistance of
counsel claim, defendant must meet a two-prong test by establishing that: (l)
counsel's performance was deficient and he or she made errors that were so
egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the defect in
performance 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, 466 U.S. at 694.
We agree with the PCR court that defendant did not show a prima facie
case of ineffective assistance. Defendant contends that had defense counsel
investigated the case, he would have called defendant's sister and his roommate
as witnesses. Defendant claims Michelle would have corroborated his lack of
knowledge that the laptop was stolen and that Roger Mejia would have testified
Gonzalez did not tell him the laptop was stolen. However, the record supports
the PCR court's conclusion there was ample evidence for the jury to conclude
defendant was aware the laptop was stolen. Defendant was inconsistent in his
statements explaining how he obtained the laptop, whether it was his, how long
he had it, why he needed someone else's identification to sell it, why he sold it
quickly for the price he obtained, his apparent lack of surprise on the overheard
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conversations that the laptop was stolen and in claiming he did not know
Gonzalez's last name.
Defendant argues his sister's testimony would have provided evidence of
a motive by Gonzalez. Even if he did have a motive to lie about defendant
because, as she alleged, defendant tried to break-up Gonzalez's relationship with
Michelle, that also could have weakened defendant's case. The jury would have
to believe that although Gonzalez and defendant were not on friendly terms,
defendant bailed him out and agreed to hold a computer for him. Also, his
sister's testimony would have been subject to impeachment limiting its value.
Thus, we agree with the PCR court's conclusion that counsel's actions were
strategic.
Defendant claims that cross-examination of the State's witnesses was
inadequate but this is not supported by the record. Gonzalez conceded on cross-
examination he lied to the police and, on an earlier occasion, stole TVs from an
employer. Detective McKay acknowledged he did not do anything to verify the
value of the laptop.
Defendant is critical of his attorney for admitting in the closing that the
laptop was worth $250. However, there was testimony that the value of the
laptop could have been as high as $600. The store owner said he could sell the
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laptop for $250 to $270. Defendant's own statement placed the value at $350 to
$400. Had the jury accepted the $600 valuation, defendant could have been
convicted of third-degree receiving stolen property.
Even if counsel should have called witnesses or remained silent about the
laptop's market value, defendant has not shown the second prong under
Strickland was satisfied. He must show that but for the errors, the result of the
proceedings would be different. Ibid. There was evidence before the jury that
defendant was aware the laptop was stolen based on his own inconsistent
statements. Defendant's theory of the case was before the jury, but so were these
inconsistencies. Defendant has not shown anything here that would change the
result.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of trial counsel within the
Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an
evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-
63 (1992).
We conclude that defendant's further arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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