STATE OF NEW JERSEY VS. JORGE BULTRON (13-03-0588, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0540-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE BULTRON,
Defendant-Appellant.
______________________________
Submitted November 14, 2019 – Decided February 6, 2020
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 13-03-0588.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Alanna M. Jereb, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant, Jorge Bultron appeals from the trial court's May 4, 2018 order
denying his post-conviction relief (PCR) petition without an evidentiary hearing
and his motion for a new trial. We affirm.
Defendant raises the following points on appeal:
POINT I: DEFENDANT IS ENTITLED TO POST-
CONVICTION RELIEF AND HIS CONVICTIONS
MUST BE VACATED BASED UPON NEWLY
DISCOVERED EVIDENCE.
POINT II: DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL ENTITLING
HIM TO [PCR] OR AN EVIDENTIARY HEARING
ON THE ISSUE OF FAILURE OF COUNSEL [TO]
FILE A MOTION TO DISCLOSE THE IDENTITY OF
THE CONFIDENTIAL INFORMANT.
A. APPLICABLE LAW.
B. COUNSEL WAS INEFFECTIVE FOR
FAILING TO MAKE A MOTION TO
DISCLOSE THE IDENTITY OF THE
CONFIDENTIAL INFORMANT
THEREBY DEPRIVING DEFENDANT
OF HIS CONSTITUTIONAL RIGHT TO
CONFRONT HIS ACCUSER.
C. COUNSEL WAS INEFFECTIVE FOR
FAILING TO MAKE A MOTION FOR
JUDGMENT OF ACQUITTAL AT THE
END OF THE STATE'S CASE.
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The facts surrounding the charged offenses are summarized in the direct
appeal, State v. Bultron, A-1396-14 (App. Div. December 15, 2016) (slip op. 1-
5), and we need not fully repeat them here. We focus our attention on
defendant's allegations in his PCR petition concerning the conduct of his trial
counsel and the allegations pertaining to newly discovered evidence in support
of his motion for a new trial.
On October 04, 2012, Officer Gregory Wojtowicz of the Jersey City
Police Department learned from a reliable confidential informant that Darrell
Priester would be purchasing drugs. Priester was stopped and arrested based
upon outstanding warrants. While Priester was being taken into custody, the
confidential informant told Wojtowicz that a Hispanic man named Jorge was on
his way to deliver a quantity of drugs to Priester near the High School.
Wojtowicz relayed the information to Officer Sheridan, who was already in the
area.
Within minutes of receiving the information, Sheridan observed a
Hispanic man, later identified as defendant, carrying a white plastic bag walking
on Brunswick Street with an unidentified black man. Sheridan watched the
individuals engage in conversation, and saw defendant show the black man what
appeared to be a brick of heroin. Based on his observations, Sheridan radioed
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the location of defendant and the other individual. Officers responded to the
scene. When an officer approached defendant, defendant threw the brick of
heroin to the ground and released the plastic bag. The officers retrieved both
items, which were later confirmed to be approximately 2500 glassine bags of
heroin. Defendant was arrested and Sheridan secured the other unidentified
man, who was later released. Defendant's motion for a new trial concerns the
identity of the unidentified man and the identity of the confidential informant.
Sheridan testified he ran a check to determine whether the unidentified
man had any outstanding warrants, however the record about the results is
unclear. Neither the unidentified individual nor the confidential informant were
named before trial.
On or around February 4, 2014, defendant filed a pro se motion to disclose
the identity of the confidential informant. On February 6, 2014, the court
forwarded the motion to his assigned counsel. The motion was never litigated.
Defendant's first trial resulted in a deadlocked jury.
In February 2014, defendant filed an emergent motion seeking, among
other things, an order compelling the State to produce discovery. The motion
judge granted the request for discovery. On May 21, 2014, defendant filed a
motion to renew his suppression motion, which the judge denied. On May 27
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and May 28, 2014, a second jury trial was held, and the jury returned a guilty
verdict on all counts. Defendant appealed his convictions and we affirmed.
In May 2017, defendant filed a pro se petition for PCR. Appointed
counsel thereafter filed a subsequent brief and a motion for a new trial based on
newly discovered evidence. The newly discovered evidence was a report
describing Investigator Dalton Bramwell's October 2016 interview of Priester in
prison, wherein Priester described how he concluded that the unidentified black
male observed with defendant was Priester's brother-in-law, Benny Drayton,
now deceased.
In February 2018, the trial court heard argument on defendant's petition
and motion for a new trial. In May 2018, the PCR court issued a written opinion
denying the defendant's motion for a new trial and petition for PCR. The PCR
court found the evidence proffered by defendant did not constitute reliable
newly discovered evidence, would not have invalidated other independent
evidence sufficient to sustain defendant's conviction, and she did not find
Priester's assertions credible. The PCR court also concluded defendant did not
establish a prima facie case of ineffective assistance of counsel. This appeal
followed.
I.
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Defendant's chief argument is that he is entitled to a new trial because
newly discovered evidence, the identity of the confidential informant,
demonstrates the police gave false testimony in the suppression hearing.
Defendant asserts had he been made aware of the identity of the confidential
informant the result of his trial would have been different.
The denial of a motion for a new trial will only be reversed on appeal if
there has been a clear abuse of discretion by the trial judge. State v. Puchalski,
45 N.J. 97, 107 (1965) (citation omitted). In State v. Carter, 85 N.J. 300, 314
(1981), the Supreme Court "repeated the well-established standard for granting
a new trial based on newly discovered evidence." State v. Nash, 212 N.J. 518,
549 (2013). To satisfy the standard for a new trial based on newly discovered
evidence, defendant must demonstrate the evidence is "1) material, and not
'merely' cumulative, impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was 'not discoverable by reasonable
diligence beforehand'; and 3) that the evidence 'would probably change the jury's
verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004).
All three prongs of the test must be established before a defendant is granted the
relief of a new trial. Ibid.
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"Newly discovered evidence must be reviewed with a certain degree of
circumspection to ensure that it is not the product of fabrication, and, if credible
and material, is of sufficient weight that it would probably alter the outcom e of
the verdict in a new trial." Id. at 187-88.
Here, nothing in the record warrants disturbing the PCR court's
determination that Priester's representation was not credible. As the court noted,
Priester's representation was based primarily on "connected dots," the
representation occurred more than five years after the events leading to the
arrest, and defendant brings forth no evidence corroborating this assertion.
Further, Priester's assertion directly contradicts Wojtowicz's testimony that he
knew the confidential informant and that the unidentified individual was not the
informant.
Moreover, even if we were to assume the unidentified individual and the
informant were the same person, this evidence is collateral and not likely to
change both the judge's determination in the suppression motion and the jury
verdict. In the direct appeal, Bultron, slip op. at 10-11, we determined there was
independent evidence sufficient to sustain defendant's convictions, specifically,
Sheridan's testimony that he personally observed defendant holding an object,
which was later identified to be a brick of heroin, and displaying it to the
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unidentified individual. Since defendant has failed to show the evidence would
probably change the jury verdict, the PCR court did not err in denying the motion
for a new trial.
II.
Defendant argues he received ineffective assistance during the criminal
proceedings because his counsel did not move for disclosure of the identity of
the confidential informant. Defendant contends this rendered him unable to call
the informant as a witness and ultimately, deprived him of his constitutional
right to confront his accuser and present a viable third-party liability defense.
Defendant further asserts his counsel was ineffective for failing to file a motion
of acquittal after the State's case.
To establish a claim for ineffective assistance of counsel, a defendant must
satisfy a two-part test: 1) defendant must show that his attorney's performance
was deficient; and 2) the "deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105
N.J. 42, 49-53 (1987) (adopting the standard in Strickland). In order to satisfy
this burden, the defendant "must do more than make bald assertions that he [or
she] was denied the effective assistance of counsel. He [or she] must allege
facts sufficient to demonstrate counsel's alleged substandard performance."
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State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "Judicial
scrutiny of counsel's performance must be highly deferential[,]" because there
are many ways to provide effective assistance. Strickland, 466 U.S. at 689. In
making a determination, courts must assess whether the attorney acted
reasonably under prevailing professional norms. State v. Gaitan, 209 N.J. 339,
350 (2012) (citations omitted). Under both prongs of Strickland, a defendant
carries the burden of proving their right to relief by a preponderance of evidence.
Ibid.
We defer to the PCR court's factual findings made after an evidentiary
hearing. See State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citations
omitted). However, when the PCR court chooses not to conduct an evidentiary
hearing, we review the factual inferences made by the PCR court de novo. We
also review de novo the court's conclusions of law. Ibid.
Here the PCR judge rejected defendant's assertion that his counsel failed
to adequately represent him because he failed to investigate the circumstances
of the unknown male as meritless. Defendant's trial counsel filed multiple
motions, including a motion to compel discovery to "find out who th e
unidentified black male was." After reviewing the record, the court found
counsel zealously argued that he needed the information to represent his client;
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however, despite his best efforts the trial judge determined defendant was not
being prejudiced by the lack of discovery. The court also acknowledged that
counsel even renewed his motion to suppress since the officers failed to identify
the unidentified individual. We agree with the judge's conclusions.
The identity of a confidential informant is privileged information that the
State need not disclose except under limited circumstances. N.J.R.E. 516; State
v. Sessoms, 413 N.J. Super. 338, 343 (App. Div. 2010). The State may be
required to disclose an informant's identity if "the judge finds that (a) the identity
of the person furnishing the information has already been otherwise disclosed
or (b) disclosure of his identity is essential to assure a fair determination of the
issues." N.J.R.E. 516.
In assessing whether a confidential informant's identity should be
revealed, the court's decision typically hinges on the role of the informant.
Compare State v. Boone, 125 N.J. Super. 112, 113-14 (App. Div. 1973) (finding
the State was privileged to protect the identity of an informant where a defendant
was charged with possession, a crime which the informant did not participate.);
and State v. Ifante, 116 N.J. Super. 252, 259 (App. Div. 1971) (upholding the
denial of defendant's motion for disclosure as "[t]he informant's participation
was not in the criminal activity for which defendant was convicted but rather in
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the investigation leading up to surveillance."); with State v. Roundtree, 118 N.J.
Super. 22, 32 (App. Div. 1971) (finding an informant's identity should have been
revealed as the informant was an active participant in the transaction and was a
material witness on the issue of defendant's guilt).
In State v. Milligan, 71 N.J. 373, 377-78 (1976), an informant introduced
an undercover narcotic agent to the defendant, who was charged with the
unlawful possession and distribution of heroin. The informant accompanied the
agent and defendant to the place where the heroin sale was transacted but did
not actually participate in the transaction. Id. at 378. There, the informant's
limited involvement in the crime, the speculative significance of his testimony ,
and the reasons offered for the disclosure of the informant's identity, did not
outweigh the State's interest in the free flow of information.
In State v. Oliver, 50 N.J. 39, 41-42 (1967), an informant accompanied an
officer to a tavern where the defendant allegedly engaged in bookmaking. The
State was not required to disclose the informant's identity as the informant
played no part in the criminal event. Id. at 42. The Court noted the informant
did not bet or induce the defendant to accept a bet from anyone. Ibid. The Court
stated that the defense was unable to show the informant's testimony was
necessary and the "defense could advance nothing more than an ungrounded
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hope that if the inform[ant] were called as a defense witness, he would say
something that would somehow discredit the trooper and lead to an acquittal."
Ibid.
Like the defendants in Milligan and Oliver, defendant did not prove why
the informant's testimony is necessary to his defense. The defendant's assertion
that the confidential informant and the unidentified male are the same person is
undoubtedly speculative as it is based solely on Priester "connecting the dots."
Moreover, the unidentified individual was neither observed making an exchange
with petitioner, nor did he have any money or contraband on him. Most notably,
no transaction ever took place between the unidentified individual and the
defendant and the unidentified individual was not presented as a witness. Since
the motion was unlikely to succeed, the failure to raise this motion is not an
ineffective assistance of counsel. See State v. Worlock, 117 N.J. 596, 625
(1990) ("failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel."). 1
Defendant also asserts his trial counsel rendered ineffective assistance by
failing to move for a judgment of acquittal at the close of the State's case. This
1
Since defendant has failed to establish the Strickland test, the PCR court is not
obligated to grant an evidentiary hearing, and thus defendant's evidentiary
hearing argument must fail. See Cummings, 321 N.J. Super. at 170.
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claim is procedurally barred as defendant failed to raise the claim at a prior
proceeding. Rule 3:22-4, -5.
Affirmed.
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