STATE OF NEW JERSEY VS. DARWIN G. GODOYÂ (98-04-0624, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5431-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARWIN G. GODOY,
Defendant-Appellant.
______________________________
Submitted September 12, 2017 – Decided September 27, 2017
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
98-04-0624.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals the denial of his application for post-
conviction relief (PCR) without an evidentiary hearing, and raises
the following arguments in his brief:
POINT I
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
HEARING BECAUSE HE PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL AND THE EVIDENCE LAID OUTSIDE THE
RECORD.
POINT II
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
HEARING BECAUSE HE PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL.
We affirm the denial of defendant's petition substantially for the
reasons set forth in Judge James J. Guida's oral opinion on May
18, 2015.
We previously considered defendant's PCR in July 2011 and
rejected his arguments that: his statement to the police should
not have been introduced into evidence against him at trial; his
request for an adjournment of the trial should not have been
denied; the trial court erred in charging the jury on accomplice
liability; he should have faced only one – not three – murder
charges; his rights under the Vienna Convention on Consular
Relations were violated; and his sentence was illegal. State v.
Godoy, No. A-2439-09 (App. Div. July 22, 2011) (slip op. at 7-10).
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Defendant also argued that a portion of the admissions he made
during the entry of his vacated plea was impermissibly introduced
into evidence at his trial. Id. at 8-9. We remanded the matter
to the PCR court because we were not able to determine from the
record whether the trial court admitted defendant's plea testimony
or his testimony from the trial of his accomplices; we were
concerned that defendant's admissions of guilt during the plea
colloquy were admitted into evidence in contravention of New Jersey
Rule of Evidence 401. Godoy, supra, slip op. at 11-12.
After reviewing the record of defendant's testimony Judge
Guida determined, and defendant's PCR counsel agreed, it was
"crystal clear that what was played was not the plea colloquy, but
the testimony . . . during the trial proceedings." His finding
obviated the concern that prompted our remand.
Defendant now argues, without citing to any authority, that
his prior trial testimony was also inadmissible at his trial. He
also contends his trial counsel was ineffective because he failed
to tell defendant that his testimony at his accomplice's trial
could be used against him at his own trial. Defendant did not
raise these issues prior to the remand. We agree with Judge Guida
that these contentions are time-barred because they were raised
well after the five-year time limit set forth in Rule 3:22-12(a),
and defendant has failed to show excusable neglect. State v.
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Cann, 342 N.J. Super. 93, 101-02 (App. Div.), certif. denied, 170
N.J. 208 (2001) (citation omitted).
We also agree with Judge Guida that defendant is not entitled
to an evidentiary hearing regarding his claim of ineffective
assistance of trial counsel, having failed to present a viable
prima facie case that would warrant one. State v. Preciose, 129
N.J. 451, 462-63 (1992). Defendant further avers that he was
entitled to an evidentiary hearing because he presented a prima
facie case of ineffective assistance of appellate counsel. We
find insufficient merit in that argument to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
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