State of New Jersey v. Froylan Lopez ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2561-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FROYLAN LOPEZ,
Defendant-Appellant.
_______________________
Submitted February 6, 2024 – Decided February 13, 2024
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-06-0882.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Andrew Frank Guarini, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Froylan Lopez appeals from a Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a trial, a jury found defendant guilty of first-degree murder, third-
degree possession of a knife for an unlawful purpose, and fourth-degree unlawful
possession of a knife. After appropriate mergers, the trial judge sentenced defendant
to forty years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal. We affirmed defendant's conviction and
sentence, and the Supreme Court denied certification. State v. Lopez, No. A-4145-
17 (App. Div. Aug. 12, 2019), certif. denied, 240 N.J. 402 (2020).
Defendant filed a timely petition for PCR. Among other things, defendant
asserted that his trial attorney provided him with ineffective assistance because she
failed to request a jury instruction on passion/provocation manslaughter. Defendant
also argued that his attorney should have called "other people in the area on the night
of th[e] incident" as witnesses at trial. According to defendant, if his attorney had
presented these witnesses, "the jury would have heard that other people in the area
encountered the victim and that the victim was stabbed during one of these other
encounters."
Following oral argument, the PCR judge rendered a thorough written decision,
concluding that defendant did not satisfy the two-prong test of Strickland v.
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Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial counsel's
performance was deficient and that, but for the deficient performance, the result
would have been different.
As to defendant's contention concerning the lack of a passion/provocation
charge, the judge noted that defendant previously
alleged on direct appeal that the jury should have been
instructed as such, and the Appellate Division, after
providing a full analysis of the facts compared to the four
elements to passion/provocation manslaughter, concluded
that "there [] was adequate time for defendant to cool off
. . . the record [did] not 'clearly indicate' that there was
adequate provocation["] and as such the passion/provocation
charge was not required.
Because this court had already determined on direct appeal that a passion/provocation
charge was not necessary under the circumstances of this case, the PCR judge
determined that defendant was barred by Rule 3:22-51 from raising this issue again
in a PCR proceeding. 2
1
Rule 3:22-5 states that "[a] prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings resulting in the conviction or in
any post-conviction proceeding brought pursuant to this rule or prior to the adoption
thereof, or in any appeal taken from such proceedings."
2
We also note that because this court had already determined that a
passion/provocation charge was not required, defendant failed to satisfy the second
Strickland prong. Thus, even if defense counsel had requested this charge at the trial,
the trial court would not have been required to give it because it was not "rationally
based on the evidence." State v. Simms, 369 N.J. Super. 466, 471 (App. Div. 2004).
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The judge also rejected defendant's claim that his attorney was ineffective
because she did not call "other people in the area" to testify at the trial. The judge
explained his decision as follows:
[Defendant] provided no further information regarding these
"other people" to this [c]ourt in either his brief or oral
arguments. This [c]ourt does not have affidavits from these
witnesses, the names of these witnesses, the location of the
witnesses, or the number of witnesses [defendant] believes
to exist. [Defendant] even appears unsure as to how many
"other" altercations there were that day where [the] [v]ictim
was supposedly stabbed instead. [Defendant] certifies that
there was "another event" (singular) in the third paragraph
of his [c]ertification and then states [v]ictim was stabbed
"during one of these other encounters" (plural) in the
following paragraph. Lacking any evidence in support of
these bald assertions, [defendant] has failed to establish a
prima facie showing that his trial counsel failed in this
regard.
On appeal, defendant raises the same arguments he unsuccessfully presented
to the Law Division. Defendant contends:
POINT 1 – DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE HE ESTABLISHED
A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE
OF COUNSEL IN THE FAILURE OF TRIAL COUNSEL
TO REQUEST A JURY INSTRUCTION ON
PASSION/PROVOCATION MANSLAUGHTER WHEN
SUCH AN INSTRUCTION WAS CLEARLY SUPPORTED
BY THE FACTS.
POINT II – DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL
COUNSEL WAS INEFFECTIVE IN FAILING TO CALL
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EYEWITNESSES WHO WERE PRESENT AT THE
SCENE.
When petitioning for PCR, the defendant must establish, by a preponderance
of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212
N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that
burden, the defendant must allege and articulate specific facts that "provide the court
with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions tha t
he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary
hearings and make a determination on the merits only if the defendant has presented
a prima facie claim of ineffective assistance, material issues of disputed facts lie
outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b);
State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a
PCR petition without an evidentiary hearing for abuse of discretion. Preciose, 129
N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
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performance was deficient, but also that the deficiency prejudiced his right to a fair
trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). There is a
strong presumption that counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz, 105
N.J. at 52, the defendant must demonstrate "how specific errors of counsel
undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648,
659 n.26 (1984).
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially for the
reasons detailed at length in the PCR judge's written opinion. We discern no abuse
of discretion in the judge's consideration of the issues, or in his decision to deny the
petition without an evidentiary hearing. We are satisfied that the trial attorney's
performance was not deficient, and defendant provided nothing more than bald
assertions to the contrary.
Affirmed.
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