STATE OF NEW JERSEY VS. M.M. (09-12-2137, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5193-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.M.,
Defendant-Appellant.
_________________________
Submitted September 11, 2019 - Decided September 24, 2019
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 09-12-2137.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson D. Harkov, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant appeals from the May 30, 2018 order denying his post-
conviction relief (PCR) petition without a plenary hearing. He claims trial
counsel was ineffective by failing to: object to hearsay evidence, request certain
jury instructions, or interview an eyewitness. He claims counsel had an
"apathetic attitude" during trial, which was conducted in defendant's absence.
Because his claims do not give rise to a substantial denial of his constitutional
rights, we affirm.
In 2009, defendant was charged with fourth-degree sexual contact,
N.J.S.A. 2C:14-3(b), second-degree attempted sexual assault, N.J.S.A. 2C:5-l
and N.J.S.A. 2C:14-2(c)(l), fourth-degree child abuse, N.J.S.A. 9:6-1 and
N.J.S.A. 9:6-3, third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and third-
degree luring a child into a motor vehicle, N.J.S.A. 2C:13-6.
After defendant failed to appear for trial a third time in October 2009, the jury
trial proceeded in his absence. He was found guilty of all charges except terroristic
threats.
The underlying facts developed at trial are recounted in detail in State v.
M.M., No. A-3432-15 (App. Div. Sep. 28, 2017) (slip op. at 2-5). We
incorporate those facts into this opinion, emphasizing only those necessary to
explain this decision. Defendant, then twenty-one years old, met S.D., who was
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a seventeen-year-old customer at his fried chicken store. Defendant mentioned
to S.D. that he had a job opening for her. On August 3, 2009, defendant s aw
S.D. outside a supermarket. They discussed the job opening, and then defendant
offered S.D. and her four-year-old brother a ride home. Once in the car,
defendant said he had to stop at his home on the way. When they arrived,
defendant insisted that S.D. and her brother come inside. Defendant knocked
on the door and another man S.D. did not recognize opened the door and led
them to a basement apartment. They sat in a living room while defendant went
into a bedroom where he said he was looking for a job application.
After a few moments, defendant asked S.D. to follow him into the
bedroom so he could talk to her. She entered the bedroom with her young
brother. She sat on the bed and defendant began touching her and saying he
wanted to make love to her. His friend entered and removed her brother from
the room despite S.D.'s protests. Defendant proceeded to try to undress S.D.
and convince her to have sex with him, but she resisted and started screaming.
Defendant punched her in the face so she would stop screaming, placed both
hands on her neck so she could not breathe, and threatened to kill her if she
called the police. His friend knocked on the door and told defendant a crowd
had gathered outside because they heard S.D. screaming.
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S.D. fled the apartment and told three people who were standing there that
a man tried to rape her. They told her to call the police, but S.D. left and went
home with her brother. At home, S.D. spoke with her grandmother who brought
her to the police station to provide a statement. The police brought S.D. to
defendant's store, where she identified defendant.
After missing three trial dates, the trial began without defendant. Counsel
indicated defendant understood the trial was proceeding in his absence and that
he had "chosen not to be [there] on his own free will." During trial, defense
counsel argued S.D.'s story had inconsistencies, she was not credible, and the
police did not fully investigate the case.
Nearly five years after trial, defendant appeared in court. He told the court
he had just returned to the United States because his mother passed away. He
said that before his initial trial date, he learned that his mother was seriously ill
in West Africa and he missed his trial because he left the country to care for her.
In November 2010, defendant was charged with one count of bail jumping,
N.J.S.A. 2C:29-7, in connection with his failure to appear for trial. In September
2015, defendant appeared in court with counsel and pled guilty to bail jumping in
exchange for the State's recommendation of a maximum of three years imprisonment
concurrent to the sentence to be imposed on the underlying indictment. In March
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2016, defendant was sentenced on both indictments to an aggregate term of five
years in state prison subject to an eighty-five percent parole disqualifier pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).
We affirmed defendant's convictions, noting defense counsel's failure to
object to jury instructions and hearsay. M.M., slip. op. at 2, 6-16. Despite finding
that hearsay evidence was erroneously admitted, we were not convinced the hearsay
testimony was "clearly capable of producing an unjust result" under Rule 2:10-2.
M.M., slip. op. at 15.
Defendant raises the following issues on appeal:
POINT I: THE FAILURE OF TRIAL COUNSEL TO
OBJECT TO INADMISSIBLE HEARSAY
EVIDENCE AND TO MAKE ANY SIGNIFICANT
REQUESTS FOR JURY INSTRUCTIONS,
COMBINED WITH CONVEYING AN APATHETIC
ATTITUDE IN OPEN COURT REGARDING THE
OUTCOME OF THE TRIAL, DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: THE POST CONVICTION RELIEF
COURT ERRED WHEN IT FAILED TO CONCLUDE
THAT TRIAL COUNSEL'S FAILURE TO
INTERVIEW THE ONLY COMPETENT
EYEWITNESS TO THE ALLEGED CRIME, WHO
WAS DEFENDANT'S FRIEND, DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
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POINT III: THE PCR COURT ERRED WHEN IT
FAILED TO GRANT DEFENDANT'S REQUEST
FOR AN EVIDENTIARY HEARING BECAUSE
THERE WAS A FACTUAL DISPUTE REGARDING
WHY TRIAL COUNSEL FAILED TO TAKE A
STATEMENT FROM DEFENDANT'S FRIEND WHO
WAS PRESENT DURING THE ALLEGED CRIME
AND WHETHER DEFENSE COUNSEL
ERRONEOUSLY GAVE DEFENDANT
PERMISSION TO LEAVE THE COUNTRY, [1]
ATTEND TO HIS AILING MOTHER, AND THUS
MISS HIS TRIAL DATE.
I. Ineffective Assistance of Counsel
"Post-conviction relief is neither a substitute for direct appeal, R. 3:22-3,
nor an opportunity to relitigate cases already decided on the merits, R. 3:22-5."
State v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable
PCR claim if it is based upon a "[s]ubstantial denial in the conviction
proceedings of defendant's rights under the Constitution of the United States or
the Constitution or laws of the State of New Jersey." R. 3:22-2(a).
We review a trial court's legal determinations de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). To establish ineffective assistance of counsel, a
defendant must show (1) counsel's performance was so deficient that he or she
was "not functioning as the 'counsel' guaranteed the defendant by the Sixth
1
Defendant did not claim in his affidavit submitted to the PCR court that trial
counsel gave him permission to leave the country.
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Amendment," and (2) prejudice to the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 52 (1987). There is a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Fritz, 105 N.J. at 52 (quoting Strickland,
466 U.S. at 689).
Regarding the first prong, a court must "fairly assess the reasonableness
of an attorney's performance by 'eliminat[ing] distorting effects of hindsight,
. . . reconstruct[ing] the circumstances of counsel's challenged conduct, and . . .
evaluat[ing] the conduct from counsel's perspective at the time.'" State v.
Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (alterations in original)
(quoting Strickland, 466 U.S. at 689). Regarding the second prong, a defendant
must prove "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Fritz, 105 N.J.
at 52 (quoting Strickland, 466 U.S. at 694). A "reasonable probability" is one
that is "sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland, 466 U.S. at 694). To be entitled to an evidentiary hearing, a
petitioner "must do more than make bald assertions that he was denied the
effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999). A conviction "will not be overturned merely because the
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defendant is dissatisfied with his or her counsel's exercise of judgment during
the trial." State v. Castagna, 187 N.J. 293, 314 (2006).
II. Purported Trial Errors
Defendant argues trial counsel was ineffective based on his failure to
make an opening statement, object to hearsay, and request certain instructions.
Defendant also notes trial counsel's "apathetic attitude in open court."
A. Opening Statement
Defendant points to trial counsel's failure to provide an opening statement.
Rule 1:7-1(a) expressly makes opening statements on behalf of a defendant
discretionary. State v. Williams, 232 N.J. Super. 414, 418 (App. Div. 1989).
The decision to forego an opening statement does not constitute a per se
violation of defendant's constitutional right to an attorney.
B. Hearsay
Defendant points to trial counsel's failure to object to hearsay evidence
and argues trial counsel violated his constitutional right to confrontation .
Defendant argues the testimony of Officer Alexa Pizarro and S.D.'s grandmother
improperly bolstered S.D.'s credibility. In her testimony, Pizarro described her
involvement in the investigation and restated S.D.'s version of the incident.
S.D.'s grandmother also repeated what S.D. had told her. Neither witness related
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any statements S.D. did not testify to herself. Thus, their testimony did not lead
to an improper result.
The next portion of testimony defendant argues was improper hearsay is
S.D.'s responses to the State's question on redirect regarding her grand jury
testimony:
Q: And do you remember saying [to the grand jury] that
he indicated that he could, like, pay you double in
Newark?
A: I remember he said that, but that (sic) not the day
that we -- we was in the house.
Q: Okay. So, paying you double didn't mean like I'll
pay you double if -- to your understanding did you
agree to work at his store and be paid double for sex?
A: No.
Q: You never in your mind thought this person is going
to ask me --
A: He told me he was going to give me double but not
for sex.
Q: Okay.
A: He never told me about that.
Rule 803(a)(2) provides that a witness's prior statement will not be excluded as
hearsay if it is consistent with the witness's testimony at trial and is offered to
rebut a charge of recent fabrication, improper influence or motive. Before the
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State mentioned the grand jury testimony on redirect, defense counsel on cross-
examination asked S.D. about her statement to the police that defendant had
offered her double wages, asking:
Q: [H]ave you ever told the police that he actually or
while you asked him for the job in the bedroom and
(sic) he said that he would offer you the job and pay
you double the wages if you were to make love with --
with him?
The State's line of questioning during redirect addressed defense counsel's
suggestion that S.D. was motivated to have sex with defendant for double pay.
Contrary to defendant's contention on appeal, the testimony is permissible under
Rule 803(a)(2).
Finally, defendant argues statements made by police witnesses regarding
the content of 911 phone call records without objection were improperly
admitted into evidence. Statements within emergency phone calls made with
the primary purpose of enabling police assistance to meet an ongoing emergency
may be properly admitted without violating a defendant's constitutional right to
confrontation, because such statements are considered nontestimonial. Davis v.
Washington, 547 U.S. 813, 822 (2006).
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C. Identification Charge and Jury Instructions
Defendant criticizes trial counsel's failure to request an identification
charge and his failure to request cautionary jury instructions regarding
defendant's alleged statements to the victim.
While the court's final jury instruction did not include a specific charge
regarding S.D.'s identifications of defendant both in-court and out-of-court,2
identification was not an issue because defendant and S.D. were familiar with
each other from defendant's store. See State v. Davis, 363 N.J. Super. 556, 561
(App. Div. 2003) (noting "a model identification charge should be given in every
case in which identification is a legitimate issue").
Next, defendant briefly claims the court erred by failing to instruct the
jury regarding the proper manner to evaluate oral statements allegedly made by
defendant. On direct appeal of defendant's conviction we stated:
S.D. was cross-examined concerning her version of the
events and defendant's statements. The court carefully
and thoroughly instructed the jurors about their
evaluation of the credibility of witness testimony.
Moreover, defendant's statements concerning his desire
to make love to S.D. were not of great significance
when considered in the context of her detailed
2
See Model Jury Charges (Criminal), "Identification; In-Court and Out-Of-
Court Identifications" (rev. 2012).
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testimony about defendant's actions. Accordingly, the
court's failure to give a Kociolek [3] instruction was not
clearly capable of producing an unjust result.
[M.M., slip op. at 13 (citation omitted).]
Defendant fails to demonstrate that trial counsel's failure to request an
identification charge or an instruction regarding S.D.'s testimony concerning
defendant's statements constituted ineffective assistance of counsel.
D. Closing Argument
Defendant also briefly mentions trial counsel's "lackadaisical" attitude
before the jury. He asserts trial counsel "acted surprised and appeared
nonchalant when he was asked to present his closing argument and he responded
by stating he did not know it was 'my turn.'" During closing arguments, trial
counsel said:
I go first? Ladies and gentlemen, members of the jury,
the evidence clearly indicates that it is a case of he said,
she said.
I'm not saying [M.M.] is, you know, a saint or anything
close to a Mother Theresa or something like that. He –
he's a married man and he work[ed] in his chicken store.
But he was wrong to flirt with a young girl. Okay? And
apparently it was a young girl looking for a job and
looking for an opportunity to make a buck.
3
State v. Kociolek, 23 N.J. 400 (1957).
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Counsel's closing argument did not "utterly fail[] to 'subject the prosecution's
case to meaningful adversarial' scrutiny." State v. Harrington, 310 N.J. Super.
272, 284 (App. Div. 1998) (quoting U.S. v. Swanson, 943 F.2d 1070, 1074 (9th
Cir. 1991)) (reversing the defendant's conviction where defense counsel
"inform[ed] the jury that there is no reasonable doubt but that his client
committed the predicate crime to felony murder"). Defense counsel vigorously
urged the jury to disregard the victim's testimony regarding coercion.
III. Eyewitness
Defendant next argues trial counsel was ineffective because he failed to
interview defendant's friend who was present during the incident. With regard
to why defense counsel did not call defendant's friend as a witness at trial, the
PCR court stated:
[P]etitioner fails to account for the fact that counsel
may have considered the possibility that presenting his
friend at trial could prove to be detrimental to his
defense as his friend not only allegedly removed the
victim's brother leaving petitioner and the victim alone
in a bedroom, but allegedly acted as a watchman,
warning petitioner that the victim's screaming [was]
attracting attention from outside.
Defendant failed to provide an affidavit from the eyewitness stating what
he would have said had he been called to testify at trial. Defendant relied instead
on his own assertion that he "requested that my trial attorney make sure my
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friend was at the trial as he would have confirmed" defendant's innocence. It is
not enough that defendant claim his friend would have supplied helpful
testimony. Defendant's "bald assertions," Cummings, 321 N.J. Super. at 170,
do not show that trial counsel was so deficient as to deny his constitutional right
to counsel, nor do they show a reasonable probability of prejudice. Strickland,
466 U.S. at 687. Moreover, in light of S.D.'s testimony that the eyewitness
removed S.D.'s young brother from the bedroom and alerted defendant that a
crowd had gathered due to S.D.'s screaming, we cannot conclude that the
decision not to call him at trial was patently unreasonable.
IV. Evidentiary Hearing
Defendant finally argues the PCR court erred by failing to grant his
request for an evidentiary hearing due to a factual dispute regarding why trial
counsel did not interview the individual present at the apartment during the
incident and whether trial counsel fully explained to defendant the ramifications
of his nonappearance for trial. Defendant did not make a prima facie showing
of either prong of Strickland. We thus conclude that the PCR court exercised its
discretion properly in not conducting an evidentiary hearing. Cummings, 321
N.J. Super. at 170.
Affirmed.
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