STATE OF NEW JERSEY VS. FLORIBERT B. NAVAÂ (13-07-0690, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3436-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FLORIBERT B. NAVA,
Defendant-Appellant.
__________________________
Submitted May 17, 2017 – Decided July 20, 2017
Before Judges Fuentes and Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Indictment No. 13-07-0690.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor,
attorney for respondent (Gretchen A.
Pickering, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant appeals from the order of the Criminal Part denying
her post-conviction relief (PCR) petition. We affirm.
On February 27, 2014, defendant Floribert Nava pleaded guilty
pursuant to a negotiated agreement to first degree carjacking,
N.J.S.A. 2C:15-2. At the plea hearing, defendant admitted she
entered a young woman's car, brandished what turned out to be a
toy handgun, and forced the victim to drive her to Philadelphia.
Defendant also admitted that she threatened the victim by telling
her that she would harm the victim's family. Although not a part
of the plea hearing, it is not disputed that defendant forced the
victim to drive for nearly ninety minutes. Defendant's goal was
to retrieve the victim's child. This harrowing ordeal came to an
abrupt end when the victim intentionally drove the car into a
marked police vehicle. Defendant was apprehended near the Benjamin
Franklin Bridge.
As a part of the plea agreement, the State agreed to recommend
that the court sentence defendant to a term of twelve years with
an eighty-five percent period of parole ineligibility and five
years of parole supervision as required under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. On March 27, 2014, the court
sentenced defendant consistent with the terms of the plea
agreement.
Defendant appealed the sentence under the summary process
authorized by Rule 2:9-11. In an order dated October 1, 2014,
this court remanded the matter and directed the sentencing judge
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to provide more detailed reasons for the imposition of the sentence
and to make specific findings in support of the applicable
aggravating and mitigating factors in N.J.S.A. 2C:44-1. State v.
Floribert Nava, No. A-4552-13 (App. Div. Oct. 1, 2014). On
December 5, 2014, the trial court followed our instructions and
again sentenced defendant to a term of twelve years subject to
NERA.
On April 27, 2015, defendant filed a pro se PCR petition
alleging ineffective assistance of counsel. Defendant claimed
her assigned counsel coerced her into entering
a guilty plea by misrepresenting her potential
sentencing exposure if she proceeded to trial
in the case (telling her "100 years"); and
failed to explain to her the strengths and
weaknesses of the prosecution's case, as well
as failing to make an informed decision
because defense counsel never attempted to
interview the purported victim in the case[.]
The trial court assigned counsel to represent defendant in
prosecuting the PCR petition. PCR counsel filed a brief in support
of defendant's petition. The matter came for oral argument before
Judge Donna M. Taylor on February 9, 2016. After considering the
arguments of counsel, Judge Taylor issued a memorandum of opinion
denying defendant's petition on February 26, 2016. As a threshold
issue, Judge Taylor concluded that an evidentiary hearing was not
necessary because the material facts pertaining to defendant's
allegations in support of PCR were not disputed.
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After reviewing the record of defendant's plea hearing, Judge
Taylor found defendant was fully apprised of her rights and
knowingly waived those rights. Defendant also acknowledged that
her attorney had answered all of her questions to her satisfaction,
she had sufficient time to discuss her case with the attorney, and
she was satisfied with the advice the attorney had provided her.
With respect to her penal exposure, Judge Taylor found both defense
counsel and the trial judge addressed defendant directly and
explained to her in detail the potential sentence she could receive
if she was convicted of the five charges reflected in the
indictment.1 Under these circumstances, Judge Taylor found that
defense counsel's alleged warning to defendant that she was facing
100 years of imprisonment was a legally sound assessment of
defendant's potential penal exposure.
Judge Taylor also rejected defendant's claim that defense
counsel failed to review with her the strengths and weaknesses of
the State's case. The record of the plea hearing shows that
defendant acknowledged she had given a voluntary statement to law
enforcement investigators admitting her culpability. Defendant
1
In addition to the first degree carjacking charge that she
pleaded guilty to, defendant was indicted for first degree
kidnapping, N.J.S.A. 2C:13-1b(2); second degree luring or enticing
a child, N.J.S.A. 2C:13-6; third degree terroristic threats,
N.J.S.A. 2C:12-3a; and fourth degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4c.
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was found inside the car owned by the victim "with a bag containing
duct tape and a mask." The police found a weapon inside the car.
Thus, Judge Taylor characterized the evidence against defendant
as "substantial." Under these circumstances, Judge Taylor
rejected as not credible defendant's claim that she did not make
a knowing and fully informed decision to plead guilty.
At the PCR oral argument, defendant was provided with a
certified court interpreter. At one point, defendant told Judge
Taylor that she was having difficulty understanding "the legal
things that are being said." That prompted the following colloquy:
THE COURT: Okay. I understand that. I just
want to make sure that the words that we're
saying, the interpreter is interpreting them
so that you can at least hear the words.
DEFENDANT: Okay.
THE COURT: Okay. Have you had any problems?
I know you don't understand the legal
terminology, but you've been able to
understand the words that are being
interpreted from English to Spanish?
DEFENDANT: The last time I couldn't.
THE COURT: No. I'm talking about now.
DEFENDANT: Yeah.
. . . .
PCR COUNSEL: I would just add, Your Honor,
that although she didn't assert that she would
have definitely went to trial in the brief,
it's her position that she couldn't make that
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decision due to not understanding her
interpreter at that time throughout the whole
criminal process. She didn't understand her
discovery review with her attorney. And it
seems like that. So without understanding
that voice, she doesn't know whether or not
she would have went to trial.
THE COURT: Okay. And is that argument based
on when the defense counsel met her at the
jail to review the investigation and her plea
forms?
PCR COUNSEL: Yes, Your Honor.
THE COURT: Okay. And it's just limited to
that time frame.
PCR COUNSEL: Well, any and all times counsel
met with her with the translator.
THE COURT: The translator that her attorney
used?
PCR COUNSEL: Yes.
In addressing this argument, Judge Taylor acknowledged and
reaffirmed what this court has long made clear: "It is a self-
evident proposition that a defendant who is unable to speak and
understand English has a right to have his trial proceedings
translated so as to permit him to participate effectively in his
own defense." State v. Guzman, 313 N.J. Super. 363, 377 (App.
Div.) (quoting State v. Kounelis, 258 N.J. Super. 420, 427 (App.
Div.), certif. denied, 133 N.J. 429 (1992)), certif. denied, 156
N.J. 424 (1998). Citing State v. Perez, Judge Taylor also
recognized that "the language barrier between a defendant and
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trial counsel raises the question of whether defendant received
adequate assistance of counsel." State v. Perez, 100 N.J. Super.
427, 430 (App. Div.), certif. denied, 52 N.J. 160 (1968).
Judge Taylor ultimately rejected defendant's argument because
the record shows defense counsel brought a Spanish language
interpreter when he met with defendant. Other than her bald
assertion in the PCR hearing, defendant neither presented evidence
explaining how her "dialect2 was different [from the translator's],
nor provide[d] information on the level of distinction." More
importantly, Judge Taylor found defendant had not claimed she
would have rejected the State's plea offer and stood for trial if
she had fully understood her attorney.
To prove ineffective assistance of trial counsel, a defendant
must satisfy Strickland's two-part test by demonstrating: (1)
"counsel's performance was deficient[,]" i.e., "that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment[;]" and (2) "there
2
A dialect is defined as "a regional variety of language
distinguished by features of vocabulary, grammar, and
pronunciation from other regional varieties and constituting
together with them a single language." Dialect, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/dialect
(last visited July 7, 2017). At the plea hearing, defendant stated
she was born in Acapulco, a city in the State of Guerrero, Mexico.
No linguistic evidence has been presented to characterize the
Spanish spoken in Mexico as a dialect.
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is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v.
Fritz, 105 N.J. 42, 58 (1987). Applying this standard to the
evidence defendant presented, Judge Taylor concluded defendant had
failed to establish that defense counsel's representation fell
below the standards of professional competence expected from an
attorney in this State. Even if she had satisfied the first prong
of Strickland/Fritz, defendant did not prove she would have
rejected the State's plea offer and risked exposing herself to a
likely far longer term of incarceration by going to trial.
Against this record, defendant now appeals raising the
following argument:
POINT I
MS. NAVA IS ENTITLED TO AN EVIDENTIARY HEARING
ON HER CLAIM THAT HER ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject this argument and affirm substantially for the
reasons expressed by Judge Taylor in her memorandum of opinion
dated February 26, 2016.
Affirmed.
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