STATE OF NEW JERSEY VS. DAVID FERNANDEZÂ (08-09-2742, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4313-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID FERNANDEZ,
Defendant-Appellant.
___________________________
Submitted May 17, 2017 – Decided July 7, 2017
Before Judges Simonelli and Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 08-09-2742.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant David Fernandez appeals from the April 11, 2016 Law
Division order, which denied his motion for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of first-
degree attempted murder of Mr. Ocasio,1 N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3 (count one); first-degree murder of Jose Rivera,
N.J.S.A. 2C:11-3(a)(1) and (2) (count two); third-degree
possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count
three); and second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant's sole
theory was that he acted in self-defense and in defense of a
friend.
Defendant filed a motion for a new trial, arguing, in part,
that trial counsel rendered ineffective assistance by failing to
ensure his participation in sidebar conferences. The trial judge
denied the motion, finding defendant utilized a wireless listening
device that allowed him to listen to all sidebar conferences from
the voir dire process through the verdict. The judge found that
all in-court conferences occurred in defendant's presence and
within his hearing range, and if he did not hear what was said,
1
The court elected to use only Ocasio's last name to provide
some privacy to the victim.
2 A-4313-15T1
he had ample opportunity to ask trial counsel to relay the
substance of the conferences to him.
At sentencing, after merging count four into count two, the
judge sentenced defendant as follows: a thirty-year term of
imprisonment on count two with a thirty-year period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, on count two; a consecutive ten-year term of
imprisonment subject to NERA on count one; and a concurrent three-
year term of imprisonment with a one-year period of parole
ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, on
count three.
Defendant appealed his conviction and sentence. He argued,
in part, that the trial court should have sua sponte declared a
mistrial due to the misconduct of Juror No. 2 during voir dire
and deliberations. He also argued that his exclusion from sidebar
conferences and trial counsel's failure to confer with him about
sidebar conferences mandated reversal. He further argued that
trial counsel rendered ineffective assistance by failing to confer
with him about sidebar conferences and seek a full voir dire of
the jury and a mistrial based on Juror No. 2's misconduct.
We affirmed defendant's conviction and sentence. State v.
Fernandez, No. A-0573-11 (App. Div. Aug. 8, 2014). Regarding
3 A-4313-15T1
Juror No. 2's alleged misconduct during voir dire, we found as
follows, in pertinent part:
Despite the presumption that a juror's
omission of information during voir dire is
prejudicial, a defendant is required "to
demonstrate that, had he or she known of the
omitted information, he or she would have
exercised a peremptory challenge to exclude
the juror." State v. Cooper, 151 N.J. 326,
349, (1997), cert. denied, 528 U.S. 1084, 120
S. Ct. 809, 145 L. Ed. 2d 681 (2000). . . .
Other than [defendant's] bald assertions
that "there is no question that he would have
excluded" Juror No. 2, defendant made no
affirmative showing that he would have
challenged her for cause or through a
peremptory challenge. In fact, the record
supports the opposition conclusion. During
jury selection and jury deliberations, the
juror clearly expressed views favorable to
defendant, and even after learning of the
omission, defendant did not request the
juror's removal or a mistrial. In addition,
defendant did not challenge three other
empaneled jurors who had revealed during jury
selection that they were victims of violent
crimes, or had family members who were victims
of violent crimes or accused of crimes. We,
thus, conclude that no error occurred with
respect to Juror No. 2.
[Id. (slip op. at 15-16).]
Regarding Juror No. 2's alleged misconduct during deliberations,
we found as follows, in pertinent part:
The judge found that Juror No. 2 did not
express any bias or prejudice against
defendant [during deliberations] but merely
expressed her general observations based on
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her own experiences. We find no fault with
the judge's determination.
. . . .
In compliance with [State v. R.D., 169
N.J. 551, 557 (2001)], as explained in Rule
1:16-1, the judge questioned Juror No. 2 to
determine if there was taint and correctly
determined she had not been exposed to
extraneous information or outside influence
that could have possibly impinged on her
impartiality. We are satisfied that Juror No.
2 did not prematurely form an unalterable
opinion of the defendant's guilt, nor was she
swayed by any outside influences prejudicial
to defendant. To the contrary, the juror
clearly expressed views favorable to
defendant, including the view she expressed
to her fellow jurors during deliberations that
they must put aside personal experiences, be
objective and reasonable, and consider all the
evidence.
[Id. (slip op. at 11, 14).]
We determined there was no reason to voir dire the other jurors
or declare a mistrial. Ibid.
We declined to consider defendant's ineffective assistance
of counsel arguments, preserving them for a PCR petition. Id.
(slip op. at 4) (citing State v. Castagna, 187 N.J. 293, 313
(2006)). However, we considered his argument that his exclusion
from sidebar conferences mandated reversal in light of the record
and applicable legal principles and concluded it was without
sufficient merit warrant discussion in a written opinion. Id.
5 A-4313-15T1
(slip op. at 19-20) (citing R. 2:11-30(e)(2)). We added the
following comments:
Defendant did not affirmatively request
the right to participate in voir dire sidebar
conferences. To the contrary, he specifically
waived his right to personally participate in
those conferences. Because the right to be
present is waivable, defendant was not
deprived of a fair trial as a result of his
absences from the voir dire sidebar
conferences. In addition, there is nothing
in the record indicating that defendant did
not knowingly and intelligently waive
participation in sidebar proceedings. There
were numerous sidebar conferences throughout
the fifteen-day trial, and defendant never
personally objected or requested to be present
at them. Accordingly, defendant's exclusion
from sidebar conferences does not mandate
reversal of his convictions.
[Id. (slip op. at 20.]
Our Supreme Court denied certification. State v. Fernandez,
certif. denied, 220 N.J. 572 (2015).
Defendant thereafter filed a PCR petition, arguing that trial
counsel rendered ineffective assistance by failing to: (1)
investigate and obtain exculpatory witnesses in support of his
self-defense theory; (2) inform him after his conviction about
Juror No. 2's misconduct during voir dire and deliberations; (3)
confer with him about sidebar conferences; (4) seek a voir dire
of the other deliberating jurors or a mistrial; and (5) convey the
State's plea offer.
6 A-4313-15T1
In an oral opinion, the PCR judge denied the petition without
an evidentiary hearing. The PCR judge found, incorrectly, that
defendant's claims were procedurally barred by Rule 3:22-12(a)(1)
and Rule 3:22-5. However, as the State concedes, defendant timely
filed his PCR petition. In addition, we did not determine
defendant's ineffective assistance of counsel claim on the merits
in the prior appeal. See State v. McQuaid, 147 N.J. 464, 484
(1997) (barring re-litigation of an issue that was determined on
the merits in a prior appeal). Rather, we preserved that claim
for a PCR petition.
The PCR judge also found defendant's claim that trial counsel
failed to confer with him about sidebar conferences was
procedurally barred by Rule 3:22-4(a)(1), as the trial judge
decided this issue on the merits following defendant's motion for
a new trial.
Addressing the merits of defendant's claims, the PCR judge
found defendant did not assert any specific facts regarding whom
he would have called, what they would have offered, or whether he
asked trial counsel to call witnesses and counsel refused. The
PCR judge also found defendant failed to provide certifications
from any witnesses, or a certification from trial counsel that he
had identified and sought to include exculpatory witnesses at
trial. The PCR judge concluded that without any material support,
7 A-4313-15T1
defendant's claim that counsel failed to obtain exculpatory
witnesses was too vague, conclusory, or speculative to warrant a
hearing.
The PCR judge determined that defendant's physical presence
at sidebar conferences was not an absolute requirement, and
defendant utilized a wireless listening device that allowed him
to listen to all sidebar conferences from the voir dire process
through the verdict. The PCR judge found that all in-court
conferences occurred in defendant's presence and within his
hearing range, and defendant did not complain he could not hear
the conferences. The PCR judge concluded that defendant was
provided the proper means of assessing the sidebar conferences and
had ample opportunity to be present at those conferences.
The PCR judge relied primarily on our findings in addressing
defendant's claims that trial counsel failed to inform him after
his conviction about Juror No. 2's misconduct during voir dire and
deliberations and seek a voir dire of the other deliberating jurors
or a mistrial. The PCR judge made no specific findings on
defendant's claim that trial counsel failed to convey the State's
plea offer. The PCR judge memorialized her decision in an April
11, 2016 order.
On appeal, defendant raises the following contentions:
8 A-4313-15T1
POINT I DEFENDANT'S PCR PETITION SHOULD NOT HAVE
BEEN PROCEDURALLY BARRED. (26T 11-10 to
13-2).
POINT II THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Conduct
An Adequate Investigation,
Including Obtaining Exculpatory
Witnesses.
B. Trial Counsel Failed To Convey
The State's Plea Offer To
Defendant.
C. Trial Counsel Failed To Confer
With Defendant About The
Sidebars, Seek Full Voir Dire,
Or Move For A Mistrial.
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992). We discern no abuse of discretion here.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (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 fact lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
9 A-4313-15T1
343, 355 (2013). To establish a prima facie claim of ineffective
assistance of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance."
Cummings, supra, 321 N.J. Super. at 170. 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). "[W]hen a [defendant] claims his trial attorney
inadequately investigated his case, he must assert the facts that
10 A-4313-15T1
an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Porter, supra, 216 N.J.
at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).
While, arguably, defendant's claim that trial counsel
rendered ineffective assistance by failing to confer with him
about sidebar conferences is barred by Rule 3:22-4(a)(1), the
claim nonetheless lacks merit, as do defendant's other ineffective
assistance of counsel claims. We determined in defendant's prior
appeal there was no error regarding Juror No. 2's alleged
misconduct and no reason to voir dire the other jurors or declare
a mistrial. We also found no merit in defendant's argument that
his exclusion from sidebar conferences mandated reversal, and
commented that he specifically waived his right to personally
participate in those conferences. Thus, even if trial counsel's
performance was deficient, which it was not, defendant cannot
establish the deficient performance prejudiced his defense.
In addition, defendant did not assert the facts which an
investigation of exculpatory witnesses would have revealed,
supported by affidavits or certifications based upon the personal
knowledge of the affiant. Defendant did not even name exculpatory
witness, let alone provide the required certifications or
affidavits or any information of what exculpatory evidence they
11 A-4313-15T1
witnesses would provide. Lastly, defendant provided no evidence
whatsoever of a plea offer. Accordingly, because defendant failed
to present a prima facie claim of ineffective assistance of
counsel, the PCR judge properly denied his PCR petition without
evidentiary hearing.
Affirmed.
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