STATE OF NEW JERSEY VS. MARCUS ZAPATA-CARENO(10-03-0211, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3696-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS ZAPATA-CARENO,
Defendant-Appellant.
______________________________
Submitted October 30, 2017 – Decided November 29, 2017
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 10-
03-0211.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Abbasi, Designated
Counsel, on the brief).
Thomas K. Isenhour, Acting Union County
Prosecutor, attorney for respondent (N.
Christine Mansour, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Marcus Zapata Careno appeals from a January 8, 2016
order denying his petition for post-conviction relief ("PCR")
without an evidentiary hearing. We affirm.
On June 25, 2011, a jury found defendant guilty of first-
degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and simple assault,
N.J.S.A. 2C:12-1(a)(1). Defendant was sentenced on August 25,
2011, to an aggregate term of fifteen years' imprisonment, with
an eighty-five percent period of parole ineligibility pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed
defendant's conviction and sentence on direct appeal. State v.
Careno, No. A-1983-11 (App. Div. July 21, 2014), certif. denied,
220 N.J. 101 (2014).
We incorporate by reference the facts set forth in our
unpublished opinion:
In brief, the kidnapping and assault took
place in the pre-dawn hours of November 21,
2009. The victim was defendant's ex-
1
girlfriend, E.M. Defendant forced E.M. to
drive from her home to a nearby park at around
4:00 a.m., and kept her there against her
will, punching her and once biting her. He
urged E.M. to renew her relationship with him.
After one-and-a-half to two hours, he allowed
her to drive back to her home, but then
physically prevented her from leaving the car
until a bystander intervened. He then fled,
and was arrested eight months later.
[Id., slip op. at 1-2].
1
We use initials to protect the victim's privacy.
2 A-3696-15T2
On appeal, among other points, defendant argued he was
prejudiced by the admission of E.M.'s testimony regarding
defendant's prior and subsequent uncharged violent behavior. We
affirmed defendant's convictions, concluding the trial court did
not err in its evidentiary rulings on these issues after conducting
two separate hearings pursuant to N.J.R.E. 104 ("104 hearing").
Id., slip op. at 17-19.
Specifically, we found the prior incident was relevant to
E.M.'s reason for ending her relationship with defendant,
explained her reluctance to speak with defendant on the date of
the instant offense, and demonstrated defendant likely entered
E.M.'s vehicle to terrorize her. Id., slip op. at 26-27. We
found instead that the probative value was not outweighed by its
prejudicial effect because the court sanitized the offense and
gave a limiting instruction. Id., slip op. at 27.
Furthermore, we found E.M.'s testimony concerning the
subsequent incident was admissible as consciousness of guilt.
Because the court gave a proper limiting instruction, the
probative value of this testimony also was not outweighed by its
prejudicial effect. Id., slip op. at 30.
On May 18, 2015, defendant filed, pro se, the instant PCR
petition that was amended and supplemented with a brief by
3 A-3696-15T2
appointed PCR counsel. In essence, defendant claimed his trial
counsel and appellate counsel were ineffective for the reasons
argued and decided on appeal. He claimed further he was entitled
to a new trial based upon newly discovered evidence.
In a comprehensive oral opinion issued on January 8, 2016,
Judge Scott J. Moynihan denied defendant's PCR petition as
procedurally and substantively flawed.
Initially, Judge Moynihan considered the procedural defects
in defendant's petition. The judge observed most of defendant's
PCR claims were decided by us on appeal and, as such, they were
procedurally barred pursuant to Rule 3:22-5.2 See also, State v.
Marshall, 173 N.J. 343, 351 (2002) (recognizing Rule 3:22-5 not
only bars identical claims, but also claims that are
"substantially equivalent" to the grounds for the prior claim).
In fact, the PCR judge observed that two of defendant's PCR
arguments "used the exact same language as the point headings in
his appeal." These points pertained to the following claims: (1)
"undue prejudice from repeated testimony concerning defendant's
uncharged physical violence substantially outweighed the marginal
2
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."
4 A-3696-15T2
probative value rendering its admission erroneous[;]" and (2)
"that the [c]ourt erred in admitting an uncharged alleged assault
occurring after the charged kidnapping as proof of consciousness
of guilt."
Further, the PCR judge dismissed, on the same procedural
grounds, defendant's claim that the trial court's limiting
instruction pertaining to testimony admitted pursuant to N.J.R.E.
404(b) did not outweigh the attendant prejudice. The court
likewise dismissed defendant's claim that his trial counsel was
ineffective in failing to permit him to testify at the 104 hearing.
Judge Moynihan reasoned, defendant "now adds a layer of
ineffective assistance of counsel but that does not change the
essence of the claims set forth and that were ultimately decided
by the Appellate Division."
Notwithstanding the petition's procedural defects, "for
purposes of completeness[,]" Judge Moynihan also addressed the
merits of defendant's ineffective assistance of counsel claims.
Specifically, the judge considered defendant's claims that: (1)
trial counsel was ineffective for agreeing with the court's ruling
admitting in evidence a sanitized version of E.M.'s testimony
about defendant's uncharged violent behavior; (2) trial counsel
was ineffective for failing to permit defendant to testify at the
5 A-3696-15T2
104 hearing to explain the complexity of his relationship with
E.M.; and (3) appellate counsel was ineffective for failing to
argue there was insufficient evidence to convict petitioner of
first degree kidnapping. The PCR court also considered the merits
of defendant's contentions that he is entitled to a new trial
based on newly discovered evidence, and an evidentiary hearing as
to his PCR claims.
Regarding defendant's first two claims, Judge Moynihan found
defendant could not demonstrate prejudice pursuant to the
Strickland-Fritz3 test. The judge elaborated:
[Defendant] cannot show prejudice in this
matter even if trial counsel had argued
against the admission of sanitized evidence.
Petitioner has not shown that there was any
possibility that the sanitized evidence would
not have been deemed admissible. [The t]rial
[c]ourt reviewed the various Cofield4 factors
3
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). In order to establish a case of ineffective assistance
of counsel, defendant must demonstrate a reasonable likelihood of
success under the two-pronged Strickland-Fritz test. A defendant
must show: (1) that counsel was deficient or made egregious errors,
so serious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the United States
Constitution; and (2) the deficient performance actually
prejudiced the accused's defense. Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz,
supra, 105 N.J. at 52.
4
State v. Cofield, 127 N.J. 328 (1992). In Cofield, the Court
established the following four-prong test for the admissibility
of other crimes evidence:
6 A-3696-15T2
relating to the evidence . . . and the
admission of that evidence was approved by the
Appellate Division after reviewing the Cofield
factors. The Appellate Division found no
error.
As to the consciousness of guilt, assuming
arguendo that trial counsel did fail to permit
the defendant to testify at the 104 hearing,
[defendant] fails to meet the Fritz/Strickland
standard. Again, the Appellate Division
already decided that that evidence was
admissible and . . . there is no affidavit of
what he would have said at the hearing. He
makes absolutely no suggestion as to how his
testimony would have changed the outcome of
the 104 hearing and, therefore, he's failed
to meet both prongs of the Fritz/Strickland
standard.
In considering defendant's argument that his former appellate
counsel was ineffective, the PCR judge recognized counsel did not
raise on appeal the insufficiency of evidence to convict him of
kidnapping. Citing State v. Sims, 65 N.J. 359, 373 (1974), the
(1) The evidence of the other crime must be
admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably
close in time to the offense charged;
(3) The evidence of the other crime must be
clear and convincing; and
(4) The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Id. at 338].
The Court has since recognized, however, that the second prong
does not necessarily apply in all cases. See State v. Williams,
190 N.J. 114, 130-34 (2007).
7 A-3696-15T2
PCR court found, even if this argument had been raised on appeal,
however, defendant would have been unsuccessful. Judge Moynihan
observed that we would have given deference to the trial court's
"'views of credibility of witnesses, the demeanor and the judge's
general feel of the case.' State v. Sims, 65 N.J. 359[,] 373
(1974).'" The PCR judge found further that defendant would have
been unable to clearly and convincingly demonstrate a "'manifest
denial of justice under the law.'" Id. at 374. Referring to the
elements of the kidnapping statute, the court then set forth the
testimony adduced at trial, not only of E.M., but also of an
independent witness, both of which supported the jury's guilty
verdict.
As to defendant's claim he was entitled to a new trial based
on newly-discovered evidence concerning E.P's supposed
recantation, the PCR judge observed defendant "never specifically
set forth what recantation by the victim he's referring to in this
request." Citing the three-pronged Carter5 test, because of
defendant's lack of specificity, the PCR court was unable to
5
State v. Carter, 85 N.J. 300, 314 (1981). In order for newly
discovered evidence to warrant a new trial, the evidence must be
"(1) material to the issue and not merely cumulative or impeaching
or contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury's verdict if a new trial
were granted." Ibid.8 A-3696-15T2
determine, in the first instance, whether the alleged recantation
was material. The PCR court noted that prior to trial, E.M.
admitted she exaggerated about defendant's use of a knife during
commission of the kidnapping. Inasmuch as E.M.'s recantation was
the subject of a 104 hearing and the basis of "pointed cross-
examination" at trial, defendant "failed to show that the evidence
was discovered after the trial and could not have been discovered
prior to the trial." The PCR judge also found the alleged
recantation would not have changed the jury's verdict.
Finally, citing State v. Preciose, 129 N.J. 451, 462-63
(1952), the PCR court determined defendant did not set forth a
prima facie case in support of his PCR petition. This appeal
followed.
On appeal, defendant raises the following points for our
consideration:
POINT ONE
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN
EVIDENTIARY HEARING DESPITE THE FACT THAT HE
DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL
A. Trial Counsel Was Ineffective in Failing
To Object To Repeated Testimony Of Prior
Physical Violence By [Defendant] Of the
Victim.
9 A-3696-15T2
B. Trial Counsel Was Ineffective In Failing
To Object To The Jury Hearing Facts Concerning
An Alleged Assault That Occurred After The
Charged Kidnapping.
POINT TWO
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN
EVIDENTIARY HEARING DESPITE THE FACT THAT HE
DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
POINT THREE
THE PCR [COURT] ERRED IN DENYING [DEFENDANT'S]
PETITION FOR POST-CONVICTION RELIEF, EVEN
THOUGH HE PRESENTED NEWLY DISCOVERED EVIDENCE.
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 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, supra, 129 N.J. at 462. We review any legal conclusions
of the trial court de novo. State v. Nash, 212 N.J. 518, 540-41
(2013); State v. Harris, 181 N.J. 391, 419 (2004), cert. denied,
545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
10 A-3696-15T2
"[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. Under the
first prong, the defendant must demonstrate that "counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong, the defendant must show "that counsel's
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Ibid. That is, "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge Moynihan expressed in his well-reasoned oral opinion. We
discern no abuse of discretion in the denial of defendant's PCR
petition. Accordingly, the PCR court correctly concluded that an
11 A-3696-15T2
evidentiary hearing was not warranted. See Preciose, supra, 129
N.J. at 462-63.
Affirmed.
12 A-3696-15T2