STATE OF NEW JERSEY VS. JEAN P. MORALES (00-06-0676, 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NOT FOR PUBLICATION WITHOUT THE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-3923-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEAN P. MORALES,
Defendant-Appellant.
____________________________
Submitted April 9, 2019 – Decided August 28, 2019
Before Judges Rothstadt and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 00-06-0676.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Michael A. Monahan, Acting Union County Prosecutor,
attorney for respondent (Frank Lawrence Valdinoto,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jean P. Morales appeals from the Law Division's March 22,
2018 order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
In 2007, a jury convicted defendant of aggravated manslaughter, N.J.S.A.
2C:11-4(a) and weapons possession charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.
2C:39-5(d), after it acquitted him of first-degree murder, N.J.S.A. 2C:11-3(a)(1)
or -3(a)(2).1 On May 4, 2007, the trial judge merged the weapons offenses and
imposed an aggregate sentence of thirty years, subject to the eighty-five percent
parole disqualification provision of the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2.
Defendant appealed and we affirmed his convictions and sentence in an
unpublished opinion. State v. Morales, No. A-5846-06 (App. Div. Sept. 22,
2010) (slip op. at 5-20). The Supreme Court denied his petition for certification.
State v. Morales, 205 N.J. 101 (2011).
The facts underlying defendant's convictions are set forth in our opinion
and need not be repeated at length here. See Morales, slip op. at 3-5. Suffice it
1
In 2002, a jury convicted defendant of all of the crimes for which he was
indicted, including first-degree murder. However, we reversed due to the trial
court's failure to sua sponte instruct the jury on passion/provocation
manslaughter as a lesser-included offense. See State v. Castagna, 376 N.J.
Super. 323, 331 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006).
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2
to say, defendant's victim had been involved in an altercation at a bar where
defendant was also a patron. The victim was pursued by a crowd of people,
including defendant, who ultimately beat him until he fell to the ground. At that
point, defendant dropped a twenty-five pound cement block on the victim's head,
which caused injuries that left him in a coma for five months before he died. Id.
(slip op. at 4-5).
Defendant filed a PCR petition on May 6, 2011, in which he argued that
trial counsel failed to properly investigate his matter by not contacting potential
witnesses who would have been helpful to his defense. See State v. Morales,
No. A-3088-13 (App. Div. Apr. 15, 2016) (Morales II) (slip op. at 4). The PCR
judge, who was also the judge at defendant's second trial, denied defendant's
application on July 25, 2013, without providing him with an opportunity for oral
argument or granting an evidentiary hearing. Id. (slip op. at 2-3).
Defendant appealed the denial of PCR and we affirmed in another
unpublished opinion. Id. (slip op. at 3-7). However, the Supreme Court
summarily reversed our decision and remanded the matter back to the trial judge
because it found the PCR judge's reasons for not allowing oral argument to be
insufficient. State v. Morales, 227 N.J. 373 (2016).
A-3923-17T2
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Prior to the PCR judge's consideration of the matter on remand, on July
17, 2017, defendant submitted a letter brief as a supplement to his original PCR
brief, amending claims that counsel failed to investigate. He indicated that the
supplemental information only became available following the appeal of the
denial of his original PCR petition.
The supplementary information related to one of the State's witnesses ,
A.V.,2 who testified at trial that he and defendant were drinking heavily before
they parted company and defendant went to the bar. A.V. later found out from
defendant that he was involved in the victim's beating, although defendant could
not initially recall what happened due to his intoxication, but subsequently
remembered having the cement block. During direct and cross-examination at
trial, A.V. testified to his numerous prior arrests and convictions, including
seven convictions for indictable offenses, his then-current incarceration, and
whether he was testifying in exchange for a promise of leniency as to pending
charges.
Defendant argued that trial counsel failed to conduct a general internet
search, which would have uncovered that A.V. was "a drug lord who was
overheard discussing illegal activities" involving a New Jersey State Trooper
2
We use initials to maintain witnesses' confidentiality.
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and a multi-jurisdictional heroin ring operation, based out of Union County, in
a later, unrelated matter. Moreover, defendant asserted that a search of the court
system's criminal case database would have yielded information about A.V.'s
guilty pleas to a second-degree resisting arrest/eluding offense and for
involvement in the heroin ring operation.
Defendant explained that he learned about this information while his
appeal from the judge's earlier denial of PCR was pending from a cellmate who
was one of A.V.'s co-defendants in the drug-related racketeering case. That
individual gave defendant "a series of memos and police reports" from 2005
from the Union County Prosecutor's Office. Defendant maintained that had trial
counsel performed his due diligence, the jury would have been made more aware
of the extent of A.V.'s status as a drug dealer. Defendant also explained that he
attempted to file a pro se motion for a Brady3 violation, but his application would
not be accepted due to the pending PCR appeal.
The parties appeared before the PCR judge on February 23, 2018, for oral
argument on defendant's petition. Defendant argued that the information about
A.V. was readily available and counsel had an obligation to ask for discovery
on the racketeering case, even if the State did not have an obligation to turn over
3
Brady v. Maryland, 373 U.S. 83 (1963).
A-3923-17T2
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any documents. In opposition, the State argued that it was not its obligation to
turn over the documents pertaining to A.V. It raised questions of admissibility
under Rule 404(b) because of evidence rules precluding impeachment with
specific acts of conduct.
On March 22, 2018, the PCR judge denied defendant's petition. In a
written decision that accompanied his order, the judge concluded that defendant
failed to meet the first prong of Strickland v. Washington, 466 U.S. 668, 687
(1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (l987),
which required a showing that counsel's performance fell below the prevailing
standard. The judge found that testimony about defendant's intoxication from
two potential witnesses identified in defendant's PCR petition, L.C. and B.T.,
would be duplicative of A.V.'s and other witnesses' testimony. The judge found
B.T., who was A.V.'s wife, was the only one who submitted an affidavit as to
her knowledge, but even if L.C. submitted one too, neither would have added
anything to defendant's case because his intoxication was "well documented" in
the trial record.
Turning to defendant's argument relating to A.V., the judge observed that
during trial, A.V. testified about his prior indictable convictions. The judge
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noted that A.V. was subjected to a thorough examination and testified as to his
numerous convictions.
The judge also found that defendant failed to meet the second Strickland
prong, which required a demonstration that there was a reasonable probability
that but for counsel's deficient performance, the result of the proceedings would
have been different. He found no indication that B.T.'s or L.C.'s proposed
testimonies would have impacted the outcome because the record already
reflected defendant's level of intoxication. Moreover, there was no indication
that A.V.'s connection to the heroin ring or details of his other charges would
have impacted the outcome. The judge observed that "[t]here was overwhelming
evidence that . . . defendant crushed the victim's head with a block," including
testimony from other individuals who were present. For these reasons, the judge
found that defendant failed to establish a prima facie case of ineffective
assistance of counsel and was not entitled to an evidentiary hearing. This appeal
followed.
Defendant presents the following issues for our consideration in his
appeal.
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
A-3923-17T2
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DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR INADEQUATE PREPARATION AND
INVESTIGATION.
POINT II
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW REGARDING DEFENDANT'S BRADY
CLAIM. (NOT RAISED BELOW).
POINT III
THIS MATTER MUST BE REMANDED FOR A NEW
PCR HEARING FOR COUNSEL TO ADVANCE
DEFENDANT'S BRADY CLAIM. (NOT RAISED
BELOW).
When a petition for PCR is decided without an evidentiary hearing, our
review is de novo because claims of ineffective assistance of counsel generally
give rise to legal issues. State v. Harris, 181 N.J. 391, 419 (2004). "[I]t is within
our authority 'to conduct a de novo review of both the factual findings and legal
conclusions of the PCR court.'" State v. Reevey, 417 N.J. Super. 134, 146-47
(App. Div. 2010) (quoting Harris, 181 N.J. at 421 (2004)).
Applying our de novo standard of review, we conclude that the PCR judge
correctly denied defendant's petition substantially for the reasons expressed in
the judge's thorough twenty-one page decision that accompanied his order
denying relief. We add only the following comments.
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In reaching his decision, the judge identified defendant's assertion of a
Brady violation in the context of his PCR petition. The judge explained that
according to defendant, had counsel properly investigated his claim, like his
cellmate who provided him with information about the details of A.V.'s illicit
drug activities, defendant could have obtained the same information for his trial
if counsel pursued a Brady claim seeking production of the prosecutor's files in
A.V.'s drug related racketeering matter.
On appeal, defendant contends the PCR judge failed to address
defendant's Brady based contention. He explains that "counsel did not explore
the background of the charges from . . . [A.V.'s drug i]ndictment . . . ." He
claims it would have demonstrated that A.V. was "a bona fide drug lord who
was selling kilos of cocaine for a dirty [New Jersey] State Trooper Narcotics
Detective." According to defendant, this information was available to trial
counsel but he failed to investigate any aspect other than the charges and penal
ties themselves.
In order to establish a claim under Brady, a defendant must show: "(1)
the prosecution suppressed evidence; (2) the evidence is favorable to the
defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268
(1999). Evidence is material "if there is a reasonable probability that, had the
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evidence been disclosed to the defense, the result of the proceeding would have
been different." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "The mere
possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish
'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97,
109-10 (1976).
Here, the PCR judge found that the information defendant received from
his cellmate was not material in that the outcome of the trial would not have
been different had it been disclosed. As the judge found, A.V. was subject to
vigorous examination about his criminal background and therefore any
additional information would not have impacted the outcome. Under these
circumstances, although as defendant argues to us on appeal, the judge did not
expressly state there was no Brady violation for trial counsel to have pursued,
we discern the same by inference from his findings about the information not
being material, assuming it was discoverable in the first instance.
In sum, we are satisfied from our review of the record that defendant failed
to make a prima facie showing of ineffectiveness of trial counsel under the
Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an
A-3923-17T2
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evidentiary hearing was not warranted as to claims of ineffective assistance by
trial counsel. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Finally, to the extent defendant contends the matter must be remanded
because PCR counsel was deficient in not properly advancing the Brady claim
or any other claim, we conclude such matters are better considered in a second
PCR petition. See R. 3:22-4(a)(2).
Affirmed.
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