STATE OF NEW JERSEY VS. ALBERT SERRANO, JR. (14-04-1284, 14-05-1551, AND 14-09-3041, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-0394-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERT SERRANO, JR, a/k/a
ALBERT SERRANO, and
ALBERT ISERRANO,
Defendant-Appellant.
Submitted October 22, 2018 – Decided October 30, 2018
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment Nos. 14-04-
1284, 14-05-1551, and 14-09-3041.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel;
William P. Welaj, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Albert Serrano, Jr. appeals from a July 18, 2017 order denying
his petition for post-conviction relief (PCR), without an evidentiary hearing.
We affirm.
Judge John T. Kelley entered the order and rendered a comprehensive oral
decision setting forth, in great detail, the facts, procedural history and legal
standards applicable to defendant's PCR. Briefly summarizing, on January 30,
2013, defendant was arrested immediately following a robbery of Oxycodone
at a Walgreens Pharmacy in Winslow Township. Ten to fifteen minutes after
the robbery, a Walgreens manager positively identified defendant whom police
officers detained in the parking lot of a McDonald's located approximately 300
feet from the Walgreens. Defendant's wife consented to a search of the
Serrano's vehicle while it was parked in the lot. Three bottles of Oxycodone
were seized from a large-sized jacket located in the back seat of the car. The
Walgreens pharmacist positively identified defendant, and the Oxycodone as
the drugs defendant demanded from him during the robbery.
Thereafter, defendant was charged in a Camden County indictment with
first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count one), and third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count
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two). Following a jury trial before Judge Kelley, defendant was convicted of
the lesser-included offense of second-degree robbery on count one, and count
two. In January 2015, Judge Kelley sentenced defendant to an aggregate eight-
year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.1
Defendant filed a direct appeal, but counsel subsequently filed a motion
to withdraw that appeal pursuant to Anders v. California, 386 U.S. 738 (1967),
which we granted. Thereafter, defendant filed a pro se PCR petition and
amended petition. Appointed counsel then filed a letter brief on defendant's
behalf.
Pertinent to this appeal, the judge rejected defendant's arguments that his
trial counsel erred in failing to: (1) file a motion to suppress the evidence seized
from his vehicle; (2) file a motion for an identification hearing; (3) explain the
strengths of the State's case to him; and (4) adequately advise him about his right
to testify. Defendant also claimed trial counsel should have argued for his
admission into drug court. This appeal followed.
1
Defendant's sentence also resolved two other open indictments, i.e., defendant
pled guilty to third-degree possession of heroin and disorderly conduct, a petty
disorderly offense, regarding one indictment, and the other indictment was
dismissed as part of the plea agreement. Those other indictments are not the
subject of this appeal.
A-0394-17T1
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On appeal, defendant renews most of the arguments raised before the
PCR judge. In particular, defendant argues:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
....
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO PURSUE A MOTION TO SUPPRESS
THE WARRANTLESS SEARCH AND SEIZURE
CONDUCTED BY LAW ENFORCEMENT.
....
2. THE AUTOMOBILE EXCEPTION TO THE
SEARCH WARRANT REQUIREMENT DID NOT
APPLY UNDER THE CIRCUMSTANCES [OF] THE
PRESENT CASE.
3. THE THIRD-PARTY CONSENT TO SEARCH
EXCEPTION TO THE WARRANT REQUIREMENT
DID NOT APPLY UNDER THE CIRCUMSTANCES
OF THE PRESENT CASE.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
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FAILURE TO PURSUE A WADE HEARING PRIOR
TO TRIAL.
D. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
HIS FAILURE TO THOROUGHLY DISCUSS WITH
HIS CLIENT ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION WHETHER
OR NOT TO TESTIFY, AS A RESULT OF WHICH
HE DID NOT TESTIFY IN HIS OWN DEFENSE.
E. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL SINCE, AS A RESULT OF HIS
ATTORNEY'S FAILURE TO ACCURATELY
INFORM HIM REGARDING THE STRENGTHS OF
THE STATE'S CASE, HE REJECTED THE PLEA
RECOMMENDATION AND INSTEAD
PROCEEDED TO TRIAL, SUBSEQUENTLY
RECEIVING A SENTENCE GREATER THAN THAT
EMBODIED IN THE PLEA OFFER.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule
3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was
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."
"[A] defendant asserting ineffective assistance of counsel on PCR bears
the burden of proving his or her right to relief by a preponderance of the
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evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove
counsel's performance was deficient; it must be demonstrated that counsel's
handling of the matter "fell below an objective standard of reasonableness" and
that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)
(adopting the Strickland two-part test in New Jersey).
A defendant must also prove counsel's "deficient performance prejudiced
the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing
a "reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694. Thus, petitioner must
establish that counsel's performance was deficient and petitioner suffered
prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;
Fritz, 105 N.J. at 52.
Further, 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. 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
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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. See Preciose,
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).
We are satisfied from our review of the record that defendant failed to
demonstrate a prima facie showing of ineffectiveness of counsel under the
Strickland/Fritz test. We therefore discern no abuse of discretion in the denial
of defendant's PCR petition, and affirm for the reasons set forth in Judge Kelley's
thorough and well-reasoned opinion.
In sum, we agree with the judge that a motion to suppress the evidence
seized from defendant's automobile, and a motion to suppress the victim's out-
of-court identification, would have been futile. Even if defendant had satisfied
prong one of the Strickland/Fritz test, which is not the case, there is no prejudice
here. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 52. In particular, the
automobile exception to the warrant requirement, see State v. Witt, 223 N.J. 409,
450 (2015), and the consent to search exception, see State v. Carty, 170 N.J.
632, 635, modified, 174 N.J. 351 (2002), formed two independent bases to
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search defendant's jacket. Secondly, the record is devoid of any evidence that
the show-up identification was suggestive especially where, as here, the
identification was made within minutes of the robbery. Cf. State v. Henderson,
208 N.J. 208, 290 (2011) (recognizing the suggestiveness of a show-up
identification can be influenced by several factors, including whether the show-
up was performed more than two hours after the event).
Rather, as Judge Kelley aptly noted, "[t]he evidence against the defendant
was overwhelming[.]" Nonetheless, defense counsel "succeeded in convincing
the jury to acquit the defendant of the more serious first degree robbery charge
. . . ." Moreover, defendant's bald-faced assertions that counsel's ineffective
assistance deprived him of the opportunity to plead guilty and testify in his own
behalf were made without any supporting certifications. Accordingly, the judge
correctly determined an evidentiary hearing was not warranted. See Preciose,
129 N.J. at 462-63.
We therefore conclude defendant's arguments are without sufficient merit
to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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