STATE OF NEW JERSEY VS. V.M.B.(08-08-0747, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0676-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
V.M.B.,
Defendant-Appellant.
_______________________________
Submitted September 27, 2017 – Decided October 26, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 08-08-0747.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Thomas K. Isenhour, Acting Union County
Prosecutor, attorney for respondent (Cynthia
L. Ritter, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant V.M.B. appeals from the denial of his post-
conviction relief (PCR) petition. Defendant claims ineffective
assistance of trial and appellate counsel in their failure to
adequately challenge the admissibility of his videotaped
confessions and for "depriving defendant of his constitutional
right to testify on his own behalf." Because we find that
defendant has failed to present a prima facie showing of
ineffective counsel, we affirm.
Defendant was charged in an indictment with multiple counts
of aggravated sexual assault and endangering the welfare of a
child related to alleged sexual contact with his four minor step-
grandchildren. He was tried before a jury, found guilty on twenty
counts and sentenced to an aggregate seventy-nine year period of
incarceration. We affirmed the conviction. State v. V.M.B., No.
A-0621-10 (App. Div. July 8, 2013), certif. denied, 217 N.J. 287(2014).
Prior to trial, defendant moved to dismiss his videotaped
confession. After a hearing, the trial judge found defendant's
waiver of his Miranda1 rights was knowing and voluntary. The
Miranda form given to defendant was written in both English and
Spanish, and the detectives explained the Miranda rights to
defendant several times, in both languages.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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The judge denied the motion to suppress, stating: "[t]here
is no doubt in the totality of everything that is here that he
knowingly, voluntarily entered into this agreement to talk. There
was no pressure, either direct or implied. There was no physical
discomfort that would affect his ability to focus and understand.
His answers were clear."
Defendant filed a PCR petition pro se, and thereafter,
assigned counsel filed a brief. Defendant asserted that his trial
counsel was constitutionally ineffective at the suppression
hearing and in failing to call him as a witness, and that appellate
counsel was ineffective in failing to adequately challenge the
trial court's ruling on the suppression motion.
At oral argument on the PCR motion, defense counsel argued
that defendant gave a false confession to the investigating
detectives because he was "under duress" during the interrogation.
Counsel stated that the detectives were screaming at defendant
during the video interview, causing him fear. Defendant asserts
he is particularly prone to fear of police because he was born in
Honduras, where the police torture people. Defendant states his
trial counsel failed to make these arguments at the suppression
hearing. Defendant also argued that trial counsel did not call
defendant to testify at either the suppression hearing or trial.
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In a comprehensive oral decision on May 22, 2015, the PCR
judge2 found that, based on the DVD recording of the interview and
the trial court's colloquy with defendant, the arguments lacked
credibility. The judge noted that the detectives went over
defendant's Miranda rights with him for more than nineteen minutes,
calmly answering all of defendant's questions.
In addressing defendant's second argument, that he was denied
his right to testify, the judge referred to the colloquy that took
place between defendant and the trial judge. The PCR judge stated:
[D]uring that colloquy with the trial court,
[defendant] specifically told the [c]ourt that
he understood he had the right to testify and
he understood . . . that right was not his
attorney's; [and] it was his right personally
to decide whether or not he could testify in
this case.
And more importantly, he then went on to
talk about the fact that his attorney had
spoken to him about testifying in the
preceding days. Now for him to now claim that
his attorney did not prepare him to testify
is simply not credible in the face of that
colloquy before the [c]ourt.
The judge concluded that defendant had failed to satisfy either
prong of Strickland,3 and denied the PCR petition.
On appeal, defendant argues:
2
A different judge presided over the PCR hearing.
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
4 A-0676-15T2
POINT I: DEFENDANT HAS SUBMITTED PRIMA FACIE
EVIDENCE REQUIRING HE BE GRANTED AN
EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
POINT II: DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HIM TO POST
CONVICTION RELIEF.
A. Counsel was ineffective for
failing to adequately challenge the
admissibility of his statement and
any evidence obtained as a result
thereof.
B. Counsel was ineffective for
depriving defendant of his
constitutional right to testify on
his own behalf.
POINT III: DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: UNDER THE DOCTRINE OF CUMULATIVE
ERROR A NEW TRIAL SHOULD BE ORDERED PURSUANT
TO STATE v. ORECCHIO, 16 N.J. 125, 129 (1954).
We are not persuaded by these arguments. The standard for
determining whether counsel's performance was ineffective for
purposes of the Sixth Amendment was formulated in Strickland,
supra, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674, and adopted
by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In
order to prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test establishing both that: (l)
counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
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Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,
80 L. Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant
failed to demonstrate the ineffectiveness of trial counsel within
the Strickland-Fritz test. The evidence does not support
defendant's argument that he had a "rational fear of the police."
The record shows that defendant was advised of his rights,
understood those rights, and willingly and knowingly waived his
rights during the taped interview with two calm, plain clothed
detectives. As we stated in State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a
defendant "must do more than make bald assertions that he was
denied the effective assistance of counsel." He must allege facts,
supported by affidavits or certifications, "sufficient to
demonstrate counsel's alleged substandard performance." Ibid.Defendant has provided nothing more than an unsupported statement.
We also find no merit in defendant's argument regarding the
second prong. Defendant contends that he was prejudiced because
of counsel's failure to call him as a witness. He fails, however,
6 A-0676-15T2
to explain how the outcome of the case would have been any
different had he testified.
As the PCR judge noted, even if defendant's confession was
suppressed or defendant had testified, the result would likely
have been the same. In addition to defendant's taped confession,
the State produced a video of defendant molesting one of his
victims, the testimony of all four of his victims, and other
witnesses corroborating the State's version of events. Even taking
the facts in a light most favorable to defendant, it is highly
unlikely that his testimony could have overcome the abundance of
evidence produced by the State and changed the outcome of the
case.4 Defendant has not proven by a preponderance of the evidence
that he was denied effective assistance of either trial or
appellate counsel.
Affirmed.
4
Defendant asserts that appellate counsel was ineffective for
failing to argue in the direct appeal that trial counsel did not
call him as a witness at the suppression hearing. For the reasons
already discussed, we find this argument to be without merit.
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