STATE OF NEW JERSEY v. MIGUEL A. ORTIZ (10-06-0497, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0932-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIGUEL A. ORTIZ, a/k/a
MACE ORTIZ, MICHAEL
A. ORTIZ, MIQUEL ORTIZ
and MIQUEL A. ORTIZ,
Defendant-Appellant.
________________________
Submitted February 28, 2022 – Decided August 17, 2022
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No.
10-06-0497.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Miguel A. Ortiz appeals from an April 6, 2019 order denying
his petition for post-conviction relief (PCR) following an evidentiary hearing.
The PCR judge entered the order and issued a written decision rejecting a litany
of issues raised by defendant pro se and through assigned PCR counsel. On
appeal, defendant limits his contentions to two of those points, contending:
POINT I
AS DEFENDANT PRESENTED SUFFICIENT
EXCULPATORY EVIDENCE TO CALL INTO
QUESTION THE VERDICT AS TO COUNT FOUR,
THE PCR COURT ERRED WHEN IT DENIED HIS
PETITION FOR A NEW TRIAL.
POINT II
AS DEFENDANT HAS SHOWN THAT HAD HIS
ATTORNEY CALLED A REPRESENTATIVE FROM
GEICO INSURANCE COMPANY TO TESTIFY AT
TRIAL AND THERE WAS A REASONABLE
PROBABILITY THAT THE RESULT WOULD
HAVE BEEN DIFFERENT, THE PCR COURT
ERRED WHEN IT DENIED HIS PCR
APPLICATION.
Because the reasons expressed in the PCR judge's written opinion are supported
by sufficient credible evidence in the record, we affirm.
A-0932-20
2
I.
In 2010, a Burlington County jury convicted defendant of multiple
second- and third-degree burglaries, attempted burglaries, and related
conspiracy and theft offenses, for his part in a string of residential burglaries
that took place in eight municipalities over four months in 2009. Defendant was
sentenced to an aggregate twenty-year prison term with a ten-year parole
disqualifier. The sentence was imposed consecutively to the sentence defendant
was serving on an unrelated Bergen County conviction. We upheld defendant's
convictions and sentence on direct appeal.1 State v. Ortiz, No. A-6008-12 (App.
Div. Mar. 10, 2016) (slip op. at 3).
The circumstances leading to defendant's arrest and convictions are
detailed in our prior decision. Id. at 1-7. Pertinent to this appeal, the thirty-one-
count indictment also charged defendant's five accomplices, "including his wife,
Beth Mitchell, and Arquimide Pierantony, who pled guilty and was one of the
State's principal witnesses at trial." 2 Id. at 3. Referencing Pierantony's
testimony, we summarized the burglary ring's modus operandi as follows:
1
We remanded solely for the trial court to determine defendant's jail credits.
Ortiz, slip op. at 23.
2
The trial judge denied defendant's severance motions; the co-defendants'
charges were resolved by guilty pleas.
A-0932-20
3
Defendant and one or more of his co-defendants
would meet and search the online phone directory for
Burlington County residents with Asian-Indian
surnames. The group targeted these addresses based on
their belief that people of Asian-Indian descent
possessed higher quality jewelry. They would call
several homes until they identified five to ten
residences at which no one answered. The group would
enter the address into MapQuest to get a "live view" of
the surrounding area in order "to know [the site's] in-
and-out points . . . so if something bad happened, [they]
would know where to run to." MapQuest also allowed
them to "zoom in" on the houses to see if the windows
were alarmed and to identify the best point of entry.
Once the targets were selected, a group of three
or four members of the ring would drive to the targeted
homes, deciding the roles each would play when they
arrived. As they drove, one of the co-defendants would
continuously call to confirm that no one was home. If
someone answered the phone, the group would move on
to the next target. During the planning and execution,
the group called the residences and communicated with
each other using cell phones with walkie-talkie
capabilities.
[Id. at 3-4.]
Pierantony detailed "the specific burglaries and attempted burglaries
charged in the indictment." Id. at 5. With regard to the August 17, 2009
Burlington Township burglary, which is relevant to the contentions raised in
point II, Pierantony testified he and defendant drove to the home in Mitchell's
Mitsubishi Eclipse, while two other accomplices drove in a separate car. On
A-0932-20
4
cross-examination however, Pierantony acknowledged the Mitsubishi was
involved in a motor vehicle accident in Staten Island, and on August 14, 2009,
it was towed to Browns Mills. After viewing photographs of the damaged car,
Pierantony conceded the fender was "dented in bad"; the trunk was so damaged
it could not be opened; and "the right quarter panel actually [was] touching the
floor." Nonetheless, he claimed the car was drivable. He told the jury the car
depicted in the photographs was in the same condition as it was during
commission of the August 17, 2009 burglary.
As we stated in our prior opinion, however, "portions of Pierantony's
testimony" were corroborated by lay witnesses and the investigation undertaken
by police. Ibid. For example:
By checking the caller identification feature at
the phones in the burglarized homes, police discovered
repeated phone calls made from certain phone numbers.
They also learned that a red Santa Fe was registered to
defendant's wife, and E-Z Pass records demonstrated
that the vehicle exited and entered the New Jersey
Turnpike near one of the homes on the date it was
burglarized.
[Ibid.]
Police also gathered evidence obtained through communications data warrants,
and physical surveillance. Ibid. A search of Mitchell's office revealed "a
A-0932-20
5
telephone book with pages torn out corresponding to the surnames of several
burglary victims." Id. at 6-7.
The State called twenty-eight witnesses at trial, including the burglary
victims and detectives assigned to the case. Defendant did not testify but called
three police witnesses. At the conclusion of all evidence, the following
stipulation was read to the jury:
On August 14, 2009, Beth Mitchell's 2003
Mitsubishi Eclipse, New Jersey registration MEB-EST
was involved in a motor vehicle crash on the Bayonne
Bridge near Staten Island Junction, New Jersey.
Ms. Mitchell's insurance company, GEICO
Insurance Company for insurance purposes designated
the vehicle to be totaled.
After the Supreme Court denied certification, 229 N.J. 16 (2017),
defendant filed a timely pro se PCR petition. Assigned counsel thereafter filed
a supplemental submission. Following oral argument, the PCR judge, who was
not the trial judge, granted defendant's request for an evidentiary hearing,
primarily limited in scope to whether defendant's retained trial counsel was
ineffective by failing to call certain alibi witnesses at trial.
During the one-day January 9, 2020 evidentiary hearing, defendant
testified and presented the testimony of his sister, Rosa Fuentes, regarding his
whereabouts on May 29, 2009, when a Moorestown burglary was committed;
A-0932-20
6
and Curtis Edwards, an automobile damage supervisor employed by GEICO,
regarding the condition of Mitchell's Mitsubishi Eclipse at the time of the
August 17, 2009 Burlington Township burglary. The State called defendant's
trial attorney, Kevin Watkins, as its sole witness.
According to Fuentes, defendant was living with her in Brooklyn in 2009,
while he made renovations and repairs to her home. She claimed somewhere
between 3:30 p.m. and 4:30 p.m., on May 29, 2009, defendant left her home,
stating he was meeting his friend, "Ike,"3 at a cell phone store in Jersey City.
Acknowledging "2009 was a long time ago," Fuentes remembered the day
because after defendant was arrested "he called [her] and he told [her], 'Do you
remember that day I was at your house and Ike called me?'" Fuentes told
defendant she recalled the day, "and he sa[id, 'T]his is what's going on, I'm
getting arrested for this.'"
Fuentes testified she spoke with Watkins about "what happened."
Watkins said he would meet her in Brooklyn, and that he would call her as a
witness at trial, but he did neither. Fuentes claimed she was not aware the trial
had taken place until her brother was convicted.
3
Defendant later testified to the same account, but referenced his friend's name
as Pierantony.
A-0932-20
7
On cross-examination, Fuentes acknowledged she did not follow up with
Watkins. She also claimed defendant had begun work at her home "[i]n the
morning" on May 29. When the prosecutor asked: "So, would it surprise you
to know that on May 29, 2009, between the hours of 11:43 a.m. and 12:44 p.m.,
that there were sixteen Sprint direct-connect calls from your brother's phone
routed through a Sprint cell tower located less than two miles from [the
Moorestown burglary]," Fuentes responded, "That's impossible."
Edwards' testimony was brief. He stated a 2003 Mitsubishi Eclipse owned
by Mitchell was towed from the scene of an accident on August 14, 2009 to
"Lamon Auto Body in Mount Holly." GEICO deemed the car a "total loss,"
which meant "the amount of the damage [wa]s more than the actual cash value."
According to Edwards, the car was not returned to the owner after the August
14, 2009 accident date. Edwards confirmed his "answers would have been the
same" had he testified at trial.
Defendant testified about Watkins' failure to call Fuentes, Edwards, and
the cell phone store employee, Jorge L. Castoire,4 as trial witnesses. For
4
Defendant referred to Castoire as "Cristori." Castoire did not testify at the
PCR hearing. His name is referenced in a police report which was marked for
identification but not moved into evidence at the hearing. The report was
attached to defendant's PCR brief and is included in the appendix on appeal.
A-0932-20
8
example, defendant contended Castoire was present when he arrived at the cell
phone store after 6:00 p.m. on May 29, 2009. He said Castoire "could have
testified that [defendant] had no money" because he saw "what [defendant] was
driving" and "what [he] was wearing." According to defendant, Watkins said
"there's no need to call him because . . . he's a witness for the prosecutor and
that he[ would] cross-examine him." Defendant told the PCR judge Castoire
was not called by the State at trial.
Defendant also generally criticized Watkins' representation at, and
preparation for, trial. Defendant claimed he made it clear he wanted the
witnesses or his wife to testify to his alibi and the condition of the car, but
"[Watkins] never called any of them."
Admitted to the bar in 1986, Watkins testified about his general
recollection of the defendant's case. Watkins believed "it was a difficult case"
but "[he] thought [he] could beat it." His initial strategy was "to get [the multi-
count indictment] severed." Watkins could not recall specific details about
defendant's contentions.
Watkin did not recall whether he ever spoke with Fuentes. Nor did he
remember whether defendant asked him to call Castoire. The police report,
which stated defendant came to the shop with two men sometime after 6:45 p.m.,
A-0932-20
9
when one of the men called the shop, did not refresh his recollection. After
reviewing the police report, Watkins noted it was "incomplete." The report
ended midsentence and did not reflect the author's name.
As for the allegation he did not timely subpoena the GEICO representative
for trial, Watkins suggested there were "some things within those GEICO
records, which may not have reflected very well on [defendant]." He believed
"the purpose of the stipulation may have been to establish that the car could not
have been used [in the August 17, 2009 burglary]."
In his written decision denying PCR, the judge briefly referenced Fuentes'
testimony, concluding "her credibility would have been an issue at trial."
Regarding Edwards' testimony, the PCR judge noted: "The jury was aware of
the condition of the Eclipse," having been shown a photograph of the car and
heard the stipulation. The judge further found although "Pierantony testified
that the Eclipse had been used in the August [17,] 2009 burglary," the jury
nonetheless convicted defendant. The PCR judge concluded defendant failed to
"rebut[] the presumption that [his] trial counsel's decision not to call certain
witnesses was a reasonable strategic choice based on his assessment of the facts
and circumstances of the case." This appeal followed.
A-0932-20
10
II.
Our review where the court has conducted an evidentiary hearing on a
defendant's PCR petition "is necessarily deferential to [the] PCR court's factual
findings based on its review of live witness testimony." State v. Nash, 212 N.J.
518, 540 (2013). Where an evidentiary hearing has been held, we should not
disturb "'the PCR court's findings that are supported by sufficient credible
evidence in the record.'" State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash,
212 N.J. at 540). We review any legal conclusions of the PCR court de novo.
Nash, 212 N.J. at 540-41.
In seeking post-conviction relief, a defendant must prove counsel was
ineffective by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339,
350 (2012). Initially, a defendant must prove counsel's performance was
deficient by demonstrating counsel's handling of the matter "fell below an
objective standard of reasonableness" and "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, 58 (1987) (adopting the Strickland two-part test in
New Jersey). Secondly, a defendant must prove counsel's "deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice is
A-0932-20
11
established by showing a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been dif ferent."
Id. at 694. Thus, to warrant reversal of the challenged conviction, the defendant
must establish counsel's performance was deficient and the defendant suffered
prejudice. Id. at 687; Fritz, 105 N.J. at 52.
When reviewing claims of ineffectiveness, courts apply a strong
presumption that defense counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690; see also State v. Arthur, 184 N.J. 307, 318-19
(2005). "[C]omplaints 'merely of matters of trial strategy' will not serve to
ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (quoting
State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Echols, 199 N.J.
344, 357-59 (2009). "As a general rule, strategic miscalculations or trial
mistakes are insufficient to warrant reversal 'except in those rare instances where
they are of such magnitude as to thwart the fundamental guarantee of [a] fair
trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original)
(quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
"Determining which witnesses to call to the stand is one of the most
difficult strategic decisions that any trial attorney must confront." Arthur, 184
A-0932-20
12
N.J. at 320. The decision is generally informed by the testimony expected to
be elicited; the possibility of impeachment, both by prior inconsistencies or
conflicting testimony by other witnesses; and the witness's general credibility.
Id. at 320-21. We must accord substantial deference to trial counsel's decisions
on which – if any – witnesses to present, which is overcome only if a defendant
shows a strategic decision was based upon a lack of trial preparation. Id. at 323.
When a defendant claims his trial attorney failed to call certain witnesses, we
ultimately consider "whether there is a reasonable probability that, but for the
attorney's failure to call the witness, the result would have been differen t – that
is, there would have been reasonable doubt about the defendant's guilt." State
v. L.A., 433 N.J. Super. 1, 15-16 (App. Div. 2013); see also State v. Bey, 161
N.J. 233, 261-64 (1999) (declining to find ineffective assistance of counsel
where the proffered testimony was "largely cumulative of evidence revealed by
other . . . witnesses" and the "testimony would not have affected the jury's
deliberations").
"The quality of counsel's performance cannot be fairly assessed by
focusing on a handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of [the] defendant's guilt."
Castagna, 187 N.J. at 314; see also State v. Marshall, 123 N.J. 1, 165 (1991).
A-0932-20
13
"'[A]n otherwise valid conviction will not be overturned merely because t he
defendant is dissatisfied with his or her counsel's exercise of judgment during
the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, 187
N.J. at 314).
Having reviewed the record, in view of defendant's contentions and the
applicable legal principles, we are satisfied defendant has not demonstrated his
trial attorney's failure to call Fuentes, Castoire, and Edwards as witnesses would
have changed the outcome at trial. In essence, none of the witnesses could refute
the State's forensic evidence, including cell phone and E-Z Pass data.
Had Fuentes testified at trial, her assertion that defendant was working in
her home until at least 3:30 p.m., would have been controverted by cell phone
evidence that placed defendant in the vicinity of the Moorestown burglary
shortly after noon on the day of the burglary. Testimony about Castoire's
encounter with defendant later in the day would have been inconsequential.
Although Watkins' testimony was marked by lapses in memory, his
unrefuted testimony about his failure to call a GEICO representative revealed
portions of the insurance company's records may not have benefited defendant.
In any event, Watkins extensively cross-examined Pierantony – and spent
considerable time in summation – highlighting the holes in his story. Watkins
A-0932-20
14
emphasized the condition of the car, as referenced by the photographs depicting
the vehicle, the towing records, and the stipulation between the parties.
Moreover, as the State argues, the cell phone evidence adduced at trial
demonstrated, on the day of the Burlington Township burglary, three calls were
made from defendant's cell phone within a fifteen-minute timespan. Six
additional calls from defendant's phone were routed through a cell tower less
than a mile from the residence.
In sum, the State's evidence adduced at trial as to all counts, including
those pertaining to the burglaries at issue in this appeal, was substantial.
Viewing trial counsel's performance in view of the State's evidence, see
Castagna, 187 N.J. at 314, we accept the PCR judge's determination that
defendant failed to prove both prongs of the Strickland standard. We therefore
discern no reason to disturb the judge's findings, which are fully supported by
the record and are entitled to our deference. Nash, 212 N.J. at 540.
Affirmed.
A-0932-20
15