STATE OF NEW JERSEY VS. ELMO M. RIVADENEIRA (07-03-0435, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5573-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELMO M. RIVADENEIRA,
Defendant-Appellant.
___________________________
Submitted April 1, 2020 – Decided May 19, 2020
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 07-03-0435.
Joseph E. Krakora, Public Defender, attorney for
appellant (Janet Anne Allegro, Designated Counsel, on
the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the briefs).
Appellant filed a supplemental pro se brief.
PER CURIAM
Without granting an evidentiary hearing, the trial court entered a February
1, 2018 order, denying defendant's petition for post-conviction relief (PCR)
based on newly discovered evidence and ineffective assistance of counsel (IAC).
Following a limited remand to address whether newly discovered FBI records
warranted a change in the PCR court's prior denial, the court entered a
September 12, 2019 order, "find[ing] the newly discovered evidence [did] not
change th[e] [c]ourt's previous decision." Defendant now appeals, challenging
the denial of his PCR petition, raising substantially the same arguments rejected
by the PCR court, and urging us to reverse and remand for an evidentiary hearing
or, in the alternative, a new trial. Based on our review of the record and the
applicable legal principles, we affirm.
Following a 2011 jury trial, defendant was convicted of first-degree
kidnapping, N.J.S.A. 2C:13-1(b); three counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a); fourth-degree child abuse, N.J.S.A. 9:6-1 and -3;
third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); first-
degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). The
convictions stemmed from defendant forcibly abducting a sixteen-year-old,
A-5573-17T1
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A.T.,1 on May 17, 2005, while she was walking home, and driving her to
deserted locations overgrown with weeds where he repeatedly raped her before
ultimately releasing her at a car repair facility. In addition to A.T., the original
indictment included similar charges involving two other victims, V.S. and A.R.,
both of whom were severed for trial purposes. At the time of trial, defendant
was also suspected of committing other sexual assault related offenses involving
different victims in the New Jersey and New York metropolitan area. However,
the State was precluded from introducing evidence of other crimes at trial
pursuant to N.J.R.E. 404(b).2
We incorporate herein the facts set forth in State v. Rivadeneira, No. A-
3348-11 (App. Div. May 4, 2016) (slip op. at 2-3), certif. denied, 227 N.J. 239(2016), wherein we affirmed the convictions and aggregate fifty-year No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, sentence, but remanded "for the
limited purpose" of "correcting . . . errors in the judgment of conviction (JOC),"
1
We use initials to protect the privacy of the victims. See N.J.S.A. 2A:82-46;
R. 1:38-3(c)(9), (12).
2
In denying the State's motion, the trial court found there was "nothing in any
of these cases that would satisfy the [State v. Cofield, 127 N.J. 328 (1992)]
analysis in terms of identification sufficient to justify its admissibility under
[N.J.R.E.] 404(b)." However, the court "warn[ed]" defense counsel that if "the
door" was "open[ed]," then the State could use the evidence "in rebuttal."
A-5573-17T1
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none of which "affect[ed] the aggregate term." In our decision, we detailed the
proofs adduced at trial, recounting A.T.'s testimony that "the assailant wore a
condom and, after the assaults, . . . wiped her genital and anal areas with a liquid,
which he said would avoid leaving evidence on her body." Id. at 3-4.
Additionally, A.T. "could not see [the assailant's] face during the attacks,"
because he "had a stocking [3] over his head and face" and "also wore blue latex
gloves." Id. at 4.
However, A.T. "saw [the assailant's] eyes, which she described as large
and bulging," and heard his voice, which she described as "very distinctive."
She testified his voice "sounded like 'Kermit the Frog' because he sounded as
though 'he was talking through his throat.'" Ibid. She also "described the
assailant as thin and short but very strong." Ibid. Further, "as the assailant drove
her from one location to another, she smelled cigar smoke and he told her that
he was smoking Black and Mild cigars." Ibid.
When the assailant finally released A.T. at "a car repair facility in Newark,
where he . . . placed her in a white Toyota parked in the facility's lot," and the
3
"It appears from the record that the stocking was one leg cut from a pair of
women's panty hose." Id. at 14 n.6.
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4
police subsequently "drove [her] around Newark until she was able to identify
the car repair lot . . . as well as the white Toyota parked there,"
[n]ear the spot where the victim was released, the police
found a black sheer stocking which, upon being tested,
proved to have the victim's DNA on the outside and
defendant's DNA on the inside. The police also found
a blue latex glove on the ground near the location where
the victim was initially kidnapped. The State presented
testimony that defendant had previously worked as an
auto mechanic in the area of Newark where the victim
was released, that he typically wore blue latex gloves at
work, and that the car repair facility where the victim
was released had a business relationship with
defendant's employer.
[Id. at 4-5.]
"One of defendant's former girlfriends, Ms. Teicher," testified for the
State and confirmed "that defendant had a very distinctive raspy voice, . . . was
short, thin, and muscular," and "smoked Black and Mild cigars." Id. at 5. "She
also testified that on multiple occasions during their relationship, defendant
would direct her to drive him to vacant lots overgrown with high weeds, where
they would have sex in the back of her car." Ibid.
Another witness, Alex Cancinos, who had worked with defendant at a
garage,
testified that in 2006, when defendant was in jail
awaiting trial in this case, defendant sent Cancinos a
letter asking him to "stage" a rape, with the cooperation
A-5573-17T1
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of a female friend, and leave some of defendant's blood
and pubic hair at the scene. Defendant enclosed
packets, apparently containing blood and hair, with the
letter. Defendant explained to Cancinos that, if
Cancinos did as he asked, it would then appear that
someone was trying to frame defendant for a second
rape, which he could not possibly have committed
because he was in jail. Defendant believed that
evidence would, in turn, cast doubt on the State's DNA
evidence in the upcoming prosecution. According to
Cancinos, he refused defendant's request, and burned
the letter.
Ms. Dahl, who had been defendant's girlfriend at
the time, corroborated Cancinos's testimony. She
testified that Cancinos, who was a mutual friend of hers
and defendant, told her about defendant's request, and
asked her advice. She testified that Cancinos also
showed her the letter, which was in defendant's
handwriting, and that she read it. She advised Cancinos
not to go along with defendant's plan.
[Id. at 5-6 (footnote omitted).]
In 2016, defendant filed a timely PCR petition. The focus of defendant's
petition was his suspected involvement in other sexual assault related offenses
committed against two New York victims, H.T. and K.R., and another New
Jersey victim, N.W. N.W. was attacked in Elizabeth by two male assailants.
Her description of one of the assailants matched Cancinos, whom she later
identified. Although N.W. never identified defendant as the second assailant,
both Cancinos and defendant were subsequently indicted in connection with her
A-5573-17T1
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attack, and charged with aggravated sexual assault and related offenses, which
charges were ultimately dismissed by the State.
On September 15, 2004, an assailant attempted to abduct H.T. from a New
York City street. H.T. successfully fought off the assailant, who fled in a car.
Although H.T.'s description of the assailant did not match defendant, during the
attack, the assailant dropped a cell phone which contained epithelial DNA
matching defendant and a SIM4 card belonging to N.W. Subsequently, on June
24, 2005, K.R. was sexually assaulted in New York City. Like A.T., she was
abducted and driven to various locations by the assailant. New York authorities
initially reported that defendant's DNA was discovered on a scarf used by the
attacker to cover K.R.'s eyes during the assaults. However, subsequent testing
excluded defendant as a match to the scarf. Nonetheless, defendant's DNA was
found inside the car in which K.R. was allegedly abducted.
In his PCR petition, defendant asserted there was newly discovered
exculpatory evidence pertaining to these three victims that the State withheld
until after the trial, thus precluding him from introducing the evidence at trial to
establish a third-party guilt defense. Specifically, defendant stated he was not
notified until after the trial that he was excluded as a match to the DNA found
4
Subscriber Identification Module.
A-5573-17T1
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on the scarf in K.R.'s case, that N.W. identified Cancinos as one of the two
assailants who attacked her, that the physical description provided by H.T. did
not match defendant, and that there was no blood DNA matching defendant
found on the cell phone recovered after H.T.'s attack. Regarding the latter,
defendant asserted that the presence of defendant's epithelial DNA, rather than
blood DNA, on the phone recovered in the H.T. attack could be explained by the
fact that he had owned the phone but got rid of it years before the incident.
According to defendant, by excluding him from other attacks believed to have
been committed by the same man who attacked A.T., the withheld evidence was
essential to challenge the State's case at trial.
Further, defendant argued he was deprived of effective assistance of trial
and appellate counsel. Defendant asserted his trial attorney failed to conduct a
complete investigation of Cancinos to undermine the veracity of the letter
defendant allegedly sent to Cancinos from prison requesting Cancinos to stage
a rape with defendant's DNA. According to defendant, an investigation into the
prison's procedures would have confirmed that the jelly packets purportedly
containing defendant's DNA were not distributed in his prison, and the prison
mail log documented all outgoing mail. Further, an investigation would have
uncovered evidence to discredit Dahl's corroboration of Cancinos's testimony.
A-5573-17T1
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Defendant asserted his attorney should have undermined Dahl's ability to
recognize defendant's handwriting on the letter with more persuasive evidence
than the testimony of defendant's father, which was presented to the jury to
refute Dahl's purported familiarity with defendant's signature.
Defendant also asserted trial counsel failed to investigate Cancinos as
A.T.'s attacker to establish a third-party guilt defense. Defendant indicated that
because he and Cancinos were friends and worked together in a garage in
Kearny, Cancinos had access to defendant's belongings and thereby opportunity
to frame him. According to defendant, there was compelling evidence pointing
to Cancinos as the actual culprit, including N.W.'s identification of Cancinos as
one of her two attackers, dismissal of the charges in N.W.'s attack in exchange
for his testimony against defendant at trial, N.W.'s SIM card found in the cell
phone recovered at the scene of H.T.'s attack, and Cancinos's arrest while
driving a customer's vehicle that was similar to the car spotted on surveillance
footage where A.T. was kidnapped.
Defendant further asserted that his trial attorney failed to investigate the
claims made by the New York assistant district attorney (ADA) regarding DNA
discovered on the scarf in the K.R. case and the cell phone in the H.T. case.
According to defendant, his attorney's failure to investigate these claims, which
A-5573-17T1
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turned out to be erroneous, not only prevented him from introducing a third-
party guilt defense but also deprived him of a favorable global plea offer from
the New Jersey prosecutor, who stated in a letter dated August 19, 2011, that he
was "withdrawing the previously extended plea offer of thirty years on the New
Jersey cases," after noting that the New York ADA told him that "[t]hey now
have [defendant's] DNA on a second case."5
Additionally, defendant asserted his trial attorney failed to effectively
consult and communicate with the defense DNA expert. Although defendant
acknowledged that the defense expert agreed with the findings of the State's
expert regarding the DNA found on the stocking recovered at the scene, he
asserted trial counsel failed to consult with the defense expert to facilitate
effective cross-examination of the State's expert, and failed to ensure that the
defense expert tested other specimens collected in the case that proved to have
no evidential value. Moreover, his attorney failed to investigate and introduce
evidence, including photographs, showing that defendant wore a stocking on his
5
In the letter, the New Jersey prosecutor also indicated that his withdrawal of
the plea offer was "moot" because "defendant was not interested in pleading
guilty to anything," having previously rejected the offer and professed his
innocence on the record when questioned by the trial court.
A-5573-17T1
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head from an early age, to provide a reasonable explanation for defendant's DNA
on the stocking.
To support his claim that he received ineffective assistance of appellate
counsel, defendant asserted counsel failed to raise on appeal that the trial court
erred in overruling trial counsel's objection to admitting testimony regarding the
letter allegedly sent to Cancinos under N.J.R.E. 404(b), and erred in preventing
trial counsel from cross-examining Cancinos about the details of the rape charge
involving N.W., of which defendant was a co-defendant and which was
ultimately dismissed by the State in exchange for Cancinos's testimony against
defendant.
Following oral argument, on February 1, 2018, the PCR court denied
defendant's petition. In an oral decision, the judge reviewed the factual
background and procedural history of the case, applied the governing legal
principles, and concluded defendant "woefully failed" to satisfy all three prongs
of the test enunciated in State v. Carter, 85 N.J. 300, 314 (1981) to warrant
granting a new trial. The judge found defendant failed to establish that the
claimed newly discovered evidence was "material" to the case involving A.T.,
failed to "identif[y]" when the evidence was discovered or show that the
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evidence was not "discoverable at trial,"6 and failed to establish that the evidence
was of the sort that would probably change the jury's verdict if a new trial was
granted.
Additionally, the judge determined defendant failed to establish a prima
facie case of IAC. The judge found defendant failed to show that either counsel's
performance fell below the objective standard of reasonableness set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome
would have been different without the purported deficient performance as
required under the second prong of the Strickland/Fritz test. In rejecting
defendant's assertion that he was entitled to an evidentiary hearing, the judge
6
Although defendant claimed he only became aware of the evidence after he
was tried and convicted in New Jersey and extradited to New York to face the
New York charges, the claim was never substantiated by competent evidence in
the record and the reports from the New York authorities all predate the trial.
Moreover, because the New Jersey prosecutor was not obligated to turn over
reports prepared by the New York or FBI authorities, any failure to disclose the
reports could not constitute a violation of Brady v. Maryland, 373 U.S. 83(1963). Even if the reports could be construed as exculpatory evidence, they
exculpate defendant of the New York rapes, not A.T.'s. Notably, the judge
rejected defendant's contention that "a joint investigation" was confirmed by the
prosecutor's "affirmation" in an April 19, 2011 letter. Instead, the judge
explained the prosecutor was "inartful in his words." See State v. Knight, 283
N.J. Super. 98, 115 (App. Div. 1995) (finding that the "mere transfer of
information or notification of the potential existence of a criminal in another's
jurisdiction will not establish an agency relationship.").
A-5573-17T1
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concluded defendant failed to present any issues that could not be resolved by
reference to the existing record.
In conducting the Carter analysis, the judge stated that the introduction of
evidence "that may or may not exonerate" him in the attacks on the New York
victims, H.T. and K.R., would not have exonerated him of the crimes involving
A.T. The judge noted that the
rapes were separate events. Evidence of exoneration
for a New York rape would not exonerate . . . defendant
for the rape of a New Jersey victim. Just because the
State may have believed at one time the rapes were
committed by the same individual, . . . does not mean
that if found not guilty of one rape, you're not guilty of
both.
Moreover, as the judge pointed out, "[a]t best, if all [defendant's] claims
. . . are true," the newly discovered DNA evidence only challenged "one piece
of evidence" in each New York case. Thus, the proffered newly discovered
evidence did not exonerate him entirely of the New York charges, was not
"probative of any issue" in the New Jersey case, and had no "relevanc[e] to . . .
the A.T. trial." Further, defendant "[b]eing exculpated in the rape of N.W.
would not affect [defendant's] conviction in regards to A.T."
The judge explained that because "the trial court denied the State's
[N.J.R.E.] 404(b) motion before the trial," "if the defense tried to introduce that
A-5573-17T1
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other evidence, it certainly would have opened up the door to other evidence ,"
would have resulted in "trials within trials," and, "in fact, would also likely
backfire on . . . defendant." The judge concluded that "evidence that may or
may not exculpate [defendant] on a completely separate crime is not probative
to the trial of A.T. Even if a jury were to hear the evidence [defendant] argues
should have been presented, even if they heard the defense of third-party guilt,
it would not matter." According to the judge, the "State presented . . . numerous
amounts of evidence at trial against [defendant], all of which remain[ed]
uncontested in this PCR."
Turning to defendant's IAC claims, the judge found that "[a]ll of
[defendant's] hand-picked issues with his trial and appellate counsels [did] not
amount to [IAC]." According to the judge, defendant "failed to articulate a
single reason why [his] appellate attorney should have raised [these] issue[s] on
appeal, or why his trial attorney['s] strategy fell below the objectively reasonable
standard; therefore [defendant] cannot succeed on prong one." As to prong two,
the judge concluded,
[e]ven if all the evidence and trial strategies were used,
. . . [defendant] has not proven that the outcome of the
trial would have been different.
The State, at the trial, relied on the DNA of
[defendant] found on the nylon stocking and also
A-5573-17T1
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containing . . . the DNA of A.T. Again, it was found
near the place where A.T. was left after being raped,
and A.T. testified the man wore the stocking on his
face. [Defendant] has not shown how any of the
irrelevant evidence or trial strategies would have
overcome the State's case in chief. As such, . . .
defendant fails [Strickland]'s prong two.
In rejecting defendant's contention that he was entitled to an evidentiary
hearing, the judge found that "[a]n evidentiary hearing [would] not aid [the
court] in this case" because "the allegations are quintessentially speculative and
not relevant," and defendant "failed to establish a likelihood [of] . . . success"
on the merits. The judge explained
I find this because even if [defendant] could present
evidence that his claims in the PCR are true, it would
still all be irrelevant to the trial for the sexual assault of
A.T. [Defendant's] . . . fatal flaw throughout this entire
[PCR] . . . is that he argued that if there was exculpatory
evidence in a separate unrelated trial not used in the
State's case in chief here, it would somehow be relevant
to the trial of . . . A.T.
This assertion . . . is inaccurate. It does not matter
that the State believed all the aforementioned victims
were assaulted by the same individual, because the
trials were severed or separated by jurisdiction. The
trial that [defendant] has motion[ed] for [PCR] only
pertains to the trial of A.T.
Defendant appealed from the February 1, 2018 order denying his PCR
petition. While the appeal was pending, he moved for a limited remand. In
A-5573-17T1
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support, PCR counsel certified that "[d]uring the pendency of th[e] appeal,"
"defendant notified [her] that FBI records existed detailing the investigation of
[K.R.'s] sexual assault." According to PCR counsel, the records prepared by the
FBI in 2006 "indicated the car investigated in the K.R. assault was originally
owned by defendant's friend's sister and defendant did work on the interior of
the car and assisted in the sale of th[e] car." Counsel explained that the FBI
records "establish[ed] a logical explanation for defendant's DNA being found in
th[e] car" to counter the State's argument "that the fact defendant was excluded
from the DNA sample on . . . K.R.['s] scarf [was] irrelevant because there was a
match to defendant's DNA" found "inside the car" in which "K.R. was
abducted."
On June 26, 2019, we granted defendant's motion for a limited remand for
the PCR judge to consider the FBI records. On September 12, 2019, following
oral argument, the judge determined that the newly discovered FBI records did
not "change [the court's] opinion whatsoever." The judge explained that while
the evidence may affect the K.R. case, "there [was] no link to [the] A.T. [case],"
and, in all likelihood, a judge would never have admitted the evidence as third-
party guilt evidence. See State v. Koedatich, 112 N.J. 225, 301 (1988) (noting
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"[t]here must be some link between the [proffered] evidence and the victim or
the crime" to support the admission of third-party guilt evidence).
On appeal, in his counseled brief, defendant raises the following points
for our consideration:
POINT I
THE STATE WITHHELD MATERIAL,
EXCULPATORY EVIDENCE OBTAINED FROM A
JOINT INVESTIGATION WITH NEW YORK AND
BY DOING SO GREATLY IMPACTED
DEFENDANT'S ABILITY TO CONDUCT A
COMPLETE DEFENSE THEREBY WARRANTING
A NEW TRIAL.
POINT II
DEFENDANT WAS DEPRIVED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL DUE TO
COUNSEL'S FAILURE TO PURSUE THE
NECESSARY FORENSIC EVALUATION,
ESTABLISH DEFENDANT'S DNA COULD HAVE
REASONABLY BEEN FOUND ON THE
STOCKING, INVESTIGATE THE VERACITY OF
THE LETTER PURPORTEDLY SENT TO ALEX
CANCINOS AND INVESTIGATE REASONABLE
CLAIMS TO SUPPORT A THIRD-PARTY GUILT
DEFENSE.
A. INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL TO PURSUE THE
NECESSARY FORENSIC
EVALUATIONS AND
CONSULTATIONS.
A-5573-17T1
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B. INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL DUE TO FAILURE
TO ESTABLISH DEFENDANT'S DNA
COULD HAVE REASONABLY BEEN
FOUND ON STOCKING BECAUSE
DEFENDANT WORE A STOCKING ON
HIS HEAD FROM A YOUNG AGE.
C. INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL DUE TO FAILURE
TO INVESTIGATE VERACITY OF
LETTER PURPORTEDLY SENT TO
ALEX CANCINOS.
D. INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL DUE TO FAILURE
TO INVESTIGATE THE K.R. AND H.T.
ATTACKS, DEPRIVING DEFENDANT
OF A THIRD-PARTY GUILT DEFENSE
AND A FAVORABLE GLOBAL PLEA.
E. INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL DUE TO FAILURE
TO INVESTIGATE ALEX CAN[C]INOS
FOR THIRD-PARTY GUILT DEFENSE.
POINT III
DEFENDANT WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL DUE TO
COUNSEL'S FAILURE TO RAISE THAT THE
TRIAL COURT ERRED IN ALLOWING INTO
EVIDENCE TESTIMONY REGARDING THE
PURPORTED LETTER SENT TO ALEX CANCINOS
AND ERRONEOUSLY LIMITED TRIAL
COUNSEL'S CROSS-EXAMINATION OF ALEX
CANCINOS.
A-5573-17T1
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A. INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL REGARDING
THE TRIAL COURT'S ERRONEOUS
RULING ALLOWING TESTIMONY
ABOUT AN ALLEGED LETTER FROM
DEFENDANT.
B. INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL REGARDING
THE TRIAL COURT'S ERRONEOUS
LIMITATION ON TRIAL COUNSEL'S
CROSS-EXAMINATION OF ALEX
CANCINOS.
In his counseled brief submitted following the limited remand, defendant
raises the following additional point for our consideration:
[POINT IV]
ON A LIMITED REMAND, THE PCR COURT
MIS[]APPLIED THE LEGAL STANDARD FOR
ADMISSION OF THIRD-PARTY GUILT AND
OTHER CRIME EVIDENCE IN CONCLUDING
THERE WAS NOT A SUFFICIENT LINK BETWEEN
THE EXCULPATORY EVIDENCE SUBMITTED BY
DEFENDANT REGARDING THE K.R. CASE AND
THE CURRENT MATTER.
In his pro se brief, defendant raises the following points for our
consideration:
POINT I
BECAUSE THE DEFENDANT UNAMBIGUOUSLY
SHOWED THAT THE STATE DISTORTED AND
WITHHELD MATERIAL, EXCULPATORY
A-5573-17T1
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EVIDENCE FROM THE DEFENSE AND BECAUSE
IT IMPACTED THE DEFENSE'S STRATEGIES
PREPARATIONS, AND ABILITY TO PRESENT A
COMPLETE DEFENSE, INCLUDING A THIRD-
PARTY GUILT DEFENSE, THE PCR COURT
SHOULD HAVE GRANTED HIS MOTION FOR
[PCR], AT A MINIMUM, THE PCR COURT
SHOULD HAVE HELD AN EVIDENTIARY
HEARING ON THE ISSUE.
....
POINT II
BECAUSE TRIAL COUNSEL WAS A DEPUTY
MAYOR, COUNCILMAN, AND MUNICIPAL
PROSECUTOR IN AND AROUND THE COUNTIES
THE ATTACKS OCCURRED AND WERE
INVESTIGATED, AND THE DEFENDANT WAS
CHARGED AND INDICTED FOR THE ATTACKS,
TRIAL COUNSEL'S DUAL REPRESENTATION
CREATED A CONFLICT THAT UNDERMINED
THE IMPARTIALITY OF TRIAL COUNSEL THAT
VIOLATED THE DEFENDANT'S RIGHT TO FAIR
TRIAL, INCLUDING EFFECTIVE ASSISTANCE OF
[COUNSEL]. THE PCR COURT SHOULD HAVE
GRANTED THE DEFENDANT'S PCR MOTION ON
THIS CLAIM, AT A MINIMUM, THE PCR COURT
SHOULD HAVE HELD AN EVIDENTIARY
HEARING ON THE ISSUE.
In evaluating these arguments, we apply well-established legal principles.
Regarding the new trial motion, "[a] jury verdict rendered after a fair trial should
not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171,
187 (2004). "A motion for a new trial is addressed to the sound discretion of
A-5573-17T1
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the trial court, and its determination will not be reversed on appeal unless there
has been a clear abuse of that discretion." State v. Puchalski, 45 N.J. 97, 107
(1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)).
In particular, motions for a new trial based on newly discovered evidence
are "not favored and should be granted with caution by a trial court since [they]
disrupt[] the judicial process." State v. Conway, 193 N.J. Super. 133, 171 (App.
Div. 1984) (citing State v. Haines, 20 N.J. 438, 443 (1956)). "Newly discovered
evidence must be reviewed with a certain degree of circumspection to ensure
that it is not the product of fabrication, and, if credible and material, is of
sufficient weight that it would probably alter the outcome of the verdict in a new
trial." Ways, 180 N.J. at 187-88. However, we "must keep in mind that the
purpose of post-conviction review in light of newly discovered evidence is to
provide a safeguard in the system for those who are unjustly convicted of a
crime." Id. at 188.
To that end, to obtain a new trial based upon a claim of newly discovered
evidence, a criminal defendant must establish that the evidence is: "(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-5573-17T1
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a new trial were granted." Carter, 85 N.J. at 314. All three prongs of the Carter
test must be satisfied before a new trial is warranted, Ways, 180 N.J. at 187, and
defendant bears the burden of establishing each prong, State v. Smith, 29 N.J.
561, 573 (1959).
As to the first prong, evidence is material if it "would 'have some bearing
on the claims being advanced.'" Ways, 180 N.J. at 188 (quoting State v. Henries,
306 N.J. Super. 512, 531 (App. Div. 1997)). "Clearly, evidence that supports a
defense, such as . . . third-party guilt, . . . would be material." Ibid. Because
determining whether evidence is material "requires an evaluation of the probable
impact such evidence would have on a jury verdict," our "focus properly turns
to prong three of the Carter test." Id. at188-89. Thus, the "analysis of newly
discovered evidence essentially merges the first and third prongs of the Carter
test," State v. Behn, 375 N.J. Super. 409, 432 (App. Div. 2005), which are
"inextricably intertwined." State v. Nash, 212 N.J. 518, 549 (2013).
Under that rubric, "[t]he characterization of evidence as 'merely
cumulative, or impeaching, or contradictory' is a judgment that such evidence is
not of great significance and would probably not alter the outcome of a verdict."
Ways, 180 N.J. at 189. In contrast, evidence "that would have the probable
effect of raising a reasonable doubt as to the defendant's guilt would not be
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considered merely cumulative, impeaching, or contradictory." Ibid. In short,
the "power of the newly discovered evidence to alter the verdict is the central
issue, not the label to be placed on that evidence," id. at 191-92, and the "central
issue" is whether the newly discovered evidence has the power to "shake the
very foundation of the State's case and almost certainly alter the earlier jury
verdict." Nash, 212 N.J. at 549-50.
The second prong of the Carter test "recognizes that judgments must be
accorded a degree of finality." Ways, 180 N.J. at 192. That prong therefore
requires that the "defense . . . 'act with reasonable dispatch in searching for
evidence before the start of the trial.'" Nash, 212 N.J. at 550 (quoting Ways,
180 N.J. at 192). Under that prong, the evidence must not have been
discoverable prior to trial through "the exercise of 'reasonable diligence'" in the
context of the specific circumstances of each case. Behn, 375 N.J. Super. at
428. Reasonable diligence does not, however, require "totally exhaustive or
superhuman effort." Ibid. That said, evidence "clearly capable of altering the
outcome of a verdict that could have been discovered by reasonable diligence at
the time of trial would almost certainly point to [IAC]." Nash, 212 N.J. at 550
(quoting Ways, 180 N.J. at 192).
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To establish a prima facie claim of IAC, a defendant must satisfy the two-
prong Strickland/Fritz test, and "bears the burden of proving" both prongs of an
IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,
350 (2012). Specifically, a defendant must show that (l) "counsel's performance
was deficient" and he "made errors so serious that counsel was not functioning
as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A "reasonable
probability" is defined as "a probability sufficient to undermine confidence in
the outcome." Strickland, 466 U.S. at 694. This test applies equally to a
defendant's claim of ineffective assistance of trial or appellate counsel. State v.
Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007).
Under the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). While "counsel is
strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.
at 690, as measured by a standard of "reasonable competence[,]" Fritz, 105 N.J.
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at 53, "'[r]easonable competence' does not require the best of attorneys," State
v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of detailed rules for
counsel's conduct can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions regarding how best
to represent a criminal defendant." Strickland, 466 U.S. at 688-89.
For that reason,
an otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or
her counsel's exercise of judgment during the trial. 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 defendant's guilt. 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)
(citations, internal quotation marks, and brackets
omitted).]
Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689.
Under the second Strickland prong, defendant must prove prejudice.
Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
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25
had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an
exacting standard" and "'[t]he error committed must be so serious as to
undermine the court's confidence in the jury's verdict or the result reached.'"
State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting
Castagna, 187 N.J. at 315).
Merely raising a claim for PCR does not entitle a defendant to relief or an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of IAC, material issues of disputed
fact lie outside the record, and resolution of those issues necessitates a hearing.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding
whether to grant an evidentiary hearing "should view the facts in the light most
favorable to a defendant." State v. Preciose, 129 N.J. 451, 463 (1992).
However, "[a] court shall not grant an evidentiary hearing" if "the defendant's
allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed,
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, 321 N.J. Super. at 170.
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In turn, "we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to post-conviction relief, . . . then an evidentiary hearing need not be
granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,
158 (1997)). We also typically review a PCR petition with "deference to the
trial court's factual findings . . . 'when supported by adequate, substantial and
credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in
original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549
(2002)). However, where, as here, "no evidentiary hearing has been held, we
'may exercise de novo review over the factual inferences drawn from the
documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,
146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at
421). We also review de novo the legal conclusions of the PCR judge. Harris,
181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).
Applying these principles, we first address defendant's contention that the
claimed newly discovered evidence prevented him from effectively raising a
third-party guilt defense at trial. Like the PCR court, we conclude defendant
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27
failed to establish all three prongs of the Carter test. When examining the impact
of newly discovered evidence, it must be "placed in context with the trial
evidence" and considered in relation to the State's proofs at trial. Ways, 180
N.J. at 195 (characterizing State's proofs as "far from overwhelming"). Here,
the nylon stocking found at the scene containing both defendant's and A.T.'s
DNA constitutes compelling and uncontested evidence of defendant's guilt that
is untainted by a third-party guilt defense. Thus, focusing on prongs one and
three of the Carter test, we are satisfied the claimed newly discovered evidence
would not "shake the very foundation of the State's case" nor "alter the earlier
jury verdict." Nash, 212 N.J. at 549 (quoting Ways, 180 N.J. at 189).
Accordingly, defendant's motion for a new trial was properly denied.
For the same reason, defendant's IAC claim must fail. Even if defense
counsels' performance was deficient as defendant asserts, defendant cannot
demonstrate the requisite prejudice under the second Strickland prong, given the
State's compelling evidence of defendant's guilt. Defendant argues that if his
attorney had investigated his claim that he wore nylon stockings on his head
from a young age, it would have provided a reasonable explanation for the
presence of his DNA on the stocking found at the scene. Indeed, an attorney's
failure to investigate "is a serious deficiency that can result in the reversal of a
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conviction." Porter, 216 N.J. at 353. "[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.S. at 691.
Here, defendant's argument overlooks the fact that the stocking contained
both his DNA and the victim's, A.T., and no amount of investigation of
defendant's past practice would change that fact. Similarly, we reject
defendant's contention that he was prejudiced by trial counsel's purported failure
to effectively challenge the DNA evidence found on the stocking because even
the defense DNA expert agreed with the findings of the State's experts. We also
reject defendant's assertion that he was prejudiced by counsels' purported failure
to discredit Cancinos because Cancinos's involvement had no impact on the
State's most damning evidence, the stocking found at the scene with defendant's
and the victim's DNA. Additionally, defendant's claim that he was prejudiced
by missing out on the New Jersey prosecutor's global plea offer is belied by the
record where he expressly rejected the offer, and adamantly professed his
innocence.
Based on our decision, we need not address defendant's remaining
arguments, which lack sufficient merit to warrant discussion here. R. 2:11-
3(e)(2). Briefly, we reject defendant's argument that there is a presumption of
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29
prejudice because his trial attorney had a conflict of interest arising from dual
representation. According to defendant, his attorney held various local
governmental positions in Essex and Hudson County at the time of the trial,
including serving "as the municipal prosecutor in a number of towns." We reject
defendant's assertion as unsupported by any competent evidence in the record.
There is no affidavit or certification to support the claim. "That type of showing
is necessary to advance defendant's PCR claim." Gaither, 396 N.J. Super. at
514.
Affirmed.
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