STATE OF NEW JERSEY VS. VICTOR VASQUEZ

On August 3, 2005, a Somerset County Grand Jury indicted

defendant charging him with first-degree robbery, N.J.S.A.

2C:15-1(a) (count one); second-degree conspiracy to commit

robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:15-1(a) (count two);

third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); third

degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five);

and third-degree hindering apprehension or prosecution, N.J.S.A.

2C:29-3(b)(4) (count six).

The State dismissed count two prior to trial. Defendant

was convicted by a jury on the remaining counts. He was

sentenced to a fifteen-year prison term on count one subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant

was also sentenced to four years on count three and four years

on count six, both to run concurrent to the sentence on count

one. Count five was merged with count one, and count four was

merged with count three. Additional fines and penalties were

imposed. We affirmed defendant's conviction on direct appeal.

State v. Vasquez, No. A-5413-07 (App. Div. Feb. 26, 2010) (slip

op. at 18), certif. denied, 202 N.J. 348 (2010).

We derive the salient facts from our previous opinion:

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At approximately 2:00 a.m. on July 2, 2005, Jaciel Cruz, Miguel Moran and Luis Lopez-Sosa returned to Cruz's apartment in Bound Brook after attending a movie and purchasing some food at a nearby convenience store. As they returned, they saw a group of men1 standing outside of a building next to a bar across the street from them. The group approached; two were concealing something behind their backs. The group asked Moran, Lopez-Sosa and Cruz if they were in a gang, which they denied. A man later identified as defendant then produced a kitchen knife from behind his back and demanded money from the victims. A second member of the group, who was wearing a dark baseball jersey, produced a baseball bat from behind his back. When Cruz refused to turn over his money, defendant tried to stab him and cut Cruz's finger as Cruz attempted to deflect the weapon. Defendant then pointed the knife at Cruz's chest and instructed a member of his group to go through Cruz's pockets. Cruz's wallet and his money were taken, approximately [$25] or [$30]. Defendant searched through Moran and Lopez-Sosa's pockets, taking about [$20] or [$30] from the latter. Lopez-Sosa, who was punched in the face during the encounter, asked for his wallet back and it was returned to him.

All three victims wore baseball caps: Moran's cap was green and white; Cruz's was black; and Lopez-Sosa's was white. Defendant took the baseball caps from Moran and Cruz, while the man with the baseball bat took Lopez-Sosa's hat. As the assailants began to leave, Moran asked for

1 At trial, the victims testified they were robbed by a group of approximately five men. The night of the incident they reported to police that they were robbed by six men, according to the officers' testimony. Six individuals were charged.

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the hats back. Defendant turned around and slashed at him, but Moran jumped away and the group proceeded up the street.

Cruz dialed 911 from a nearby pay phone. The police arrived, together with an ambulance to treat Cruz for his stab wound. As Cruz was standing on the sidewalk speaking to the officers, he pointed down the street eastward and said, "there's one of them now." Bound Brook Police Officer Peter Romanyszyn looked up and saw a man in a white t-shirt entering the front of an apartment building about a block away. He radioed other officers who were searching the area looking for the suspects and they immediately returned. The victims were directed to remain in Cruz's apartment while the suspects were apprehended.

Patrolmen Vito Bet and Jason Gianotto, Sergeant Richard Colombaroni, and Romanyszyn entered the three-story building where the suspect had been seen. Bet and Gianotto discovered a knife hidden underneath a mat in the foyer. Gianotto and Romanyszyn had reached the second floor when Gianotto heard the sound of a latch unlocking from a nearby apartment and saw a man emerge who matched the description of one of the robbers. After Gianotto detained him, Colombaroni, Bet and Romanyszyn went in and patted down the occupants for weapons. Three other men were arrested, and when additional officers arrived, the apartment was thoroughly searched. Gianotto and Colombaroni entered a back bedroom where two men, fully clothed and lying on a bed over the covers, were pretending to be asleep. Gianotto saw the handle of a bat protruding from underneath, and he testified that the heart of one of the suspects was beating with such force that "you could actually observe [it] beating right through his shirt." These two men were detained as well. The officers

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subsequently found two baseball caps out on a roof accessible through a window.

At that point, Cruz, Moran and LopezSosa were seated in separate police cars located approximately fifty feet from the building entrance. An officer sat inside with each victim; there was no communication between patrol cars. The officers trained vehicle spotlights on the entrance, and the suspects were brought out individually. As they walked through the door, the victims were asked if they could make an identification. Defendant, the third person escorted from the building, was identified by all three victims as the person who wielded the knife.

Defendant was tried jointly with Juan Merino Rafael and Jose Merino Ruiz. Merino Raphael was found guilty of second-degree robbery and third-degree hindering apprehension. Merino Ruiz was acquitted of all charges, however, he was apprehended by United States Immigration and Customs Enforcement while in jail on unrelated offenses. Three other men were also charged as a result of the incident; Rafael Garcia, Javier Romero and Sergio Lopez. All entered guilty pleas prior to defendant's trial. Garcia received a five-year sentence on August 17, 2007. An I.N.S. detainer issued against Romero while he was in custody awaiting sentencing on an unrelated indictment. Lopez failed to appear for sentencing on June 22, 2007, and as of November 2007, remained a fugitive.

[Vasquez, supra, slip op. at 2-6.]

Defendant filed a PCR petition, which was amended on April

1, 2011, and supplemented thereafter. Oral argument on the

petition was heard on January 14, 2013. The PCR judge issued an

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order and written opinion denying the petition in its entirety.

This appeal followed.

II.

Defendant raises the following arguments on appeal:

POINT I

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON [PCR].

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO [PCR].

A. COUNSEL WAS INEFFECTIVE FOR FAILING TO ENGAGE IN A MINIMAL LEVEL OF TRIAL PREPARATION.

B. COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE ANY MEANINGFUL CHALLENGE TO THE WITNESS IDENTIFICATION.

C. COUNSEL WAS INEFFECTIVE FOR ELICITING PREJUDICIAL TESTIMONY WHICH IRREVERSIBLY DEPICTED DEFENDANT AS A BAD PERSON IN THE MINDS OF JURORS.

Defendant argues that defense counsel provided ineffective

assistance of counsel by failing to adequately prepare for trial

or request a Wade2 pretrial hearing, and by eliciting testimony

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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regarding the collective defendants' gang affiliation and their

acting in concert.

III.

Prior to the trial, counsel for co-defendants sought to

include a jury question on voir dire asking whether "gang

involvement . . . would increase their belief" that the accused

committed the crime. In contrast, if not in opposition,

defendant's counsel stated that he intended to present an

"afterthought robbery" defense,3 which would "inevitably

contain[] references to gang affiliation because the contention

is . . . that the [d]efendants were of the view that these three

alleged victims were rival gang members[.]"4

At trial, defendant's counsel elicited extensive testimony

from Moran on cross-examination regarding the defendants' and

victims' gang involvement:

[Counsel]: Okay. What happened next? And by next I mean after Jaciel Cruz got up?

[Moran]: That's when they arrived, they spoke to us and asked us if we were part of a gang.

3 See State v. Lopez, 187 N.J. 91 (2006). 4 It is unclear from the record whether during the voir dire potential jurors were questioned about the gang issue, though there is some indication that the request from co-defendants' counsel was withdrawn. The judge made no mention of gangs in his preliminary instruction to the jury.

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[Counsel]: Okay, Mr. Moran, did you get a chance to count the number of people that were there in front of you?

[Moran]: Yes, there was one in front of me, the other one stood next to my brother, and the other three were on the side watching us.

[Counsel]: Okay, so there were five people in total? [Moran]: Yes.

[Counsel]: Now, which one of the five people actually asked you whether you were a member of a gang?

[Moran]: The one with the knife.

[Counsel]: Okay. Did he ask anyone else whether they were members of a gang?

[Moran]: No, the question was not directly to me, it was a question addressed to the three of us.

[Counsel]: Okay, do you remember the exact question that he asked?

[Moran]: No, not exactly.

[Counsel]: But you know that it was something about a gang?

[Moran]: Yes.

[Counsel]: Prior to asking you about a gang, did the person with the knife make any comments?

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[Moran]: I believe so. He told me that they were part of the 18th Street Gang.

[Counsel]: Did anyone else make any comments?

[Moran]: No.

[Counsel]: Okay, at that point in time, when you were asked about a gang, did you notice a knife?

[Moran]: No, they didn't show it yet.

[Counsel]: Okay. When this person was asking you whether you were a member of a gang, can you describe to the [c]ourt and the members of the jury where were this person's arms and hands?

[Moran]: Yes, he had them behind. He had a hand behind him.

Counsel also elicited testimony from Lopez-Sosa regarding gang

affiliation and the assailants' acting in concert:

[Counsel]: And another individual had a knife?

[Lopez-Sosa]: Uh-huh.

[Counsel]: Did he say anything to you?

[Lopez-Sosa]: If we were a member of a gang.

. . . .

[Counsel]: Now, you made observations of people other than the three that were in front of you?

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[Lopez-Sosa]: Yes.

[Counsel]: Where were these people in relation to where you were?

[Lopez-Sosa]: They were a little bit behind their friends.

. . . .

[Counsel]: Were you afraid of them?

[Lopez-Sosa]: I didn't try to defend myself, like when I was attacked when the knife was there, because I thought there was more of them.

[Counsel]: [W]ere you of the impression that the three who were in front of you and the two who were behind, those three were all acting in concert?

[Lopez-Sosa]: For sure. It should have been like that, because they came together.

[Counsel]: What do you mean they came together?

[Lopez-Sosa]: That they're friends.

[Counsel]: They're friends?

[Lopez-Sosa]: And I don't know.

[Counsel]: Did you observe them [all together]?

[Lopez-Sosa]: Yes, when they came from the corner where they had been standing.

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Predicated upon this testimony, Merino Ruiz's counsel

sought a mistrial, arguing that defendant's counsel's line of

questioning was "gratuitous" and "irresponsible[,]" and

suggested that the questioning regarding the defendants' acting

in concert indicated that counsel was "trying to wrap everybody

into liability[.]" The motion was denied. Defendant's counsel

did not offer any explanation for his line of questioning. On

redirect, the State took up the line of questioning regarding

the defendants' acting in concert.

During cross-examination of Romanyszyn, defendant's counsel

attempted to elicit testimony regarding the defendants' prior

arrests. The judge intervened before the testimony was given.

Merino Ruiz's counsel again requested a mistrial. The judge

denied the motion but expressed dismay with defendant's

counsel's conduct. The judge inquired whether counsel

understood the consequences of his questioning:

[The Court]: [M]y question is, did you know that they had prior arrests and that would be information coming from this witness pursuant to your question?

[Counsel]: Um, perhaps, [j]udge.

[The Court]: No perhaps about it.

[Counsel]: Perhaps.

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[The Court]: I do not think you are being honest with the [c]ourt with that kind of answer.

[Counsel]: But that's the honest answer. This is the honest answer.

[The Court]: You cannot ask this kind of a question without blowing things up. So if I perceive that you are purposely trying to sabotage this case —

[Counsel]: Absolutely not.

[The Court]: It better not be the situation. We will continue.

Counsel continued to deny that he was trying to "sabotage" the

case, and the judge responded by warning about the dangers of

counsel's line of questioning.

The following day, Merino Ruiz moved for severance from the

trial due to the "undue prejudice" caused by defendant's

counsel. Although defendant did not oppose the motion,

defendant's counsel explained that his questioning regarding

whether the defendants were acting in concert was "in good

faith" to ascertain whether Lopez-Sosa was "frightened[.]"

Counsel then explained there is indication in the record that

the incident "was less of a robbery and more of a

confrontation." The judge sought a more elaborate explanation,

to which defendant's counsel replied:

[Counsel]: If any of my questions solicit the truth, if the

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witnesses can take the stand, and if my questions somehow cause the witnesses to say something that is prejudicial to my clients, but it is the truth, then so be it. This is a court of law. We are here to find out what the truth is and we are not afraid of the truth, we are not here to be afraid of the truth, but that's not the substance of my opposition . . . .

. . . .

[Counsel]: I don't know exactly what question is he referring to about the gangs, [j]udge, but certainly there was the indication again that this was not just a simple armed robbery, that these individuals perhaps were out there at [three] o'clock in the morning, between two and [three] o'clock in the morning. And perhaps, [j]udge, they were not as innocent as they make themselves out to be. And I allude to the fact that there's a movie which is missing, a two-hour movie, or a one-and-a-half hour movie which is missing.

[The Court]: No. Gang question, gang question.

[Counsel]: Judge, the absence of the movie, of the recollection of the movie leads me to believe that someone perhaps is attempting to sugar coat the

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facts, making themselves out to be the nice guys on the block.

. . . .

[Counsel]: I'm going to put on the record there's no one particular reason why I ask my questions, absolutely not. There are multiple reasons, a host of reasons. And that might have been part of my rationale. However, one of the facts that I tend to utilize, unfortunately not everyone agrees with my tactics, some people do, a number of people do, is to ask my questions which would lead to further questions and would lead to admissions which are favorable, [j]udge. So, I tend to try to, when I cross examine a witness, to involve them in a colloquy. I try to follow, as best as I can, under pressure, obviously, a pattern of thought, a two-way discussion leading to the discovery of further information, leading to statements made. And I believe I have been successful on a number of points here in this court, [j]udge, by doing so.

. . . .

[Counsel]: And [j]udge, I've said everything that I possibly can. I apologize if I cannot add anything further to the record.

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The State opposed Merino Ruiz's severance application on

the basis that defendant's counsel had made known that he

intended to argue to the jury that this was an afterthought

robbery, and that the gang references were admitted pursuant to

this express trial strategy.5 The judge denied the motion.

Paradoxically, notwithstanding defendant's counsel

eliciting testimony regarding gang affiliation, he opposed any

reference to gangs during the jury charge, arguing it would

place undue emphasis on the gang issue. Counsel also requested

the State be prohibited from referencing gangs during summation.

The judge denied the request, noting that defendant's counsel

was the one who brought evidence of gang affiliation into the

case. The judge gave a comprehensive jury instruction regarding

how evidence of the defendants' gang affiliation should be used,

including its relation to their motive.

IV.

"Post-conviction relief is New Jersey's analogue to the

federal writ of habeas corpus." State v. Preciose, 129 N.J.

451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is

entitled to post-conviction relief if there was a "[s]ubstantial

5 Defendant's counsel did employ the afterthought robbery argument during summation. The State commented during its summation on the testimony elicited by defendant's counsel regarding the defendants' gang affiliation and acting in concert.

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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 petitioner must

establish the right to such relief by a preponderance of the

credible evidence." Preciose, supra, 129 N.J. at 459 (citations

omitted). "To sustain that burden, specific facts" that

"provide the court with an adequate basis on which to rest its

decision[]" must be articulated. State v. Mitchell, 126 N.J.

565, 579 (1992).

Claims of constitutionally ineffective assistance of

counsel are well suited for post-conviction review. See R.

3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining

whether a defendant is entitled to relief on the basis of

ineffective assistance of counsel, New Jersey courts apply the

two-prong test articulated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United

States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046

47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J.

at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.

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Ed. 2d at 693. Under the second prong, a defendant must

demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d

at 698.

Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v.

Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "[W]here the

court does not hold an evidentiary hearing, we may exercise de

novo review over the factual inferences the trial court has

drawn from the documentary record." State v. O'Donnell, 435

N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, supra, 181

N.J. at 420-421). A PCR court's interpretations of law are

provided no deference and are reviewed de novo. State v. Nash,

212 N.J. 518, 540-41 (2013).

An evidentiary hearing is ordinarily granted if the facts,

viewed "in the light most favorable to the defendant," would

warrant PCR. State v. Jones, 219 N.J. 298, 311 (2014). Thus,

whether a defendant receives an evidentiary hearing depends on

the defendant's "establishment of a prima facie case in support

of post-conviction relief, a determination by the court that

there are material issues of disputed fact that cannot be

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resolved by reference to the existing record, and a

determination that an evidentiary hearing is necessary to

resolve the claims for relief." R. 3:22-10(b).

V.

We commence by addressing defendant's contention that he

was provided ineffective assistance of counsel by his counsel's

repeated line of questioning regarding defendant and co

defendant's gang affiliation and their acting in concert. In

denying the PCR petition, the PCR judge reasoned that

defendant's counsel elicited testimony regarding the collective

defendants' gang membership and acting in concert because he

"intended to, and did, in fact, employ the defense of

'afterthought robbery.'"

We would agree with that holding had the gang "tactic"

rationale referenced by the PCR judge been addressed and

explained by defendant's counsel during the trial. Although

defendant's counsel referred to the potential "gang" testimony

pretrial and its relationship to an afterthought robbery

defense, from our extensive review of the trial record, other

than the pretrial statement made we found no explanation by

counsel for presenting evidence which, by any objective

standard, would be prejudicial to defendant. When asked by the

judge to provide an explanation regarding his line of

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questioning, defendant's counsel replied that he was acting "in

good faith" and sought to determine whether one of the victims

was "frightened[.]" Counsel also asserted that if evidence was

elicited prejudicial to the defendants "then so be it." Neither

upon questioning by the judge, nor in response to co-defense

counsel's motions for a mistrial and for severance, did

defendant's counsel state that he was employing an afterthought

robbery defense or how the testimony elicited was in furtherance

of that defense.

A petitioner for PCR is generally entitled to an

evidentiary hearing upon showing a prima facie claim of

ineffective assistance. State v. Porter, 216 N.J. 343, 354

(2013). Again, to establish a prima facie claim, the petitioner

"must allege specific facts and evidence supporting his

allegations." Id. at 355. In this matter, the PCR judge

"connected the dots" by finding that defendant's counsel was

employing a trial strategy without any direct support in the

trial record. In the absence of a definitive explanation why

defendant's counsel elicited facially detrimental testimony,

which the trial judge interpreted as counsel perhaps

"sabotag[ing]" the case, we conclude that defendant

demonstrated, prima facie, that his counsel was ineffective. As

such, a determination whether counsel was ineffective in the

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ultimate, and whether prejudice resulted, must abide an

evidentiary hearing.6

VI.

Finally, the show-up identification of defendant was

addressed in his direct appeal, Vasquez, supra, slip op. at 12

17 (holding that the show-up identification procedure used by

police was not impermissibly suggestive). Thus, the issue

raised here regarding counsel's failure to request a Wade

hearing is barred from further consideration. R. 3:22-5

(stating that prior adjudications upon the merits of any ground

for relief is conclusive, and prohibiting the issue from being

raised in a PCR petition).

The motion by defendant to supplement the record,

previously reserved, is granted.

Reversed and remanded for an evidentiary hearing. We do

not retain jurisdiction.