Case Number: A-4763-15T3

Judge: PER CURIAM

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Christopher S. Porrino
Attorney General

Sarah Lichter
Deputy Attorney General

Defendant's Attorney: Kimmo Abbasi

Description: After a 2011 jury trial, defendant Giancarlo Bonilla was
convicted of first-degree felony murder, first-degree robbery, and
second-degree conspiracy to commit robbery. The charges arose out
of the fatal attack upon an inmate at Delaney Hall, a private
correctional facility, by defendant and other prisoners attempting
to rob the victim. Defendant was acquitted of murder.
The trial court imposed a sentence of life imprisonment with
a thirty-year period of parole ineligibility for the felony murder
conviction, subject to an eighty-five percent period of parole
ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
The other offenses merged for sentencing purposes.
Defendant unsuccessfully pursued a direct appeal, variously
arguing that: (1) the court unfairly thwarted his right to impeach
State witnesses to show their bias; (2) the court erroneously
instructed the jury that it could consider his pretrial silence
to impeach his testimony; (3) the court unfairly questioned his
credibility before the jury; (4) there was insufficient evidence
to support his convictions for conspiracy and robbery; and (5) his
life sentence is excessive and illegal. In a twenty-three-page
unpublished opinion we rejected these arguments and affirmed
defendant's conviction and sentence. State v. Bonilla, No. A
1079-11 (App. Div. Aug. 6, 2013). The Supreme Court denied
defendant's petition for certification. 217 N.J. 293 (2014).



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Following the exhaustion of his direct appeal, defendant
filed a petition for post-conviction relief ("PCR"). He also
moved for a new trial based upon alleged newly-discovered evidence.
The trial court provided an evidentiary hearing to defendant on
these claims. Defendant testified at that hearing, along with his
former trial counsel, and a third witness named Gerald Williams.
Upon considering this evidence in light of the applicable
law, the PCR judge, Hon. Verna G. Leath, issued a written opinion
on January 26, 2016, denying defendant's requests for relief.
Among other things, the judge concluded that defendant had failed
to prove his various contentions of ineffective assistance of
trial counsel. In addition, the judge denied defendant's request
for a new trial, specifically finding on this score that the
testimony of Williams, attempting to exculpate defendant, simply
was not credible.
This appeal ensued. Defendant argues:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, DESPITE THE FACT THAT HE DEMONSTRATED THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

More specifically, defendant maintains that his trial attorney was
ineffective by: (1) opening the door to enable the State to present
otherwise-inadmissible testimony; (2) failing to prepare him
properly to testify; (3) failing to establish that clothing worn



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by defendant did not match the described clothing of the assailant;
(4) failing to call a gang expert to testify; (5) failing to
investigate the case adequately; and (6) causing cumulative
errors. Defendant further asserts that he should have received a
new trial based on Williams' exculpatory testimony.
Having fully considered these contentions in light of the
record and the applicable law, we affirm the trial court's denial
of relief. We do so substantially for the cogent reasons expressed
in Judge Leath's written opinion. Only a few short comments are
in order.
This court's standard of review "is necessarily deferential
to a PCR court's factual findings based on its review of live
witness testimony. In such circumstances we will uphold the PCR
court's findings that are supported by sufficient credible
evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013)
(citations omitted). "An appellate court's reading of a cold
record is a pale substitute for a trial judge's assessment of the
credibility of a witness he has observed firsthand." Ibid.
(citations omitted). We must give deference to the PCR judge's
post-hearing findings "which are substantially influenced by [her]
opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy[.]'" State v.
Taccetta, 200 N.J. 183, 194 (2009) (quoting State v. Johnson, 42



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N.J. 146, 161 (1964)). However, we apply de novo review to the
judge's legal conclusions. Nash, 212 N.J. at 540-41.
First, we concur with the PCR judge that defendant is not
entitled to a new trial because his counsel posed questions to
defendant on direct examination that then opened the door to
testimony about defendant's pre-arrest silence. To be sure, trial
counsel asked defendant why he had not presented his version of
events, as later described in his testimony at trial, when he met
with law enforcement authorities after his arrest. Even if we
were to reject trial counsel's assertion that he posed these
questions for strategic reasons, we discern no consequential
prejudice flowing from that choice. The State's proofs of
defendant's guilt in this case were very compelling, including
evidence of defendant's DNA found under the victim's fingernails,
and the testimony of three eyewitnesses who observed defendant
taking part in the robbery and choking the victim to death. At a
minimum, defendant fails to satisfy the necessary "prejudice"
prong of the two-part test for ineffective assistance enunciated
in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Second, defendant's claim that his former counsel did not
sufficiently prepare him to testify at trial is unavailing. As
counsel testified at the PCR evidentiary hearing, it was his
customary practice to begin to prepare his clients for possible



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trial testimony at the outset of his representation on "day one,"
and to review specific factual scenarios with them. See N.J.R.E.
406 (regarding habit and routine practice). Counsel also attested
to discussing with defendant the pros and cons of testifying,
particularly in light of the DNA evidence undermining defendant's
claim of innocence. The PCR judge found these explanations by
counsel persuasive, and we have no reason to set aside that
determination.
Third, notwithstanding defendant's contrary assertions, trial
counsel did endeavor to show through questioning at trial that
defendant's clothing did not match the clothing of the perpetrator
described by the witnesses. On cross-examination of the police
detective, trial counsel also pointed out that the clothing
described by the eyewitnesses was not found among defendant's
belongings. The fact the jury apparently was unconvinced that the
clothing proofs exonerated defendant does not signify trial
counsel was deficient. As the PCR judge aptly noted, the clothing
related testimony entailed ultimate credibility determinations by
the jury, which counsel could not control beyond his own advocacy.
Fourth, we agree with the PCR judge that trial counsel was
not deficient in failing to present testimony from a gang expert.
Although in certain situations, proof of gang membership or
involvement may be admitted at criminal trials, see State v.



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Goodman, 415 N.J. Super. 210, 230 (App. Div. 2010), the judge who
presided over this trial made it abundantly clear that he would
forbid such gang-related proof. In fact, the trial judge observed
there was "not a scintilla" of factual evidence to establish that
the State's witnesses had lied about defendant because he was not
a fellow gang member. Given that ruling, trial counsel made a
reasonable strategic decision not to pursue such testimony.
Fifth, the trial court reasonably concluded that defendant
had failed to sustain his substantial burden of presenting newly
discovered evidence that would "probably change" the jury verdict
if a new trial was granted. State v. Carter, 85 N.J. 300, 314
(1981). The proffered testimony of Williams, who the PCR judge
specifically did not find credible, was essentially the same as
testimony elicited at trial by another inmate named Vincent Caputo.
Merely cumulative additional evidence that has been discovered
post-trial does not warrant relief. Ibid. In addition,
defendant's unsubstantiated claim that after trial he saw a video
of the victim's roommate with a diary, which he contends may have
exculpated him, is wholly speculative. Such "bald assertions" do
not justify setting aside a guilty verdict.

Outcome: The balance of defendant's arguments, including his claim of
cumulative error, lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: