STATE OF NEW JERSEY v. GIANCARLO BONILLA, a/k/a ELEX BLANKS, GIANCARIO BONILLA, JAJAINCAR L. BONILLA, JOSE MENDEZ, CARLOS ORTIZ, and JOSE SOLER

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unpublished opinion we rejected these arguments and affirmed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.

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.