STATE OF NEW JERSEY VS. FLORIBERT B. NAVAÂ (13-07-0690, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-3436-15T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    FLORIBERT B. NAVA,
    Defendant-Appellant.
    __________________________
    Submitted May 17, 2017 – Decided July 20, 2017
    Before Judges Fuentes and Farrington.
    On appeal from the Superior Court of New
    Jersey, Law Division, Cape May County,
    Indictment No. 13-07-0690.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Monique Moyse, Designated
    Counsel, on the brief).
    Robert L. Taylor, Cape May County Prosecutor,
    attorney   for    respondent   (Gretchen   A.
    Pickering, Assistant Prosecutor, of counsel
    and on the brief).
    PER CURIAM
    Defendant appeals from the order of the Criminal Part denying
    her post-conviction relief (PCR) petition.               We affirm.
    On February 27, 2014, defendant Floribert Nava pleaded guilty
    pursuant to a negotiated agreement to first degree carjacking,
    N.J.S.A. 2C:15-2.    At the plea hearing, defendant admitted she
    entered a young woman's car, brandished what turned out to be a
    toy handgun, and forced the victim to drive her to Philadelphia.
    Defendant also admitted that she threatened the victim by telling
    her that she would harm the victim's family.         Although not a part
    of the plea hearing, it is not disputed that defendant forced the
    victim to drive for nearly ninety minutes.          Defendant's goal was
    to retrieve the victim's child.       This harrowing ordeal came to an
    abrupt end when the victim intentionally drove the car into a
    marked police vehicle. Defendant was apprehended near the Benjamin
    Franklin Bridge.
    As a part of the plea agreement, the State agreed to recommend
    that the court sentence defendant to a term of twelve years with
    an eighty-five percent period of parole ineligibility and five
    years of parole supervision as required under the No Early Release
    Act (NERA), N.J.S.A. 2C:43-7.2.         On March 27, 2014, the court
    sentenced    defendant   consistent    with   the   terms   of   the   plea
    agreement.
    Defendant appealed the sentence under the summary process
    authorized by Rule 2:9-11.      In an order dated October 1, 2014,
    this court remanded the matter and directed the sentencing judge
    2                                A-3436-15T4
    to provide more detailed reasons for the imposition of the sentence
    and   to   make   specific   findings   in   support    of   the   applicable
    aggravating and mitigating factors in N.J.S.A. 2C:44-1.              State v.
    Floribert Nava, No. A-4552-13 (App. Div. Oct. 1, 2014).                      On
    December 5, 2014, the trial court followed our instructions and
    again sentenced defendant to a term of twelve years subject to
    NERA.
    On April 27, 2015, defendant filed a pro se PCR petition
    alleging ineffective assistance of counsel.            Defendant claimed
    her assigned counsel coerced her into entering
    a guilty plea by misrepresenting her potential
    sentencing exposure if she proceeded to trial
    in the case (telling her "100 years"); and
    failed to explain to her the strengths and
    weaknesses of the prosecution's case, as well
    as failing to make an informed decision
    because defense counsel never attempted to
    interview the purported victim in the case[.]
    The trial court assigned counsel to represent defendant in
    prosecuting the PCR petition. PCR counsel filed a brief in support
    of defendant's petition.      The matter came for oral argument before
    Judge Donna M. Taylor on February 9, 2016.         After considering the
    arguments of counsel, Judge Taylor issued a memorandum of opinion
    denying defendant's petition on February 26, 2016.            As a threshold
    issue, Judge Taylor concluded that an evidentiary hearing was not
    necessary because the material facts pertaining to defendant's
    allegations in support of PCR were not disputed.
    3                                 A-3436-15T4
    After reviewing the record of defendant's plea hearing, Judge
    Taylor found defendant was fully apprised of her rights and
    knowingly waived those rights.          Defendant also acknowledged that
    her attorney had answered all of her questions to her satisfaction,
    she had sufficient time to discuss her case with the attorney, and
    she was satisfied with the advice the attorney had provided her.
    With respect to her penal exposure, Judge Taylor found both defense
    counsel and the trial judge addressed defendant directly and
    explained to her in detail the potential sentence she could receive
    if   she   was   convicted   of   the   five   charges   reflected   in   the
    indictment.1     Under these circumstances, Judge Taylor found that
    defense counsel's alleged warning to defendant that she was facing
    100 years of imprisonment was a legally sound assessment of
    defendant's potential penal exposure.
    Judge Taylor also rejected defendant's claim that defense
    counsel failed to review with her the strengths and weaknesses of
    the State's case.       The record of the plea hearing shows that
    defendant acknowledged she had given a voluntary statement to law
    enforcement investigators admitting her culpability.             Defendant
    1
    In addition to the first degree carjacking charge that she
    pleaded guilty to, defendant was indicted for first degree
    kidnapping, N.J.S.A. 2C:13-1b(2); second degree luring or enticing
    a child, N.J.S.A. 2C:13-6; third degree terroristic threats,
    N.J.S.A. 2C:12-3a; and fourth degree possession of a weapon for
    an unlawful purpose, N.J.S.A. 2C:39-4c.
    4                            A-3436-15T4
    was found inside the car owned by the victim "with a bag containing
    duct tape and a mask."    The police found a weapon inside the car.
    Thus, Judge Taylor characterized the evidence against defendant
    as   "substantial."    Under    these   circumstances,   Judge    Taylor
    rejected as not credible defendant's claim that she did not make
    a knowing and fully informed decision to plead guilty.
    At the PCR oral argument, defendant was provided with a
    certified court interpreter.      At one point, defendant told Judge
    Taylor that she was having difficulty understanding "the legal
    things that are being said." That prompted the following colloquy:
    THE COURT: Okay. I understand that. I just
    want to make sure that the words that we're
    saying, the interpreter is interpreting them
    so that you can at least hear the words.
    DEFENDANT: Okay.
    THE COURT: Okay. Have you had any problems?
    I know you don't understand the legal
    terminology,   but   you've   been   able   to
    understand   the   words    that   are   being
    interpreted from English to Spanish?
    DEFENDANT: The last time I couldn't.
    THE COURT: No.     I'm talking about now.
    DEFENDANT: Yeah.
    . . . .
    PCR COUNSEL: I would just add, Your Honor,
    that although she didn't assert that she would
    have definitely went to trial in the brief,
    it's her position that she couldn't make that
    5                             A-3436-15T4
    decision   due  to   not  understanding   her
    interpreter at that time throughout the whole
    criminal process. She didn't understand her
    discovery review with her attorney.    And it
    seems like that.    So without understanding
    that voice, she doesn't know whether or not
    she would have went to trial.
    THE COURT: Okay. And is that argument based
    on when the defense counsel met her at the
    jail to review the investigation and her plea
    forms?
    PCR COUNSEL: Yes, Your Honor.
    THE COURT: Okay.    And it's just limited to
    that time frame.
    PCR COUNSEL: Well, any and all times counsel
    met with her with the translator.
    THE COURT: The translator that her attorney
    used?
    PCR COUNSEL: Yes.
    In addressing this argument, Judge Taylor acknowledged and
    reaffirmed what this court has long made clear: "It is a self-
    evident proposition that a defendant who is unable to speak and
    understand English has a right to have his trial proceedings
    translated so as to permit him to participate effectively in his
    own defense."     State v. Guzman, 
    313 N.J. Super. 363
    , 377 (App.
    Div.) (quoting State v. Kounelis, 
    258 N.J. Super. 420
    , 427 (App.
    Div.), certif. denied, 
    133 N.J. 429
    (1992)), certif. denied, 
    156 N.J. 424
      (1998).   Citing    State   v.   Perez,   Judge   Taylor   also
    recognized that "the language barrier between a defendant and
    6                              A-3436-15T4
    trial counsel raises the question of whether defendant received
    adequate assistance of counsel."         State v. Perez, 
    100 N.J. Super. 427
    , 430 (App. Div.), certif. denied, 
    52 N.J. 160
    (1968).
    Judge Taylor ultimately rejected defendant's argument because
    the   record   shows   defense   counsel   brought   a   Spanish   language
    interpreter when he met with defendant.              Other than her bald
    assertion in the PCR hearing, defendant neither presented evidence
    explaining how her "dialect2 was different [from the translator's],
    nor provide[d] information on the level of distinction."                More
    importantly, Judge Taylor found defendant had not claimed she
    would have rejected the State's plea offer and stood for trial if
    she had fully understood her attorney.
    To prove ineffective assistance of trial counsel, a defendant
    must satisfy Strickland's two-part test by demonstrating: (1)
    "counsel's performance was deficient[,]" i.e., "that counsel made
    errors so serious that counsel was not functioning as the 'counsel'
    guaranteed the defendant by the Sixth Amendment[;]" and (2) "there
    2
    A dialect is defined as "a regional variety of language
    distinguished   by    features   of   vocabulary,   grammar,   and
    pronunciation from other regional varieties and constituting
    together with them a single language."          Dialect, Merriam-
    Webster.com,   https://www.merriam-webster.com/dictionary/dialect
    (last visited July 7, 2017). At the plea hearing, defendant stated
    she was born in Acapulco, a city in the State of Guerrero, Mexico.
    No linguistic evidence has been presented to characterize the
    Spanish spoken in Mexico as a dialect.
    7                              A-3436-15T4
    is a reasonable probability that, but for counsel's unprofessional
    errors, the result of the proceeding would have been different."
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 694, 
    104 S. Ct. 2052
    ,
    2064, 2068, 
    80 L. Ed. 2d 674
    , 693, 698 (1984); accord State v.
    Fritz, 
    105 N.J. 42
    , 58 (1987).            Applying this standard to the
    evidence defendant presented, Judge Taylor concluded defendant had
    failed to establish that defense counsel's representation fell
    below the standards of professional competence expected from an
    attorney in this State.    Even if she had satisfied the first prong
    of   Strickland/Fritz,   defendant       did   not    prove   she    would    have
    rejected the State's plea offer and risked exposing herself to a
    likely far longer term of incarceration by going to trial.
    Against   this   record,   defendant      now    appeals      raising    the
    following argument:
    POINT I
    MS. NAVA IS ENTITLED TO AN EVIDENTIARY HEARING
    ON HER CLAIM THAT HER ATTORNEY RENDERED
    INEFFECTIVE ASSISTANCE OF COUNSEL.
    We reject this argument and affirm substantially for the
    reasons expressed by Judge Taylor in her memorandum of opinion
    dated February 26, 2016.
    Affirmed.
    8                                   A-3436-15T4
    

Document Info

Docket Number: A-3436-15T4

Filed Date: 7/20/2017

Precedential Status: Non-Precedential

Modified Date: 7/20/2017