STATE OF NEW JERSEY VS. JUAN ROSARIO(09-03-0548, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3488-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN ROSARIO,
Defendant-Appellant.
________________________________________
Submitted April 27, 2017 – Decided July 27, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
09-03-0548.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Grubir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A.
Foddai, Senior Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from a November 30, 2015 order denying
his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
In 2008, a jury convicted defendant of reckless
manslaughter, kidnapping, and other offenses. We refer to this
matter as the "first trial." Assistant prosecutor Catherine
Fantuzzi prosecuted defendant. During the trial, the State
called Ernesto Vargas as a witness. While in court and on the
record, defendant threatened to kill Fantuzzi, Vargas, and
Vargas's mother and child. Vargas and Fantuzzi were present
when defendant made his threats against each.
As a result of his threats, defendant was charged in the
instant matter with various offenses. In 2012, a jury convicted
him of third-degree terroristic threats against Fantuzzi,
N.J.S.A. 2C:12-3(a); two counts of fourth-degree harassment of
Fantuzzi, N.J.S.A. 2C:33-4; and fourth-degree harassment of
Vargas, his mother and child, N.J.S.A. 2C:33-4. We refer to
this trial as the "second trial." As a result of the
convictions arising out of the second trial, defendant was
sentenced in the aggregate to an extended ten-year term of
imprisonment, with a five-year period of parole ineligibility.
Defendant appealed and we affirmed his convictions and
sentence. See State v. Rosario, No. A-0487-12 (App. Div. July
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22, 2014). The Supreme Court denied his petition for
certification. State v. Rosario, 220 N.J. 208 (2015).
In his direct appeal of the convictions arising out of the
second trial, among other things, defendant contended the
assistant prosecutor made prejudicial comments during her
summation that warranted reversal. Specifically, in one portion
of her summation, the assistant prosecutor addressed defendant's
threats to kill, stating:
The defendant made his purpose known loud
and clear again and again and again because
he made it known persistently that he was
going to kill Assistant Prosecutor Catherine
Fantuzzi, and yes, defendant or co-defendant
Ernesto Vargas and even his mother and
child. He let it be known that he was
willing to do anything, even stand up and
shout out his evil intent in a court of law
surrounded by uniformed officers.
That brazen act, those brazen acts tell you
how purposeful his conduct was. Because of
his position as a Latin King he was trying
to extend the territorial boundaries of the
Latin King Nation into this court of law,
this court of law that is in the State of
New Jersey, in the United States of America.
This is not the Latin King Nation.[1]
1
It was not disputed defendant was a high-ranking member of
the Latin Kings. During the second trial, Fantuzzi testified
that, in her experience prosecuting gangs and conferring with
the State's expert on gangs, she has learned someone of
defendant's rank in this organization is capable of ordering
another member of the Latin Kings to hurt her even though
defendant is in prison. She believed the immediacy of
defendant's threats because he could issue an order from prison
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Defendant argued these comments denied him a fair trial.
We disagreed, determining the assistant prosecutor's comments
were not only based upon the evidence, but also the evidence
defendant made the subject threats was unrefuted. We concluded
these comments neither prejudiced nor deprived defendant of a
fair trial. See State v. Michaels, 264 N.J. Super. 579, 636
(1993), aff'd o.b., 136 N.J. 299 (1994) (citing Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed.
2d 144, 157 (1986)). In addition, we noted defendant did not
object to these comments at the time of trial.
Defendant also claimed on direct appeal the following from
the assistant prosecutor's summation wrongfully urged the jury
to convict defendant out of a duty to society:
[A]ll that is necessary for evil to triumph
is for good people to do nothing. Catherine
Fantuzzi is a good person and she refused to
let evil triumph.
. . . .
And I know that the duty you have is a
serious one and I would say we have proven
our case. We have done our job and now I
ask that you do yours and find this
defendant guilty of each and every count in
the indictment.
We disagreed with this contention, as well.
at any time and, thus, there was a likelihood the threats would
be carried out.
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The statements in the first paragraph were delivered at the
outset of the summation. This paragraph refers to testimony
Fantuzzi rendered about her unwillingness to turn the case over
to another assistant prosecutor after defendant threatened to
kill her, just before the first trial. Fantuzzi stated she did
not want to transfer the file to another because she knew the
file so thoroughly, and did not wish to expose another to
defendant's threats.
The comments in the second paragraph did not follow and
were unrelated to those given in the first. The contents of the
second paragraph were delivered at the conclusion of the
summation, and were not an admonishment the jury convict
defendant as part of its societal duty. Finally, we noted
defendant failed to object to the comments contained in either
paragraph at the time of trial.
With respect to the evidence defendant threatened to kill
Fantuzzi before the first trial, when considering the
admissibility of this "other crime" evidence during the second
trial, the court analyzed N.J.R.E. 404(b) and the four factors
set forth in State v. Cofield, 127 N.J. 328, 338 (1992).2 The
2
These four factors are:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
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trial court found the prior threats admissible, and provided a
limiting instruction after the admission of such evidence. Id.
at 340-42.
On appeal, defendant contended the trial court erred by
admitting the pretrial threats and claimed its limiting
instruction was inadequate. We rejected these arguments,
finding the trial court did not abuse its discretion, see State
v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008),
certif. denied, 217 N.J. 286 (2014), by admitting this evidence,
and further determined the limiting instruction was adequate.
We also noted the defense attorney had not objected to the
limiting instruction during the trial.
In 2015, defendant filed a petition for post-conviction
relief as a self-represented litigant; a brief and amended
petition were subsequently submitted on his behalf by counsel.
On November 30, 2015, the PCR court entered an order denying
defendant's petition without an evidentiary hearing.
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
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Defendant presents the following arguments for our
consideration in his appeal:
POINT I – THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. The Prevailing Legal Principles
Regarding Claims Of Ineffective
Assistance Of Counsel, Evidentiary
Hearings And Petitions For Post
Conviction Relief.
B. The Defendant Did Not Receive
Adequate Legal Representation From
Trial Counsel As A Result Of Counsel's
Failure To Object To Several Improper
And Prejudicial Comments Made By The
Prosecutor During Her Summation.
C. The Defendant Did Not Receive
Adequate Legal Representation From
Trial Counsel As A Result Of Counsel's
Failure To Object To The Trial Court's
Limiting Instruction To The Jury
Regarding The Testimony Deemed
Admissible Pursuant To N.J.R.E. 404(b).
Defendant's principal contention is counsel was ineffective
for failing to object to: (1) the subject comments made by the
assistant prosecutor during her summation and (2) the limiting
instruction. Defendant argues counsel's omissions were pivotal
to our conclusion neither the comments nor the limiting
instruction warranted reversal. We are not persuaded by these
arguments and affirm.
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The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
the two-prong test of establishing both that: (l) counsel's
performance was deficient and he or she made errors that were so
egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
Although there is no question trial counsel failed to
object to the prosecutor's comments during summation and the
subject limiting instruction, the outcome on appeal would have
been the same even if counsel had done so. There were grounds
to reject defendant's argument reversal was warranted that were
unrelated to and independent of counsel's failure to object to
the prosecutor's comments and the limiting instruction.
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As we observed with respect to the statements addressing
defendant's threats to kill, the comments were based upon the
evidence and were not inappropriate. The other comments did not
improperly suggest to the jury it had a duty to society to
convict defendant. We examined the limiting instruction
pertaining to the admission of the pretrial threat pursuant to
N.J.R.E. 404(b) and found it adequate under the case law.
We have considered defendant's remaining arguments and
conclude they either could have been raised on direct appeal,
Rule 3:22-4(a), or were previously decided on direct appeal.
See Rule 3:22-5. In the final analysis, defendant failed to
make a prima facie showing of ineffectiveness of trial counsel
within the Strickland-Fritz test. Accordingly, the PCR court
correctly concluded that an evidentiary hearing was not
warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
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