STATE OF NEW JERSEY VS. CARLOS SIERRA (10-09-1596, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1072-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS SIERRA, a/k/a
JOSE RAMIREZ,
Defendant-Appellant.
_________________________
Submitted May 14, 2019 – Decided June 28, 2019
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 10-09-1596.
Joseph E. Krakora, Public Defender, attorney for
appellant (David J. Reich, Designated Counsel, on the
briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
Defendant Carlos Sierra appeals from an August 18, 2017 order denying
his petition for post-conviction relief (PCR) and a motion for a new trial based
on newly discovered evidence. Defendant also appeals from a July 26, 2018
order denying his request for reconsideration for a new trial following a remand,
discovery, and supplemental proceedings. Having reviewed defendant's
contentions in light of the record and law, we affirm.
I.
On May 15, 2010, D.M. 1 was assaulted and robbed. Defendant was
indicted for six crimes related to that assault and robbery. Those charges
included conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); and second-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
In July 2011, a jury acquitted defendant of all of the indicted charg es, but
convicted him of lesser-included offenses. Thus, defendant was convicted of
conspiracy to commit second-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:15-1; and two disorderly persons offenses of false imprisonment, N.J.S.A.
2C:13-3, and simple assault, N.J.S.A. 2C:12-1(a)(1).
1
We use initials for the victim and certain witnesses to protect their privacy
interests.
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2
Later that year, in October 2011, defendant was sentenced to an aggregate
term of nine-and-one-half years in prison with a period of parole ineligibility.
Specifically, defendant was sentenced as follows: (1) on the conviction of
second-degree conspiracy, he was sentenced to nine years in prison subject to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; (2) on the conviction for
simple assault, he was sentenced to a consecutive period of incarceration for six
months; and (3) on the conviction for false imprisonment, he was sentenced to
a concurrent period of incarceration for six months.
Defendant appealed his convictions and sentence. In his direct appeal,
defendant contended, among other things, that the trial court committed
reversible error in not instructing the jury on the lesser-included charge of
conspiracy to commit theft. Defendant also argued that his sentence was
excessive. We rejected defendant's arguments and affirmed his convictions and
sentence for second-degree conspiracy and false imprisonment. We vacated his
conviction and sentence for simple assault and remanded so that the simple
assault conviction could be merged with the conviction for conspiracy to commit
robbery. State v. Sierra, No. A-2465-11 (App. Div. Feb. 12, 2014). The
Supreme Court denied certification. State v. Sierra, 220 N.J. 99 (2014).
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On September 14, 2016, defendant filed a petition for PCR. Thereafter,
he supplemented his petition with the assistance of his assigned PCR counsel.
Defendant argued that he should be given a new trial because Detective Sergeant
Eric Reamy, who testified against defendant at his trial, had engaged in criminal
activity unrelated to defendant's convictions. Defendant only learned of that
criminal activity after his trial was completed and he argued that, had he known
of the criminal activity, that information could have been used to undercut
Reamy's credibility. Defendant also argued that his trial counsel had been
ineffective in not requesting a jury charge on the lesser-included offense of
conspiracy to commit theft.
The PCR court denied defendant's petition in an order entered on August
18, 2017. The PCR court held that defendant's arguments about the jury
instruction were procedurally barred by his direct appeal. The court also
reasoned that defendant could not satisfy the two-prong test to establish
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668(1984). Finally, the PCR court denied defendant's motion for a new trial.
Defendant appealed from that order. In April 2018, defendant filed a
motion for a remand to supplement the record with evidence concerning
Reamy's criminal activities. We granted that motion.
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On remand, the PCR court allowed defendant to conduct discovery and to
supplement the record. The court then heard arguments on a motion for
reconsideration focused on whether defendant should receive a new trial because
of the newly discovered evidence concerning criminal activity by Reamy. On
July 26, 2018, the PCR court denied defendant's request for reconsideration.
The PCR court explained the reasons for its ruling in a sixteen -page written
opinion.
In its opinion, the PCR court stated that it had reviewed the trial transcripts
and information concerning Reamy's criminal activities. Namely, in March
2016, Reamy had pled guilty to two counts of second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a)(1), and third-degree theft by selling
firearms, which properly belonged to or were in the custody of the Borough of
Glen Rock, N.J.S.A. 2C:20-9. Those convictions were based on activities
Reamy had engaged in between 2011 and 2015. The PCR court noted, however,
that Reamy was also alleged to have sold firearms dating back to 2008.
The PCR court found that the evidence concerning Reamy was material
and newly discovered. The court found, however, that the evidence concerning
Reamy's illegal activities would not have been of the sort that would probably
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change the jury's verdict if a new trial were granted. Thus, the court denied
defendant's request for reconsideration of his motion for a new trial.
In our prior opinion, we described the facts that gave rise to defendant's
convictions. Accordingly, we need only summarize the facts and procedural
history relevant to defendant's petition for PCR and his arguments for a new
trial.
D.M. had placed a notice on Craigslist seeking to meet an interested man.
In response, on May 15, 2010, D.M. received a call from a man who stated that
he wanted to come meet him. D.M. gave that man his address and told him to
come to his home after 11 p.m. that night. When D.M. opened his door to meet
the man, the man came in and pushed D.M. down the basement stairs.
Thereafter, D.M. was assaulted and robbed.
The State's theory at trial was that defendant had assaulted and robbed
D.M. in revenge for a fraudulent scheme that had been perpetrated on
defendant's girlfriend, V.S. D.M. had previously been in a twenty-year
relationship with F.C. D.M. had allowed F.C. to use checks with a false business
name and D.M.'s address. F.C. tried to defraud V.S. out of several thousand
dollars by using unfunded checks with D.M. as the signor of the checks.
Thereafter, defendant made several efforts to force D.M. to pay for the fraud.
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The State contended that in May 2010, defendant conspired to assault and
rob D.M. As part of its investigation, the police learned that D.M. had been
called on a cell phone used by C.C. When the police questioned C.C., he
ultimately confessed to participating in the robbery and assault and he agreed to
testify against defendant.
In his testimony, C.C. stated that he lent his cell phone to defendant on
May 15, 2010, and defendant used that cell phone to arrange to come to D.M.'s
home. C.C. also testified that he, defendant, and another individual known as
"E." drove to D.M.'s home. As they were driving, defendant told C.C. that he
was going to D.M.'s home to beat him up and get money. When they arrived,
defendant and E. went inside D.M.'s home while C.C. waited outside. Defendant
and E. later came outside and defendant told C.C. that he had punched the guy
and got money.
The police also questioned and obtained statements from defendant. In a
formal statement, defendant claimed that he had been in Pennsylvania at the time
of the robbery. After his alibi was disproved, the police arrested defendant.
Defendant then made oral statements to Reamy in which he claimed that he had
driven the two other men to D.M.'s house, but remained in the car while the
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other two went into the house and assaulted D.M. In that regard, defendant
claimed he was "there," but had nothing to do with assaulting D.M.
At trial, the State presented evidence of the calls allegedly made to D.M.
by defendant using C.C.'s cell phone. The State also presented evidence that
defendant's cell phone had been used to make several calls from the vicinity near
D.M.'s home on the day of the assault and robbery. In addition, the State called
Reamy to testify concerning the admissions allegedly made by defendant.
Defendant elected to testify at trial. He admitted to lying about being in
Pennsylvania. He testified that on May 15, 2010, E., joined by C.C., gave him
a ride to pick up diapers at a friend's house in Fair Lawn. He also testified that
he remained at the friend's house from 11 p.m. until about 12 a.m., and that E.
and C.C. then picked him up and gave him a ride home. Finally, he testified that
when he was arrested, he told the police that he went on a ride to get diapers and
that when he was being driven home he saw that C.C. had blood on his shoes.
II.
On this appeal, defendant challenges both the denial of his petition for
PCR and the denial of his motion for a new trial. Specifically, defendant
articulates his arguments as follows:
POINT I: THE PCR COURT ERRED IN
CONCLUDING THE NEWLY DISCOVERED
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EVIDENCE THAT SERGEANT REAMY WAS
HIMSELF ENGAGED IN CRIMINAL ACTIVITY AT
THE TIME HE INVESTIGATED THE CRIME AND
TESTIFIED BEFORE THE JURY AGAINST
[DEFENDANT] WAS INSUFFICIENT TO ENTITLE
[DEFENDANT] TO A NEW TRIAL
POINT II: THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING
CONCERNING HIS CLAIM TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO REQUEST A JURY
CHARGE FOR THE LESSER-INCLUDED OFFENSE
OF CONSPIRACY TO COMMIT THEFT
Having conducted a de novo review of the record, we reject both of these
arguments. The newly discovered evidence concerning the illegal activity by
Reamy is not the sort of evidence "that would probably change the jury's verdict
if a new trial were granted." State v. Nash, 212 N.J. 518, 549 (2013) (quoting
State v. Ways, 180 N.J. 171, 189 (2004)). Defendant also failed to present a
prima facie showing that his trial counsel was ineffective in failing to request a
lesser-included charge of conspiracy to commit theft.
A. The New Evidence Concerning Reamy
Newly discovered evidence is sufficient to warrant a new trial if it is "(1)
material to the issue and not merely cumulative or impeaching or contradictory;
(2) discovered since the trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably change the jury's verdi ct if
A-1072-17T4
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a new trial were granted." Ibid. (quoting State v. Carter, 85 N.J. 300, 314
(1981)). A defendant must satisfy all three prongs to gain relief. Ways, 180
N.J. at 187 (citing Carter, 85 N.J. at 314).
"Under prong one of the Carter test, '[m]aterial evidence is any evidence
that would have some bearing on the claims being advanced,' and includes
evidence that supports a general denial of guilt." Nash, 212 N.J. at 549
(alteration in original) (quoting Ways, 180 N.J. at 188). The central focus of the
analysis is on the nature of the evidence presented. Ways, 180 N.J. at 191-92.
In that regard, prongs one and three of the test are "inextricably intertwined."
Nash, 212 N.J. at 549. Evidence that is merely cumulative, impeaching, or
contradictory, "is not of great significance and would probably not alter the
outcome of a verdict." Ways, 180 N.J. at 189. In contrast, "[m]aterial evidence
is any evidence that would 'have some bearing on the claims being advanced.'"
Id. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)).
"Prong two requires that 'the new evidence must have been discovered
after completion of trial and must not have been discoverable earlier through the
exercise of reasonable diligence.'" Nash, 212 N.J. 550 (quoting Ways, 180 N.J.
at 192). In making that evaluation, a court should consider the strategy decisions
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of trial counsel. Ways, 180 N.J. at 192 ("A defendant is not entitled to benefit
from a strategic decision to withhold evidence.").
Here, the PCR court determined that the information concerning Reamy's
criminal activity was material and newly discovered. Defendant argues that the
PCR court erred, however, in concluding that the evidence would not have been
likely to change the jury's verdict. In that regard, defendant contends that
Reamy's unimpeached trial testimony was critical evidence and helped to
support C.C.'s testimony which, on its own, would have been "highly suspect."
We disagree. A thorough review of the evidence presented at trial
establishes that Reamy's testimony was not the critical evidence against
defendant. Instead, the testimony of C.C. was the foundation on which the State
rested its case. C.C. gave direct evidence that defendant conspired and
committed the assault and robbery of D.M. There was also evidence supporting
C.C.'s testimony and independently supporting defendant's convictions. In that
regard, the State introduced records concerning the use of defendant's and C.C.'s
cell phones and where calls had been made during the night of the assault and
robbery. Defendant's credibility was also called into question because he had
originally claimed that he was in Pennsylvania. At trial, he admitted that his
alibi was false and he claimed instead that he visited a friend in Fair Lawn.
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We note that the criminal activity in which Reamy was engaged was not
directly related to his testimony against Sierra. As pointed out, Reamy pled
guilty to two counts of endangering the welfare of a child and one count of theft.
His guilty pleas were based on activities that took place between 2011 and 2015,
which is after he had investigated the charges against defendant. Specifically,
the charges were based on allegations that Reamy had exchanged sexual text and
photo messages with underage girls, and had engaged in theft by selling firearms
that belonged to or were in the custody of the Glen Rock Police Department.
Thus, had Reamy been confronted with this information, it would have
gone to his credibility in general because there was no evidence that Reamy had
falsely testified against defendant or other defendants. Consequently, in
considering the newly discovered evidence, it must be weighed against the other
direct evidence against defendant and, on that scale, the evidence was not the
sort that would probably change the jury's verdict if a new trial was granted.
In short, having reviewed the trial and PCR records, we agree with the
PCR court that the newly discovered evidence concerning criminal activity by
Reamy was not the sort of evidence that would have changed the jury's verdict
if a new trial was granted. We, therefore, affirm the denial of the motion for a
new trial.
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B. The Jury Charge for the Lesser-Included Offense of Conspiracy to
Commit Theft
Defendant also argues that the PCR court erred in denying his petition
concerning the ineffective assistance of his trial counsel. In that regard,
defendant contends that trial counsel's failure to request a jury charge on the
lesser-included offense of conspiracy to commit theft constituted ineffective
assistance of counsel.
On his direct appeal, defendant had argued that the trial judge committed
plain error by not sua sponte giving a lesser-included offense instruction on
conspiracy to commit theft. We rejected that argument, and pointed out that
neither party claimed that there had been a conspiracy to commit theft by
unlawful taking. Instead, the State's evidence showed that defendant conspired
with C.C. and E. to get money from D.M. by inflicting bodily injury or using
force on D.M. In contrast, defendant's testimony was that he was not involved
in any conspiracy and he had merely taken an innocent ride to get diapers.
Accordingly, we concluded that the evidence did not show a conspiracy to
commit theft. State v. Sierra, No. A-2465-11 (App. Div. Feb. 12, 2014) (slip
op. at 8-9).
The PCR court reasoned that defendant's ineffective assistance of counsel
argument was both procedurally barred and failed to establish a prima facie
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showing of ineffective assistance of counsel. We need not reach the procedural
issue, because we conclude that defendant failed to make a prima facie showing
of prejudice.
A defendant is entitled to an evidentiary hearing on a PCR petition if he
or she establishes a prima facie showing in support of the petition. R. 3:22-
10(b). To establish a claim of ineffective assistance of counsel, a defendant
must satisfy a two-part test: (1) "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[,]" and (2) "the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687; accord State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland test).
In rejecting defendant's direct appeal, we noted that defendant's testimony
at trial was that he was not involved in the assault and robbery at all. We also
concluded that the evidence did not show a conspiracy to commit theft.
Consequently, defendant did not show that he suffered any prejudice by his trial
counsel's failure to request a jury charge on the lesser-included offense of
conspiracy to commit theft. The jury obviously rejected defendant's testimony
that he was not involved in the conspiracy to commit robbery. The only
testimony at trial was that defendant conspired with C.C. and E. to take money
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from D.M. by inflicting bodily injury or using force on D.M. Thus, defendant
did not present a prima facie showing of prejudice to satisfy the second part of
the Strickland test.
Affirmed.
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