STATE OF NEW JERSEY VS. EDARIEL MELENDEZ(08-11-0966, UNION 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  •                         NOT FOR PUBLICATION WITHOUT THE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-3940-15T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    EDARIEL MELENDEZ, a/k/a
    RIDDICK,
    Defendant-Appellant.
    __________________________
    Submitted October 19, 2017 – Decided November 21, 2017
    Before Judges Simonelli and Haas.
    On appeal from Superior Court of New Jersey,
    Law Division, Union County, Indictment No. 08-
    11-0966.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Louis H. Miron, Designated
    Counsel, on the brief).
    Thomas K. Isenhour, Acting Union County
    Prosecutor, attorney for respondent (Meredith
    L.    Balo,    Special     Deputy    Attorney
    General/Acting   Assistant   Prosecutor,   of
    counsel and on the brief).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    Defendant Edariel Melendez appeals from the April 1, 2016 Law
    Division order, which denied his petition for post-conviction
    relief (PCR) without an evidentiary hearing.                  We affirm.
    We incorporate herein the procedural history and facts set
    forth in State v. Melendez, No. A-3829-10 (App. Div. June 27,
    2014), certif. denied, 
    220 N.J. 100
     (2014).                  The following facts
    are pertinent to the present appeal.
    Following a second jury trial,1 defendant was convicted of
    first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two
    and   twenty-one);2     second-degree           aggravated    assault,     N.J.S.A.
    2C:12-1(b)(1) (counts three and six); third-degree aggravated
    assault, N.J.S.A. 2C:12-1(b)(2) (counts four and seven); fourth-
    degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts five and
    eight); second-degree possession of a weapon for an unlawful
    purpose, N.J.S.A. 2C:39-4(a) (counts nine and twenty-five); third-
    degree   unlawful     possession   of       a    weapon,     N.J.S.A.    2C:39-5(b)
    (counts ten, twenty-six and thirty-three); third-degree hindering
    apprehension,   N.J.S.A.    2C:29-3(a)(3)           (count     thirty-four);     and
    1
    The first trial ended in a mistrial because of juror misconduct.
    2
    The court dismissed count one charging defendant with second-
    degree conspiracy, N.J.S.A. 2C:5-2.
    2                                   A-3940-15T1
    third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count
    thirty-five).3     The charges stemmed from defendant's involvement
    with co-defendants Bryant Lee and Monte Foster in two gang-related
    murders.
    The trial court imposed two consecutive forty-year terms of
    imprisonment      with   an      eighty-five    percent    period   of    parole
    ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-
    7.2.   Defendant also received two consecutive seven-year terms of
    imprisonment on his second-degree aggravated assault convictions,
    concurrent with the four-year sentence he received on his weapons
    conviction. In addition, the court imposed a four-year consecutive
    sentence for the hindering conviction.                Defendant's aggregate
    sentence    was    98    years     with   a    79.9-year   period   of    parole
    ineligibility.
    Defendant appealed his conviction and sentence.              We found no
    abuse of discretion in the court's admission of evidence of
    defendant's gang membership and photographs of his gang-related
    tattoos, and no plain error in the prosecutor's summation comment
    about defendant's tattoos.          Melendez, supra, (slip op. at 14, 18).
    3
    Co-defendant Bryant Lee was charged in counts eleven through
    nineteen, twenty-seven through thirty-two, and thirty-seven
    through thirty-nine.   Co-defendant Monte Foster was charged in
    counts forty and forty-one.
    3                              A-3940-15T1
    We    specifically   found    the    prosecutor's     "comment     was   not    so
    egregious as to have denied defendant a fair trial."               Id. at 18.
    Defendant filed a PCR petition, arguing that trial counsel
    rendered ineffective assistance by failing to call J.G.4 as a
    witness, meet with defendant sufficiently to prepare for trial,
    and object to the prosecutor's improper summation comment about
    his tattoos.    In a pro se supplemental brief, defendant added that
    trial    counsel   failed    to   call   Lee   and   Foster   to   testify     and
    investigate the biased testimony of two witnesses whose stepfather
    interceded on their behalf with the court and the prosecutor.
    In an April 1, 2016 order and written opinion, the PCR judge
    denied the petition.        The judge found the procedural bar of Rule
    3:22-5 applied to defendant's argument about the prosecutor's
    summation comment.     The judge also found the State called J.G. as
    a witness, trial counsel engaged in a lengthy cross-examination,
    bringing to light inconsistencies between J.G.'s testimony and his
    statement to the police, and counsel attacked the photo array in
    which J.G. participated.
    The PCR judge found there were no affidavits from Lee and
    Foster, and trial counsel exercised reasonable strategy in not
    calling them as witnesses.          The judge noted that Lee and Foster,
    4
    We use initials to identify this witness to protect his privacy.
    4                               A-3940-15T1
    who had pending charges relating to this matter, would have either
    invoked their Fifth Amendment right not to testify, or their
    testimony would have damaged the defense by presenting evidence
    of co-defendants' shared gang membership with defendant.                           The
    judge also found that, given the considerable amount of evidence
    presented against defendant, Lee's and Foster's testimony would
    not have changed the outcome.
    The PCR judge determined defendant did not show that trial
    counsel's alleged failure to meet with him sufficiently to prepare
    for   trial    rose   to    the   level       of    constitutionally-inadequate
    representation.       The    judge   noted         that    trial    counsel    argued
    reasonably on defendant's behalf in pre-trial motions, sought a
    directed verdict at the close of the State's case, cross-examined
    witnesses, and called alibi witnesses.               The judge emphasized there
    were no affidavits or certifications showing that trial counsel
    was   objectively     unreasonable        in       his    trial    preparation     and
    strategy.     The judge concluded that defendant failed to establish
    both prongs of Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984) to warrant an evidentiary hearing.
    This appeal followed.
    On appeal, defendant raises the following contentions:
    I.   THE INEFFECTIVE ASSISTANCE OF TRIAL
    COUNSEL DEPRIVED [DEFENDANT] OF A FAIR
    5                                   A-3940-15T1
    TRIAL AND RENDERED THE JURY'S VERDICT AS
    FUNDAMENTALLY UNRELIABLE.
    A.   Trial Counsel Failed to Represent
    [Defendant] Effectively.
    II.   TRIAL   COUNSEL'S   ERRORS,   CONSIDERED
    CUMULATIVELY,     AMOUNTED    TO     THE
    INEFFECTIVE ASSISTANCE OF COUNSEL FOR
    [DEFENDANT]. (Not Raised Below).
    III.   THE PCR COURT SHOULD HAVE CONDUCTED AN
    EVIDENTIARY HEARING TO ADDRESS ALL OF
    [DEFENDANT'S] CLAIMS.
    Defendant argues that trial counsel's cross-examination of the
    State's witnesses, particularly J.G., was "woefully inadequate,"
    and counsel failed to called Lee as a witness and investigate and
    prepare for trial.
    Defendant raises the following contentions in his pro se
    brief:
    Point I
    The Defendant was entitled to a New Trial
    where he made a prima facie showing that trial
    counsel failed to render effective assistance
    of counsel and in particular counsel failed
    to interview and prepare alibi witnesses for
    trial, failed to pursue a dismissal because
    of a mistrial and failed to explore any
    challenges to statements, plea agreements and
    sentencing of Mr. Lee and Mr. Foster.
    Furthermore, a Charles Thomas wrote a letter
    to a Judge seeking consideration for testimony
    of his daughter.    His daughter did in fact
    testify at trial.    I never saw the letter.
    The content of the letter should have been
    used for impeachment purposes.
    6                         A-3940-15T1
    We    decline      to   address   defendant's         argument     that     trial
    counsel's cross-examination of the State's witnesses was "woefully
    inadequate."      We also decline to address defendant's argument in
    his pro se brief that trial counsel failed to pursue a dismissal
    because of a mistrial, explore any challenges to co-defendants'
    statements,      plea    agreements,          and    sentencing,      and   use       an
    investigator to investigate his case.                Defendant did not present
    these arguments to the PCR judge and they do not involve the
    court's jurisdiction or present a matter of great public interest.
    State     v.   Robinson,     
    200 N.J. 1
    ,    20   (2009);   R.   3:22-4(a).
    Accordingly, we focus on defendant's remaining arguments.
    The mere raising of a claim for PCR does not entitle the
    defendant to an evidentiary hearing.                State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div.), certif. denied, 
    162 N.J. 199
     (1999).
    Rather, trial courts should grant evidentiary hearings and make a
    determination on the merits only if the defendant has presented a
    prima facie claim of ineffective assistance, material issues of
    disputed facts lie outside the record, and resolution of the issues
    necessitates a hearing.         R. 3:22-10(b); State v. Porter, 
    216 N.J. 343
    , 355 (2013).         We review a judge's decision to deny a PCR
    petition without an evidentiary hearing for abuse of discretion.
    State v. Preciose, 
    129 N.J. 451
    , 462 (1992).
    7                                    A-3940-15T1
    To establish a prima facie claim of ineffective assistance
    of counsel, the defendant
    must satisfy two prongs.      First, he must
    demonstrate that counsel made errors "so
    serious that counsel was not functioning as
    the 'counsel' guaranteed the defendant by the
    Sixth    Amendment."         An     attorney's
    representation is deficient when it "[falls]
    below     an     objective     standard     of
    reasonableness."
    Second, a defendant "must show that the
    deficient    performance    prejudiced    the
    defense." A defendant will be prejudiced when
    counsel's errors are sufficiently serious to
    deny him a "fair trial."        The prejudice
    standard is met if there is "a reasonable
    probability    that,   but    for   counsel's
    unprofessional errors, the result of the
    proceeding would have been different."      A
    "reasonable probability" simply means a
    "probability    sufficient     to   undermine
    confidence in the outcome" of the proceeding.
    [State v. O'Neil, 
    219 N.J. 598
    , 611 (2014)
    (quoting Strickland, 
    supra,
     
    466 U.S. at
    687-
    88, 694, 
    104 S. Ct. at 2064, 2068
    , 
    80 L. Ed. 2d at 693, 698
    ).]
    "[I]n order to establish a prima facie claim, [the defendant]
    must do more than make bald assertions that he was denied the
    effective assistance of counsel.     He must allege facts sufficient
    to   demonstrate   counsel's   alleged   substandard   performance."
    Cummings, 
    supra,
     
    321 N.J. Super. at 170
    .        The defendant must
    establish, by a preponderance of the credible evidence, that he
    8                           A-3940-15T1
    is entitled to the required relief.            State v. Nash, 
    212 N.J. 518
    ,
    541 (2013).
    When   a   defendant     claims   that   trial    counsel   inadequately
    investigated     his   case,    "he     must   assert   the    facts   that        an
    investigation would have revealed, supported by affidavits or
    certifications based upon the personal knowledge of the affiant
    or the person making the certification."             Porter, supra, 216 N.J.
    at   353   (quoting    Cummings,      
    supra,
       
    321 N.J. Super. at 170
    ).
    Defendant provided no affidavit or certification
    In addition, deciding which witnesses to call to the stand
    is "an art," and we must be "highly deferential" to such choices.
    State v. Arthur, 
    184 N.J. 307
    , 321 (2005) (quoting Strickland,
    
    supra,
     
    466 U.S. at 689, 693
    , 
    104 S. Ct. at 2065, 2067
    , 
    80 L. Ed. 2d at 694, 697
    ).       Furthermore,
    [d]etermining which witnesses to call to the
    stand is one of the most difficult strategic
    decisions that any trial attorney must
    confront. A trial attorney must consider what
    testimony a witness can be expected to give,
    whether the witness's testimony will be
    subject to effective impeachment by prior
    inconsistent statements or other means,
    whether the witness is likely to contradict
    the testimony of other witnesses the attorney
    intends to present and thereby undermine their
    credibility, whether the trier of fact is
    likely to find the witness credible, and a
    variety of other tangible and intangible
    factors.
    [Id. at 320-21 (citation omitted).]
    9                                  A-3940-15T1
    Where the defendant asserts that his attorney failed to call
    witnesses who would have exculpated him, "he must assert the facts
    that   would   have   been   revealed,    'supported    by   affidavits      or
    certifications based upon the personal knowledge of the affiant
    or the person making the certification.'"          State v. Petrozelli,
    
    351 N.J. Super. 14
    , 23 (App. Div. 2002) (quoting Cummings, 
    supra,
    321 N.J. Super. at 170
    ).
    Finally, simple mistakes, bad strategy, or bad tactics "do
    not amount to ineffective assistance of counsel unless, taken as
    a whole, the trial was a mockery of justice."          State v. Bonet, 
    132 N.J. Super. 186
    , 191 (App. Div. 1975).           The simple fact that a
    trial strategy fails does not necessarily mean that counsel was
    ineffective.     State v. Bey, 
    161 N.J. 233
    , 251 (1999) (citation
    omitted), cert. denied, 
    530 U.S. 1245
    , 
    120 S. Ct. 2693
    , 
    147 L. Ed. 2d 964
     (2000).
    We have considered defendant's contentions in light of the
    record and applicable legal principles and conclude they are
    without    sufficient   merit   to   warrant   discussion    in   a   written
    opinion.    R. 2:11-3(e)(2).     We discern no abuse of discretion in
    the denial of defendant's PCR petition without an evidentiary
    hearing, and affirm substantially for the reasons set forth in the
    PCR judge's written opinion. We are satisfied that trial counsel's
    10                               A-3940-15T1
    performance was not deficient, and defendant provided nothing more
    than bald assertions to the contrary.
    Affirmed.
    11                          A-3940-15T1