STATE OF NEW JERSEY VS. WILLY MINAYA (13-07-0664, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4099-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLY MINAYA,
Defendant-Appellant.
________________________
Submitted November 15, 2021 – Decided December 3, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-07-0664.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Regina M. Oberholzer, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Willy Minaya appeals from a March 30, 2020 order denying
his petition for post-conviction relief without an evidentiary hearing. We affirm.
Defendant was convicted of robbery. The facts underlying defendant's
conviction are stated in State v. Minaya, No. A-2854-15 (active June 27, 2018).
We affirmed defendant's conviction on direct appeal. Id. at 9. The New Jersey
Supreme Court denied defendant's petition for certification. State v. Minaya,
236 N.J. 467 (2019).
We recount the facts relevant to the PCR issues raised in this appeal. Prior
to trial, one of the arresting officers testified during a Wade1 hearing. Officer
Rafael Campos testified he recognized defendant from a prior incident involving
a stolen car occurring two weeks before the robbery. However, there were no
police records or any other records reflecting the stolen car incident or prior
encounters between the officer and defendant.
The State sought to use the officer's testimony to support defendant's
identification in connection with the robbery and proposed sanitizing the
testimony to reflect that Officer Campos knew defendant "from the community."
Defendant's trial counsel rejected the State's suggested sanitization of the
1
United States v. Wade, 388 U.S. 218 (1967).
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officer's testimony because counsel believed it would be advantageous to
defendant to have the officer testify to the prior encounter and exploit
inconsistencies in the officer's written police report and his testimony. During
the trial, defense counsel vigorously cross-examined Officer Campos about the
alleged prior encounter with defendant two weeks before the robbery.
Defense counsel called co-defendant Emmanuel Rodriguez as a trial
witness. Rodriguez previously admitted to robbing the victim and elected to
plead guilty rather than proceed to trial. On direct examination, Rodriguez
explained defendant did not participate in the robbery. However, on cross-
examination, the prosecutor elicited inconsistent testimony in which Rodriguez
stated he and defendant collectively planned the robbery and defendant had
possession of the weapon used in the robbery. On cross-examination, Rodriguez
testified that defendant asked him to lie to the jury.
On February 5, 2015, a jury found defendant guilty of first-degree
robbery, N.J.S.A. 2C:15-1(a) (2) and N.J.S.A. 2C:2-6 (count one), fourth-degree
theft, N.J.S.A. 2C:20-3(a) (count two), and third-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). On count one,
which the judge merged with counts two and three, defendant was sentenced to
eighteen years in prison with an eighty-five percent parole disqualifier followed
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by five years of parole supervision pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
On March 27, 2019, defendant filed a pro se notice of petition for post -
conviction relief, alleging his trial counsel provided ineffective assistance
during the trial. The court appointed counsel to represent defendant in the PCR
matter and assigned counsel filed an amended petition.
On January 30, 2020, Judge Adam Jacobs heard counsels' arguments on
the PCR petition. In a March 30, 2020 order and attached letter decision, the
judge denied defendant's petition without an evidentiary hearing. In his eleven-
page written decision, the judge found defense counsel was not ineffective and,
in fact, rendered highly skilled and competent legal services and pursued a
reasonable trial strategy on defendant's behalf.
On appeal, defendant raises the following arguments:
DEFENDANT'S CONVICTIONS MUST BE
REVERSED DUE TO TRIAL COUNSEL'S
INEFFECTIVENESS OR, IN THE ATLERNATIVE,
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF COUNSELS' INEFFECTIVENESS
(Partially Raised Below).
A. Trial Counsel Had Co-Defendant Rodriguez, Who
Incriminated Defendant, Testify As a Defense Witness.
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B. Trial Counsel Consented to Other-Crimes Evidence
Involving Defendant And/Or Consented To The
Absence Of A Limiting Instruction.
C. PCR Counsel Failed to Raise Trial Counsel's
Ineffectiveness As to Consenting To The Absence Of A
Limiting Instruction Regarding Other-Crimes
Evidence.
We reject defendant's arguments and affirm for the reasons set forth in the
comprehensive and well-written decision authored by Judge Jacobs.
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013). To establish a prima facie claim of ineffective
counsel, defendant must show: (1) counsel's performance was objectively
deficient; and (2) counsel's deficient performance prejudiced defendant to the
extent he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58
(1987) (adopting the United States Supreme Court's two-prong test in Strickland
v. Washington, 466 U.S. 668, 687 (1984)). Prejudice means "a reasonable
probability" the deficient performance "materially contributed to defendant's
conviction." Ibid.To meet the burden of establishing ineffective assistance of counsel,
defendant "must do more than make bald assertions." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). A defendant must "allege facts sufficient
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to demonstrate counsel's alleged substandard performance." Ibid. Even if there
is a showing of deficient counsel, "defendant must demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997) (quoting State v. Preciose, 129 N.J. 451, 463
(1992)).
There is "a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 157 (quoting Strickland, 466
U.S. at 689). "The quality of counsel's performance cannot be fairly assessed
by focusing on a handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of defendant's guilt." State v.
Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165
(1991)). A decision will not be overturned merely because a defendant is
dissatisfied with counsel's judgment. State v. Allegro, 193 N.J. 352, 367 (2008)
(citing Strickland, 466 U.S. at 314).
Merely raising a PCR claim does not entitle a defendant to relief or an
evidentiary hearing. See Cummings, 321 N.J. Super. at 170. Trial courts should
only grant an evidentiary hearing if the defendant presented a prima facie case
of ineffective assistance of counsel, material issues of disputed fact lie outside
the record, and resolution of those issues necessitates a hearing. R. 3:22-10(b).
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"If the court perceives that holding an evidentiary hearing will not aid the court's
analysis of whether the defendant is entitled to post-conviction relief, . . . then
an evidentiary hearing need not be granted." Brewster, 429 N.J. Super. at 401
(quoting Marshall, 148 N.J. at 158).
We first address defendant's claim his trial counsel was ineffective in
calling co-defendant Rodriguez to testify at trial. "Determining which witnesses
to call to the stand is one of the most difficult strategic decisions that any trial
attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). As such, "a
defense attorney's decision concerning which witnesses to call to the stand is 'an
art,' and a court's review of such a decision should be 'highly deferential.'" Id.
at 321 (citation omitted) (quoting Strickland, 466 U.S. at 689, 693). Generally,
"strategic miscalculations or trial mistakes are insufficient to warrant reversal
'except in those rare instances where they are of such magnitude as to thwart the
fundamental guarantee of [a] fair trial.'" Castagna, 187 N.J. at 315 (quoting
State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Here, prior to calling Rodriguez as a witness, and recognizing the potential
risk in doing so, defense counsel questioned defendant on the record. The
following colloquy ensued:
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[Trial Counsel]: Do . . . you understand . . . why I
thought that doing so could be helpful to us. Is that
correct?
Defendant: Yes.
[Trial Counsel]: I . . . I also explain[ed] to you that
there could be some drawbacks? That there . . . could
be some danger or problems with doing that?
Defendant: Yes.
[Trial Counsel]: And specifically, did I mention to you
one of those things would be . . . that Mr. Rodriguez is
going to indicate that you were involved in this robbery
in one extent or another. Do you understand that?
Defendant: Yes.
After this questioning, defense counsel asked if defendant still wanted
Rodriguez to testify. Defendant answered affirmatively.
On the record, defense counsel acknowledged to the judge there were the
risks associated with Rodriguez's testifying at trial and counsel "underst[ood]
that there are pros and cons to this." Counsel also informed the judge that
defendant had "absolute veto power" if "he had any reservations about it at all."
Defense counsel used his examination of Rodriguez during closing
argument effectively. In his summation, defense counsel portrayed Rodriguez
as an unreliable witness and asked the jury to disregard his testimony.
Defendant's trial counsel explained to the jury:
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I called Mr. Rodriguez to testify not because I expected
him to be beneficial to my case. I knew the deal he
made with the State. I knew he claimed that
[defendant] was with him when this incident happened.
I knew that to get his deal, he would have to continue
to say that. But I ran the risk of you hearing that
information from him because I trusted that you
wouldn’t put any credence into it.
Having reviewed the record, we are satisfied Judge Jacobs properly denied
defendant's PCR petition. Trial counsel chose a high-risk strategy after
considering the pros and cons and discussing the matter with defendant. While
the defense strategy was unsuccessful based on defendant's conviction, informed
strategic choices by counsel "are virtually unchallengeable." Strickland, 466
U.S. at 690. Here, trial counsel may have miscalculated, but it did not deprive
defendant of a fair trial.
For the same trial strategy reasons, we reject defendant's argument his trial
counsel was ineffective in failing to object or request a limiting instruction on
"other-crimes" testimony involving defendant. We note this argument was not
presented to the PCR judge. However, we elect to address the argument.
A defendant's "strategic decision" not to contest the admissibility of
evidence does not create reversible error. State v. Lassiter, 197 N.J. Super. 2, 9
(App. Div. 1984). Frequently, refraining from objecting to the introduction of
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evidence is viewed as a "tactical decision" by trial counsel. State v. Harper, 128
N.J. Super. 270, 277 (App. Div. 1974).
Here, the State called Officer Campos during the Wade hearing. The
officer testified he recognized defendant from a prior incident involving a stolen
car two weeks before the robbery. However, there were no records relating to
the stolen car incident or any records reflecting a prior encounter between the
officer and defendant.
Defendant's trial counsel believed Officer Campos's testimony worked to
defendant's advantage, explaining to the judge:
[Trial Counsel]: And although I would recognize that
in a lot of situations, I would be looking to sanitize this
type of matter in the manner that we're talking about, I
would say to the [c]ourt that if -- if the State at all is
going to attempt to elicit from Officer Campos a
familiarity with my client from before this incident to
bolster his identification of my client afterwards, I . . .
don't mind that he's going to testify to the extent that he
had testified at the pretrial hearing.
The Court: Right. Because you want to use that to –
[Trial Counsel]: Yes.
The Court: — to raise reasonable doubt.
[Trial Counsel]: Yes.
The Court: That's why he doesn't want the charge, even.
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[Trial Counsel]: Because there's no — there would be
no report regarding it. I can argue, perhaps –
The Court: You . . . can exploit it.
The next day, after "giv[ing] it a lot of thought," defense counsel reiterated
his intent regarding the officer's identification testimony despite "recogniz[ing]
the dangers." The judge told defense counsel he would normally issue a sua
sponte limiting instruction but understood the decision to allow the testimony
was strategic and, therefore, the judge would defer to defense counsel. Defense
counsel advised he would forego a limiting instruction unless Officer Campos's
trial testimony differed from the testimony anticipated by defense counsel.
At trial, defense counsel vigorously cross-examined Officer Campos,
eliciting testimony that despite the officer recognizing defendant from a prior
encounter two weeks earlier, defendant's name and identity were not contained
in the officer's written report about the robbery. Similarly, defense counsel
cross-examined the other arresting officer about Officer Campos's failure to
mention knowing defendant from a prior incident two weeks earlier.
Based on cross-examination of the officers, in closing argument, defense
counsel attacked Officer Campos's credibility based on the inconsistencies
between his written report and trial testimony. Specifically, defense counsel
challenged the officer's ability to remember defendant from an incident two
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weeks prior to robbery "[a]ll of a sudden . . . two and a half years later." Defense
counsel remarked to the jury "if that doesn't cause you . . . some concern about
the credibility of Officer Campos, then nothing will. And his credibility is going
to be very important in the only important aspect of this case that in any way
ties my client to this crime . . . ."
While defense counsel's litigation tactic did not result in defendant's
acquittal, the strategy was not constitutionally deficient. As the PCR judge
noted, given the overwhelming evidence against defendant, defense counsel's
closing argument was "masterful."
Despite not raising the issue before the PCR judge, we elect to address
defendant's argument his trial counsel was ineffective by foregoing a limiting
instruction to the jury on the other-crime evidence. Because this issue was not
presented to the PCR judge, we review the matter for plain error to ascertain if
the alleged failure of counsel was "clearly capable of producing an unjust
result." R. 2:10-2. Counsel had strategic reasons for not seeking a limiting
instruction. In fact, defense counsel explained to the judge why he declined the
offer of a limiting instruction on the other-crime evidence. Here, defendant's
attorney pursued reasonable trial strategies considering the overwhelming
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evidence against defendant and his litigation tactics were an objectively
reasonable exercise of counsel's professional judgment.
Affirmed.
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