STATE OF NEW JERSEY VS. NORMAN POLANCO (12-02-0327, 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NOT FOR PUBLICATION WITHOUT THE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-3962-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NORMAN POLANCO,
Defendant-Appellant.
__________________________
Submitted October 17, 2018 – Decided May 17, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-02-0327.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel;
William P. Welaj, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following an evidentiary hearing, Judge Margaret M. Foti denied
defendant Norman Polanco's first petition for post-conviction relief (PCR). He
appeals. We affirm.
Defendant is serving an aggregate twelve-year prison term with a four-
year parole bar, a jury having convicted him of first-degree possession of a
controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1),
-5(b)(1), and hindering prosecution, N.J.S.A. 2C:29-3(b)(1). The evidence and
arguments the parties presented at trial are detailed in the Appellate Division's
decision affirming defendant's conviction and sentence on direct appeal, State
v. Polanco, No. A-3665-12, (slip op. at 3-10), (App. Div. Mar. 26, 2015), certif.
denied, 222 N.J. 18 (2015), and need be summarized only briefly here.
The indictment's charges were based on the undercover work of detectives
working with the Bergen County Prosecutor's Office, Narcotics Task Force.
Two detectives arranged through a confidential informant to buy twenty grams
of cocaine from a co-defendant, Hector Acevedo Figueroa. Id. at 3. Following
the purchase, they telephoned Figueroa and arranged to buy a larger quantity of
drugs. That night, one of the detectives met Figueroa outside a barbershop
where he worked. The detective arranged to buy 500 grams of cocaine for
A-3962-16T1
2
$17,000. During negotiations for the 500 grams, Figueroa consulted with
defendant, who stood nearby. Id. at 4-5. Defendant and the detective spoke,
and defendant said when he got the cocaine he would call the detective. The
negotiations took place under the surveillance of other task force members. Id.
at 7.
Defendant called a couple hours later and the detective – with backup
officers nearby – met defendant and Figueroa in the back room of the barbershop
to inspect the cocaine before calling his girlfriend to bring the cash. After
inspecting the narcotics, the detective made the call. The call was actually a
signal to the backup officers, who descended on the barbershop. As the officers
announced themselves and entered the barbershop, defendant threw the bag
containing the cocaine out the back door and struggled with the officers who
tried to apprehend him. He was subdued and arrested. Id. at 5-7
When defendant was tried, "[m]ultiple eyewitnesses identified [him] as
being involved in the transaction at issue." Id. at 7. The detective who
negotiated the purchase, who had been wearing a transmitting device, identified
defendant as the person with whom he negotiated. Another detective, who was
observing and listening, identified defendant as the person who negotiated the
cocaine sale, the person who later entered the barbershop with a bag, and the
A-3962-16T1
3
person whom he arrested. Yet another officer identified defendant as the man
who, during negotiations with the undercover detective outside the barber shop,
walked in and out of the shop while talking on his cellular phone. The same
officer, who remained on surveillance, observed a brown minivan pull up and
defendant take from the minivan a shopping bag, which was identified as the
bag containing the cocaine. Id. at 7-8.
Defendant testified at his trial and denied any involvement:
According to defendant, at around 4:30 p.m. on
August 23, 2011, he went to eat at a local bodega, where
he saw Figueroa eating with a customer nicknamed
"Frasey" and several other men defendant did not
recognize. At around 5:00, defendant finished eating
and went to the barber shop. At around 8:00 p.m.,
Figueroa came into the shop where Frasey and another
man were waiting for him. Defendant testified that he
left the shop several times to call his wife on his cell
phone, because it was noisy inside. At one point, he
saw Figueroa outside the shop talking to someone
defendant could not identify. Defendant denied
discussing drugs or the price of drugs with Figueroa or
anyone else.
At around 9:00 p.m., defendant went outside
again to call his wife, and from outside the shop, he saw
Figueroa enter the back room with Frasey and a third
individual. He testified that he re-entered the shop and
headed toward the back, because he did not allow that
many people in the back room. However, after seeing
that nothing unusual was happening, he turned around
and left the back room. According to defendant, at that
moment the police burst into the shop and something
A-3962-16T1
4
happened that caused him to lose consciousness. When
he regained consciousness, he realized that he had been
physically attacked. Defendant denied having a
shopping bag when he entered the back room, denied
throwing the bag out the back door, and denied resisting
arrest. He testified that he suffered serious injuries to
his face during the incident, a contention the State did
not dispute.
Defendant's wife testified that she called her
husband often while he was at work, and called him
around 9:00 p.m. on August 23, 2011. She stated that
defendant told her he was outside the shop but was
going inside to see why there were a lot of people going
into the back room. She testified that the next thing she
heard was the sound of someone being hit and "a
commotion." After that she was unable to contact her
husband on his cell phone.
Eli Santos testified that he was in the barber shop
playing dominoes on the night of August 23, 2011. He
testified that he saw Figueroa and two other men he did
not recognize enter the back room at about 9:00 or
10:00 that night. He stated that defendant then went
into the back room, and a few minutes later the police
arrived.
[Id. at 8-10.]
The jury rejected defendant's defense.
Six months after the Appellate Division affirmed defendant's conviction
and sentence, and two months after the Supreme Court denied certification,
defendant filed his PCR petition. Judge Foti granted defendant an evidentiary
hearing concerning two issues: (1) did trial counsel adequately prepare
A-3962-16T1
5
defendant to testify on his own behalf at trial; and, (2) was the interpreter
ordered to stop translating during objections throughout the entirety of the
defendant's trial. Defendant's trial counsel and defendant testified at the hearing.
Following the hearing, Judge Foti denied defendant's PCR petition in a
comprehensive written opinion. Addressing the second question first, the Judge
noted that during the presentation of the State's case at trial, counsel was present
and had a Spanish interpreter to assist him when necessary. The interpreter
continued to assist defendant when he testified.
Judge Foti cited two instances when the trial judge – not Judge Foti –
directed the interpreter not to interpret during objections. The first instance
occurred when the interpreter asked the court whether he should repeat a
question to which an objection had been sustained. The judge said it was not
necessary to repeat the question. As Judge Foti noted, the trial judge deemed
the subject matter of the question irrelevant, and in any event, the question was
not intended to elicit substantive testimony, but was instead a foundational
question about defendant's children.
The second instance occurred when the prosecutor objected to defense
counsel's attempt to introduce certain photographs. Following the objection,
A-3962-16T1
6
defense counsel laid a proper foundation through defendant's testimony for the
admission of the photographs. Judge Foti concluded that
[b]ased upon the nature of the objections . . . the
interpreter was ordered not to translate, and the fact
. . . defendant would not have otherwise been permitted
to answer questions that were objected to and sustained,
. . . defendant was not denied his due process right to
be present at all stages of [the] trial.
Concerning defense counsel's alleged failure to properly prepare
defendant to testify at trial, Judge Foti found credible defense counsel's
testimony at the PCR hearing that he did indeed prepare defendant. Defense
counsel testified he prepared defendant by reviewing with defendant the State's
proofs, defendant's version of the events leading to his arrest, and strategic
aspects of testifying before a jury, such as making eye contact with jurors and
keeping answers short. The judge rejected defendant's argument that his trial
counsel should have held a "mock trial" with defendant.
In her written decision, Judge Foti also analyzed and rejected defendant's
arguments that were not the subject of the hearing. She concluded defendant
had failed to sustain his burden of proving the two elements of an ineffective -
assistance claim: that "counsel's performance was deficient," that is, "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment"; and, that "there is a
A-3962-16T1
7
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 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED IN
DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF FOLLOWING THE
EVIDENTIARY HEARING SINCE THE
DEFENDANT FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL
COUNSEL WITH RESPECT TO HIS DECISION TO
TESTIFY AT TRIAL, WHILE THE FACTUAL
FINDINGS MADE BY THE TRIAL COURT
UNDERLYING ITS DENIAL WERE NOT
SUPPORTED BY THE RECORD ESTABLISHED AT
THE HEARING.
A. FACTUAL BACKGROUND.
B. THE TRIAL COURT ERRED IN
DENYING THE DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF BASED
UPON TRIAL COUNSEL'S FAILURE TO
PROVIDE ADEQUATE LEGAL
REPRESENTATION TO THE DEFENDANT
REGARDING HIS DECISION TO TESTIFY,
SINCE ITS FACTUAL FINDINGS WERE
NOT SUPPORTED BY SUFFICIENT
CREDIBLE EVIDENCE ARISING OUT OF
THE EVIDENTIARY HEARING, AND
THEREFORE ARE NOT ENTITLED TO
DEFERENCE ON APPEAL.
A-3962-16T1
8
POINT II: THE TRIAL COURT ERRED IN
DENYING THE DEFENDANT'S PETITION POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE FAILED
TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
In a pro se supplemental brief, defendant argues an additional
point:
THE POST-CONVICTION JUDGE ERRED BY
LIMITING ITS SCOPE OF REVIEW TO THE
INEFFECTIVENESS AS IT RELATED TO THE
INTERPRETER MATTER, AND BY EXCLUDING
ALL OTHER ISSUES RAISED BY THE
DEFENDANT.
We affirm, substantially for the reasons expressed by Judge Foti in her
well-reasoned written opinion. Defendant's arguments are without sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3962-16T1
9