STATE OF NEW JERSEY VS. STEPHEN HERNANDEZ(09-09-1606, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4705-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN HERNANDEZ,

Defendant-Appellant.

________________________________________________________________

Submitted December 20, 2016 – Decided May 17, 2017

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. 09-09-1606.

Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).

Gurbir 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 the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.
 In 2010, a jury convicted defendant of first-degree

kidnapping, N.J.S.A. 2C:13-1 (count one); third-degree aggravated

criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts two and

four); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b)

(counts three and five); first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a) (counts six and eight); and second-degree

sexual assault, N.J.S.A. 2C:14-2(c). He was sentenced to a twenty-

five year prison term subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2 on the kidnapping charge; a consecutive

fifteen-year term, also subject to NERA, on one of the aggravated

sexual assault charges, and concurrent terms on the other counts.1

In his direct appeal, defendant presented the following

arguments:

I. THE TRIAL COURT ERRED IN DENYING THE
DEFENSE MOTION OF ACQUITTAL ON THE KIDNAPPING
CHARGE AT THE CONCLUSION OF THE STATE'S CASE.

II. THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE AND THE CONVICTION FOR KIDNAPPING
MUST THEREFORE BE REVERSED.

III. THE PROSECUTOR ENGAGED IN MISCONDUCT
DURING THE SUMMATION, THEREBY DEPRIVIING
DEFENDANT OF A FAIR TRIAL, AND THE CONVICTIONS
MUST THEREFORE BE REVERSED.

IV. THE SENTENCE SHOULD BE VACATED AND THIS
MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.

1
Defendant was also sentenced to a consecutive eighteen-month
term on an unrelated probation violation.

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 A) The sentencing court
improperly based the length of the
sentence on the NERA team [sic]

B) The sentencing court failed to
properly weight the mitigating and
aggravating factors.

C) The sentencing court erred in
imposing consecutive sentences.
Da17

We found insufficient merit in Points I, II and III to merit

discussion in a written opinion, R. 2:11-3(e)(2), State v.

Hernandez, A-4561-10 (App. Div. Oct. 3, 2012) (slip op. at 3),

provided limited comments regarding Points I and II, and remanded

for reconsideration of the sentence, id., slip op. at 10. The

Supreme Court denied certification. State v. Hernandez, 213 N.J.

535 (2013). On remand, the trial court merged certain counts but

imposed the same aggregate sentence, which we affirmed; the Supreme

Court denied certification. State v. Hernandez, 217 N.J. 52

(2013).

The facts underlying defendant's convictions are set forth

in our unpublished opinion, Hernandez, supra, slip op. at 4-8,

and need not be repeated here. To provide context for the

issues raised in this appeal, we note that the victim testified

that the sexual assaults occurred in defendant's car. Defendant

also testified and contended the sexual activity was consensual.

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 Defendant filed his PCR petition in July 2014, which was

followed by a brief by appointed counsel. The brief submitted

on behalf of defendant's petition argued that trial counsel was

ineffective because (1) he only met with defendant once to

discuss his testimony and failed to prepare him for cross-

examination; (2) he failed to object to: testimony that

defendant withdrew his consent to a search of his vehicle; the

prosecutor's questions to defendant asking if the police

officers were lying when they gave testimony contradictory to

his; and testimony regarding defendant's numerous motor vehicle

violations as he eluded the police on the night of the criminal

offenses; and (3) he failed to file a motion for the recusal of

the trial judge on the ground that he had presided over

defendant's prior trial for aggravated sexual assault. He also

argued appellate counsel was ineffective for failing to

challenge the evidence as to which trial counsel had failed to

object. Finally, he alleged that cumulative errors in the trial

required a new trial.

The PCR judge denied defendant's petition and set forth his

reasons for denying the petition without an evidentiary hearing

in an oral decision. Defendant presents the following arguments

in his appeal:

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 POINT I

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 FAILED TO
OBJECT TO THE TESTIMONY AND
SUMMATION THAT DEFENDANT REFUSED TO
CONSENT TO A SEARCH OF HIS CAR AND
FAILED TO REQUEST A LIMITING
INSTRUCTION REGARDING SAME;
APPELLATE COUNSEL FAILED TO RAISE
THESE ISSUES AND PCR COUNSEL FAILED
TO RAISE THE SUMMATION AND LIMITING
INSTRUCTION ISSUES. (PARTIALLY
RAISED BELOW).

B. TRIAL COUNSEL FAILED TO
OBJECT TO THE PROSECUTOR'S ASKING
DEFENDANT TO ASSESS THE CREDIBILITY
OF POLICE OFFICERS AND APPELLATE
COUNSEL FAILED TO RAISE THIS ISSUE.

We are not persuaded by any of these arguments and affirm.

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

5 A-4705-14T2
been different." Strickland v. Washington, 466 U.S. 668, 687,

694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698

(1984); State v. Fritz, l05 N.J. 42, 52 (l987). The PCR judge

applied this two pronged test in reviewing defendant's petition.

Addressing defendant's claim that he was not properly

prepared for his testimony, the PCR judge observed that, before

defendant testified, the trial judge reviewed his rights

regarding his decision to testify or not and advised him he

would face cross-examination if he testified. Defendant replied

he understood his rights and his options and did not indicate he

was unprepared to testify. The PCR judge further noted

defendant had not identified "any particular line of

questioning" where the alleged lack of preparation had hampered

his performance. His own review of defendant's testimony

revealed no such inadequacy. The PCR judge concluded this

argument failed to satisfy the first prong of the Strickland

test.

The PCR judge then reviewed defendant's claim that trial

counsel was ineffective in failing to object to certain

testimony. He found some merit to the criticism of trial

counsel's failure to object to the evidence regarding

defendant's refusal to consent to a search of his car. However,

he found that this claim failed to satisfy the second Strickland

6 A-4705-14T2
prong because defendant was able to present an explanation to

the jury for his action, rendering the error harmless.

Turning to the failure to object to the prosecutor's

questions seeking his opinion on the veracity of the police

officers, the PCR judge read the relevant portion of the

transcript into the record. He stated the questions were

improper and that if an objection had been posed, it would have

been sustained. But, in light of the fact the jury was properly

instructed that the issue of credibility was for them to decide,

the PCR judge found defendant had failed to satisfy the second

Strickland prong.

The PCR judge rejected defendant's argument regarding the

failure to object to evidence regarding defendant's successful

efforts to elude the police. Citing State v. Rose, 206 N.J. 141

(2011), the judge stated the evidence was not subject to a Rule

404(b) analysis but rather, was admissible as intrinsic

evidence. In sum, the PCR judge found no merit in the claims of

ineffective assistance based upon trial counsel's failures to

object.

The PCR judge also found neither prong of the Strickland

test was met regarding trial counsel's failure to make a motion

to recuse the trial judge because there was no basis to file the

motion and the motion was likely to be unsuccessful.

7 A-4705-14T2
 Turning to the claims that appellate counsel was

ineffective, the PCR judge observed the failure to raise an

issue that would be unsuccessful on appeal does not provide

grounds for a claim of ineffective assistance. The PCR judge

concluded that because none of the issues defendant claims

should have been raised on appeal would have been successful,

there were no errors that would have made a difference in the

outcome of the appeal.

A court should grant an evidentiary hearing on a PCR

petition if a defendant has presented a prima facie case of

ineffective assistance of counsel. State v. Preciose, 129 N.J.

451, 462-63 (1992). "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." State v. Marshall

III, 148 N.J. 89, l58 (1997) (internal citations omitted).

Based on his extensive and thoughtful review of the record, the

PCR judge found defendant failed to make a prima facie showing

of ineffectiveness of trial or appellate counsel under the

Strickland-Fritz test. We agree. Thus, an evidentiary hearing

was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.

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