STATE OF NEW JERSEY VS. ARIEL SERRANO(11-11-1901, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2553-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARIEL SERRANO,

Defendant-Appellant.
_____________________________________

Submitted June 1, 2017 – Decided July 5, 2017

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-11-1901.

Joseph E. Krakora, Public Defender, attorney
for appellant (Lee March Grayson, Designated
Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ariel Serrano appeals from a Law Division order

denying his petition for post-conviction relief (PCR) after oral

argument, without an evidentiary hearing. We affirm.
 In November 2011, defendant was indicted by a Hudson County

Grand Jury, charging him with second-degree possession of a handgun

for an unlawful person, N.J.S.A. 2C:39-4(a) (count one); second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)

(count two); second-degree attempted aggravated assault, N.J.S.A.

2C:12-1(b)(1) (count three); third-degree attempted aggravated

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four);

fourth-degree aggravated assault by pointing a firearm in the

direction of an unknown John Doe, N.J.S.A. 2C:12-1(b)(4) (count

five); fourth-degree obstructing administration of law, N.J.S.A.

2C:29-1 (count six); fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a) (count seven); fourth-degree tampering with physical

evidence, N.J.S.A. 2C:28-6(1) (count eight); and second-degree

certain person not to have weapons, N.J.S.A. 2C:39-7(b) (count

nine).

Prior to trial, the first eight counts of the indictment were

dismissed. A jury convicted defendant on the remaining count in

September 2012. On May 9, 2013, defendant was sentenced to a ten-

year term in state prison with a five-year parole disqualifier.

Additional fines and penalties were imposed.

On July 24, 2013, defendant filed a notice of appeal. We

affirmed defendant's conviction and sentence in an unpublished

2 A-2553-15T4
opinion. State v. Serrano, No. A-5561-12 (App. Div. Feb. 4, 2015).

We adopt the salient facts from our previous opinion:

The State's first witness at trial was
Jersey City Police Detective Christopher
Baker, who testified that on May 30, 2011, at
approximately 3:30 a.m., he was dispatched to
"a large street fight" in the area of
Washington Park. Upon arrival, he observed
"multiple groups fighting in the middle of the
street," and updated the station so additional
officers could be sent to the scene. His
attention was drawn to a man, whom he later
identified as defendant, pointing a two-tone
handgun at a person lying on the ground. Baker
drew his own weapon and ordered defendant to
stop. Defendant grabbed a woman also involved
in the melee, pulled her close to him, and
moved back towards the entranceway to the
park. Baker immediately put away his own
weapon and dispatched a description of
defendant. Defendant continued backing
towards the park, let the woman go, and began
running with the firearm still in his hand.
Baker followed.

Because of the rush of others also
fleeing the arrival of police, Baker was
forced to stand on a wall to obtain a clear
view. After seeing defendant run through the
park onto a street, Baker began chasing him.
Defendant threw the weapon to the side as he
ran but was quickly apprehended by other
officers who had gone to the location per
Baker's directions. Baker said he never lost
sight of defendant.

A canine unit was called to the scene,
and Baker directed that officer's attention
to the relevant area. The dog located a two-
tone semi-automatic in a trash can.

[Id. slip op. at 2-3.]

3 A-2553-15T4
 Defendant filed a pro se PCR petition, which was amended by

designated counsel and supplemented thereafter. Oral argument on

the petition was heard on November 19, 2015. On the same day, the

judge issued an order and oral opinion denying the petition. This

appeal followed.

Defendant raises the following arguments on appeal:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE CASE REMANDED FOR
A FULL EVIDENTIARY HEARING BECAUSE THE
DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
STRICKLAND/FRITZ1 TEST.

A. Trial Counsel Was Ineffective
Because He Did Not Challenge The
Identification Evidence Or Move For
Dismissal Of The Remaining Charge.

B. Trial Counsel Was Ineffective
Because He Did Not Subpoena A
Critical Witness For Trial Who Was
Expected To Testify That The
Defendant Was Not The Man With The
Gun.

C. Trial Counsel Was Ineffective
Because He Did Not Move To Have The
Gun Fingerprinted.

D. Trial Counsel Was Ineffective
Because He Did Not Request A Jury
Visit To The Locations W[h]ere The
Defendant Was Arrested and Where The
Gun Was Found.

1
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

4 A-2553-15T4
 POINT II

THE PCR COURT ERRED BY NOT GRANTING AN
EVIDENTIARY HEARING.

Having considered defendant's arguments in light of the

record and controlling law, we affirm substantially for the reasons

set forth in the oral opinion of Judge Paul M. DePascale. We add

the following.

"Post-conviction relief is New Jersey's analogue to the

federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the conviction proceedings of defendant's rights under the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]" "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain

that burden, specific facts" that "provide the court with an

adequate basis on which to rest its decision[]" must be

articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review. See R. 3:22-4(a)(2);

Preciose, supra, 129 N.J. at 460. In determining whether a

defendant is entitled to relief on the basis of ineffective

5 A-2553-15T4
assistance of counsel, New Jersey courts apply the two-prong test

articulated by the United States Supreme Court in Strickland,

supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed.

2d at 693, 698, and United States v. Cronic, 466 U.S. 648, 658-

60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).

Preciose, supra, 129 N.J. at 463; Fritz, supra, 105 N.J. at 49-

50.

Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693. Under the second prong, a defendant must demonstrate

"a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v. Harris,

181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.

Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's

factual findings and will uphold those findings that are "supported

by sufficient credible evidence in the record." State v. Nash,

212 N.J. 518, 540 (2013). However, a PCR court's interpretations

of law are provided no deference and are reviewed de novo. Id.

at 540-41.

6 A-2553-15T4
 We first consider defendant's claim that defense counsel was

ineffective for failing to move for dismissal of the charges or

to challenge the identification evidence. As the judge found, and

we agree, "[t]here was more than ample evidence in the Grand Jury

to support the charges." Similarly, we reject as unfounded

defendant's assertion defense counsel neglected the identification

issue. Again, the judge correctly determined that since the

identification witness was the arresting officer, there could be

no challenge to an identification procedure involving a civilian.

Next, defendant argues that defense counsel was ineffective

because he failed to call the alleged victim as a defense witness.

In support thereof, defendant relies exclusively upon his self-

serving certification. Defendant failed to produce any proof by

way of affidavit or certification from the victim to support his

claim that his testimony would have been favorable or would have

altered the outcome of the proceedings. See State v. Porter, 216

N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)) ("Thus,

when a petitioner claims his trial attorney 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."). As the judge found,

7 A-2553-15T4
premised upon the inadequacy of defendant's PCR proofs on this

score, defendant's contention is nothing more than a "bald

assertion." Ibid. (quoting Cummings, supra, 321 N.J. Super. at

170).

Defendant additionally argues defense counsel was ineffective

for failing to procure a fingerprint expert notwithstanding that

there were no fingerprints recovered and none to analyze. Even

if the absence of fingerprints was a suitable issue to raise

through an expert, as this court has held, the right to comment

on the lack of fingerprint evidence must be premised upon evidence

to support the contention that "if fingerprints had been obtained,

they would have exculpated defendant." State v. Loyal, 386 N.J.

Super. 162, 173 (App. Div.), certif. denied, 188 N.J. 356 (2006).

Moreover, the judge noted and we agree, given the State's proofs,

the absence of fingerprints did "not in any way lessen the impact

of the State's case."

Defendant's argument as to defense counsel's failure to

request a jury visit also lacks merit. N.J.S.A. 2B:23-16(a) grants

the trial judge discretion to order a site visit of the "lands,

places or personal property in question to understand the evidence

better." See also State v. Coleman, 46 N.J. 16, 25-26 (1965)

cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212

(1966). We agree with the judge that, under these circumstances,

8 A-2553-15T4
it is unlikely this request would have been granted. See Madan

Russo v. Posado, 366 N.J. Super. 420, 430 (App. Div.) (noting

"[j]ury viewing of a scene is the exception, not the rule"),

certif. denied, 180 N.J. 448 (2004).

Accordingly, defendant has not overcome the "strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Fritz, supra, 105 N.J. at

52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at

2065, 80 L. Ed. 2d at 694). Further, with respect to the second

prong of the Strickland test, defendant has failed demonstrate how

either of these alleged deficiency resulted in a prejudice that,

"but for counsel's unprofessional errors, the result of the

proceeding would have been different." Fritz, supra, 105 N.J. at

52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698).

Finally, we reject defendant's argument the court erred in

denying his petition without an evidentiary hearing. The

determination on whether to hold an evidentiary hearing on an

ineffective assistance of counsel claim is left to the sound

discretion of the PCR judge. Preciose, supra, 129 N.J. at 462.

An evidentiary hearing is required where the defendant has shown

a prima facie case and the facts on which he relies are not already

of record. Pressler & Verniero, Current N.J. Court Rules, comment

9 A-2553-15T4
2 on R. 3:22-10 (2017). The mere raising of a claim for PCR does

not entitle defendant to an evidentiary hearing. Cummings, supra,

321 N.J. Super. at 170.

Based upon our review of the record and applicable law, we

are satisfied defendant failed to establish a prima facie case of

ineffective assistance of counsel, as he has failed to show defense

counsel's performance was deficient or resulted in prejudice.

Consequently, he was not entitled to an evidentiary hearing.

Preciose, supra, 129 N.J. at 462-64.

Affirmed.

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