STATE OF NEW JERSEY VS. HECTOR ROYAL(03-10-1134, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3681-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR ROYAL,

Defendant-Appellant.

Submitted August 30, 2017 – Decided September 22, 2017

Before Judges Alvarez and Gooden Brown.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 03-
10-1134.

Joseph E. Krakora, Public Defender, attorney
for appellant (Charles H. Landesman,
Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (N. Christine Mansour,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Hector Royal appeals the March 3, 2016 Law Division

order denying him post-conviction relief (PCR) after an
evidentiary hearing. The hearing was conducted on our remand to

address the question of whether trial counsel's failure to call

an alibi witness constituted ineffective assistance of counsel.

See State v. Royal, No. A-1029-13 (May 29, 2015). We affirm.

Defendant's direct appeal was denied in an unpublished

opinion. State v. Royal, No. A-6520-05 (Feb. 27, 2009). His

petition for certification to the Supreme Court was also denied.

State v. Royal, 199 N.J. 516 (2009).

A jury found defendant guilty of three counts of first-degree

robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-

2; second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(d). He was sentenced on November 18,

2005, to an aggregate thirty-year term of imprisonment subject to

the No Early Release Act, N.J.S.A. 2C:43-7.2.

As more fully detailed in our earlier decisions, the charges

stemmed from defendant's participation in the armed robbery of a

warehouse. Three masked assailants forced several employees to

strip and locked them in a freezer. They threatened a worker who

entered the building while the robbery was occurring, and duct

taped his mouth and hands. All the assailants were armed with

handguns. One co-defendant was arrested at the scene, and a

second, Omar Jones, was apprehended shortly thereafter. Jones

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turned State's witness and identified defendant as the third

perpetrator.

Approximately two weeks after the incident, defendant was

interviewed, after being given his Miranda1 warnings, by Linden

Police Detective Andrew Spano. During the interview, Spano told

defendant that fingerprints had been found in the get-away vehicle.

Defendant promptly asked, "You mean the Mazda?" Spano had not

told the defendant the make of the car, so although defendant

denied being an accomplice, his question itself was inculpatory.

When interviewed, defendant also claimed he could not

remember his whereabouts during the relevant time frame, the night

of January 17 into the early morning hours of January 18, 2002.

He did not mention Dawn Haher, the mother of two of his children,

as a potential alibi witness.

At the PCR hearing, Haher testified that although she could

not specifically recall the evening in question, she was sure

defendant was with her because at the time she was pregnant with

their second child, and they "were always together." Haher also

testified that she appeared at the courthouse during defendant's

trial anticipating that she would be called as a witness, only to

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).

3 A-3681-15T4
be told by defendant's trial attorney – who died before the PCR

hearing -- that he did not need her, but she could remain in the

courtroom. Counsel had interviewed Haher and served the State

with notice of an alibi defense. Haher was arrested that day,

while at the courthouse, for unsatisfied municipal fines.

Prior to defendant's trial, Haher had been contacted by the

prosecutor's office and said that she was not going to be a witness

for defendant. The call was made less than three weeks after

Haher met with the public defender's investigator and claimed that

she was with defendant at the time.

On the stand during the PCR hearing, Haher insisted that she

was with defendant on the relevant date, but could not recall

anything the parties had done that evening. She could not explain

the reason she failed to go to the police or the prosecutor after

defendant's arrest. Haher could not recall defendant's employment

at the time, or his activities during the day when she was either

at work or at school. She could not explain the reason she

recalled that particular date.

In his findings of fact, the judge who denied the PCR petition

noted that Haher and defendant had been living together for some

years before the robbery. He also noted that she repeatedly said

that she and defendant were apart only when she was either at work

or in school because she was pregnant at the time, but that she

4 A-3681-15T4
could not recall the date of defendant's arrest. The judge

observed: "[Haher] continually reiterated that she knew that she

was with the defendant on the date in question, but she couldn't

recall what they were doing. She knew she was with him because

she was always with him. She couldn't recall details of what they

did on that day."

Applying the Strickland2 test, the judge held that defendant

had failed to meet the burden of proof as to the first prong.

Although the judge found some of Haher's testimony credible,

including that she met with trial counsel at the courthouse, the

judge concluded that "her testimony as to where the defendant was

on the date in question is equivocal. Now her recollection is

equivocal." He opined that because Haher's testimony was

unconvincing, and would have been unconvincing at trial in light

of Spano's testimony, trial counsel had made a strategic decision

to not call her. That strategic decision could not be the basis

for an ineffective assistance of counsel claim. State v. Castagna,

187 N.J. 293, 314-15 (2006) ("Trial counsel's strategic and

tactical decisions will not ordinarily provide the basis for a

2
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.
2052, 2064, 2068, L. Ed. 2d 674, 693, 698 (1984).

5 A-3681-15T4
finding of ineffective assistance of counsel, even if they are

miscalculations.")

Additionally, defendant failed to meet the second prong of

the Strickland test. He failed to establish that there was a

reasonable probability that, had Haher testified, the outcome

would have been different. Since neither prong was met, the motion

was denied.

On appeal, defendant raises the following issue for our

consideration:

POINT I

DEFENDANT'S CONVICTIONS SHOULD BE VACATED AND
HE SHOULD BE GIVEN A NEW TRIAL BECAUSE HE WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS
TRIAL.

"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

6 A-3681-15T4
adequate basis on which to rest its decision" must be articulated.

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

In determining whether a defendant is entitled to relief

based on claims of constitutionally ineffective assistance of

counsel, our courts apply the Strickland test. Strickland, supra,

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 693, 698.

The first prong of the familiar test requires a defendant to

establish that counsel's performance was deficient. Id. at 687,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

To satisfy the first prong of Strickland, a defendant must

overcome "a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." State v.

Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S.

at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

To meet 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."

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

2d at 698. A defendant must also establish "how specific errors

of counsel undermined the reliability of the finding of guilt."

United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039,

2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).

7 A-3681-15T4
 We defer to a PCR judge's factual findings at a plenary

hearing when they are based on "adequate, substantial and credible

evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal

quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct.

2973, 163 L. Ed. 2d 898 (2005). When addressing issues of

credibility, we acknowledge a trial judge has a unique "opportunity

to hear and see the witnesses and to have the 'feel' of the

case[.]" State v. Johnson, 42 N.J. 146, 161 (1964).

It is undisputed that defendant's trial counsel considered

calling Haher as a defense witness. Because of the nature of her

testimony, however, which the trial judge generously described as

"equivocal," but that we would describe as "unconvincing," more

harm than good might have been done to defendant. It may indeed

have been a strategic decision to forego having the jury question

defendant's bona fides by having a witness, whose credibility was

doubtful, attempt to give him an alibi. In such matters of

strategy, we accord great deference to the decisions of counsel.

Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, L. Ed. 2d

at 695 (1984) (finding that "strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable[]"). We do not second-guess that

decision.

8 A-3681-15T4
 With regard to the second prong, if Haher would have been as

credible a witness during the trial as she was during the PCR

evidentiary hearing, the testimony would not have made any

difference to the outcome. That outcome was driven by the co-

defendant's testimony implicating defendant in the crime and

defendant's own incriminating statement to Spano with regard to

the make of the vehicle used in the robbery. Having failed to

meet either prong of the Strickland test, defendant's appeal must

be denied.

Affirmed.

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