STATE OF NEW JERSEY VS. MARCUS ZAPATA-CARENO(10-03-0211, 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NOT FOR PUBLICATION WITHOUT THE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-3696-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS ZAPATA-CARENO,

Defendant-Appellant.
______________________________

Submitted October 30, 2017 – Decided November 29, 2017

Before Judges Ostrer and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 10-
03-0211.

Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Abbasi, Designated
Counsel, on the brief).

Thomas K. Isenhour, 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 Marcus Zapata Careno appeals from a January 8, 2016

order denying his petition for post-conviction relief ("PCR")

without an evidentiary hearing. We affirm.

On June 25, 2011, a jury found defendant guilty of first-

degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and simple assault,

N.J.S.A. 2C:12-1(a)(1). Defendant was sentenced on August 25,

2011, to an aggregate term of fifteen years' imprisonment, with

an eighty-five percent period of parole ineligibility pursuant to

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

defendant's conviction and sentence on direct appeal. State v.

Careno, No. A-1983-11 (App. Div. July 21, 2014), certif. denied,

220 N.J. 101 (2014).

We incorporate by reference the facts set forth in our

unpublished opinion:

In brief, the kidnapping and assault took
place in the pre-dawn hours of November 21,
2009. The victim was defendant's ex-
1
girlfriend, E.M. Defendant forced E.M. to
drive from her home to a nearby park at around
4:00 a.m., and kept her there against her
will, punching her and once biting her. He
urged E.M. to renew her relationship with him.
After one-and-a-half to two hours, he allowed
her to drive back to her home, but then
physically prevented her from leaving the car
until a bystander intervened. He then fled,
and was arrested eight months later.

[Id., slip op. at 1-2].

1
We use initials to protect the victim's privacy.

2 A-3696-15T2
 On appeal, among other points, defendant argued he was

prejudiced by the admission of E.M.'s testimony regarding

defendant's prior and subsequent uncharged violent behavior. We

affirmed defendant's convictions, concluding the trial court did

not err in its evidentiary rulings on these issues after conducting

two separate hearings pursuant to N.J.R.E. 104 ("104 hearing").

Id., slip op. at 17-19.

Specifically, we found the prior incident was relevant to

E.M.'s reason for ending her relationship with defendant,

explained her reluctance to speak with defendant on the date of

the instant offense, and demonstrated defendant likely entered

E.M.'s vehicle to terrorize her. Id., slip op. at 26-27. We

found instead that the probative value was not outweighed by its

prejudicial effect because the court sanitized the offense and

gave a limiting instruction. Id., slip op. at 27.

Furthermore, we found E.M.'s testimony concerning the

subsequent incident was admissible as consciousness of guilt.

Because the court gave a proper limiting instruction, the

probative value of this testimony also was not outweighed by its

prejudicial effect. Id., slip op. at 30.

On May 18, 2015, defendant filed, pro se, the instant PCR

petition that was amended and supplemented with a brief by

3 A-3696-15T2
appointed PCR counsel. In essence, defendant claimed his trial

counsel and appellate counsel were ineffective for the reasons

argued and decided on appeal. He claimed further he was entitled

to a new trial based upon newly discovered evidence.

In a comprehensive oral opinion issued on January 8, 2016,

Judge Scott J. Moynihan denied defendant's PCR petition as

procedurally and substantively flawed.

Initially, Judge Moynihan considered the procedural defects

in defendant's petition. The judge observed most of defendant's

PCR claims were decided by us on appeal and, as such, they were

procedurally barred pursuant to Rule 3:22-5.2 See also, State v.

Marshall, 173 N.J. 343, 351 (2002) (recognizing Rule 3:22-5 not

only bars identical claims, but also claims that are

"substantially equivalent" to the grounds for the prior claim).

In fact, the PCR judge observed that two of defendant's PCR

arguments "used the exact same language as the point headings in

his appeal." These points pertained to the following claims: (1)

"undue prejudice from repeated testimony concerning defendant's

uncharged physical violence substantially outweighed the marginal

2
Rule 3:22-5 states that "[a] prior adjudication upon the merits
of any ground for relief is conclusive whether made in the
proceedings resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to the adoption
thereof, or in any appeal taken from such proceedings."

4 A-3696-15T2
probative value rendering its admission erroneous[;]" and (2)

"that the [c]ourt erred in admitting an uncharged alleged assault

occurring after the charged kidnapping as proof of consciousness

of guilt."

Further, the PCR judge dismissed, on the same procedural

grounds, defendant's claim that the trial court's limiting

instruction pertaining to testimony admitted pursuant to N.J.R.E.

404(b) did not outweigh the attendant prejudice. The court

likewise dismissed defendant's claim that his trial counsel was

ineffective in failing to permit him to testify at the 104 hearing.

Judge Moynihan reasoned, defendant "now adds a layer of

ineffective assistance of counsel but that does not change the

essence of the claims set forth and that were ultimately decided

by the Appellate Division."

Notwithstanding the petition's procedural defects, "for

purposes of completeness[,]" Judge Moynihan also addressed the

merits of defendant's ineffective assistance of counsel claims.

Specifically, the judge considered defendant's claims that: (1)

trial counsel was ineffective for agreeing with the court's ruling

admitting in evidence a sanitized version of E.M.'s testimony

about defendant's uncharged violent behavior; (2) trial counsel

was ineffective for failing to permit defendant to testify at the

5 A-3696-15T2
104 hearing to explain the complexity of his relationship with

E.M.; and (3) appellate counsel was ineffective for failing to

argue there was insufficient evidence to convict petitioner of

first degree kidnapping. The PCR court also considered the merits

of defendant's contentions that he is entitled to a new trial

based on newly discovered evidence, and an evidentiary hearing as

to his PCR claims.

Regarding defendant's first two claims, Judge Moynihan found

defendant could not demonstrate prejudice pursuant to the

Strickland-Fritz3 test. The judge elaborated:

[Defendant] cannot show prejudice in this
matter even if trial counsel had argued
against the admission of sanitized evidence.
Petitioner has not shown that there was any
possibility that the sanitized evidence would
not have been deemed admissible. [The t]rial
[c]ourt reviewed the various Cofield4 factors

3
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). In order to establish a case of ineffective assistance
of counsel, defendant must demonstrate a reasonable likelihood of
success under the two-pronged Strickland-Fritz test. A defendant
must show: (1) that counsel was deficient or made egregious errors,
so serious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the United States
Constitution; and (2) the deficient performance actually
prejudiced the accused's defense. Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz,
supra, 105 N.J. at 52.
4
State v. Cofield, 127 N.J. 328 (1992). In Cofield, the Court
established the following four-prong test for the admissibility
of other crimes evidence:

6 A-3696-15T2
 relating to the evidence . . . and the
admission of that evidence was approved by the
Appellate Division after reviewing the Cofield
factors. The Appellate Division found no
error.

As to the consciousness of guilt, assuming
arguendo that trial counsel did fail to permit
the defendant to testify at the 104 hearing,
[defendant] fails to meet the Fritz/Strickland
standard. Again, the Appellate Division
already decided that that evidence was
admissible and . . . there is no affidavit of
what he would have said at the hearing. He
makes absolutely no suggestion as to how his
testimony would have changed the outcome of
the 104 hearing and, therefore, he's failed
to meet both prongs of the Fritz/Strickland
standard.

In considering defendant's argument that his former appellate

counsel was ineffective, the PCR judge recognized counsel did not

raise on appeal the insufficiency of evidence to convict him of

kidnapping. Citing State v. Sims, 65 N.J. 359, 373 (1974), the

(1) The evidence of the other crime must be
admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably
close in time to the offense charged;
(3) The evidence of the other crime must be
clear and convincing; and
(4) The probative value of the evidence must
not be outweighed by its apparent prejudice.

[Id. at 338].

The Court has since recognized, however, that the second prong
does not necessarily apply in all cases. See State v. Williams,
190 N.J. 114, 130-34 (2007).

7 A-3696-15T2
PCR court found, even if this argument had been raised on appeal,

however, defendant would have been unsuccessful. Judge Moynihan

observed that we would have given deference to the trial court's

"'views of credibility of witnesses, the demeanor and the judge's

general feel of the case.' State v. Sims, 65 N.J. 359[,] 373

(1974).'" The PCR judge found further that defendant would have

been unable to clearly and convincingly demonstrate a "'manifest

denial of justice under the law.'" Id. at 374. Referring to the

elements of the kidnapping statute, the court then set forth the

testimony adduced at trial, not only of E.M., but also of an

independent witness, both of which supported the jury's guilty

verdict.

As to defendant's claim he was entitled to a new trial based

on newly-discovered evidence concerning E.P's supposed

recantation, the PCR judge observed defendant "never specifically

set forth what recantation by the victim he's referring to in this

request." Citing the three-pronged Carter5 test, because of

defendant's lack of specificity, the PCR court was unable to

5
State v. Carter, 85 N.J. 300, 314 (1981). In order for newly
discovered evidence to warrant a new trial, the evidence must be
"(1) material to the issue and not merely cumulative or impeaching
or contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury's verdict if a new trial
were granted." Ibid.

8 A-3696-15T2
determine, in the first instance, whether the alleged recantation

was material. The PCR court noted that prior to trial, E.M.

admitted she exaggerated about defendant's use of a knife during

commission of the kidnapping. Inasmuch as E.M.'s recantation was

the subject of a 104 hearing and the basis of "pointed cross-

examination" at trial, defendant "failed to show that the evidence

was discovered after the trial and could not have been discovered

prior to the trial." The PCR judge also found the alleged

recantation would not have changed the jury's verdict.

Finally, citing State v. Preciose, 129 N.J. 451, 462-63

(1952), the PCR court determined defendant did not set forth a

prima facie case in support of his PCR petition. This appeal

followed.

On appeal, defendant raises the following points for our

consideration:

POINT ONE

THE PCR COURT ERRED IN DENYING [DEFENDANT] AN
EVIDENTIARY HEARING DESPITE THE FACT THAT HE
DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL

A. Trial Counsel Was Ineffective in Failing
To Object To Repeated Testimony Of Prior
Physical Violence By [Defendant] Of the
Victim.

9 A-3696-15T2
 B. Trial Counsel Was Ineffective In Failing
To Object To The Jury Hearing Facts Concerning
An Alleged Assault That Occurred After The
Charged Kidnapping.

POINT TWO
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN
EVIDENTIARY HEARING DESPITE THE FACT THAT HE
DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.

POINT THREE
THE PCR [COURT] ERRED IN DENYING [DEFENDANT'S]
PETITION FOR POST-CONVICTION RELIEF, EVEN
THOUGH HE PRESENTED NEWLY DISCOVERED EVIDENCE.

The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

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

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

disputed facts lie outside the record, and resolution of the issues

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.

343, 355 (2013). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion.

Preciose, supra, 129 N.J. at 462. We review any legal conclusions

of the trial court de novo. State v. Nash, 212 N.J. 518, 540-41

(2013); State v. Harris, 181 N.J. 391, 419 (2004), cert. denied,

545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

10 A-3696-15T2
 "[I]n order to establish a prima facie claim, [the

defendant] must do more than make bald assertions that he was

denied the effective assistance of counsel. He must allege facts

sufficient to demonstrate counsel's alleged substandard

performance." Cummings, supra, 321 N.J. Super. at 170. Under the

first prong, the defendant must demonstrate that "counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, the defendant must show "that counsel's

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Ibid. That is, "there is 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.

We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

Judge Moynihan expressed in his well-reasoned oral opinion. We

discern no abuse of discretion in the denial of defendant's PCR

petition. Accordingly, the PCR court correctly concluded that an

11 A-3696-15T2
evidentiary hearing was not warranted. See Preciose, supra, 129

N.J. at 462-63.

Affirmed.

12 A-3696-15T2