STATE OF NEW JERSEY VS. EDGAR TORRES (12-09-1539, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-0505-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDGAR TORRES,

Defendant-Appellant.
_______________________

Submitted September 26, 2018 - Decided October 9, 2018

Before Judges Koblitz and Currier.

On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 12-09-
1539.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robert Carter Pierce, Designated Counsel;
William Welaj, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Edgar Torres appeals from the August 29, 2017 denial of his

petition for post-conviction relief (PCR) without a plenary hearing. A jury

convicted defendant of three counts of first-degree robbery, N.J.S.A. 2C:15-1,

and three counts of second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate forty-year

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

Defendant's convictions were affirmed by this court in an unpublished opinion.

State v. Torres, No. A-3096-12 (App. Div. May 7, 2015). The New Jersey

Supreme Court denied certification. State v. Torres, 223 N.J. 556 (2015).

Because defendant did not demonstrate a prima facie case, we affirm.

In our opinion on appeal we discussed the underlying facts developed at

trial:

From December 2010 to February 2011, three armed
robberies occurred at banks in Howell Township and
Ocean Township during which a male suspect with a
gun entered each bank and demanded cash. During
their investigation, police found the suspected getaway
car – a white two-door Honda – parked near a Howell
townhouse. Police also determined that a man fitting
the suspect's description, and later identified as
defendant, had recently used the vehicle.

On February 25, 2011, during surveillance of the
townhouse, police observed a woman, later identified

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as the Honda's registered owner, drop a toddler off and
leave. At approximately 2:45 p.m., officers observed
another woman, later identified as Migdalia Torres,
mother of the Honda's owner, exit the townhouse and
drive away in the Honda. Police observed Migdalia
driving to Asbury Park, where she engaged in a
narcotics transaction. At 3:48 p.m., police stopped the
Honda near the Howell townhouse. Migdalia told
police she had just purchased and used heroin; she
acknowledged there was heroin in the vehicle.

During this stop, Migdalia told officers she was the
lessee of the Howell townhouse and her boyfriend,
whom she identified as defendant, "sometimes stayed
there with her." She described herself as financially
independent and asserted that defendant did not
contribute to the household bills. Migdalia also
informed police that her daughter owned the Honda,
and defendant was alone inside the townhouse with
Migdalia's three-year-old grandson. When police did
not find in the Honda the gun suspected of being used
in the bank robberies, officers turned their suspicions
about the location of the gun to the townhouse; they
also purported to be concerned for the child's safety in
light of the possibility that the weapon was in the
townhouse. According to police, Migdalia stated she
"wanted the handgun out of the residence, and . . .
would be more than willing to permit [police] to search
the residence for any other evidence."

With Migdalia's cooperation, police developed and
executed a plan to get defendant out of the townhouse.
Migdalia telephoned defendant and asked him to come
outside under the guise the vehicle had broken down.
Defendant walked out of the residence alone within
"seconds to minutes" of the phone call, where, at
approximately 4:15 p.m., he was apprehended.

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 Defendant asked why he was being arrested and
officers advised there were two outstanding warrants
for his arrest and that they were also investigating his
involvement in several recent bank robberies. The
officers asked defendant, either just before or just after
he was ushered into a police car – but indisputably
before he was read his Miranda1 rights – whether there
was a weapon in the townhouse and who was present
inside. Defendant confirmed the three-year old was
alone inside, and he stated "the weapon was not real,
and . . . that [the police] could retrieve it from a second
story bedroom where it was located inside . . . a blue
basket."

Two police officers then entered the townhouse and
found the child alone in a bedroom watching television.
In addition to securing the child, the officers "did a
preliminary search of the residence solely for any
additional occupants or suspects, but [] did not search
for any evidence." At 4:25 p.m., Migdalia executed a
written consent to search the townhouse for "any items
of evidential value." During the search, officers
recovered a black pellet gun as well as several items of
clothing, including a jacket, a sweatshirt, and a hat,
consistent with descriptions of the robbery suspect's
clothing.

Meanwhile, defendant was transported to the Howell
Township Police department. Upon arrival, at
approximately 5:13 p.m., defendant was read – and, in
writing, waived – his Miranda rights. Defendant then
made a videotaped statement in which he confessed to
three bank robberies and identified himself in photos of
those robberies. At 5:29 p.m., defendant executed a
written consent to search the Howell townhouse.

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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 On March 11, 2011, defendant was interviewed again
by police. After again being advised of his rights and
executing a written Miranda waiver, defendant made a
one-hour videotaped statement in which he confessed
to two additional Monmouth County bank robberies
that occurred in 2006 and 2009.

Prior to trial, Judge Mullaney denied defendant's
motion to suppress the evidence seized from the
townhouse and motion to suppress the statements he
made to police. And, as noted earlier, after a thirteen-
day trial, defendant was convicted of three first-degree
robberies and three weapons offenses and sentenced to
a lengthy prison term.

[Torres, slip op. at 2-6 (alterations in original).]

Six witnesses testified on defendant's behalf. Defendant also took the

stand. He testified that he confessed to the robberies to keep Migdalia from

going to jail for drug possession. Defendant testified he was told that if he

"stepped up to the plate and [said] that [he] was the one that committed these

robberies that [the police officer] would keep his promise" and recommend that

Migdalia "only receive probation." Defendant further testified that he was able

to provide so much detail about the robberies at the police station because the

police officers told him about the robberies in the car.

On direct appeal, defendant unsuccessfully raised the following issues:

I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE SEIZED BY POLICE.

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II. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
STATEMENTS MADE TO POLICE.

III. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SEVER AND ORDER
SEPARATE TRIALS FOR EACH COUNT OF THE
INDICTMENT.

IV. THE TRIAL COURT ERRED IN PERMITTING
THE STATE TO INTRODUCE UNFAIRLY
PREJUDICIAL 404(b) OTHER-ACT EVIDENCE
AND IMPROPERLY-AUTHENTICATED PHOTO
AND VIDEO EVIDENCE.

V. THE TRIAL COURT ERRED IN PERMITTING
THE JURY TO HEAR DEFENDANT'S STATEMENT
TO INTERROGATING DETECTIVES THAT HE
WAS MOTIVATED TO COMMIT THE BANK
ROBBERIES BECAUSE OF DRUGS AND BILLS.

VI. THE TRIAL COURT ERRED IN PERMITTING
DEFENDANT'S PRIOR CONVICTIONS TO BE
USED AS IMPEACHMENT EVIDENCE BEFORE
THE JURY.

VII. THE TRIAL COURT ERRED IN PERMITTING
EXPERT TESTIMONY BEFORE THE JURY OF A
"CRIME SCENE" EXPERT.

VIII. THE TRIAL COURT ERRED IN DECLINING
TO CHARGE THE JURY ON FALSE IN ONE, FALSE
IN ALL.

IX. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR ACQUITTAL.

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 X. THE TRIAL COURT ERRED IN CHARGING
LESSER-INCLUDED OFFENSES OVER
DEFENDANT'S OBJECTION.

XI. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUEST TO CHARGE THE JURY
ON THIRD-PARTY GUILT.

XII. DEFENDANT'S SENTENCE IS IMPROPER
AND EXCESSIVE.

In his PCR appeal, defendant argues:

POINT I: THE POST-CONVICTION RELIEF COURT
ERRED IN DENYING THE DEFENDANT’S
PETITION FOR 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: 2

POINT I: THE INADEQUATE REPRESENTATION
THAT PETITIONER RECEIVED AT PRE-TRIAL
AND TRIAL FELL BELOW AN OBJECTIVE
REASONABLE STANDARD, THUS VIOLATING
PETITIONER'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE UNITED
STATES AND NEW JERSEY CONSTITUTION.

A. TRIAL COUNSEL FAILED TO BE PREPARED
WITH THE DVDS FOR THE MIRANDA HEARING
IN THE PRE-TRIAL STAGES.

2
We corrected minor typographical errors.
A-0505-17T1
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 B. TRIAL COUNSEL FAILED TO
ADEQUATELY ARGUE CONTRARY TO THE
STATE'S CASE IN PETITIONER'S PRE-TRIAL
STAGES IN THE MIRANDA HEARING.

C. TRIAL COUNSEL FAILED TO INVESTIGATE
A DEFENSE OR EVIDENCE.

D. TRIAL COUNSEL FAILED TO INVESTIGATE
WHETHER PETITIONER HAD STANDING IN THE
SEARCH OF AND SEIZURE IN 26 NORTH
AMERICAN DRIVE, HOWELL, NEW JERSEY.

E. TRIAL COUNSEL FAILED TO ADEQUATELY
ADVISE THE JURY IN THE OPENING AS TO MRS.
T[]'S[3] STATEMENTS AND BY COUNSEL'S
MISQUOTING HER STATEMENT INCRIMINATED
PETITIONER.

F. IN THE STATE'S BRIEF THE PROSECUTOR
ARGUES THAT PETITIONER'S PCR SHOULD BE
AFFIRMED BASED ON THAT PETITIONER WAS
UNABLE TO PRESENT THAT THERE WERE
WITNESSES WHO WOULD HAVE BEEN
FAVORABLE TO HIS CASE THAT WOULD HAVE
EXONERATED PETITIONER.

In his brief in support of his PCR petition, defendant, through counsel,

argued that he was entitled to an evidentiary hearing because defense counsel

did not perform any pretrial investigation and failed to call an unspecified

witness.

3
We use initials to preserve the privacy of the witness.
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 At the hearing on defendant's PCR petition, Judge Scully denied

defendant's request for an evidentiary hearing, finding, in pertinent part:

There is nothing in this brief that states with any level
of specificity the specific failures to investigate or what
. . . this more thorough investigation would have
concluded. In the case at bar the petitioner has made
bald assertions of defense counsel's ineffective conduct
as trial counsel but has failed in any way to make a
prima facie showing whatsoever, nor provide any
factual support for the allegations as to the ineffective
assistance of counsel.

Petitioner also did not provide a signed amended
affidavit or certification stating . . . the . . . reasons
based upon his own personal knowledge an evidentiary
hearing should be granted pursuant to Rule 3:22-10(c).
Hence the petitioner, in this [c]ourt's view, has failed to
meet the burden to obtain an evidentiary hearing and
consequently any post-conviction relief from the
[c]ourt.

A defendant may seek PCR by asserting ineffective assistance of counsel.

See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 58 (1987). Under the Sixth Amendment of the United States

Constitution and Article 1, Paragraph 10 of the New Jersey Constitution, the

right to counsel entitles a defendant to the effective assistance of counsel during

criminal proceedings. Strickland, 466 U.S. at 685-86; Fritz, 105 N.J. at 58. To

establish a violation of the right to effective assistance of counsel, a convicted

defendant must satisfy the two-pronged test articulated in Strickland by showing

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that (1) counsel's performance was deficient; and (2) counsel's deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687-88; see also

Fritz, 105 N.J. at 52-53, 58 (adopting Strickland test in New Jersey). A

defendant must establish both prongs of the Strickland standard to have a

successful claim of ineffective assistance of counsel. See State v. Parker, 212

N.J. 269, 280 (2012).

Claims of ineffective assistance of counsel frequently require an

evidentiary hearing "because the facts often lie outside the trial record and

because the attorney's testimony may be required." State v. Porter, 216 N.J. 343,

354 (2013) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)). Evidentiary

hearings, however, are not always required. State v. Jones, 219 N.J. 298, 311

(2014); see R. 3:22-10. An evidentiary hearing shall only be granted once the

defendant has established a prima facie case of ineffective assistance of counsel.

See Porter, 216 N.J. at 354. A defendant establishes a prima facie case of

ineffective assistance of counsel by demonstrating a reasonable likelihood of

success on the merits. R. 3:22-10(b); see also Strickland, 466 U.S. at 694-95.

Under the first prong of the Strickland test, in order to show that counsel's

performance was deficient, a defendant must show that counsel's representation

was not objectively reasonable. State v. Pierre, 223 N.J. 560, 578 (2015).

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 An ineffective assistance of counsel claim may arise when counsel fails

to conduct an adequate pretrial investigation. Porter, 216 N.J. at 352-53.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary." State v. Martini, 160

N.J. 248, 266 (1999) (alteration in original) (quoting Strickland, 466 U.S. at

691). "A failure to do so will render [counsel's] performance deficient." State

v. Chew, 179 N.J. 186, 217 (2004) (quoting State v. Savage, 120 N.J. 594, 618

(1990)).

A defendant, however, must overcome a strong presumption that counsel

rendered reasonable professional assistance. Strickland, 466 U.S. at 689.

"[C]omplaints 'merely of matters of trial strategy''' will not establish a valid

ineffective assistance of counsel claim. Fritz, 105 N.J. at 54 (quoting State v.

Williams, 39 N.J. 471, 489 (1963)); see also State v. Nash, 212 N.J. 518, 543

(2013) ("The test is not whether defense counsel could have done better, but

whether he met the constitutional threshold for effectiveness.").

Therefore, a defendant cannot simply make "bald assertions that he was

denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999). A defendant "must allege facts sufficient to

demonstrate counsel's alleged substandard performance." Ibid. Thus, a

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defendant who alleges that his counsel failed to adequately investigate his case

"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." Porter, 216 N.J. at 353 (quoting

Cummings, 321 N.J. Super. at 170). We then view the facts asserted in the light

most favorable to the defendant. Ibid. If, with the facts so viewed, the

defendant's claim of ineffective assistance of counsel "has a reasonable

probability of being meritorious," the defendant is entitled to an evidentiary

hearing. Jones, 219 N.J. at 311.

Here, defendant argues that because trial counsel "fail[ed] to uncover

[favorable] witnesses[,]" trial counsel's only "'ammunition'" at closing argument

was to focus on "what he believed to be various inconsistencies and

contradictions among the various witnesses who testified for the State in

attempting to establish a reasonable doubt in the minds of the jurors."

Before the PCR court, defendant failed to name the favorable witnesses

that should have been called, and did not submit affidavits or certifications from

any witnesses. In addition, trial counsel called six witnesses to testify on

defendant's behalf, mounting a vigorous defense, which does not support a claim

of insufficient pre-trial investigation.

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 Defendant's pro se supplemental brief claims in Point I (C), for the first

time on appeal, that a woman should have been called as an alibi witness. At

trial, he was not permitted to testify that he was at home with her child when

one of the robberies took place, because he had not submitted a notice of alibi.

See R. 3:12-2. Defendant did not provide a certification from the mother stating

he babysat on that date.

In his supplemental brief, defendant raises numerous other specific

complaints regarding his trial counsel's failures, in points I (A) through (F), none

of which were raised before the PCR court. Because these issues were not raised

before the PCR court, we will not consider them. Nieder v. Royal Indem. Ins.

Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate

courts will decline to consider questions or issues not properly presented to the

trial court when an opportunity for such a presentation is available 'unless the

questions so raised on appeal go to the jurisdiction of the trial court or concern

matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v.

Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)).

A defendant must also satisfy the second prong of the Strickland test. See

Parker, 212 N.J. at 280. A defendant must "affirmatively prove prejudice" by

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

A-0505-17T1
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the result of the proceeding would have been different." Pierre, 223 N.J. at 583

(quoting Strickland, 466 U.S. at 693-94). Even if trial counsel's errors are

professionally unreasonable, a criminal judgment will not be set aside if the error

had no effect on the outcome of the case. Strickland, 466 U.S. at 691-92.

Here, significant evidence such as surveillance videos, clothing found at

a house where defendant stayed that matched the clothing worn by the robber,

and the getaway car parked in front of the home where defendant was staying,

linked defendant to the robberies. Defendant also did not deny confessing to the

crimes, although he explained to the jury that he was not truthful when he

confessed. The evidence favoring conviction was strong.

Affirmed.

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