NOT FOR PUBLICATION WITHOUT THE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-2992-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC NIEVES, a/k/a JASON NIEVES,
Defendant-Appellant.
__________________________________
Submitted July 9, 2018 – Decided July 19, 2018
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 10-
02-0238.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique D. Moyse, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan L. Berkow,
Special Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Eric Nieves appeals from an order entered by the
Law Division on November 18, 2016, which denied his petition for
post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
I.
Defendant was charged under Middlesex County Indictment No.
10-02-0238 with third-degree conspiracy to commit burglary,
N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2 (count one); third-degree
burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (counts eighteen,
thirty-four, forty, and forty-two); third-degree theft, by
unlawful taking, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:2-6 (counts
nineteen, thirty-five, and forty-one); third-degree trafficking
in stolen property, N.J.S.A. 2C:20-7.1(b) (count twenty-one); and
third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count
twenty-three).
The charges arose from four residential home burglaries and
related crimes that were committed in 2009. Defendant was charged
alone in counts forty, forty-one, and forty-two. Co-defendants
Victor Torres or Andrew Zeleniak, or both, were charged with
defendant in the other counts.
Sometime after the indictment was returned, this matter was
transferred to Union County. The trial court later denied
defendant's motion to suppress the recorded statements he gave to
the police. Defendant was tried before a jury, which found
defendant guilty of all charges. The court sentenced defendant to
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an aggregate term of twenty-five years in state prison, with
twelve-and-one-half years of parole ineligibility. The court
ordered defendant to pay restitution in the amount of $4767.
Defendant appealed from the judgment of conviction dated
September 30, 2011, and raised the following arguments:
I. THE COURT ERRED IN ACCEPTING THE STATE'S
LEGALLY ERRONEOUS ARGUMENT THAT A LESSER-
INCLUDED OFFENSE OF THEFT SHOULD NOT BE
CHARGED WITH RESPECT TO THE ALVAREZ BURGLARY
BECAUSE IT WAS A DISORDERLY PERSONS OFFENSE –
THAT IS, THE VALUE OF THE STOLEN ITEM WAS LESS
THAN $200 – AND COMPOUNDED THE ERROR BY
CHARGING A LESSER-INCLUDED OFFENSE
UNSUPPORTED BY THE RECORD. (Not Raised Below).
II. THE JURY INSTRUCTIONS ON ACCOMPLICE
LIABILITY DID NOT COMPLY WITH STATE V.
BIELKIEWICZ [267 N.J. Super. 520 (App. Div.
1993)].
III. THE RESTITUTION ORDER SHOULD BE VACATED
BECAUSE IT WAS PREDICATED UPON A VAGUE
POSSIBILITY THAT DEFENDANT MIGHT WIN THE
LOTTERY, WHICH SHOULD BE REJECTED AS AN
ILLEGITIMATE CONSIDERATION IN ASSESSING
DEFENDANT'S FURTURE ABILITY TO PAY.
IV. NOTWITHSTANDING DEFENDANT'S CRIMINAL
RECORD, THE TWENTY-FIVE-YEAR SENTENCE WITH [A]
TWELVE-AND-A-HALF-YEAR PAROLE DISQUALIFIER
WAS MANIFESTLY EXCESSIVE FOR A HANDFUL OF
THIRD-DEGREE BURGLARIES AND THEFTS.
We affirmed defendant's conviction, but remanded the matter
to the trial court for reconsideration of the consecutive sentences
imposed and the restitution ordered. State v. Nieves, No. A-2010-
11 (App. Div. Mar. 7, 2014) (slip op. at 20-21). On remand, the
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trial court imposed the same sentence, and again ordered defendant
to pay restitution in the amount of $4767.
Defendant appealed from the amended judgment of conviction
dated June 3, 2014, and we heard the appeal on our excessive
sentence oral argument calendar. R. 2:9-11. We affirmed the
sentence. State v. Nieves, No. A-0372-14 (App. Div. Mar. 10, 2015).
The Supreme Court denied defendant's petition for certification.
State v. Nieves, 222 N.J. 17 (2015).
II.
On December 14, 2015, defendant filed a timely PCR petition.
He alleged his trial attorney was ineffective because he failed
to: (1) inform him of the details of the State's last plea offer;
(2) obtain a log book from a hospital where he claimed to be when
some of the crimes were committed; (3) investigate potential
witnesses that would support an alibi defense; and (4) file a
motion seeking the disqualification of the assistant prosecutor.
Defendant also claimed appellate counsel was ineffective for
failing to argue on appeal that: (1) the change of venue for his
trial was improper; (2) the resentencing judge should have recused
himself; and (3) the trial court erred by failing to entertain his
application for substitute counsel. In addition, he argued that
his sentence was illegal and the ordered restitution was improper.
The PCR court assigned counsel to represent defendant.
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The PCR court conducted a non-evidentiary hearing on November
18, 2016. The court filed a written opinion, in which it found
that many of defendant's claims were either barred by Rule 3:22-5
because they had been raised and adjudicated in prior proceedings,
or barred by Rule 3:22-4 because they could have been raised on
direct appeal.
The court nevertheless considered the merits of the claims
presented. The court found that defendant had not presented a
prima facie case of ineffective assistance of trial or appellate
counsel, and that an evidentiary hearing was not required. The
court entered an order dated November 18, 2016, denying PCR. This
appeal followed.
III.
On appeal, defendant argues that the PCR court erred by
failing to conduct an evidentiary hearing on his petition. We
disagree.
The PCR court should conduct an evidentiary hearing on a PCR
petition if the defendant presents a prima facie case in support
of PCR, the court determines there are material issues of fact
that cannot be resolved based on the existing record, and the
court finds that an evidentiary hearing is required to resolve the
claims presented. R. 3:22-10(b); see also State v. Porter, 216
N.J. 343, 354 (2013) (citing R. 3:22-10(b)).
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Here, defendant claims he was denied the effective assistance
of trial and appellate counsel. The Sixth Amendment to the United
States Constitution and Article I, Paragraph 10 of the New Jersey
Constitution guarantee criminal defendants the right to the
effective assistance of counsel. State v. O'Neil, 219 N.J. 598,
610 (2014) (citing Strickland v. Washington, 466 U.S. 668, 686
(1984); State v. Fritz, 105 N.J. 42, 58 (1987)).
To succeed on a claim of ineffective assistance of counsel,
the defendant must meet the two-part test established by
Strickland, 466 U.S. at 686, and adopted by our Supreme Court in
Fritz, 105 N.J. at 58. Under Strickland, a defendant first must
show his or her attorney made errors "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland, 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard
of reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient
performance prejudiced the defense." Id. at 687. The defendant
must establish "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable probability
is a probability sufficient to undermine confidence in the outcome"
of the proceeding. Ibid.
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A. Alleged Ineffective Assistance Of Trial Counsel
1. Failure To Investigate
Defendant alleges that his trial attorney was deficient
because he failed to investigate adequately and present additional
witnesses at trial.
In its opinion, the PCR court noted that defendant did not
identify the witnesses trial counsel should have called, or the
testimony these witnesses would have provided. The court found
that defendant had not shown how counsel's failure to call these
unidentified witnesses fell below a standard of reasonableness,
or how counsel's "purported failure led to a prejudicial result."
The record supports the court's findings.
Indeed, it is well established that a claim of ineffective
assistance must rest on more than "bald assertions." State v.
Jones, 219 N.J. 298, 311-12 (2014) (quoting Porter, 216 N.J. at
355). Where, as here, a defendant claims his attorney failed to
adequately investigate the case, the defendant must state the
facts that an investigation would have revealed, supported by
affidavits or certifications. Porter, 216 N.J. at 353 (citing
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).
Defendant failed to present such evidence to the PCR court.
Therefore, the PCR court correctly determined that defendant had
not shown his attorney was deficient because he failed to
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investigate and present testimony from additional, unidentified
witnesses. Defendant also failed to show that counsel's alleged
deficient performance prejudiced his defense.
2. Failure To Obtain Evidence
Defendant claims his trial attorney was deficient because he
failed to obtain the logbook and surveillance video from a
hospital. Defendant claims he was in the hospital when "some of
the crimes were committed."
In its opinion, the PCR court noted that defendant told the
police he was in the hospital beginning on August 8, 2009, for the
birth of his child. He also said he was in the hospital on August
16, 2009, because he had fallen. The court found, however, that
the dates of defendant's purported hospitalizations did not
coincide with the dates upon which the burglaries for which he was
convicted were committed. The record supports that finding.
As indicated in our opinion on defendant's direct appeal, the
charges against defendant related to burglaries at four
residential dwellings – the Singh, Claudino, Miranda, and Alvarez
residences. Nieves, No. A-2010-11, slip op. at 4-5. The Singh
burglary took place on August 22, 2009; the Claudino burglary
occurred on August 24, 2009; the burglary of the Miranda home
occurred on September 25, 2009, and the Alvarez home was
8 A-2992-16T1
burglarized on October 6, 2009. The dates of defendant's purported
hospitalizations do not coincide with these dates.
The PCR court noted that defendant had not explained how the
purported hospitalizations supported his claim of ineffective
assistance of counsel. The court also pointed out that in affirming
defendant's convictions, we determined that the State had
presented sufficient evidence to prove beyond a reasonable doubt
that defendant committed the charged offenses on the dates alleged.
Therefore, defendant failed to show that his trial attorney
was deficient because counsel did not obtain the logbook and
surveillance video from the facility where he was allegedly
hospitalized. He also failed to show that his attorney's alleged
deficient performance prejudiced his defense.
3. Advice Regarding The State's Plea Offer
Defendant claims his trial attorney was deficient because he
did not advise him adequately concerning the State's plea offer.
Defendant alleges that prior to going to trial, his attorney did
not inform him that the State's last plea offer was for a fifteen-
year custodial sentence with a seven-year, eight-month period of
parole ineligibility, rather than a fourteen-year custodial
sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The PCR court determined that the existing record did not support
defendant's claim.
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The court noted that defendant's pre-trial memorandum stated
that the State's last plea offer was for a fifteen-and-one-half-
year prison sentence, with seven years and nine months of parole
ineligibility. Defendant signed the pre-trial memorandum, which
showed that his attorney had informed him of the State's final
plea offer.
Defendant also claims that his attorney did not give him the
information he needed to make an informed decision about the plea
offer. However, defendant has not identified the additional
information he needed to make an informed decision regarding the
State's plea offer.
Therefore, defendant did not establish that his attorney
rendered ineffective assistance regarding his plea. He did not
establish that his attorney's advice was deficient. He also failed
to show that but for counsel's alleged deficient advice, he would
have accepted the State's plea offer instead of proceeding to
trial.
B. Claims Of Ineffective Assistance of Appellate Counsel
1. Change of Venue
Defendant argues that appellate counsel was deficient because
counsel did not argue on direct appeal that the decision to change
venue from Middlesex County to Union County was improper. The PCR
court noted that defendant's future mother-in-law was employed by
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the Superior Court in Middlesex County. The Assignment Judge for
the Middlesex County vicinage decided to transfer venue of the
case to Union County to avoid the appearance of impropriety. The
PCR court found that the decision to change venue was reasonable
and consistent with the judiciary's policy in such matters. We
agree.
2. Recusal of Assistant Prosecutor
Defendant contends his trial attorney was deficient because
he failed to move for recusal of the assistant prosecutor.
Defendant had claimed the assistant prosecutor had a working
relationship with his future mother-in-law, who worked in the
office for criminal case management in Middlesex County. Defendant
also argues his appellate counsel was ineffective for failing to
raise this issue on direct appeal.
The record shows, however, that at the suppression hearing,
defendant's attorney sought the disqualification of the assistant
prosecutor due to the alleged relationship between the assistant
prosecutor and defendant's future mother-in-law. In opposing the
motion, the assistant prosecutor informed the judge she did not
have a working or personal relationship with defendant's future
mother-in-law. The judge denied the application.
Defendant has not shown that the judge's ruling was factually
or legally incorrect. Accordingly, there is no merit to defendant's
11 A-2992-16T1
claim that appellate counsel was deficient in failing to raise
this issue on appeal. Defendant also failed to show that the appeal
would have been decided differently if the issue had been raised.
3. Recusal of Judge
Defendant argues his appellate counsel was deficient because
counsel failed to argue on appeal that the judge who decided the
suppression motion and sentenced him should have recused himself.
It appears that during the suppression hearing, the judge expressed
some displeasure with receiving another case on transfer from
Middlesex County. Based on those remarks, defendant's attorney
sought the judge's recusal. The judge denied the application.
The PCR court found that defendant failed to show that the
judge erred by denying the recusal motion. The record supports
that determination. The judge's remarks did not indicate he had
any bias against defendant, or that he could not handle the matter
fairly. Appellate counsel did not err by failing to raise this
meritless issue on appeal.
We therefore conclude that defendant failed to present a
prima facie case of ineffective assistance of trial or appellate
counsel, and the existing record was sufficient to resolve the
claims. Accordingly, the PCR court correctly determined that an
evidentiary hearing was not required.
Affirmed.
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