NOT FOR PUBLICATION WITHOUT THE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-0869-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PEDRO DOMINGUEZ, a/k/a PEDRO
DOMINGUEZ, JR.,
Defendant-Appellant.
_____________________________
Submitted February 13, 2018 – Decided June 6, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
11-01-0003.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Designated
Counsel, on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Meredith
L. Balo, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Pedro Dominguez appeals from a Law Division order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. He argues that he was entitled to an
evidentiary hearing because he established a prima facie case of
ineffective assistance of counsel due to trial counsel's failure
to object to prosecutorial misconduct in summation; and failure
to advise him of his right to testify when counsel did not comment,
object, or ask for a recess when defendant advised the trial judge
that he "was not feeling good" and would not testify. We agree
with the PCR court that the claim of prosecutorial misconduct was
procedurally barred under Rule 3:22-5 because it was raised and
denied on direct appeal, and that defendant was fully appraised
of his right to testify, and we therefore affirm.
To resolve the issues raised in this appeal, we need not
discuss the trial evidence, which is detailed in our twenty-four
page unpublished opinion affirming defendant's convictions, along
with that of his two co-defendants (collectively defendants), for
two counts of first-degree armed robbery, third-degree possession
of a weapon for an unlawful purpose, and fourth-degree possession
of a weapon for unlawful use, as well as defendant's consecutive
sentences of fifteen- and thirteen-year prison terms. State v.
Yebes, No. A-2098-12 (App. Div. May 6, 2015), certif. denied, 223
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N.J. 280 (2015). Instead, we limit our focus to defendant's
contentions on appeal.
Concerning alleged prosecutorial misconduct, defendant
contends counsel failed to object to the prosecutor's closing
remarks that: defendants failed to tell police how they came to
possess the victim's cell phone; the victim should be able to walk
around without being threatened with a knife; he is the same size
as the victim, and suggested the victim would not be significantly
impaired given the amount of beer he consumed; he did not object
to any of the evidence the defendants sought to admit; in citing
the book, Blink1, which posits an identification theory and was
not mentioned during witnesses' testimony, muddled the jury charge
on identification that was based upon State v. Henderson, 208 N.J.
208 (2011); and the victim was thinking "am I going to die here
in the street?" even though the thought was not admitted into
evidence.
Defendant argues that the claim of ineffective assistance
related to prosecutorial misconduct was not previously adjudicated
and thus should not be barred by Rule 3:22-5. Under the rule,
"[a] prior adjudication upon the merits of any ground for relief
is conclusive whether made in the proceedings resulting in the
1
Malcolm Gladwell, Blink: The Power of Thinking Without Thinking
(2005).
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conviction or in any post-conviction proceeding brought pursuant
to this rule . . . , or any appeal taken from such proceedings."
R. 3:22-5. He further asserts that his claim falls under the
exception of Rule 3:22-4(a), which provides:
(1) that the ground for relief not previously
asserted could not reasonably have been raised
in any prior proceeding; or
(2) that enforcement of the bar to preclude
claims, including one for ineffective
assistance of counsel, would result in
fundamental injustice; or
(3) that denial of relief would be contrary
to a new rule of constitutional law under
either the Constitution of the United States
or the State of New Jersey.
We disagree and affirm substantially for the reasons set forth in
Judge John M. Deitch's concise and logical written decision.
Judge Deitch noted that in defendant's direct appeal, this
court determined that the prosecutor's summation did not deny
defendant a fair trial where there was an:
(1) emphasis on the violent nature of the
crime; (2) suggestion that defense counsel
called the victims "liars"; (3) disparagement
of the motives of defense counsel; (4)
expression of his own experience with alcohol;
and (5) reference to the book, Blink, which
discusses eyewitness identification. In
addition, [a co-defendant], who testified at
trial, contends the prosecutor improperly
commented on his silence at the time of
arrest.
[Yebes, slip op. at 14.]
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We specifically concluded, "the prosecutor's summary remarks, for
the most part, were responsive to the issues raised by defense
counsel in his summation and a fair commentary on the evidence
adduced at trial." Id. at 15. Since defendant's present claim
is substantially similar to the claim he raised on direct appeal
that we found was without merit, we agree with the judge's
reasoning:
Accordingly, the [c]ourt finds that issue of
prosecutorial misconduct was raised on appeal
and adjudicated. . . . Defendant had access
to the trial transcript containing the "new"
statements made by the prosecutor that he now
seeks to contest. However, he failed to
raise[] th[at] issue when the issue was open
before the Appellate Division. Since the
. . . issue of prosecutorial misconduct was
adjudicated by the appellate court and was of
record and could have been raised during
appeal, the claims are now barred from
adjudication under [Rule] 3:22-5 and [Rule]
3:22-4.
Turning to defendant's decision not to testify, he argues
"[i]t is the lack of investigation [by counsel] into [his] medical
condition when he stated he was not feeling well at the time of
the judge's colloquy as well as [counsel's] lack of thorough
consultation and representation which is . . . the heart of [his]
motion for post-conviction relief." Defendant proffers his
counsel failed to properly guide him "through the decision process
regarding whether to testify[,]" and should have taken a short
5 A-0869-16T2
recess to discuss defendant's decision not to testify when he told
the court he was "not feeling good." Again, we disagree with
defendant's argument, and affirm substantially for the reasons set
forth in Judge Deitch's written decision.
In denying PCR, the judge applied the well-settled two-prong
test set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984), adopted by our Supreme Court in State v. Fritz, 105 N.J.
42, 58 (1987), that a defendant must first show "that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52
(quoting Strickland, 466 U.S. at 687); and second, he must prove
that he suffered prejudice due to counsel's deficient performance,
Strickland, 466 U.S. at 687, 691-92. The judge found that under
State v. Cummings, 321 N.J. Super. 154, 170 (App, Div. 1999),
defendant's contentions were nothing more than bald assertions
without any factual support, and thereby failed to establish a
prima facie case of ineffective assistance of counsel.
Our review of the record fully substantiates Judge Deitch's
finding that "[t]he record is clear that the issue of [defendant]
testifying was appropriately raised, discussed between counsel and
[defendant], and addressed on record." After the State concluded
its case, counsel obtained more time to consult with defendant
regarding whether he would testify in his defense because counsel
6 A-0869-16T2
stated in his opening that defendant would testify, he urged
defendant to testify, and defendant had not "made up his mind"
whether he would testify. Thereafter, the following colloquy took
place among the court, counsel, and defendant regarding whether
defendant would exercise his right to testify:
The Court: All right. Before we bring the
jury out, [defense counsel], I understand
you've had a discussion with your client and
your client has decided not to testify. Is
that correct?
[Counsel]: That's correct, Your Honor.
EXAMINATION BY THE COURT
[The Court:] [Defendant], this decision is
yours?
[Defendant:] Yes, sir. Before you asked,
I'd like to have this right.
[Counsel]: Right.
[The Court:] No one is forcing you to do
that? You're making this --
[Defendant:] Before he rests.
[The Court:] decision on your own?
[Counsel] has given you some advice, correct?
[Defendant:] Yes, sir.
[The Court:] But you've chosen, on your own,
not to testify?
[Defendant:] I'm not feeling good.
7 A-0869-16T2
[The Court]: Thank you, sir. All right.
When the . . . jury is ready we'll bring them
in.
Although there was no inquiry concerning defendant's comment that
he did not feel well, Judge Deitch sua sponte located in the trial
court file a form that was executed by defendant – and witnessed
by counsel – after the court's voir dire of defendant, entitled
"Defendant's Election Not to Testify." The form was read to the
jury, and provided in pertinent part, that defendant exercised his
constitutional right not to testify and that he is presumed
innocent whether or not he testified. Judge Deitch further noted
that at no time thereafter did defendant comment about feeling
ill.
Because we agree with Judge Deitch that defendant failed to
establish a prima facie case of ineffective assistance of counsel,
we cannot find that he abused his discretion in denying defendant's
request for an evidentiary hearing. State v. Preciose, 129 N.J.
451, 462 (1992); see also State v. Porter, 216 N.J. 343, 354 (2013)
(holding an evidentiary hearing need only be conducted if there
are disputed issues as to material facts regarding entitlement to
PCR that cannot be resolved based on the existing record).
Affirmed.
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