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STATE OF NEW JERSEY v. GUAROA SOLANO-TRINIDAD (16-02-0113, PASSAIC COUNTY AND STATEWIDE)

Court: New Jersey Superior Court Appellate Division
Date filed: 2022-02-18
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                                NOT FOR PUBLICATION WITHOUT THE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-1690-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GUAROA SOLANO-TRINIDAD,
a/k/a GUAROA SOLANO,

     Defendant-Appellant.
______________________________

                   Submitted September 28, 2021 – Decided February 18, 2022

                   Before Judges Fisher and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 16-02-0113.

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

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Guaroa Solano-Trinidad appeals the denial of his post-

conviction relief (PCR) petition. We affirm for the reasons set forth below.

                                    I.

      On October 12, 2015, defendant was driving in Prospect Park when he

engaged in a verbal confrontation with another motorist, Ana Tobon. The

parties' renditions of events are similar, but they differ in some respects.

      Tobon contends that defendant was the aggressor, cutting her off and

driving carelessly in front of her for several blocks. When both parties stopped

at a red traffic signal, Tobon pulled alongside defendant's car.         A verbal

confrontation ensued between Tobon and defendant. Tobon maintains that after

words were exchanged, defendant exited his vehicle and approached her car with

a knife.

      Defendant, however, contends Tobon exited her vehicle and threw a cup

of soda through the window of his vehicle. The soda missed him but landed on

the passenger side dashboard. Allegedly fearing for his safety, defendant exited

his vehicle, removed a knife from his pocket and used it to puncture a hole in

the tire of Tobon's vehicle. Defendant claims that his actions were necessary to

prevent Tobon from retaliating.




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      Defendant was subsequently pulled over by a police officer 1 for not

wearing a seatbelt, whereupon Tobon and another witness, Magdelin Pena,

approached the officer and reported the incident. Upon noticing the flat tire, the

officer questioned defendant to determine if he possessed any weapons.

Defendant told the officer that he had a knife in his pocket.        The officer

recovered the knife and noticed that the top half of the knife's blade had black

residue. The officer then arrested defendant.

      On October 12, 2015, a municipal court judge found probable cause. A

grand jury later indicted defendant on three charges: third-degree terroristic

threats, N.J.S.A. 2C:12-3(a); third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-4(d).

      Defendant pled guilty to third-degree possession of a weapon for an

unlawful purpose and two motor vehicle violations.

      Defendant was subsequently sentenced to a three-year term of

incarceration, concurrent to a three-year sentence on a separate indictment. The

remaining counts were dismissed. Defendant appealed, informing appellate



1
  The record contains no reference to the officer by name but for an illegible
handwritten notation in the police report.
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                                        3
counsel of what he believed to be the municipal judge's conflict of interest.

Defendant asked appellate counsel to incorporate the argument into the appeal.

Appellate counsel declined to pursue the claim, telling defendant that "this was

not a viable issue." Defendant's direct appeal was placed on an excessive

sentence calendar. We affirmed. State v. Solano-Trinidad, No. A-5674-16

(App. Div. Jan. 9, 2018).

      Defendant then filed a pro se PCR application. Afterwards, PCR counsel

filed an amended verified petition and brief. Shortly thereafter, the PCR court

heard argument.

      The PCR judge issued a written opinion. He rejected defendant's self-

defense theory, finding "nothing in [defendant's] actions [towards Tobon] that

could normatively be characterized as reasonable or immediately necessary."

Accepting defendant's version of events, the judge found "there was nothing to

preclude [defendant] from driving off and calling the police with a description

of the vehicle and his assailant." The judge further found that "no reasonable

jury could be expected to find that exiting one's car and puncturing an offending

driver's tire with a knife was in any sense a proportionate or justifiable response

to having a drink thrown in one's direction." Given these findings, the PCR

judge concluded defendant failed to make a prima-facie showing of ineffective


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                                        4
assistance of counsel, because "[self-defense] was not viable in any realistic

sense." As to the second prong of Strickland,2 the PCR judge found defendant

made no showing "as to how the outcome would have been substantially

different or more favorable[] for [defendant] even had the claim of self-defense

been undertaken as it was[,] and is[,] wholly implausible."

       Next, the PCR judge concluded that the municipal court judge's probable

cause finding against defendant was "limited," and "chiefly ministerial." The

PCR judge recognized that our law encourages judges to recuse themselves from

hearing matters involving defendants that they have prosecuted or defended

previously. See State v. McNamara, 212 N.J. Super. 102, 108 (App Div. 1986).

However, the PCR judge also found the "[municipal court judge's] probable

cause finding was superseded and rendered moot by the return of the grand jury

indictment." The PCR judge concluded any defense challenge to the indictment

based on the municipal court judge's failure to recuse, in addition to being

unlikely to succeed due to mootness, would have "triggered a disadvantageous

escalation in the plea offer against [defendant's] penal interest."




2
    Strickland v. Washington, 466 U.S. 668 (1984).
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      The PCR court concluded defendant failed to prove the first prong of

Strickland, and that trial counsel's performance satisfied defendant's Sixth

Amendment right to counsel. The judge denied an evidentiary hearing.

      On appeal from denial of his PCR application, defendant makes the

following arguments:

            POINT I

            DEFENDANT    WAS      DENIED   EFFECTIVE
            ASSISTANCE OF COUNSEL BY HIS TRIAL
            ATTORNEY WHO DID NOT MOVE TO
            DISQUALIFY THE MUNICIPAL JUDGE FROM
            CONDUCTING A PROBABLE CAUSE HEARING
            DUE TO A CONFLICT OF INTEREST BECAUSE HE
            PREVIOUSLY PROSECUTED THE DEFENDANT
            AS A MUNICIPAL PROSECUTOR IN TWO
            UNRELATED CASES.

            POINT II

            DEFENDANT     WAS   DENIED   EFFECTIVE
            ASSISTANCE OF COUNSEL BY HIS TRIAL
            ATTORNEY BECAUSE HE FAILED TO RAISE THE
            DEFENSE OF SELF-DEFENSE.

                                   II.

      Rule 3:22-2 provides four grounds to grant a PCR petition: (1) substantial

denial of a state or federal constitutional right; (2) a sentencing court's lack of

jurisdiction; (3) imposition of an excessive or unlawful sentence; and (4) "any

habeas corpus, common-law, or statutory grounds for a collateral attack." State

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                                         6
v. Preciose, 129 N.J. 451, 459 (1992). The burden rests with the defendant to

prove such a violation "by a preponderance of the credible evidence." Ibid. To

sustain that burden, the defendant must allege and articulate facts, which

"provide the court with an adequate basis on which to rest its decision." State

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

      We analyze ineffective assistance of counsel claims by using the two-

prong test established by the Supreme Court in Strickland. See Preciose, 129

N.J. at 463; see also State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of

the Strickland test requires a defendant to establish counsel's performance was

deficient. Preciose, 129 N.J. at 463. "The second, and far more difficult, prong

. . . is whether there exists 'a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.'"

Id. at 463-64 (quoting Strickland, 466 U.S. at 694).

      To obtain a new trial based on ineffective assistance of appellate counsel,

a defendant must establish that appellate counsel failed to raise an issue that

would have constituted reversible error on direct appeal. State v. Echols, 199

N.J. 344, 361 (2009).     Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

because the appellate court would have found either that no error had occurred


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or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); State v. Harris,

181 N.J. 391, 499 (2004). Consequently, appellate counsel is not required to

raise every possible issue and need only raise issues that have a reasonable

possibility of success. State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div.

2007); State v. Morrison, 215 N.J. Super. 540, 549 (App. Div. 1987) (noting

"appellate counsel does not have a constitutional duty to raise every

nonfrivolous issue requested by the defendant").

      There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Strickland, 466 U.S. at 690. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors by counsel

undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super.

283, 290 (App. Div. 2002) (citing United States v. Cronic, 466 U.S. 648, 659

n.26 (1984)).

      Where a PCR court does not conduct an evidentiary hearing, we "conduct

a de novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting

Harris, 181 N.J. at 421).




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      In addressing motions for judicial recusal, we are guided by several

fundamental principles. Generally, recusal motions "are entrusted to the sound

discretion of the judge and are subject to review for abuse of discretion." State

v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super.

63, 66 (App. Div. 2001)). However, "[w]e review de novo whether the proper

legal standard was applied." Ibid.

      The "overarching objective of the Code of Judicial Conduct is to maintain

public confidence in the integrity of the judiciary." In re Advisory Letter No.

7-11 of the Sup. Ct. Advisory Comm., 213 N.J. 63, 71 (2013) (citations omitted).

Such confidence "depends on a belief in the impersonality of judicial decision

making." Id. at 75 (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir.

1982)). Because "justice must satisfy the appearance of justice[,]" State v.

Deutsch, 34 N.J. 190, 206 (1961) (citation omitted), we are as concerned with

how facts are perceived by the public as we are with the actual cases of partiality.

See Code of Jud. Conduct Rule 2.1 (stating "[a] judge shall act at all times in a

manner that promotes public confidence in the independence, integrity and

impartiality of the judiciary, and shall avoid impropriety and the appearance of

impropriety."). Therefore, a movant need not show actual prejudice, "the mere




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                                         9
appearance of bias may require disqualification." Panitch, 339 N.J. Super. at 67

(quoting State v. Marshall, 148 N.J. 89, 279 (1997)).

      "[J]udges sh[ould] disqualify themselves in proceedings in which their

impartiality . . . might reasonably be questioned . . . ." Code of Jud. Conduct

Rule 3.17(B). "However, before the court may be disqualified on the ground of

an appearance of bias, the belief that the proceedings were unfair must be

objectively reasonable." State v. Presley, 436 N.J. Super. 440, 448 (App. Div.

2014) (quoting Marshall, 148 N.J. at 279). With those principles in mind, our

Supreme Court adopted "the following standard to evaluate requests for recusal:

'Would a reasonable, fully informed person have doubts about the judge's

impartiality?'" McCabe, 201 N.J. at 44 (quoting DeNike v. Cupo, 196 N.J. 502,

517 (2008)).

      Rule 1:12-1(g) mandates a judge to recuse themselves in a proceeding

            when there is any . . . reason which might preclude a
            fair and unbiased hearing and judgment, or which might
            reasonably lead counsel or the parties to believe so.

      Pertinent to this matter, an administrative directive promulgated by the

Administrative Director of the Courts, dated September 19, 1983 states:

            A judge should disqualify himself or herself from
            hearing a criminal matter involving a defendant who the
            judge, in his or her previous capacity, had personally


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                                      10
            prosecuted or defended, or had represented in a civil
            matter in the past.

            [See also N.J.S.A. 2A:15-49.]

      Despite those guiding principles, our Supreme Court in DeNike v. Cupo,

noted that judicial refusal is not mandatory "in certain instances," where the

"entry of judgment may constitute a ministerial act that does not involve the

exercise of discretion" on the part of a judge. 196 N.J. at 515.

                                       III.

      Recognizing that the "overarching objective of the Code of Judicial

Conduct is to maintain public confidence in the integrity of the judiciary," we

find the municipal court judge should have recused himself from defendant's

probable cause hearing. See In re Advisory Letter, 213 N.J. at 71. The finding

of probable cause against defendant was hardly "ministerial," as it required an

evaluation of defendant's conduct in light of the facts and circumstances of the

particular case and the charges brought. State v. Moore, 181 N.J. 40, 45 (2004)

(defining probable cause). The record shows the municipal court judge had

previously served as a municipal court prosecutor, and that he had prosecuted

defendant in that capacity. The municipal court judge knew defendant and had

previously recused himself from other cases involving defendant.        Recusal

would have prevented the "appearance of bias," and we disagree with the PCR

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                                       11
court's characterization of the municipal court judge's act as "ministerial." That

said, we are persuaded that the error is overcome by the grand jury's subsequent

indictment. See Panitch, 339 N.J. Super. at 67.

      The grand jury has the dual function of "determining if there is probable

cause to believe that a crime has been committed and of protecting citizens

against unfounded criminal prosecutions . . . ." State v. Del Fino, 100 N.J. 154,

165 (1985) (quoting Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972)).

Because the grand jury made an independent finding of probable cause, any error

by the municipal court judge was superseded, and motions by trial counsel or

appellate counsel based on the error would have been fruitless.

      We are satisfied on this record that defendant failed to establish a prima

facie claim of ineffective assistance of counsel for trial or appellate counsel.

Given the deference we afford defense counsel's trial strategy under our standard

of review, we cannot say counsel's choice to not argue the municipal court

judge's error was objectively unreasonable. On this record, we find defendant

has not overcome the "strong presumption that [trial] counsel rendered adequate

assistance," and that defendant's trial and appellate counsel "exercise[d]

reasonable professional judgment." Strickland, 466 U.S. at 690.

      Affirmed.


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