NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1482-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEONARDO BUCCHERI,
Defendant-Appellant.
____________________________
Submitted February 7, 2017 – Decided April 3, 2017
Before Judges Fasciale and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
09-12-2104.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Lillian M. Kayed,
Assistant Prosecutor, on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Leonardo Buccheri appeals from a June 19, 2015
order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm substantially for the
reasons explained by Judge Joseph V. Isabella in the written
opinion issued on June 19, 2015.
I.
In 2010, a jury convicted defendant of second-degree
manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser included offense
on a charge of first-degree murder; second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-
degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
Thereafter, defendant pled guilty to second-degree certain persons
not to have weapons, N.J.S.A. 2C:39-7(b).
On the manslaughter conviction, defendant was sentenced to
ten years in prison with a period of parole ineligibility as
prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant was also sentenced to a consecutive five years in prison
with five years of parole ineligibility on the certain persons not
to have weapons conviction. Finally, on the conviction for
possession of a defaced firearm, defendant was sentenced to a
concurrent eighteen months in prison. Thus, defendant's aggregate
sentence was fifteen years in prison with over thirteen years of
parole ineligibility.
On direct appeal, we affirmed his convictions and sentence.
State v. Buccheri, No. A-1086-11 (App. Div. March 8, 2013). The
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Supreme Court subsequently denied certification. State v.
Buccheri, 216 N.J. 7 (2013).
In November 2013, defendant filed a petition for PCR. He was
assigned counsel and Judge Isabella, who had presided over
defendant's trial, heard oral arguments on that petition. After
considering all of the arguments presented, Judge Isabella entered
an order on June 19, 2015, denying the PCR petition. Judge
Isabella also issued a comprehensive written opinion.
Defendant's convictions arose out of the death of his fiancée,
Soveira "Sophie" Rojas. We have previously summarized the relevant
facts in our decision issued in 2013. In short, defendant and his
fiancée had been attending a reunion barbecue for defendant's
motorcycle club. Most of the people attending were eating and
drinking. Towards the end of the barbecue, defendant and another
man got into a heated verbal argument. Sophie intervened and had
to tackle defendant to the ground to prevent him from hitting the
other man. Some friends then drove the couple's children home
while defendant and Sophie drove separately.
When defendant and Sophie arrived at their home, witnesses
testified that they appeared to have been in a physical
altercation. Defendant had scars and scratches on his face and
head, which he had not had before getting into the car with Sophie.
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Sophie's face was blotched and she was complaining of an injured
thumb.
The friends then left. Later that evening, one of defendant's
children heard a pop sound. Shortly thereafter, defendant called
911 to report that Sophie had been shot. Defendant claimed that
the fiancée had shot herself. At trial, the State called the
regional medical examiner, Dr. Lyla E. Perez, to testify as an
expert witness. Dr. Perez determined that the cause of death was
a gunshot wound to the upper right chest. Dr. Perez also opined
that the manner of death was homicide. She formed that opinion
after comparing autopsy photographs of the victim with the results
of a firing test performed on the gun. That information led Dr.
Perez to conclude that the muzzle of the gun had been three to six
inches away from where the bullet entered Sophie when it was fired.
Defendant elected not to testify at trial. Before making
that election, defendant was questioned by Judge Isabella who
advised defendant of his right not to testify and of the
instruction that would be given to the jury if he elected not to
testify. Judge Isabella also informed defendant that he should
only make that decision after he consulted with his attorney.
Thereafter, defendant elected not to testify at trial and asked
the court to give the jury instruction concerning his
constitutional right to remain silent.
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On this appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS
A. Trial Counsel Induced Defendant Not To
Testify
B. Trial Counsel Failed To Alert The Court
To Sleeping Jurors
Defendant also filed a pro se supplemental brief. In that
supplemental brief, defendant contends that trial counsel was also
ineffective for failing to seek and consult with a medical expert
who could have rebutted the testimony of Dr. Perez. Defendant
also argues that his trial counsel was ineffective in failing to
object to the opinion rendered by Dr. Perez based on an autopsy
that was performed by another medical examiner.
We first review the well-established principles guiding our
review of an order denying PCR. Defendant's petition arises from
the application of Rule 3:22-2, which permits collateral attack
of a conviction based upon a claim of ineffective assistance of
counsel within five years of the conviction. See R. 3:22-12(a)(1);
see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J.
42, 58 (1987). To establish a claim of ineffective assistance of
counsel, a defendant must satisfy the two-part Strickland test:
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(1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[,]" and (2) "the deficient performance [truly]
prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693 (quoting U.S. Const. amend.
VI); Fritz, supra, 105 N.J. at 58-59 (adopting the Strickland two-
part test in New Jersey).
Rule 3:22-10(b) provides that a defendant is only entitled
to an evidentiary hearing on a PCR petition if he establishes a
prima facie case in support of PCR, "there are material issues of
disputed fact that cannot be resolved by reference to the existing
record," and the court determines that "an evidentiary hearing is
necessary to resolve the claims for relief." See also State v.
Porter, 216 N.J. 343, 354 (2013). To establish a prima facie
case, a defendant must demonstrate "the reasonable likelihood of
succeeding under the test set forth in Strickland." State v.
Preciose, 129 N.J. 451, 463 (1992). A defendant "must do more
than make bald assertions that he [or she] was denied the effective
assistance of counsel." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "He [or
she] must allege [specific] facts sufficient to demonstrate
counsel's alleged substandard performance." Ibid.
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Applying these principles, we affirm substantially for the
reasons expressed by Judge Isabella. We add some brief comments
on each of the three alleged grounds of ineffective assistance of
trial counsel.
First, defendant contends that trial counsel prevented him
from testifying in his own defense. Initially, we note that that
contention is inconsistent with the trial record. At trial, Judge
Isabella informed defendant of his right to testify and his right
to remain silent. Knowing he had the right to testify, defendant
elected not to testify.
Just as critically, defendant cannot establish any prejudice
from his election not to testify. At trial, defendant's defense
was that his fiancée had committed suicide and shot herself. That
position was very clearly presented to the jury through the cross-
examination of the State's expert witness. The jury also heard
defendant's own words in the 911 recording where he claimed that
Sophie had shot herself. As Judge Isabella pointed out, had
defendant elected to testify, he could have been cross-examined
about his extensive criminal record. Given all of those facts,
defendant has not shown any prejudice from his election not to
testify.
Second, defendant contends that his trial counsel was
ineffective in failing to alert the court during trial that two
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jurors were allegedly sleeping. The only evidence in the record
concerning jurors allegedly sleeping is the contentions made by
defendant in his post-verdict PCR petition. In his PCR
certification, defendant contends that during the testimony of Dr.
Perez, he saw two jurors in the back row leaning on each other as
if they were asleep.
Judge Isabella found no prejudice from that contention
because he noted that during the deliberation, the jurors requested
to have Dr. Perez's testimony replayed. Thus, even if there was
some period of time where certain jurors were not paying attention
during the initial testimony, those jurors heard the testimony
again during deliberation. We agree with Judge Isabella that
under these facts, there is no showing of any potential for
prejudice. Judge Isabella, who presided over the trial, did not
note any sleeping jurors. Further Judge Isabella, as the PCR
judge, noted that Dr. Perez's testimony was some of the strongest
evidence against defendant. Finally, Judge Isabella noted that
Dr. Perez's testimony had been replayed during deliberation. Given
that procedural history, defendant has failed to establish a prima
facie case of ineffective assistance of counsel as it relates to
the alleged sleeping jurors.
Finally, defendant argues that his counsel was ineffective
in failing to retain and consult with an expert to rebut Dr. Perez.
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The flaw that Judge Isabella found with this argument was that
defendant provided no evidence that a defense expert could have
disputed the State's medical expert. In other words, defendant
presented nothing to the PCR court to show that had trial counsel
consulted with a medical expert, that medical expert could have
disputed the testimony of the State's expert.
Without presenting evidence that an expert could have been
consulted and retained, defendant is essentially asking the court
to speculate. Such speculation cannot form the basis for a prima
facie case of ineffective assistance of counsel. See R. 3:22-
10(e)(2) (providing that a court shall not grant an evidentiary
hearing if defendant's "allegations are too vague, conclusory or
speculative"); see also Fritz, supra, 105 N.J. at 64 (explaining
that "purely speculative deficiencies in representation are
insufficient to justify reversal").
Affirmed.
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STATE OF NEW JERSEY VS JESUS MIGUEL GONZALEZ(11-08-00946, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion