STATE OF NEW JERSEY v. CHRISTOPHER FIGUEROA (07-09-3171

NOT FOR PUBLICATION WITHOUT THE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-2450-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER FIGUEROA,

Defendant-Appellant.

_______________________________________

Submitted May 25, 2017 – Decided June 20, 2017

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
07-09-3171.

Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the brief).

Mary Eva Colalillo, Camden County
Prosecutor, attorney for respondent (Patrick
D. Isbill, Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM
 Defendant Christopher Figueroa appeals from an October 26,

2015 order denying his petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

I.

Charged with two counts of first-degree murder in addition

to other offenses, in 2010 defendant pled guilty to one count of

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1).

During the plea hearing, defendant admitted he was in a vehicle

with two other men on March 8, 2007, when he purposely shot both

in the head after a disagreement over money. Consistent with

the plea agreement, defendant was sentenced to a twenty-five-

year term of imprisonment, with an eighty-five percent period of

parole ineligibility, and the remaining charges were dismissed.

Defendant did not file a direct appeal.

In 2014, defendant filed a PCR petition as a self-

represented litigant; a brief and amended petition were

thereafter filed by his counsel. The principal issues defendant

raised relevant to this appeal were plea counsel was ineffective

because he: (1) failed to file a motion to suppress statements

defendant provided to law enforcement in violation of the Fifth

Amendment;1 2) failed to investigate C.O., an alibi witness; (3)

failed to take into consideration the recantation of a statement

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U.S. Const. amend. V.
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by R.M., a State witness; (4) advised defendant he had no

alternative but to plead guilty; and (5) had a conflict of

interest, which induced counsel to encourage defendant to plead

guilty. Defendant also argued he was entitled to withdraw his

guilty plea because counsel's ineffectiveness forced him to

enter the plea.

In a lengthy, comprehensive opinion, the PCR court denied

defendant's petition without an evidentiary hearing. We briefly

summarize the pertinent evidence.

At 10:50 p.m. on March 8, 2007, the day defendant shot both

men, officers from the Camden Police Department were dispatched

to the location where there had been a report of an automobile

accident. The police found both victims dead in an overturned

vehicle.

One week later, defendant's live-in girlfriend, R.M., gave

a statement to the police. She reported defendant and co-

defendant Jason Rodriguez entered her and defendant's home at

midnight on March 9, 2007. Defendant brought home a black,

plastic bag from which he removed $20,000 in cash. Defendant

gave some cash to the co-defendant and stored the remainder in

their home. R.M. observed blood on defendant's shirt sleeve,

and saw him remove and put his clothes in a plastic bag.

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Defendant then told R.M. he was leaving to discard the clothing

and a gun.

R.M. further reported that, the following day, defendant

returned home and told her he had been with the co-defendant and

both victims the evening before. The four planned to commit a

robbery and obtain $20,000. Defendant told R.M. he had an

argument with one of the victims, and then shot both victims in

the head. At the time of the shooting, the car was still

moving; the car struck a tree and flipped over. Defendant

managed to climb out of the car, taking $20,000 in cash that had

been in the victims' possession.

Defendant also told R.M. he discarded the gun and the

clothes he was wearing at the time of the shooting. He then

gave R.M. $1,000 from the $20,000 he obtained the day before.

R.M. deposited $1,000 into her bank account that day; the police

later confirmed R.M. had in fact deposited this amount into her

account on March 9, 2007.

On March 10, 2007, defendant advised R.M. he had bought a

van and was going to Brockton, Massachusetts, where he was going

to stay with family. He stated he wanted to leave New Jersey

because he expected the police would be looking for him with

respect to "the two dead bodies." Thereafter, R.M. agreed to a

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consent search of her home, where dried blood was found and

tested. The blood matched that of one of the victims.

Approximately six months later, R.M. purportedly hand-wrote

a statement recanting her previous one. This unsigned document

stated her first statement was written to hurt defendant because

he had been unfaithful to her, and that defendant never told her

he had committed the murders. She also stated she wrote the

first statement while recovering from a caesarian section, and

was under the influence of Percocet, Ibuprofen, and Diazepam to

control the pain.

Approximately one month after the incident, C.O. contacted

the police and also provided a statement. She told the State's

investigator she was defendant's girlfriend. She reported that,

on the evening of the incident, she received a telephone call

from defendant between 10:00 p.m. and 10:30 p.m., advising he

was coming over to her home. She recalled the time of day

because FOX News was on television at the time.

C.O. then fell asleep and, at some later point, defendant

arrived and stayed at her home until 8:00 a.m. the following

day. She did not know when he arrived at her home. In 2015,

eight years after she gave her first statement, C.O. purportedly

told defendant's investigator defendant arrived at her home at

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10:00 p.m. on the night of the incident, and spent the night in

her home.

Also relevant to the issues on appeal are the circumstances

surrounding defendant's custodial interview by an investigator

and detective from the Camden County Prosecutor's Office. On

March 17, 2007, defendant was arrested in Brockton for a parole

violation. The investigator and detective traveled to Brockton

to conduct the interview. As depicted on the video-recording of

the interview, just before the interview, a Brockton police

officer read defendant his rights pursuant to Arizona v.

Miranda, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant then signed a document which set forth the

Miranda warnings and a statement advising he had a right to

telephone an attorney, friends, or family at any time.

Defendant also signed that portion of the form stating he was

waiving his Miranda rights and was willing to speak to the

police. Defendant told the officer he understood he only had to

answer questions if he wanted and could stop at any time. The

police also offered and defendant accepted water and crackers.

Also depicted is the investigator and detective's

interview, at the beginning of which defendant confirmed he

received his Miranda rights and knew he did not have to speak to

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them. He also stated that despite his awareness he did not have

to speak to them, he was willing to do so.

At the outset of the interview, the investigator advised

defendant she and the detective wanted to talk to him because he

was implicated in both murders. During the course of the

interview, defendant admitted he stole money from drug dealers

and had purchased two guns the week the victims were killed, but

denied committing the subject homicides.

Four times during the interview defendant complained he was

cold. The detective also commented it was cold in the interview

room and noted defendant was not wearing pants but, as the PCR

court observed, defendant was wearing a hooded sweatshirt, and

other evidence revealed he was wearing "thermals." At one point

during the video-recording, defendant stood up and it is clear

he was wearing pants of some nature. The investigator and

detective were not in heavier clothing, merely wearing suits.

Defendant also commented he had been shot the previous December

and was still recovering from his wounds, but at no time during

the interview did he appear to be in pain or discomfort.

Defendant was indicted six months later, in September 2007.

One year later, his attorney moved to be relieved as counsel

because defendant was not paying his bill in accordance with the

retainer agreement, and was not participating in his defense.
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Counsel later withdrew his motion. Two years later, defendant

pled guilty.

The PCR court made the following findings. On the issue

counsel was ineffective because he failed to file a motion to

suppress defendant's interview with law enforcement, after

reviewing the evidence and various decisional authority, the PCR

court determined defendant knowingly and voluntarily waived his

right to remain silent before he was interviewed. Further, at

no time during the four-hour interview was defendant coerced

into or unable to resist making a statement he was unwilling to

make.

In addition to defendant explicitly stating he knew he did

not have to answer any questions and could stop the interview at

any time, the court observed the police were civil toward him.

The court also noted defendant appeared comfortable and relaxed

throughout the interview, and even "laugh[ed] and smile[d] and

appear[ed] conversant with the . . . interviewers." Thus, the

court determined counsel had not been ineffective for failing to

file a suppression motion, because there was no evidence

defendant would have prevailed had he filed such motion.

As for counsel's alleged failure to interview and evaluate

R.M.'s credibility in light of her recantation, the court found

the recantation inconsequential. The court also rejected the
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A-2450-15T3
claim C.O. allegedly made in 2015 that defendant was in her home

by 10:00 p.m. on the night of the incident, because the document

in which such claim was asserted was not created and signed by

C.O. under oath. See State v. Cummings, 321 N.J. Super. 154,

170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding

when a defendant claims counsel inadequately investigated his or

her case, defendant must assert facts supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification).

In addition, the court found no evidence counsel had a

conflict of interest while representing defendant, not to

mention some two years elapsed from the filing of counsel's

motion to be relieved and the time defendant pled guilty.

Finally, after examining the factors in State v. Slater, 198

N.J. 145 (2009), the court found no basis to grant defendant's

motion to withdraw his guilty plea.

II.

On appeal, defendant raises the following points for our

consideration.

POINT I – THE FAILURE OF THE DEFENDANT'S
TRIAL ATTORNEY TO INTERVIEW TWO WITNESSES,
ONE OF WHOM PRESENTED THE DEFENDANT WITH AN
ALIBI, OR TO PURSUE A SUPPRESSION MOTION
LENDS CREDENCE TO THE DEFENDANT'S CLAIM THAT
HIS TRIAL ATTORNEY'S PERSONAL INTERESTS
MATERIALLY LIMITED HIS ABILITY TO CONSIDER,
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 RECOMMEND OR CARRY OUT THE MOST APPROPRIATE
COURSE OF ACTION.

POINT II – THE DEFENDANT'S TRIAL ATTORNEY
WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE
DID NOT PURSUE A SUPPRESSION MOTION ON FIFTH
AMENDMENT GROUNDS.

POINT III – REVERSAL OF THE PCR COURT'S
DENIAL OF THE DEFENDANT'S MOTION TO WITHDRAW
HIS GUILTY PLEA IS WARRANTED WHERE HIS TRIAL
ATTORNEY WAS NOT IN POSITION TO REVIEW WITH
HIM THE STRENGTHS AND WEAKNESSES OF THE
EVIDENCE BECAUSE HE DID NOT INTERVIEW THE
ALIBI WITNESS.

Although not raised in a separate argument point, defendant also

contends the PCR court erred by denying his motion to withdraw

his guilty plea.

Having reviewed the briefs and the record, we are not

persuaded by any of defendant's arguments and affirm the denial

of defendant's PCR petition for essentially the same reasons

stated in the PCR court's oral decision. However, we add the

following comments.

The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, 105 N.J. 42 (l987). In general, in order to

prevail on a claim of ineffective assistance of counsel,

defendant must meet the following two-prong test: (l) counsel
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A-2450-15T3
made errors so egregious he or she was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the errors prejudiced defendant's

rights to a fair trial such that there exists a "reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064,

2068, 80 L. Ed. 2d at 693, 698.

If seeking to set aside a guilty plea based on ineffective

assistance of counsel, the second prong a defendant must meet is

"there is a reasonable probability that, but for counsel's

errors, [the defendant] would not have pled guilty but would

have insisted on going to trial." State v. Nuñez-Valdéz, 200

N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434,

457 (1994)).

Here, R.M.'s recantation had limited value, because her

original statement was corroborated by other, objective

evidence. For example, in her first statement, R.M. claimed she

saw blood on defendant's clothing within just a couple hours of

the homicides. Blood found in the home matched that of one of

the victim's. Further, her admission she deposited $1,000 of

the $20,000 defendant reported taking from the victims after

shooting them was confirmed by bank records. Other evidence
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neatly coincides with and lends credence to the claims she

asserted in her first statement. Given R.M.'s recantation would

have had limited impact at trial, counsel cannot be faulted for

recommending defendant accept the State's plea offer.

Defendant asserts C.O.'s 2015 statement provided him an

alibi. First, the only statement C.O. made by the time

defendant pled guilty was one in which no exonerating

information was provided. Second, the 2015 statement

contradicts the first statement, making C.O.'s credibility

suspect. Unlike R.M.'s statements, where there was evidence to

show her first statement was valid, there was no evidence C.O.'s

second statement was reliable. Third, C.O. did not certify or

attest the contents of the 2015 statement were accurate.

In addition, although we have not been provided with a

transcript of his guilty plea, we are informed when the co-

defendant pled guilty, he implicated defendant. Shortly

thereafter, defendant pled guilty, as well.

Finally, on the question whether defendant should have

filed a suppression motion, we merely add our Supreme Court has

observed "[i]t is not ineffective assistance of counsel for

defense counsel not to file a meritless motion." State v.

O'Neal, 190 N.J. 601, 619 (2007). Here, defendant failed to

show, as was his burden, his suppression claim was meritorious.
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See State v. Fisher, 156 N.J. 494, 501 (1998). He also failed

to identify an incriminating statement from defendant's

interview.

In the final analysis, defendant failed to meet the first

prong of the Strickland test. Accordingly, we find no error by

the PCR judge in rejecting defendant's claim his counsel's

representation fell below professional norms.

Finally, defendant, who was facing two life sentences,

received a very favorable plea offer of twenty-five years

imprisonment. He has proffered no persuasive argument that, but

for counsel's errors, he would not have pled guilty and would

have insisted on going to trial. That is, defendant failed to

meet the second prong of the Strickland test.

Affirmed.

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