Opinion
DOCKET NO. A-3879-09T1
01-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSHUA BURGOS, Defendant-Appellant.
Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief). Jenny M. Hsu argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Hsu, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0696.
Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).
Jenny M. Hsu argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Hsu, Deputy Attorney General, of counsel and on the brief). PER CURIAM
On April 25, 2008, a Middlesex County Grand Jury returned Indictment No. 08-04-00696, charging defendant Joshua Burgos with first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) and 2C:5-2 (count one); first-degree attempted murder of Nicholas Dennis, N.J.S.A. 2C:11-3(a) and 2C:5-1 (count two); first-degree attempted murder of Roberto Rodriguez, N.J.S.A. 2C:11-3(a) and 2C:5-1 (count three); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b)(1) and 2C:5-2 (count four); second-degree aggravated assault of Nicholas Dennis, N.J.S.A. 2C:12-1(b)(1) (count five); second-degree attempted aggravated assault of Roberto Rodriguez, N.J.S.A. 2C:12-1(b)(1) (count six); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) and 2C:44-3(h) (count seven). Following a six-day trial, defendant was convicted by a jury of counts one, three, four, five, six, and seven.
Co-defendants Angel Valentin, Andrew Hoffman, Clifford Russell Van Dyke, Kevin Olivares, Jorge Vazquez, Calvin James Savage, and Luis Otero were also charged under this indictment on all counts. They all pled guilty.
On November 9, 2009, the court sentenced defendant to an aggregate term of twenty-five years imprisonment. On count one, defendant was sentenced to fifteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on count three, defendant was sentenced to a consecutive ten-year term, subject to NERA. Defendant received a ten-year term each on counts four and five, and a five-year term each on counts six and seven, all to be served concurrently with count one. This appeal ensued.
On appeal, defendant argues:
POINT IBased on our review of the record and applicable law, we are not persuaded by defendant's challenges to his convictions. Although in its brief the State argued the imposition of consecutive sentences on counts one and three was appropriate, at oral argument counsel conceded that the counts should have been merged because they involve a conspiracy and substantive charge involving the same victim (Rodriguez). The State agreed that the matter should be remanded for resentencing but urged that a consecutive sentence is warranted with count five, aggravated assault on Dennis, and the twenty-five year aggregate sentence is legal under the guidelines and still appropriate. We remand for resentencing as hereafter discussed within the court's discretion as permitted by law.
THE TRIAL COURT ABUSED ITS DISCRETION IN REMOVING JUROR NUMBER SIX OVER DEFENDANT'S OBJECTION WITHOUT A FINDING OF GOOD CAUSE.
POINT II
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS TO A PUBLIC TRIAL BY BARRING DEFENDANT'S FATHER FROM THE COURTROOM WITHOUT A FINDING OF GOOD CAUSE.
POINT III
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY CONCEDED GUILT IN SUMMATION AND REFERRED TO MATTERS OUTSIDE THE RECORD THAT DEFENDANT "KNOWS."
POINT IV
THE MATTER SHOULD BE REMANDED FOR SENTENCING, IF THE CONVICTIONS STAND.
A. THE SENTENCE WAS BASED ON A MISTAKEN BELIEF ABOUT THE MAXIMUM SENTENCE FOR ATTEMPTED MURDER.
B. THE TRIAL COURT MADE NO FINDINGS TO SUPPORT CONSECUTIVE SENTENCES.
I.
The following testimony and evidence was adduced at trial. The State presented the testimony of Perth Amboy Police officers Rene Harris and Brandon Bucior, and Detectives Reuben Harris, Mabner Terron, and Kenneth Puccio; Middlesex County Prosecutor's Office Investigator John Marotta; victims Dennis and Rodriguez; Dr. Meredith Tinti, Dennis' trauma surgeon; co-defendants Otero, Savage, Olivares, Van Dyke, Valentin, and Hoffman; and Michael Thielman. Defendant did not testify and presented no witnesses on his behalf.
On December 22, 2007, while at a party at his cousin Valentin's house on Harrington Street in Perth Amboy, defendant and Savage began arguing with Rodriguez. Defendant's gold chain was broken in the altercation. Rodriguez left the party and went to New Brunswick Avenue in Perth Amboy where his uncle, Dennis, resided. Believing Rodriguez was in possession of his chain, defendant, along with co-defendants, made several threatening phone calls to Rodriquez. According to Rodriguez, he told defendant he would return the chain and drove back to Harrington Avenue, but defendants were hostile to him and unreceptive to his suggestion to call a truce. Rodriguez thus returned to his uncle's house. Ultimately, defendant determined he would go there with a show of force to retrieve his chain.
Two vehicles departed from Harrington Street. Valentin drove a Mercury Mountaineer SUV containing defendant, Hoffman, Olivares and Van Dyke. Vazquez drove a Toyota Corolla containing Otero and Savage. The cars drove to Dennis' house, where someone tossed a trash can at Rodriguez's car, then proceeded to a Hess gas station where defendant exited the SUV and entered a black BMW that had met them there. The three-car caravan then proceeded to New Brunswick Avenue.
As Rodriguez and Dennis stepped outside to check the damage to Rodriguez's car, Dennis testified he saw a car back up on New Brunswick Avenue, from which two shots were fired, and he was struck in the abdomen and lower left leg. Rodriguez saw the SUV and a smaller vehicle behind it and testified the shots came from the driver's side of the SUV. The first bullet permanently lodged in Dennis' right hip. Dr. Tinti performed a femoral artery bypass and inserted a titanium rod from Dennis' knee to his ankle to repair his fractured tibia. She explained that he could have bled to death had he not received the emergency surgery.
When defendants were brought in for questioning, each co-defendant told police defendant had called his "boys from New York" to bring "burners," a street name for guns. All six co-defendants who testified said that defendant was riding in the BMW when two gunshots were fired from that car.
On the third morning of trial, the prosecutor alerted the judge to the occurrence of a non-verbal communication between juror number six and defendant's father. The following exchange took place:
Prosecutor: Judge, I notice[d] during some of the testimony [that] sitting behind me is the Defendant's father. He's sitting behind me and he has a small child with him that's playing with a truck. There was interaction, not spoken, between I believe [Juror Number Six]. . . .The prosecutor advised he was aware the man was defendant's father because the man had previously approached him at a gym and started talking about the case, but counsel cut him short.
Court: [] Juror Number Six.
Prosecutor: It is her, yes.
There's been some laughing back and forth. In fact, I could tell you that Defendant's dad was sitting right here like this and his son has a cute little truck, and he's rubbing his head and he's smiling back and forth to the juror.
Now, for the juror to think that's cute, I don't have an issue with that. He's a cute kid and it's a cute little truck and
everything. The problem is this man is on trial, and the way Defendant's father is like this and doing all this stuff is -- can only be done to influence that juror and make her feel bad for the Defendant, young- looking guy, and clearly the family -- look at this kid, he looks like a little mini Joshua Burgos.
I think it's highly inappropriate . . . for that type of interaction.
The court, commenting "this is a public courtroom[,]" declined to ban defendant's father from the courtroom at that time, but told defense counsel to instruct him to sit in the back row and to avoid any future verbal or nonverbal contact with the jury. The court then broke for lunch.
After lunch, the prosecutor informed the court that while the judge and attorneys were at sidebar, Assistant Prosecutor Christine Bevacqua observed juror number six engaging in conversation with defendant's father. He also advised the court that defendant's father approached Dr. Tinti, stating he works in the same hospital and started engaging her in conversation. The prosecutor requested defendant's father be barred from the courtroom.
The court conducted the following voir dire with juror number six:
Court: Hello, I just wanted to ask you some questions.At the prosecutor's request, the court then asked the juror whether defendant's father replied to her.
Juror: I know just what it's about.
Court: Okay. There's a gentleman that was sitting with a child. Did you guys have any conversation?
Juror: No. He was playing with the toy, one of those toys, it goes together and it makes a car.
Court: Transformer.
Juror: All right.
. . .
Juror: . . . I saw the toy and I said, "I love those" to the father, or whoever he was. That's all. I just said, "I love those."
Court: Do you know what his relationship is, if any, to this trial?
Juror: I have no idea. I, frankly, thought he was a Detective.
Court: Okay. I can't tell you. He's not, by the way. Do me a favor, the Officer is going to put you in another room for two or three minutes, and let me talk to the [a]ttorneys and see if we have any other questions. Okay?
Juror: Sure. I knew I shouldn't have even looked that way. When I saw him doing this, I thought I love those things, and of course, I don't have any children any more.
[(Emphasis added).]
Court: One thing I didn't ask you, did he say anything to you?The prosecutor maintained he thought he saw defendant's father responding to juror number six. He expressed concern that defendant's father "in his own way" was "trying to get favor[,]" reiterating the prior episode in the gym and the father's approaching of the State's witness Dr. Tinti in court that day.
Juror: No, not at all.
Court: Nothing at all?
Juror: Not at all, no.
Court: Okay. Do you think the fact that there was some guy in the back with a child would factor in any way, shape or form your duties here?
Juror: Absolutely not, absolutely not.
Court: Go back and let me talk to these guys.
[(Emphasis added).]
The court then asked defendant's father "not to come back into the courtroom[,]" elaborating:
It's possible that I might change that ruling tomorrow, but as of right now, as a result of maybe intentional, maybe unintentional interaction you were having with one of the jurors when you were holdingThe judge advised he was not inferring an ill motive on defendant's father's part when he spoke to Dr. Tinti but cautioned that "[t]he appearance of that in and of itself is not good." The judge thus directed him not to have any further contact and to have a seat outside. Defendant's father acknowledged his understanding. The record reflects no request by defendant for his father to re-enter the courtroom at any time during the trial.
your child, it's best you not be here to ensure the integrity of the process.
Number Two, you are not to, under any circumstances, talk to, go up to, speak to, [or] look at any witness, doctors or layperson in this trial.
[(Emphasis added).]
The proceedings resumed and the court questioned the assistant prosecutor during the next break regarding her observations.
Court: Ms. Bevacqua, what is it that you observed . . . or saw with reference to the gentleman seated in the back, and Juror Number Six or any other juror?
Ms. Bevacqua: Judge, I observed -- when I came in, I observed that juror, the man, gentleman seated in the first row, and at some point during the course of the proceedings this morning I observed a woman walk in with a little boy. The woman sat in the back. The boy --
Court: Sat with his --
Ms. Bevacqua: Sat with the gentleman. The gentleman was being --
Court: Affectionate with the child. Ms. Bevacqua: Extremely affectionate, and the child was showing him a toy car which transformed into something else. I'm assuming it was a Transformer.
At some point, the [c]ourt went to sidebar and Juror Number Six was looking, smiling, and I saw a communication between the gentleman.
Court: You saw a communication?
Ms. Bevacqua: I couldn't -- he was trying to say something to her and she -- I could see the mouth, but from where I was seated I couldn't see exactly what they were saying, nor did I hear anything; but he was -- and the gentleman was smiling and attempting, at a later point, to get her attention.
. . . .
Ms. Bevacqua: I did see that the woman was enamored with the child, Judge, and I would agree with that. And the only other thing I observed -- I didn't know who the gentleman was until he, I believe, seemed to be a relative when he whispered to the child, "Say hi to Josh," and the little boy then attempted to contact the Defendant by going "Pssssst," but the Defendant didn't hear.
[(Emphasis added).]
The prosecutor argued for the juror's removal, urging that based on these observations, defendant's father did, in fact, speak to the juror, and the juror was not being honest with the court when she denied the communication. The prosecutor further argued that the risk of prejudice resulting from the juror removal was minimal, as deliberations had not yet begun and there would still be one remaining alternate. Defense counsel opposed the juror's removal, arguing the juror had believed defendant's father was a detective and did not know he was a family member, and it would be prejudicial for defendant to have less than fourteen jurors to hear his case.
Nonetheless, the judge "by and large [did not] believe this woman did anything inappropriate and certainly nothing knowingly inappropriate. [He] believe[d] she was totally candid with [them] when [they] spoke to her. [He] believe[d] she thought the gentleman was, in fact, an Investigator, maybe, or Detective." The judge explained his reasons for removing the juror as follows:
There was a communication. It may not have been verbal, it may not have been prejudicial, but there was a communication; albeit, it could have been because of the child; albeit, it could have been because of the empathy that the woman had for the father and child, could have been any of those things, could have been totally innocuous; but now we have somebody on the panel who is aware that this child and this gentleman are nice people, if you will. There's an empathetic feeling, if you will, and when she walks outside, she could see this gentleman with dad.
. . . .
I'm particularly concerned with -- and I believe the Prosecutor's factual account. She's telling me, I believe, one hundred percent honestly what she recalls and how she saw it, that, in fact, the gentleman said something about, you know, "Say hello to Josh," and he whispers, "Psssssst," to try to get his attention. I didn't see it, but I believe Ms. Bevacqua when she says she saw that.
At the conclusion of trial, the jury convicted defendant of all the charges except for count two, the attempted murder of Dennis. At the sentencing hearing, the prosecutor informed the court that the maximum sentence for attempted murder was thirty years. The prosecutor requested consecutive terms based, in part, on two victims, and a minimum of a thirty-year sentence. The judge imposed a fifteen-year sentence on count one (conspiracy to commit murder) and a ten-year consecutive sentence on count three (attempted murder of Rodriguez), with no further explanation beyond that it was his intent to impose a twenty-five year sentence. The other counts were made concurrent.
II.
Defendant first argues the court violated his right to be tried by an impartial jury when it excused juror number six in the middle of trial without a finding of good cause. According to defendant, the juror's interaction with defendant's father was brief and unilateral, and the juror unequivocally stated she could be fair and impartial, an assessment on which the court cast no doubt. In excusing the juror, defendant argues "the court essentially allowed the State to exercise a mid-trial preemptory challenge[,]" an action "unsupported by good cause and prejudicial to [d]efendant[,]" thereby warranting a new trial.
The State notes that the court found the juror had engaged in an inappropriate communication with defendant's father, however innocent it may have been, and "[t]he court acted reasonably to protect the rest of the empanelled jury from possible prejudice[.]" The State submits that the court did not exercise a preemptory challenge but, rather, exercised its discretion to ensure a fair and impartial trial untainted by extraneous influences. We agree.
Once a trial has commenced, "the court for good cause shown may excuse any [juror] from service provided the number of jurors is not reduced to less than 12 or 6 as the case may be or such other number as may be stipulated to." R. 1:8-2(d)(1). The discharge of a juror during a trial "is committed to the sound discretion of the trial court." State v. Mance, 300 N.J. Super. 37, 55 (App. Div. 1997). On appeal, "[a] reviewing court will not disturb the trial court's ruling absent a clear showing that the trial court abused its discretion in refusing to excuse the juror or the defendant suffered harm." Ibid.
Before removing a juror, the trial judge should question the juror to determine if the juror had been engaged in appropriate communication or if her ability to render a fair decision had been impaired. State v. Reevey, 159 N.J. Super. 130, 134 (App. Div.), certif. denied, 79 N.J. 471 (1978). Here, the judge followed the proper procedure by questioning juror number six about her communication with defendant's father. The judge said he found the juror to be candid when she said she believed the man to whom she was speaking was an investigator or a detective. The judge did not say he found she was candid when she denied that defendant spoke to her; to the contrary, the judge stated he "believe[d] the Prosecutor's factual account[,]" which included an unequivocal observation of defendant's father, at a minimum, trying to say something to the juror. It is of no moment that the interaction may have been innocent. Although the juror did not believe her ability to hear the case fairly was affected, the judge found the interaction created "an empathetic feeling" and made the discretionary choice to remove the juror from the panel. "Preservation of the jury's independence from extraneous . . . influences is a value repeatedly confirmed by this Court." State v. Corsaro, 107 N.J. 339, 350 (1987).
Moreover, "[a] defendant is not entitled to any particular juror, but only to an impartial jury of 12 individuals." Reevey, supra, 159 N.J. Super. at 134. "The very reason for having the alternate jurors was to enable the proceedings to continue with at least the required twelve jurors if during the course of the trial a juror was, for any reason, no longer able to serve." State v. Belton, 60 N.J. 103, 108 (1972). Juror number six was excused significantly before deliberations commenced — the State's case had not as yet concluded and trial continued for two more days — and there was another alternate juror. Accordingly, we discern no prejudice to defendant by the court's discretionary ruling.
Defendant, relying on State v. Cuccio, 350 N.J. Super. 248, 265 (App. Div.), certif. denied, 174 N.J. 43 (2002), next argues the court violated his right to a public trial when it barred his father from the courtroom for playing with his grandson. Defendant emphasizes that his father was not cautioned up until that point and was barred from the courtroom without a finding of misconduct. This, defendant contends, violated his right to a public trial, and he need not show actual prejudice to warrant a new trial.
The State argues the trial court reasonably decided to "temporarily exclude" defendant's father from some of the proceedings when it came to light that he engaged in improper communication with a sitting juror, and spoke with a testifying witness before she took the stand. According to the State, the court's overarching interest in preventing juror and witness contamination justified the removal for the balance of the afternoon. Moreover, although the court left open an opportunity for future reconsideration of the ruling, defendant made no such application.
The United State Constitution and the New Jersey Constitution guarantee a criminal defendant the right to a public trial. U.S. Const., amend. I and VI; N.J. Const. art. I, ¶ 6; State v. Venable, 411 N.J. Super. 458, 462-63 (App. Div.), certif. denied, 202 N.J. 347 (2010). Open trials help to ensure the "consistency and integrity" of the judicial process, Smith v. Smith, 379 N.J. Super. 447, 451 (Ch. Div. 2004), and keep the judge and jury "'keenly alive' through the 'presence of interested spectators[.]'" Venable, supra, 411 N.J. Super. at 463 (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31, 38 (1984)). This right is not, however, absolute. Cuccio, supra, 350 N.J. Super. at 260. A closure is permissible where "essential to preserve higher values and is narrowly tailored to serve that interest." Ibid. (quoting Press-Enter. v. Superior Court of California, 464 U.S. 501, 510, 104 S. Ct. 819, 824, 78 L. Ed. 2d 629, 638 (1984)).
Where a defendant is denied the right to a public trial, the error is considered "structural" and requires a reversal of a conviction without a showing that the defendant was prejudiced by the infringement, unless the exclusion was "too trivial" to be considered a violation of the defendant's rights. Venable, supra, 411 N.J. Super. at 463-64. The triviality standard is not to be confused with the harmless error standard. Id. at 464. It "does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer 'prejudice' or 'specific injury.'" Ibid. (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d. Cir. 1996)). Rather, it looks "to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant — whether otherwise innocent or guilty — of the protections conferred by the Sixth Amendment." Ibid. (quoting Peterson v. Williams, supra, 85 F.3d at 42). In assessing the triviality of an exclusion, the court should:
"look to the values the Supreme Court explained were furthered by the public trial guarantee, focusing on (1) ensuring a fair trial, (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their function, (3)
encouraging witnesses to come forward, and (4) discouraging perjury."
[Ibid. (quoting Gibbons v. Savage, 555 F. 3d 112, 121 (2d. Cir. 2009), cert. denied, 130 S. Ct. 61, 175 L. Ed. 2d 233 (2009)).]
In Venable, the trial court, due to overcrowding, ordered that members of the defendants' family and the victim's family be removed from the courtroom during jury selection for security reasons. Supra, 411 N.J. Super. at 462. On appeal, we found the removal too trivial to amount to a violation of the defendant's constitutional right to a public trial. Id. at 467. By contrast, in Cuccio, we found error when the trial court excluded defendant's family and other spectators from the courtroom during jury voir dire. Supra, 350 N.J. Super. at 265. We distinguished Venable from Cuccio on the basis that "the closure in [Venable] was a partial one, limited to members of the victim's and defendants' families[,]" whereas in Cuccio, the courtroom was completely closed to all spectators. Venable, supra, 411 N.J. Super. at 466. We also noted in Venable that the case "did not involve a situation, such as in Cuccio, where a member of the defendant's family was qualified and prepared to assist in his defense if allowed to remain in the courtroom." Id. at 467. We further noted the lack of objection to the removal, although we refrained from expressing an opinion on whether the failure to object to the exclusion of family members constituted a waiver. Id. at 466 n.3.
Here, defendant did not object to the removal of his father from the courtroom. Although the judge expressly left open the opportunity for future reconsideration of his ruling, defendant never availed himself of the opportunity to have his father re-enter and made no such application. Moreover, the courtroom was not closed to any other member of defendant's family who may have wanted to attend or to other members of the public. Under the circumstances, we discern no abuse of discretion in the judge's ruling, but even if the exclusion is deemed to be an error, we are satisfied it was "too trivial" to be considered a violation of defendant's rights warranting reversal.
We turn now to defendant's ineffective assistance of counsel argument, which he contends can be resolved without an evidentiary hearing, and urges we address on direct appeal rather than on a subsequent post-conviction relief (PCR) petition. He relies on State v. Harrington, 310 N.J. Super. 272, 282 (App. Div.), certif. denied, 156 N.J. 387 (1998), where we reversed and remanded for a new trial based on the defendant's claim that "he was deprived of the effective assistance of counsel by reason of his trial attorney's highly damaging concession." We held that by conceding "defendant's guilt of robbery, [the] defense counsel assured his conviction for felony murder[,]" which was "an unthinking blunder[,]" and concluded that "nothing in the record suggests that this was a deliberate tactical or strategic decision." Ibid.
Defendant contends his trial attorney's concession in summation that he was guilty of aggravated assault, albeit a third-degree "significant" bodily injury assault, implied that defendant was responsible for the shooting since the aggravated assault occurred through the shooting. Defendant also takes issue with defense counsel's statement that "Mr. Burgos knows that when he allegedly made the statement to Mr. Oliveras, nobody heard him on the telephone[,]" arguing that "[b]ecause defendant did not testify or give a statement to police, a reasonable jury would infer that in discussing what [d]efendant 'knows,' counsel could only be talking about attorney-client communications." Additionally, defendant contends this line of argument seems to admit he made "the 'burners' statement, albeit under circumstances where no one could have heard it." Defendant also disapproves of counsel's remarks that "Mr. Burgos[,] when he jumped into the BMW for the Hess Station . . . it was payback time . . . . The payback was to commit an assault[,]" and criticizes defense counsel for ignoring Rodriguez's testimony that he observed only the SUV when the shots were fired and did not implicate the BMW in which defendant was traveling.
The State asserts defendant's claims against counsel would be better litigated in a PCR petition as they involve strategic decisions that lie outside the trial record. Alternatively, the State contends the bare record demonstrates counsel's effective assistance throughout the trial and during summations when he attempted to gain an acquittal on the most serious charges, in part, by conceding to the lesser-included offenses.
Ineffective assistance of counsel claims are governed by the Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), standard, which has been adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The Strickland test requires a two-part showing:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]
Usually, ineffective assistance of counsel claims are best addressed in a PCR petition rather than "direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996). However, where the record is sufficient to resolve the issue of ineffective assistance of counsel, it is appropriately raised and disposed of on direct appeal. State v. Castanga, 187 N.J. 293, 313 (2006).
We are not persuaded the challenged portions of defense counsel's summation, including his concessions, are so clear on their face that we would be able to conclude solely from the trial record whether such comments constituted "unthinkable blunder[s]" or trial strategy and whether, for example, they assured his conviction for attempted murder of Rodriguez. We note, for example, that six co-defendants testified defendant was in the BMW from which the shots were fired and defense counsel had to acknowledge some of the weaknesses in his case. As the record does not sufficiently explore defense counsel's chosen strategies, we decline to address this argument on direct appeal. If defendant chooses, he may assert this claim on PCR.
We turn now to defendant's challenges to his sentence. Defendant argues his sentence was based upon a mistaken belief that the maximum sentence for attempted murder was thirty years and, as a result of this error, the court did not start from the proper sentencing range, a structural error that cost him a proper sentencing proceeding. He also challenges the court's lack of findings to support the imposition of consecutive sentences, and misapplication of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in imposing consecutive sentences on counts one and three involving the same victim, Rodriguez, and a single act, an error that warrants a remand for resentencing. Defendant concedes that the court could have imposed consecutive sentences on other counts with different victims but urges that it did not.
As previously stated, the State now concedes that counts one and three should be merged. Counsel urges, however, that the matter should be remanded for restructuring of the sentence, not just merger and resentencing on the single count, and that the twenty-five year aggregate sentence is an appropriate sentence. See State v. Rodriguez, 97 N.J. 263, 277 (1984) (holding that "the appeal of a defendant's underlying convictions resulting in a merger removed any legitimate expectation of finality with respect to his original sentence" and the defendant can be resentenced without violating the double jeopardy clause of the federal and state constitutions, provided the new sentence in the aggregate is not in excess of the originally imposed sentence). See also State v. Haliski, 140 N.J. 1, 21-23 (1995); State v. Espino, 264 N.J. Super. 62, 68-69 (App. Div. 1993); State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005).
Defendant was convicted of the attempted murder of Rodriguez. N.J.S.A. 2C:11-3(a) and 2C:5-1. An attempt to commit murder is a crime of the first degree, for which a defendant shall be sentenced to between ten and twenty years, unless the defendant attempted or conspired to murder five or more persons, in which case, the defendant shall be sentenced to a term of thirty years. N.J.S.A 2C:5-4; N.J.S.A 2C:43-6(a)(1). A completed murder is a first-degree crime carrying a minimum sentence of thirty years. N.J.S.A. 2C:11-3(b)(1). Defendant correctly points out that the prosecutor misspoke in informing the court that the maximum sentence for attempted murder in the context of this case was thirty years.
We do not limit the resentencing remand to the merger of counts one and three, but permit the court to review defendant's sentence in accordance with the Rodriguez principles. We cannot glean from the record whether or not the court's intent to impose an aggregate twenty-five year term was based on the above misconception. On resentencing, the court should be cognizant of the proper range for count three, and should perform an appropriate analysis and articulation of the Yarbough factors if consecutive sentences are imposed with other counts.
We affirm the convictions and remand for resentencing consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION