SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5015-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR FELICIANO, a/k/a

HECTOR FELECIANO,

Defendant-Appellant.

______________________________

Submitted October 10, 2018 – Decided

Before Judges Hoffman and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 09-06-2098.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, 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

NOT FOR PUBLICATION WITHOUT THE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.

October 23, 2018
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Defendant Hector Feliciano appeals from an order denying his petition for 

post-conviction relief (PCR) after oral argument but without an evidentiary 

hearing. We affirm, substantially for the reasons expressed in Judge Steven J. 

Polansky's written opinion.

The parties are familiar with the procedural history and facts of this case, 

and, therefore, they will not be repeated in detail here.1

Defendant was charged with first-degree leader of a narcotics trafficking 

network in violation of N.J.S.A. 2C:35-3; first-degree possession with intent to 

distribute a controlled dangerous substance (CDS) in violation of N.J.S.A. 

2C:35-5(a)(1) and -5(b)(1); first-degree possession with intent to distribute a

CDS in violation of N.J.S.A. 2C:35-5(a)(1) and 5(b)(1); and second-degree 

conspiracy to distribute a CDS in violation of N.J.S.A. 2C:5-2 and 2C:35-

5(a)(1), -(b)(1), and -(b)(10).

Defendant pled guilty to first-degree leader of a narcotics trafficking 

network, and was sentenced to a thirty-year sentence with a fifteen-year parole 

ineligibility, to run concurrently with a sentence he was already serving. 

 

1 The chronology is set forth in State v. Feliciano, 224 N.J. 351 (2016) which 

modified and affirmed the judgment of this court. See State v. Feliciano, No. 

A-4290-11 (App. Div. May 6, 2014) (slip op. at 1-50). We incorporate, by 

reference, the facts stated in the prior opinions.
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Mandatory fines and penalties were imposed, along with an additional $200,000 

anti-profiteering fine. This court affirmed his conviction.

I.

In his original pro se petition and the supplemental petition filed by 

counsel, defendant argued he was denied effective assistance of counsel 

because:

(1) Counsel failed to argue that the New Jersey Roving 

Wiretap provision was unconstitutional at the 

suppression hearing, as it does not afford guaranteed 

minimum protections, and no such argument was raised 

on direct appeal;

(2) Counsel failed to disclose that co-defendant Santos 

Cuevas ("Cuevas") received a lesser sentence than that 

called for by the plea agreement;

(3) Counsel failed to challenge the evidence seized as 

a result of the execution of the search warrant as fruit 

of the poisonous tree;

(4) Counsel failed to move to revoke the terms of the 

plea agreement, as petitioner was not sentenced with 

that agreement.

On appeal, he argues:

DEFENDANT WAS ENTITLED TO AN 

EVIDENTIARY HEARING BECAUSE HE MADE A 

PRIMA FACIE SHOWING THAT HE WAS 

ENTITLED TO POST-CONVICTION RELIEF DUE 
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TO THE STATE'S BRADY2 VIOLATION, AND THE 

FACTS WERE OUTSIDE THE RECORD.

II.

The PCR court found that defendant's claim of ineffective assistance of 

trial and appellate counsel with regard to the roving provision of New Jersey's 

Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-9(g), 

and N.J.S.A. 2A:156A-1 to -37, was barred by Rule 3:22-5 because the issue 

was adjudicated both by our Supreme Court and this court.

Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground 

for relief is conclusive whether made in the proceedings resulting in the 

conviction or in any post-conviction proceeding brought pursuant to this rule or 

prior to the adoption thereof, or in any appeal taken from such proceedings." 

Therefore, the record fully supports the PCR court's finding that: "While 

petitioner's claim is cloaked in the language of ineffective assistance of counsel, 

the claims are substantially the same as those argued on appeal – the 

constitutionality of the statute." We agree.

Next, defendant contends that his right to due process under Brady was 

violated because the State purportedly failed to disclose that Cuevas was 

 

2 Brady v. Maryland, 373 U.S. 83 (1963).
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promised a lesser sentence in exchange for implicating defendant as the leader 

of a narcotics trafficking network. He asserts that "the only evidence that would 

sustain [his] conviction for leader of a narcotics trafficking network were 

statements given by [Cuevas]." Defendant claims that had counsel advised him 

of this, he would have proceeded to trial instead of entering a guilty plea because 

Cuevas's credibility could have been impeached at a trial.

In Brady, the Court held that "the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where [it] is 

material either to guilt or punishment, irrespective of the good faith or bad faith 

of the [State]." Brady, 373 U.S. at 87; see also R. 3:13-3. To establish a Brady

violation, a defendant must demonstrate that (1) the prosecutor failed to disclose 

evidence, (2) the evidence was of a favorable character to the defendant, and (3) 

the evidence was material. State v. Parsons, 341 N.J. Super. 448, 454 (App. 

Div. 2001) (citations omitted).

Defendant's trial counsel wrote to the assistant prosecutor on July 15, 

2011, requesting "all extra judicial conversations that you've had with any 

defendants or other attorneys regarding cooperations and deals." She also

clearly stated, "[f]or example, I'm aware that [Cuevas] will get considerably less 

time than [what was in] his original deal for cooperating in other investigations." 
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Defendant, who was copied on the letter, was "well aware that [Cuevas] would 

receive a reduced sentence prior to the time that [defendant] entered his guilty 

plea," as aptly found by the PCR court. Indeed, defendant was sentenced on 

January 13, 2012, and Cuevas was sentenced a week later. Therefore, the record 

fully supports Judge Polansky's finding that defendant failed to establish that the 

State suppressed Cuevas's cooperation.

III.

New Jersey courts follow the rule formulated by the United States 

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish ineffective assistance, a defendant must identify acts or omissions 

showing unreasonable professional judgment, and then must demonstrate that 

these errors had a prejudicial effect on the conviction. State v. Fritz, 105 N.J.

42, 58 (1987). The same standards are applied to ineffective assistance of 

appellate counsel claims. State v. Harris, 181 N.J. 391, 518 (2004).

In reviewing claims of ineffective assistance of counsel, we apply a strong 

presumption that defense counsel "rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment." 

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' 

will not serve to ground a constitutional claim of inadequacy of representation 
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by counsel." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 

(1963)). "The quality of counsel's performance cannot be fairly assessed by 

focusing on a handful of issues while ignoring the totality of counsel's 

performance in the context of the State's evidence of defendant's guilt." State v. 

Castagna, 187 N.J. 293, 314 (2006) (citation omitted). "As a general rule, 

strategic miscalculations or trial mistakes are insufficient to warrant reversal 

'except in those rare instances where they are of such magnitude as to thwart the 

fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. 

Buonadonna, 122 N.J. 22, 42 (1991)).

Judge Polansky reviewed in detail defendant's various claims of 

ineffective assistance of counsel, and duly found, in light of the evidence and 

record, that no Brady violation was established. Counsel was thoroughly 

familiar with the evidence and made strategic decisions about the plea 

agreement. Therefore, defendant failed to demonstrate a prima facie claim of 

ineffective assistance of counsel relative to Cuevas's cooperation with law 

enforcement. Post-trial and post-appeal disagreement with strategy do not 

constitute ineffective assistance of counsel. Castagna, 187 N.J. at 314-15.

We find no error in denying defendant an evidentiary hearing as Judge 

Polansky correctly found that there was no showing of a prima facie case of 
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ineffective assistance of counsel because the constitutionality of the New Jersey 

roving wiretap statute, N.J.S.A. 2A:156A-9(g), was upheld by this court and the

New Jersey Supreme Court, and may not be reopened in a petition for postconviction relief. This is hardly the "casual and superficial representation" 

contemplated in State v. Preciose, 129 N.J. 451, 463 (1992). Defendant has not 

identified any reversible error in his plea or sentencing either.

After carefully considering the remaining arguments, Judge Polansky 

determined that defendant failed to demonstrate that his trial or appellate 

counsel was constitutionally defective. He delineated his sound reasons in a 

careful and thorough thirty-page opinion, which we adopt.

We have fully considered the balance of the arguments raised by 

defendant, and are satisfied that they lack sufficient merit to warrant discussion 

in this written opinion. R. 2:11-3(e)(2).

Affirmed.