SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 2450
- 15T3

STATE OF NEW JERSEY, Plaintiff

- Respondent,

v.
CHRISTOPHER FIGU EROA, Defendant
- Appellant.

_______________________________________

Submitted May 25, 2017

– Decided 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " cons titute precedent or be binding upon any court . " A lthough 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.

June 20, 2017A - 2450
- 15T3 2 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 2 010 d efendant 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 di sagreement over money. C onsistent 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, d efendant 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 t his appeal were plea counsel was ineffective
bec ause 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

1 U.S. Const. amend. V.A - 2450
- 15T3 3 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
g ave 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.A - 2450
- 15T3 4 Defendant then told R.M. he was leaving to discard th e 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 h ad been in the vic tim s ' possession . D efendant also told R.M . he discarded the gun and the
clothes he was wear ing 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 acco unt 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 f amily. He stated he wanted to leave New Jersey because he expected the police would be look ing for him with respect to " the two dead bodies. " Thereafter, R.M. agreed to aA - 2450
- 15T3 5 consent search of her home, where dried blood was found and
tested. The blood matc hed 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 on e 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 evenin g of the incident, she received a telephone call
from defendant between 10:00 p.m. and 10:30 p.m. , a dvising 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. t he 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 atA - 2450
- 15T3 6 10:00 p.m. o n the night of the incident , and spent th e 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 Brockt on 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 B rockton police officer read defendant his rights pursuant to Arizo na 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 stat ement 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 office r he understood he only had to answer questions if he wanted and could stop at any time. The police also offered a nd 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 toA - 2450
- 15T3 7 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 inte rview, d efendant 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 d etective also com mented 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 , d efendant 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 wo unds , 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.A - 2450
- 15T3 8 Counsel l ater withdr ew his motion . Two years later , defendant pled guilty. The PCR court made the following findings. On the issue
counsel was ineffective because he fail ed 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 intervie wed. Further, at no time during the four

- hour interview was defendant coerced into or unable to resist making a statement he was un willing to make . In addition to defendant explicitly stating he knew he did not have to answer any questions and could st op the interview at any time, t he 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 . . . intervie wers. " Thus, t he 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 evaluat e
R.M. ' s credibil ity in light of her recantation , the court found
the recantation inconsequential . The court also rejected theA - 2450
- 15T3 9 claim C.O. alleged ly made in 2015 that defendant was in her home by 10:00 p.m. on the night of the incident , because the documen t 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 he r case, defendant must assert facts supported by affidavits or certifications based upon the personal knowledge of the affiant or the p erson making the certification ). In addition, t he court found no evidence counsel had a conflict of interest while rep resenting 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, a fter examining the factors in State v. Slater , 198

N.J. 145 (2009) , the court found no basis to gra nt 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,A - 2450
- 15T3 10 RECOMMEND OR CARRY OUT THE MOST APPROPRIATE COURSE OF ACTION.
POINT II
– THE DEFENDAN T ' 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 motio n to withdraw his guilty plea. Having reviewed the briefs and the record, w e 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. Ho wever, 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 a dopted by our Supreme Court in State v. Fritz , 1 05 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) counselA - 2450
- 15T3 11 made errors so egregious he or she was not fu nctioning 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, t he 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 de fendant 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 fir st statement , R.M. claimed she

saw blood on defendant ' s clothing within just a coup le 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 eviden ceA - 2450
- 15T3 12 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 , c ounsel cannot be faulted for recommending defendant accept the State ' s plea offer . Defendant asserts C.O. ' s 2015 statement provided him an alibi. First, t he 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 vali d, 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 acc urate . 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 whe ther 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 n ot to file a meritless motion. " State v.
O ' Neal , 190 N.J. 601, 619 (2007). Here, defen dant failed to show, as was his burden, his suppression claim was meritorious.A - 2450
- 15T3 1 3 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 m eet 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 f avorable 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.