SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0323- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ROSENDO S. GOMEZ-SERPAS, a/k/a SALOMON GOMEZ, ROSENDO S. GOMEZ-SERPAS, SALOMON GOMEZSERPAS, SALOMON GOMEZ-SEEPAS, SALOMON G. SERPAS, SALOMON SERPAS, and SALOMON G. SEEPAS, Defendant-Appellant.

___ ________________________

Submitted April 10, 2024

– Decided April 24, 2024 Before Judges Firko and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16

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- 0548. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel , on the brief). NOT FOR PUBLICATION WITHOUT THE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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0323

- 22 William A. Daniel, Union County Prosecutor, attorne y for respondent (Michele C. Buckley, Assistant Prosecutor , o f counsel and on the brief).
PER CURIAM Defendant Rosendo Gomez-Serpas appeals from an Augu st 1, 2022 order and written opinion issued by Judge John M. Deitch denying defendant's petition for post-conviction relief (PCR) without an evidenti ary hearing. Defendant was convicted at trial for murder and related weapons o ffenses. He claims his trial attorney rendered ineffective assistance by failing to file a notice of self-defense. After carefully reviewing the record in light of th e governing legal principles, we affirm.
I. We need only briefly summarize the pertinent facts , which are recounted in detail in our direct-appeal opinion, State v. Go mez-Serpas, No. A- 4250 -17 (App. Div. Feb. 26, 2020). In the early morning ho urs of April 9, 2016, defendant went to a bar in Elizabeth to pick up his girlfriend, Dinora Rodriguez from work. At some point Rodriguez told Mario Orti z 1 a patron at the bar, that she would leave with him, even though she did not i ntend to do so. Rodriguez

1 Ortiz is the victim in this case.3 A- 0323

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explained she did this to induce Ortiz to stay and buy drinks because she was paid for each drink a patron purchased. At the end of Rodriguez's shift, she left the bar t o meet defendant, who was picking her up. Surveillance footage shows def endant waiting for Rodriguez in the vestibule. She exited the bar thr ough the vestibule area with Gloria Rivera, her co-worker. Rivera testified Ortiz was " grabbing [Rodriguez] from her jacket because he wanted to take her with him to his house . . . [s]o at that point she was telling him that she didn't want to go with him because her boyfriend had come to pick her up and she was going to go with him." Defendant confronted Ortiz and told him he was taki ng Rodriguez home. An altercation ensued. This initial confrontation was not captured on video. Rodriguez testified Ortiz "went after [defendant] t o hit him with a belt." Defendant testified in his own defense that Ortiz t ook his belt off and "wrapped it around his hand and threw it at [defendant] and whipped it." Defendant testified that after Ortiz hit him with the belt, d efendant went to his car to retrieve a knife. Outside surveillance video shows defendant enter th e parking lot and walk toward the driver's side door of his car, look behi nd, then walk toward the passenger side of the car. Ortiz follow ed defendant toward defendant's car.4 A- 0323

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Defendant approach ed Ortiz

— with a knife in hand

— and the two began pushing each other. Other persons in the parking lot positioned themselves between defendant and Ortiz to separate them

. Defendant maneuvered around a person standing between the antagonists and lunged a t Ortiz with the knife

. Ortiz then hit defendant with a belt and the two went back and forth. Defendant stabbed Ortiz. Ortiz fell to the ground, got up momentaril y, and fell again, this time lying motionless. Ortiz was pronounced dead. Defendant was arrested at his home approximately ten hours later. In August 2016, defendant was charged by indictment with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and/or ( a)(2) (count one); seconddegree kidnapping, contrary to N.J.S.A. 2C:13-1(b)( 1) (count two); fourthdegree unlawful possession of a weapon, N.J.S.A. 2C :39-5(d) (count three); and possession of a weapon for an unlawful purpose, con trary to N.J.S.A. 2C:39- 4(d) (count four). The State dismissed count two p rior to trial. In January and February 2018, Judge Deitch presided over a jury trial, after which defendant was found guilty on all count s. At the sentencing hearing, Judge Deitch merged the possession of a weapon for an unlawful purpose count into the conviction for murder. He imposed a fifty

- two -year prison term subject5 A- 0323

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to the No Early Release Act, N.J.S.A. 2C:43-7.2. Ju dge Deitch also imposed an eighteen-month prison term on the unlawful possessi on of a weapon count, to run concurrent with the sentence imposed on the mur der conviction.
In February 2020, we affirmed defendant's conviction and sentence. In October 2020, the New Jersey Supreme Court denied d efendant's petition for certification. State v. Gomez-Serpas , 244 N.J. 300 (2020). On October 4, 2021, defendant filed a pro se petiti on for PCR. On April 18, 2022, counsel filed a supplemental petition. On July 26, 2022, Judge Deitch convened a PCR heari ng. On August 1, 2022, he issued a twenty- two -page written opinion, denying defendant's PCR without an evidentiary hearing. This appeal follows. Defendant raises the following sole contention for our consideration:

DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE COUNSEL FAILED TO FILE A NOTICE OF SELF-DEFENSE, DEPRIVING . . . DEFENDANT OF A JURY INSTRUCTION THAT WOULD HAVE COMPLETELY EXONERATED HIM FROM CRIMINAL LIABILITY, AND DEFENDANT WAS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.6 A- 0323

- 22 II. We begin our analysis by acknowledging the legal pr inciples governing this appeal. PCR serves the same function as a fed eral writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR, a defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Ibid. To sustain this burden, the petitioner must allege and articulate specific facts, "which, if believed, would provide the court with an adequate basis on which to rest its d ecision." State v. Mitchell , 126 N.J. 565, 579 (1992). In addressing an ineffective assistance of counsel claim, New Jersey courts follow the two -part test articulated by the United States Supreme Court
in Strickland v. Washington. 466 U.S. 668, 687 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show that coun sel's performance was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland , 466 U.S. at 687). "Second, the defendant must have been prejudiced by counsel's deficient performance." Ibid. (quoting Strickland , 466 U.S. at 687). To meet the first prong of the Strickland/Fritz tes t, a defendant must show "that counsel made errors so serious that counsel w as not functioning as the 'counsel' guaranteed the defendant by the Sixth Ame ndment." Strickland , 4667 A- 0323

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U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's conduct falls within the wide range of reasonable p rofessional assistance. . . . " Id . at 689. "A court evaluating a claim of ineffective assistance of counsel must avoid second-guessing defense counsel's tactical de cisions and viewing those decisions under the 'distorting effects of hindsigh t. '" State v. Marshall, 148 N.J. 89, 157 (1997) (quoting Strickland, 466 U.S. at 689). The second Strickland prong is especially demanding

. It requires the defendant show "that counsel's errors were so serio us as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently, counsel's errors must create a "reason able probability" that the outcome of the proceedings would have been differen t if counsel had not made the errors. Id. at 694. This "is an exacting standard." Gideon, 244 N.J. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008) ). "Prejudice is not to be presumed," but must be affirmatively proven by the defendant. Ibid. (citing Fritz, 105 N.J. at 52, and Strickland, 466 U.S. at 693). Short of obtaining immediate relief, a defendant ma y show that an evidentiary hearing is warranted to develop the fac tual record in connection with an ineffective assistance claim. Preciose, 129 N.J . at 462-63. However, "[i]f the court perceives that holding an evidentiary hea ring will not aid the court's8 A- 0323

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analysis of whether the defendant is entitled to [P CR], . . . then an evidentiary hearing need not be granted." Marshall, 148 N.J. a t 158, 690 (1997) (citations omitted). A PCR court's decision to proceed withou t an evidentiary hearing is reviewed for an abuse of discretion. State v. Vanness, 47 4 N.J. Super. 609, 623 (App. Div. 2023) (citing State v. Brewster, 429 N.J . Super. 387, 401 (App. Div. 2013)). Furthermore, the mere raising of a claim for PCR do es not entitle the defendant to an evidentiary hearing. State v. Cumm ings, 321 N.J. Super. 154, 170 (App. Div. 1999). The PCR court should grant a n evidentiary hearing only when "(1) the defendant establishes a prima facie c ase in support of PCR; (2) the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record; and ( 3) the court determines that an evidentiary hearing is required to resolve the cla ims asserted." Vanness, 474 N.J. Super. at 623 (citing State v. Porter, 216 N.J . 343, 354 (2013)). With respect to the first of these three requiremen ts, "[a] prima facie case is established when a defendant demonstrates 'a rea sonable likelihood that his or her claim, viewing the facts alleged in the ligh t most favorable to the defendant, will ultimately succeed on the merits.'" Porter, 216 N.J. at 355 (quoting R. 3:22 -10(b)). "[V]ague, conclusory, or speculative" all egations are9 A- 0323

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insufficient to warrant an evidentiary hearing. Ibi d. (quoting Marshall, 148 N.J. at 158).
I II

. Defendant contends his trial counsel rendered const itutionally deficient assistance because he failed to file a notice of se lf-defense, depriving the jury of an instruction that would have exonerated him. Defendant argues "[c]ompetent counsel would have immediately recogni zed that the video footage clearly showed Ortiz was the aggressor and the defe ndant armed himself in selfdefense." Judge Deitch carefully reviewed the vide o and reached a contrary conclusion. We too have reviewed the video and agr ee completely with Judge Deitch's findings. Under Rule 3:12

- 1: A defendant shall serve written notice on the prose cutor if the defendant intends to rely on any of the foll owing sections of the Code of Criminal Justice: . . . [in cluding] General Principles of Justification, [N.J.S.A.] 2C: 3-1 to 2C:3-11. . . . No later than seven days before the Initial Case Disposition Conference that is scheduled pursuant to R. 3:9 -1(e) the defendant shall serve on the prosecutor a notice of intention to claim any of the defenses li sted herein; and if the defendant requests or has receiv ed discovery pursuant to R[ ule ] 3:13 -3(b)(1), the defendant shall, pursuant to R[ ule ] 3:13 -3(b)(2), furnish the prosecutor with discovery pertaining to such10 A- 0323

- 22 defenses at the time the notice is served. The pros ecutor shall, within 14 days after receipt of such discove ry, comply with R[ ule ] 3:13 -3(b)(1) and (f) with respect to any defense for which the prosecutor has received notice. In defendant's brief before the PCR court, he cited to the following exchange that occurred during trial counsel's openi ng statement:

[Defense counsel]: [I]n real life a homicide can l ack some of the elements that rise to the level of a mu rder. It can be an aggravated manslaughter or a manslaugh ter or even self-defense. I ask you to pay careful

— The COURT: Sidebar. The COURT: [Defense counsel], I didn't see a [Rule ] 3:12 notice on self-defense. My understanding is s elfdefense is not in the case. [Defense counsel]: I think we discussed this from the beginning that it was. [Prosecutor]: Passion/provocation and you're talki ng he might have a gun and defending against a gun. The COURT: The only discussion I was party to was in chambers and it was a fair warning to the State that the defendant might argue for passion/provocation. 2 There was no reference to self-defense. Self-defens e is a complete defense and requires a notice. There's been no notice, formal or informal.

2 As Judge Deitch noted in his opinion, the defense t rial strategy was to argue for the downgraded offense of passion-provocation m anslaughter, not selfdefense.11 A- 0323

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Defendant's PCR brief does not mention the judge's ruling immediately following the above-quoted exchange:

The COURT: Okay. I'm going to strike the reference to self-defense at this point. That's without prej udice to the defense making an application for that defen se if the facts bear it out. But at this point there's n othing in the case that would even warrant my consideration o f an application to open up that defense. It is well-settled under New Jersey law "[a] trial judge must sua sponte charge self-defense in the absence of a request . . . 'if there exists evidence in either the State's or the defendant's case sufficie nt to provide a "rational basis" for its applicability.'" State v. Galicia, 210 N.J . 364, 390 (2012) (quoting State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div. 2 006)). Here, Judge Deitch stated in his PCR opinion, "[t]he [trial] court's r uling is significant in connection with the issue of prejudice caused by the failure t o file the notice. In the first instance, the defense was not precluded from presen ting evidence to support self-defense. Indeed, [defendant] testified as to his version of events." Judge Deitch concluded the facts did not support a self-defense charge, reasoning: PCR counsel relies heavily upon the testimony of Ms

.

Rivera who told the jury that she initially told th e police that Mr. Ortiz was waiving his belt at the [defenda nt] prior to [defendant] getting the knife. However, h er testimony was belied by the clear video evidence in the12 A- 0323

- 22 case. The video shows Mr. Ortiz putting on his jac ket when walking to the parking lot, not taking off his belt. [Defendant's] testimony to the effect that he was b eing attacked by Mr. Ortiz and another man who were both using their belts to whip him while in the parking lot is also completely controverted by the video evidence. The video evidence shows that Mr. Ortiz did not tak eoff his belt until he was approached by the knifewielding [defendant]

. We agree there was no rational basis upon which to charge the jury on self-defense. N.J.S.A. 2C:3-4 provides "[t]he use of force upon or toward another person is justifiable when the actor reason ably believes that such force is immediately necessary for the purpose of protect ing himself against the use of unlawful force by such other person on the prese nt occasion." The statute further provides: The use of deadly force is not justifiable under

this section unless the actor reasonably believes t hat such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if: (a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force agai nst himself in the same encounter; or (b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he h as no duty to take. . . .13 A- 0323

- 22 [N.J.S.A. 2C:3-4(b)(2).] Judge Deitch carefully reviewed the video evidence and concluded there was an insufficient basis to charge the jury on sel f-defense. We reproduce verbatim Judge Deitch's precise account of the vide o surveillance recording:

5:40 3

– [Defendant] enters the parking lot alone and heads straight for his car. Mr. Ortiz is over fort y feet away from him. 5:51

– Mr. Ortiz follows the [defendant] to his car. [Defendant] is on the passenger side retrieving his knife. 5:54

– [Defendant] closes the passenger door and charges Mr. Ortiz, pushing him backwards. 6:06

– [Defendant] and Mr. Ortiz begin to push each other back and forth while bystanders attempt to separate the two of them. 6:23

– [Defendant] and Mr. Ortiz are still yelling at each other and gesticulating with bystanders keepin g them apart. Each time the [defendant] approaches M r. Ortiz, Mr. Ortiz backs away. 6:43

– While separated by a distance of approximately fifteen feet, the [defendant] runs around a male attempting to keep the parties separate and charges Mr. Ortiz, lunging at him with the knife. Mr. Ortiz sw ings his belt at . . . [defendant]. [Defendant] then pr esses his attack, stabbing Mr. Ortiz in the chest, knocking h im to

3 These numbers denote the minutes and seconds elapse d in the video recording, not the time of day.14 A- 0323

- 22 the ground. [Defendant] runs away to his car. Mr. Ortiz gets up, walks a few paces, then collapses and expi res. Applying these facts to governing legal principles, Judge Deitch concluded "[defendant] was the aggressor. [Defendant] was th e only party armed. [Defendant] had consistent and ongoing opportunitie s to retreat in complete safety. [Defendant] was not entitled to the defens e of self-defense." Judge Deitch added, "[b]ecause of the overwhelming video evidence, [defendant] is unable to demonstrate that he was prejudiced as a r esult of counsel's failure to file the notice." We agree with Judge's Deitch's fact-sensitive analy sis. We add that far from retreating

— despite ample opportunity to do so safely

— defendant essentially charged at the victim after having retr ieved a knife from his car. In these circumstances, defendant cannot establish the first prong of the Strickland/Fritz test because there was nothing ine ffective in counsel's strategic election to eschew a meritless self-defense theory in favor of a passionprovocation defense. 4 Nor can defendant establish the second Strickland/F ritz prong; any such defense would likely have been unav ailing given that defendant

4 As Judge Deitch noted in his written PCR opinion, a passion/ provocation jury charge was given, but the jury declined to convict on the downgraded manslaughter offense, instead returning a guilty ve rdict on the first-degree murder charge.15 A- 0323

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was the aggressor and failed to satisfy the duty to retreat before employing deadly force. In these circumstances, defendant ha s not established a prima facie case warranting an evidentiary hearing, much less a new trial. See Cummings, 321 N.J. at 170. Affirmed.