                                NOT FOR PUBLICATION WITHOUT THE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-5117-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

YOHAN BALCACER, a/k/a
JOHAN RIBAS-BALCACER,

           Defendant-Appellant.


                    Submitted May 30, 2019 – Decided June 28, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 12-02-0302.

                    Joseph E. Krakora, Public Defender, attorney for appellant
                    (Kevin G. Byrnes, Designated Counsel, on the brief).

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (William P. Miller, Assistant Prosecutor, of
                    counsel and on the brief; Catherine A. Foddai, Legal
                    Assistant, on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Yohan Balcacer appeals from the April 17, 2018 Law Division

order denying his petition for post-conviction relief (PCR) after an evidentiary

hearing. We affirm.

                                          I.

      Defendant was convicted by a jury of third-degree possession of imitation

controlled dangerous substances with the intent to distribute, N.J.S.A. 2C:35-11, and

second-degree eluding, N.J.S.A. 2C:29-2(b). He was acquitted of twelve other

offenses. On July 25, 2014, Judge James J. Guida, J.S.C., sentenced defendant to

four years with two years of parole ineligibility on the possession with intent charge,

to be served consecutively to eight years imprisonment with four years of parole

ineligibility on the eluding charge.     Defendant's appeal was denied.       State v.

Balcacer, No. A-0264-14 (App. Div. Nov. 15, 2016). The Supreme Court denied

certification on February 7, 2017.       State v. Balcacer, 229 N.J. 157 (2017).

Thereafter, defendant filed a pro se PCR petition and brief, and his assigned counsel

also filed a brief on his behalf. Judge Guida coincidentally was the judge who heard

the PCR petition. He initially found defendant had made a prima facie case of

ineffective assistance and ordered an evidentiary hearing. After the evidentiary

hearing, however, Judge Guida denied defendant relief.


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                                          2
        The details of the underlying offenses are set forth in the unpublished opinion.

See Balcacer, slip op. at 2-6. Suffice it to say defendant fled the scene of a $100,000

drug deal/robbery plan involving undercover agents. He drove into the Bronx and

police broke pursuit; he was apprehended some days later. At trial, a co-defendant

testified against him. Obviously, the two were acquainted. Defendant was identified

by others as well, including the undercover officer.

        At trial, Judge Guida queried defendant fully regarding his waiver of his right

to testify. In addition, the judge asked defendant if he wanted the jury to be

instructed that defendant's waiver of his right to testify was a factor not to be

discussed during deliberation. See Model Jury Charges (Criminal), "Defendant's

Election Not to Testify" (rev. May 4, 2009). Defendant confirmed he wanted that

instruction given, and the judge had defendant sign a form to that effect.

        Following denial of his appeal, defendant filed a pro se PCR petition arguing

his trial counsel had been ineffective in failing to request a Wade1 hearing,

preventing him from testifying at trial, and deciding not to call certain alibi witnesses

at trial. At the January 2018 PCR hearing, the trial court found, by oral decision,

that given the co-defendant's acquaintance with defendant, any challenge to

identification, such as by a motion for a Wade hearing, would have been futile. The


1
    United States v. Wade, 388 U.S. 218 (1967).
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                                            3
judge also recalled discussing with defendant his waiver of his right to testify, and

his request that the jury be given the Model Jury Charge. He concluded the record

simply did not support a claim that defendant's waiver was not knowing and

intelligent. As for the final issue regarding alibi witnesses, the trial court reserved

judgment.

      A couple weeks after the PCR hearing, the judge filed a written decision

ordering an evidentiary hearing to address whether counsel had been ineffective in

failing to call two alibi witnesses. This issue arose during the trial, and in fact,

counsel had investigated their viability. In support of defendant's PCR petition, the

witnesses submitted two affidavits. They were in English even though neither spoke

the language. One alibi witness was an elderly aunt of defendant, who suffered from

dementia. The other was his brother. Both required the aid of an interpreter in court.

      At the evidentiary hearing, defendant's aunt said she could not recall being at

the trial, nor could she remember the written statement she had provided to

defendant. She claimed she recalled, however, that on October 18, 2011, she saw

defendant in his mother's house in New York City at 11:45 in the morning. This was

the same time and date as the aborted drug deal/robbery.

      Defendant's brother testified that he remembered being at trial, and had

spoken with trial counsel.     He said on the date of the crime defendant had


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                                          4
accompanied him to complete a construction job at approximately 1:00 p.m. in New

York City. The notary who witnessed the alibi witnesses' signatures was not called.

Presumably, it was the notary who translated the witnesses' statements into English.

      Defendant also testified at the hearing, claiming he only met with trial counsel

three times. When he asked her to call alibi witnesses on his behalf, she allegedly

told him it was unnecessary and that she "got this," meaning she would take care of

it.

      Defendant's trial counsel recalled she had met with defendant over twenty

times prior to trial. She also stated defendant acknowledged to her that he was

present at the scene of the crime. It was not until after jury selection had begun that

he told her his brother and aunt were available to testify as alibi witnesses. When

counsel reminded defendant that he had acknowledged being at the scene of the

crime, he claimed that she had misunderstood him because he was not there.

Counsel hired an investigator, who confirmed that defendant's aunt could not

remember anything. Counsel spoke with defendant's brother, and concluded that his

proposed testimony made no sense. Accordingly, she decided not to call either

witness as a strategic decision informed by ethical considerations. Counsel "realized

that when [defendant] told me at first that he was there [that] was the truth and I was

not going to present witnesses that I believe[d] were not telling the truth."


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                                           5
      In an April 2018 decision, the judge found that the purported alibi witnesses'

testimony was not credible because it was "uncorroborated, self-serving, and . . .

contradicted by common experience and reason." The judge did find, however, trial

counsel's testimony credible, and her rationale for not calling the alibi witnesses to

be reasonable trial strategy. She had an ethical obligation not to present false

evidence to the court and had to consider whether jurors would also find their

testimony patently incredible. Thus, the judge concluded the decision not to call the

alibi witnesses did not meet the standard for ineffective assistance of counsel.

      On appeal, defendant raises four points:

             POINT I
             TRIAL COUNSEL WAS INEFFECTIVE BECAUSE
             SHE FAILED TO PRESENT AN AVAILABLE ALIBI
             DEFENSE.

             POINT II
             TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
             TO CHALLENGE THE IDENTIFICATION EVIDENCE
             AT A WADE/HENDERSON HEARING.

             POINT III
             THE DEFENDANT WAS COERCED INTO
             FORGOING HIS TESTIMONY DUE TO TRIAL
             COUNSEL'S INEFFECTIVE REPRESENTATION.

             POINT IV
             THE CUMULATION OF ERRORS BY TRIAL
             COUNSEL RESULTED IN A FUNDAMENTALLY
             UNFAIR PROCESS.


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                                          6
      A petition for post-conviction relief is not "a substitute for direct appeal . . .

nor an opportunity to re-litigate cases already decided on the merits[.]" State v.

Preciose, 129 N.J. 451, 459 (1992) (citations omitted). When a petitioner claims

ineffective assistance of counsel as a basis for relief, he must satisfy two prongs:

first, that counsel's performance was deficient, and secondly, that but for those

errors, he would not have been convicted. See Strickland v. Washington, 466 U.S.

668, 687, 694 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

      Counsel's decision not to present the alibi witnesses was required by ethical

considerations. In addition, it was a sound strategic decision because neither would

have been a credible witness. Defendant's aunt suffered from dementia and the

likelihood that she would be believed was slim to none. The brother's testimony

made little sense. Therefore, it was better to have no witnesses than witnesses who

would cause the defense to lose all credibility.

      Counsel's decision fulfilled her ethical responsibilities to the system. See In

re Seelig, 180 N.J. 234, 254-55 (2004). A lawyer has the right to refuse to present

evidence he or she believes is false. RPC 3.3(c). A lawyer cannot cooperate in the

commission of perjury, which includes falsification of evidence or assisting

witnesses in giving false testimony.       See RPC 3.4(b).      We do not consider




                                                                                A-5117-17T4
                                          7
defendant's argument on this point to warrant further discussion in a written opinion.

R. 2:11-3(e)(2).

                                         II.

      Defendant next contends counsel was ineffective because she failed to

demand a Wade hearing and failed to address any issues under State v. Henderson,

208 N.J. 208, 288-90 (2011). Under the circumstances as revealed in the trial

transcripts, however, Judge Guida's decision was entirely correct. It would have

made no sense for counsel to challenge identification by a co-defendant. The co-

defendant may have had a motive to fabricate, but that has nothing to with the

validity of defendant's identification. Additionally, the undercover detective had

seen defendant on several occasions. Although defendant argued at trial that the

officer could not have seen defendant clearly through tinted windows, the officer

said he saw him through a clear glass windshield, and made a point of seeing him

enough to be able to identify him.

      Thus, as the judge pointed out, it would have been futile for counsel to have

requested these hearings. There was nothing ineffective about failing to make

applications that would have been denied. See State v. Drew, 383 N.J. Super. 185,

202 (App. Div. 2006).




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                                          8
                                        III.

      Defendant's contention that he was inadequately advised with regard to his

right to testify, or coerced into giving up the right, borders on the frivolous. The

judge extensively reviewed the decision with him, and ultimately, defendant on the

record confirmed that he understood his choices, had decided not to take the stand,

and wanted the Model Jury Charge given. This point is so lacking in merit as to not

warrant further discussion in a written opinion. R. 2:11-3(e)(2).

                                        IV.

      Defendant argues that the aggregation of errors counsel committed at trial

warrant relief. Counsel did not commit any errors, and in fact, was remarkably

successful in obtaining acquittal of the most serious charges against defendant. As

a result, despite having been indicted on at least one first-degree offense and many

second-degree offenses, defendant had already been released from imprisonment at

the time of his PCR hearing. This argument also is so lacking in merit as to not

warrant further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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