                                NOT FOR PUBLICATION WITHOUT THE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-3962-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

NORMAN POLANCO,

     Defendant-Appellant.
__________________________

                    Submitted October 17, 2018 – Decided May 17, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 12-02-0327.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel;
                    William P. Welaj, on the brief).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (Ian C. Kennedy, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Following an evidentiary hearing, Judge Margaret M. Foti denied

defendant Norman Polanco's first petition for post-conviction relief (PCR). He

appeals. We affirm.

      Defendant is serving an aggregate twelve-year prison term with a four-

year parole bar, a jury having convicted him of first-degree possession of a

controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1),

-5(b)(1), and hindering prosecution, N.J.S.A. 2C:29-3(b)(1). The evidence and

arguments the parties presented at trial are detailed in the Appellate Division's

decision affirming defendant's conviction and sentence on direct appeal, State

v. Polanco, No. A-3665-12, (slip op. at 3-10), (App. Div. Mar. 26, 2015), certif.

denied, 222 N.J. 18 (2015), and need be summarized only briefly here.

      The indictment's charges were based on the undercover work of detectives

working with the Bergen County Prosecutor's Office, Narcotics Task Force.

Two detectives arranged through a confidential informant to buy twenty grams

of cocaine from a co-defendant, Hector Acevedo Figueroa. Id. at 3. Following

the purchase, they telephoned Figueroa and arranged to buy a larger quantity of

drugs. That night, one of the detectives met Figueroa outside a barbershop

where he worked. The detective arranged to buy 500 grams of cocaine for


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                                       2
$17,000.    During negotiations for the 500 grams, Figueroa consulted with

defendant, who stood nearby. Id. at 4-5. Defendant and the detective spoke,

and defendant said when he got the cocaine he would call the detective. The

negotiations took place under the surveillance of other task force members. Id.

at 7.

        Defendant called a couple hours later and the detective – with backup

officers nearby – met defendant and Figueroa in the back room of the barbershop

to inspect the cocaine before calling his girlfriend to bring the cash. After

inspecting the narcotics, the detective made the call. The call was actually a

signal to the backup officers, who descended on the barbershop. As the officers

announced themselves and entered the barbershop, defendant threw the bag

containing the cocaine out the back door and struggled with the officers who

tried to apprehend him. He was subdued and arrested. Id. at 5-7

        When defendant was tried, "[m]ultiple eyewitnesses identified [him] as

being involved in the transaction at issue."    Id. at 7.   The detective who

negotiated the purchase, who had been wearing a transmitting device, identified

defendant as the person with whom he negotiated. Another detective, who was

observing and listening, identified defendant as the person who negotiated the

cocaine sale, the person who later entered the barbershop with a bag, and the


                                                                       A-3962-16T1
                                       3
person whom he arrested. Yet another officer identified defendant as the man

who, during negotiations with the undercover detective outside the barber shop,

walked in and out of the shop while talking on his cellular phone. The same

officer, who remained on surveillance, observed a brown minivan pull up and

defendant take from the minivan a shopping bag, which was identified as the

bag containing the cocaine. Id. at 7-8.

      Defendant testified at his trial and denied any involvement:

                   According to defendant, at around 4:30 p.m. on
            August 23, 2011, he went to eat at a local bodega, where
            he saw Figueroa eating with a customer nicknamed
            "Frasey" and several other men defendant did not
            recognize. At around 5:00, defendant finished eating
            and went to the barber shop. At around 8:00 p.m.,
            Figueroa came into the shop where Frasey and another
            man were waiting for him. Defendant testified that he
            left the shop several times to call his wife on his cell
            phone, because it was noisy inside. At one point, he
            saw Figueroa outside the shop talking to someone
            defendant could not identify.         Defendant denied
            discussing drugs or the price of drugs with Figueroa or
            anyone else.

                  At around 9:00 p.m., defendant went outside
            again to call his wife, and from outside the shop, he saw
            Figueroa enter the back room with Frasey and a third
            individual. He testified that he re-entered the shop and
            headed toward the back, because he did not allow that
            many people in the back room. However, after seeing
            that nothing unusual was happening, he turned around
            and left the back room. According to defendant, at that
            moment the police burst into the shop and something

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                                          4
           happened that caused him to lose consciousness. When
           he regained consciousness, he realized that he had been
           physically attacked.      Defendant denied having a
           shopping bag when he entered the back room, denied
           throwing the bag out the back door, and denied resisting
           arrest. He testified that he suffered serious injuries to
           his face during the incident, a contention the State did
           not dispute.

                  Defendant's wife testified that she called her
           husband often while he was at work, and called him
           around 9:00 p.m. on August 23, 2011. She stated that
           defendant told her he was outside the shop but was
           going inside to see why there were a lot of people going
           into the back room. She testified that the next thing she
           heard was the sound of someone being hit and "a
           commotion." After that she was unable to contact her
           husband on his cell phone.

                  Eli Santos testified that he was in the barber shop
           playing dominoes on the night of August 23, 2011. He
           testified that he saw Figueroa and two other men he did
           not recognize enter the back room at about 9:00 or
           10:00 that night. He stated that defendant then went
           into the back room, and a few minutes later the police
           arrived.

           [Id. at 8-10.]

     The jury rejected defendant's defense.

     Six months after the Appellate Division affirmed defendant's conviction

and sentence, and two months after the Supreme Court denied certification,

defendant filed his PCR petition. Judge Foti granted defendant an evidentiary

hearing concerning two issues: (1) did trial counsel adequately prepare

                                                                        A-3962-16T1
                                       5
defendant to testify on his own behalf at trial; and, (2) was the interpreter

ordered to stop translating during objections throughout the entirety of the

defendant's trial. Defendant's trial counsel and defendant testified at the hearing.

      Following the hearing, Judge Foti denied defendant's PCR petition in a

comprehensive written opinion. Addressing the second question first, the Judge

noted that during the presentation of the State's case at trial, counsel was present

and had a Spanish interpreter to assist him when necessary. The interpreter

continued to assist defendant when he testified.

      Judge Foti cited two instances when the trial judge – not Judge Foti –

directed the interpreter not to interpret during objections. The first instance

occurred when the interpreter asked the court whether he should repeat a

question to which an objection had been sustained. The judge said it was not

necessary to repeat the question. As Judge Foti noted, the trial judge deemed

the subject matter of the question irrelevant, and in any event, the question was

not intended to elicit substantive testimony, but was instead a foundational

question about defendant's children.

      The second instance occurred when the prosecutor objected to defense

counsel's attempt to introduce certain photographs. Following the objection,




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                                         6
defense counsel laid a proper foundation through defendant's testimony for the

admission of the photographs. Judge Foti concluded that

            [b]ased upon the nature of the objections . . . the
            interpreter was ordered not to translate, and the fact
            . . . defendant would not have otherwise been permitted
            to answer questions that were objected to and sustained,
            . . . defendant was not denied his due process right to
            be present at all stages of [the] trial.

      Concerning defense counsel's alleged failure to properly prepare

defendant to testify at trial, Judge Foti found credible defense counsel's

testimony at the PCR hearing that he did indeed prepare defendant. Defense

counsel testified he prepared defendant by reviewing with defendant the State's

proofs, defendant's version of the events leading to his arrest, and strategic

aspects of testifying before a jury, such as making eye contact with jurors and

keeping answers short. The judge rejected defendant's argument that his trial

counsel should have held a "mock trial" with defendant.

      In her written decision, Judge Foti also analyzed and rejected defendant's

arguments that were not the subject of the hearing. She concluded defendant

had failed to sustain his burden of proving the two elements of an ineffective -

assistance claim: that "counsel's performance was deficient," that is, "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment"; and, that "there is a

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                                       7
reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland v. Washington, 466 U.S.

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

      On appeal, defendant argues:

            POINT I: THE TRIAL COURT ERRED IN
            DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF FOLLOWING THE
            EVIDENTIARY     HEARING    SINCE    THE
            DEFENDANT FAILED TO RECEIVE ADEQUATE
            LEGAL    REPRESENTATION   FROM    TRIAL
            COUNSEL WITH RESPECT TO HIS DECISION TO
            TESTIFY AT TRIAL, WHILE THE FACTUAL
            FINDINGS MADE BY THE TRIAL COURT
            UNDERLYING ITS     DENIAL WERE NOT
            SUPPORTED BY THE RECORD ESTABLISHED AT
            THE HEARING.

                A.   FACTUAL BACKGROUND.

                B. THE TRIAL COURT ERRED IN
                DENYING THE DEFENDANT'S PETITION
                FOR POST-CONVICTION RELIEF BASED
                UPON TRIAL COUNSEL'S FAILURE TO
                PROVIDE      ADEQUATE       LEGAL
                REPRESENTATION TO THE DEFENDANT
                REGARDING HIS DECISION TO TESTIFY,
                SINCE ITS FACTUAL FINDINGS WERE
                NOT SUPPORTED BY SUFFICIENT
                CREDIBLE EVIDENCE ARISING OUT OF
                THE EVIDENTIARY HEARING, AND
                THEREFORE ARE NOT ENTITLED TO
                DEFERENCE ON APPEAL.



                                                                           A-3962-16T1
                                        8
               POINT II: THE TRIAL COURT ERRED IN
               DENYING THE DEFENDANT'S PETITION POST-
               CONVICTION RELIEF WITHOUT AFFORDING
               HIM AN EVIDENTIARY HEARING TO FULLY
               ADDRESS HIS CONTENTION THAT HE FAILED
               TO       RECEIVE   ADEQUATE     LEGAL
               REPRESENTATION FROM TRIAL COUNSEL.

         In a pro se supplemental brief, defendant argues an additional

point:

               THE POST-CONVICTION JUDGE ERRED BY
               LIMITING ITS SCOPE OF REVIEW TO THE
               INEFFECTIVENESS AS IT RELATED TO THE
               INTERPRETER MATTER, AND BY EXCLUDING
               ALL OTHER ISSUES RAISED BY THE
               DEFENDANT.

         We affirm, substantially for the reasons expressed by Judge Foti in her

well-reasoned written opinion. Defendant's arguments are without sufficient

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

         Affirmed.




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