STATE OF NEW JERSEY VS. JORGE ALVARADO (03-07-1190, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0409-19

A-2252-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ALVARADO,

Defendant-Appellant.

_________________________

Argued February 11, 2021 - Decided September 1, 2021

Before Judges Ostrer, Accurso, and Vernoia.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 03-07-1190.

Jorge Alvarado, appellant, argued the cause pro se.

Joseph E. Krakora, Public Defender, attorney for

appellant in A-0409-19 (Karen A. Lodeserto,

Designated Counsel, on the brief).

Stephanie Davis Elson, Assistant Prosecutor, argued

the cause for respondent (Esther Suarez, Hudson

County Prosecutor, attorney; Stephanie Davis Elson, on

the briefs).

Appellant filed a pro se supplemental brief in A-0409-

19.

PER CURIAM

In these two matters, calendared back-to-back and consolidated for our

opinion, defendant Jorge Alvarado appeals in A-0409-19 from the denial of his

first petition for post-conviction relief (PCR) following our remand for an

evidentiary hearing, and in A-2252-19 from the denial of his second petition,

filed while the first was pending, based on the United States Supreme Court's

opinion in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). We affirm both

decisions.

This case has a long procedural history; indeed, this is the fourth opinion

we've written over the course of thirteen years. Defendant was convicted in

2004 of the murder of seventeen-month-old Jan Carlos Torres, the son of his

girlfriend Maria del Carmen Torres. In our first opinion affirming defendant's

conviction on direct appeal, State v. Alvarado (Alvarado I), No. A-6010-05

(App. Div. Mar. 6, 2008) (slip op. at 1-6), we sketched the facts the State

presented at trial. A pediatric forensic pathologist from the State's Regional

Medical Examiner's Office testified the child died from suffocation, most likely

A-0409-19

2

caused by the squeezing or compression of the child's chest. Id. at 3-4. The

expert testified

[t]he injuries he found were not consistent with

punching; rather, they were consistent with pressing or

placing pressure on the child. Further, he found that

rather than one mechanism, three mechanisms or steps

were involved on the day of the death: the child had

been squeezed in the chest, pushed up on the face, and

injured on his left thigh. The doctor estimated that it

would take roughly one minute for the child to die with

consistent squeezing. Death would be slower and more

painful if the compression stopped before death.

[Id. at 4.]

The pathologist also testified the child was a victim of battered child

syndrome "on the basis that the injuries were repetitive (occurred on more than

one occasion) and could not have occurred accidentally." Id. at 3. The

postmortem exam revealed a rib fracture suffered a month or so before the

child's death, and more recent bruising. Id. at 3-4. The pathologist could not

say, however, "whether the child had been injured at two separate times or more

times than that." Id. at 4.

Although both defendant and the child's mother had been indicted for

murder, defendant did not dispute that he was the one alone with the child in the

hours before his death. Id. at 2, 11. Defendant did not testify, but the trial record

contains several statements attributed to him about what happened. Id. at 3.

A-0409-19

3

In his statement to the police, defendant said he "pressed the child to his

chest when the baby began to cry," laying him on the bed when he quieted. Id.

at 2. He claimed he did not intend to kill the child, and said his bruises were the

result of a struggle defendant had with the child's mother when she had tried to

take the baby from him the previous night. Id. at 2-3. An ex-girlfriend of

defendant's claimed he told her he was playing with the baby, tossing him in the

air, when defendant slipped and couldn't catch him. Id. at 3. Finally, a fellow

inmate in the jail testified defendant said he slammed the baby into the wall and

punched him in the chest when he wouldn't stop crying, "but miscalculated,

causing the baby to hit the bedpost and fall to the floor." Ibid.

Following an N.J.R.E. 104 hearing, the child's mother, Torres, who had

by then pleaded guilty to endangerment, was allowed to testify about harm she

claimed defendant had inflicted on the baby on prior occasions. Id. at 4. She

testified she found bruises on the boy after he'd been in defendant's care and

once found the baby with a bloody mouth, which defendant said resulted from

the baby hitting himself with a toy. Ibid. She also claimed she once "discovered

hot sauce on the nipple to the baby's bottle," which, according to her , defendant

admitted doing "as a practical joke." Id. at 4-5. She testified about another time

A-0409-19

4

when she "found melting ice cubes in the baby's diaper after defendant had left

for work." Id. at 5.

We affirmed defendant's conviction, rejecting his arguments under

N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992), that the judge

erred in allowing the State to introduce Torres's testimony that defendant had

previously assaulted the child; in instructing the jury on that evidence; and in

failing to give a limiting instruction about the use the jury could make of the

guilty plea entered by Torres. Id. at 4-13. With regard to the 404(b) evidence,

we noted the trial judge's finding that

[w]ithout this testimony, [he] could see a reasonable

juror wondering, hmm, was this a mistake, was

[defendant] just trying to be quiet with the baby. Was

there a tug-of-war between mom and Mr. Alvarado or

was there something more and it is probative to the

issue of knowledge and intent which goes to the charge

of murder. Knowledge, intent and purpose.

[Id. at 8.]

While acknowledging the evidence was certainly prejudicial, we noted

"[e]vidence that is highly inflammatory may still be admitted where its probative

value outweighs its prejudicial effect," relying on State v. Cusick, 219 N.J.

Super. 452, 464-65 (App. Div. 1987), and agreed with the trial judge that

A-0409-19

5

Torres's evidence "was material on the question of whether the injuries to the

child were intentional or accidental." Id. at 8-9.

The Supreme Court denied defendant's petition for certification. State v.

Alvarado, 195 N.J. 521 (2008), and defendant's federal habeas petition was

deemed untimely, Alvarado v. D'Ilio, No. 15-3878 (SRC) (D.N.J. Aug. 23,

2016), aff'd sub nom. Alvarado v. Adm'r N.J. State Prison, No. 16-3798, 2017

U.S. App. LEXIS 20661 (3d Cir. Sept. 11, 2017).

In our second opinion, State v. Alvarado (Alvarado II), No. A-0861-12

(App. Div. May 1, 2014), we addressed defendant's petition for PCR alleging

ineffective assistance of trial and appellate counsel, which the trial court had

denied in 2012 without an evidentiary hearing. We affirmed the decision

dismissing defendant's claims relating to the performance of his trial counsel,

reversed as to the claims defendant raised regarding the representation he was

provided on appeal, and remanded for an evidentiary hearing. Id. at 22. The

Supreme Court again denied defendant's petition for certification. State v.

Alvarado, 220 N.J. 42 (2014).

Defendant's claims of ineffective assistance of appellate counsel were

based on a letter he received from Torres six months after the end of defendant's

trial while he was awaiting sentencing. Torres was at the time serving her own

A-0409-19

6

prison sentence. Quoting a key passage, we noted Torres wrote to defendant

that she

was always very stern with the poor boy, that hurts me

a lot, but I think you were guilty, because you always

liked to leave me alone and you left with your friends

and I came to think that you had someone else, that

made me mad, very angry, Luis, you have no idea "yes"

I punished that boy, but it was not to kill him, I knew

he had several black and blue marks, and that is why

they put me in jail, because I had said I knew of the

blows and the black and blue marks, and by not

[calling] the police, I know, you did not know about it,

but because of that the prosecutor asked me to give the

last statement, so they could find you guilty, as I said,

I had no other option, I had to do something to save

myself, I did not want it, but if I did not do it, the

prosecutor would not take the charges away from me,

forgive me. Now, I know you are thinking in appealing

your case, that means if you do it, perhaps I had to

testify again and I will have to say same thing, because

of the deal with the prosecutor. Luis, it was not easy

for me to take the decision of writing you, but I feel that

everything is happening in someway is my fault, I know

you were right in willing to go to trial and to know how

everything happened and where all these blows came

from, the broken rib that [he] had for several months.

[Alvarado II, slip op. at 19-20.]

Defendant claimed the letter was a recantation of Torres's testimony, and

he moved, with new counsel, for a new trial based on newly discovered

evidence. The judge denied the motion without an evidentiary hearing, finding

Torres's trial testimony "extremely credible and straightforward." The judge

A-0409-19

7

stated he didn't "find her 'recantation' to be credible," and indeed didn't "even

find it to be a recantation." He denied the motion, finding defendant had not

carried his burden under State v. Carter, 85 N.J. 300, 314 (1981) (holding "to

qualify as newly discovered evidence entitling a party to a new trial, the new

evidence must be (1) material to the issue and not merely cumulative or

impeaching or contradictory; (2) discovered since the trial and not discoverable

by reasonable diligence beforehand; and (3) of the sort that would probably

change the jury's verdict if a new trial were granted."). Alvarado II, slip op. at

9-10.

We did not agree that defendant's PCR petition, as to appellate counsel's

performance, could be denied without an evidentiary hearing. We found the

letter "could be read as an effort [by Torres] to assuage her conscience and

excuse herself for having testified truthfully against Alvarado," but could "also

be read as an apology and explanation for having testified untruthfully with

respect to some or all of her testimony." Id. at 19. Because Alvarado easily met

the first two Carter factors, and Torres's statements, interpreted most favorably

to Alvarado, see State v. Preciose, 129 N.J. 451, 463 (1992), would make the

letter "highly material, particularly with respect to whether Alvarado's conduct

on the day of the underlying incident amounted to murder or one of the lesser

A-0409-19

8

included offenses charged to the jury, which were aggravated manslaughter an d

reckless manslaughter," the very reason the trial judge admitted the evidence

Torres offered at trial, we remanded for an evidentiary hearing, "to evaluate fully

the letter from Torres, and to determine whether it would have warranted a new

trial." Alvarado II, slip op. at 21-22.

In our third opinion issued in 2018, State v. Alvarado (Alvarado III), No.

A-2213-16 (App. Div. May 25, 2018), we considered defendant's appeal of the

denial of his PCR petition after the evidentiary hearing on remand we ordered

in Alvarado II. For reasons still not clear to us, the only witness to testify at the

hearing was defendant's appellate counsel. Torres was not called and did not

testify. Id. at 2. Although the trial court concluded defendant had not

established either prong of the Strickland standard, we found, based on the

testimony of appellate counsel, that "her failure to have argued that defendant's

motion for new trial based on newly discovered evidence should not have been

denied without an evidentiary hearing fell 'outside the wide range of

professionally competent assistance.'" Id. at 16 (quoting Strickland v.

Washington, 466 U.S. 668, 690 (1984)). We were unable to determine, however,

whether counsel's failure caused defendant any prejudice, because the trial court

had never conducted an "evidentiary hearing to determine whether Torres's letter

A-0409-19

9

would have been sufficient to change the jury's verdict that defendant was guilty

of murder." Id. at 16. See State v. Nash, 212 N.J. 518, 547 (2013). Accordingly,

we reversed the denial of defendant's petition and "again remand[ed] for an

evidentiary hearing on that critical issue." Alvarado III, slip op. at 17.

The trial court in 2019 finally conducted the remand hearing we ordered

in our 2012 opinion. The hearing was brief, and Torres was clearly an unwilling

witness. She testified through an interpreter. She was emotional, and when

several times offered a break, refused, saying she wanted "to finish with this,"

or "No, no, I want to end this. I want this to end. I want this to end and I don't

want to come back again."

As the focus of the hearing was the contents of the letter Torres allegedly

wrote defendant while he was awaiting sentence for the murder of Torres's son,

we reprint the translation admitted at the hearing:

Dear Mr. Alvarado,

This letter is to tell you and hoping in God that you are

in good health and stability. Well, I imagine you have

to be surprised about my letter, "yes" Luis, I am Maria,

I am writing you because I felt I had to do it before I

get over this nightmare.

I need to leave my resentment and my grudge behind,

leave it here and not carry it with me when I come out.

It has not been easy for me the loss of my son. Luis, I

ask, what happened that day? everything was fine

A-0409-19

10

between the two of us, nobody wants to tell me what

really happened, I know you are a good man and

specially a good father, I know you lost your mind

perhaps for something I said against you, but I had no

other alternative, I had to tell you that you were who

did everything so I can come good out of this, this was

the deal I had to do with the prosecutor, forgive me my

love. I know you are suffering a lot in that place, I

know you love your sons a lot, and that to me, hurts me.

However, I always was very stern with the poor boy,

that hurts me a lot, but I think you were guilty, because

you always liked to leave me alone and you left with

your friends and I came to think that you had someone

else, that made me mad, very angry, Luis, you have no

idea "yes" I punished that boy, but it was not to kill him,

I knew he had several black and blue marks and that is

why they put me in jail, because I had said I knew of

the blows and the black and blue marks, and by not had

called the police, I know, you did not know about it, but

because of that the prosecutor asked me to give the last

statement, so they can find you guilty, as I said, I had

no other option, I had to do something to save myself,

I did not want it, but if I did not do it, the prosecutor

would not take the charges away from me, forgive me.

Now, I know you are thinking in appealing your case,

that means if you do it, perhaps I had to testify again

and I will have to say same thing, because of the deal

with the prosecutor. Luis, it was not easy for me to take

the decision of writing you, but I feel that everything

that is happening in someway is my fault, I know you

were right in willing to go to trial and to know how

everything happened and where all these blows came

from, the broken rib that [he] had for several months.

I am begging you to forgive me and I forgive you and I

tell you it will not be easy to forget you, because I love

you very much even though I harmed you but I had no

other alternative, I explained to you well, I will be

A-0409-19

11

coming out soon from here and you do not the time they

will be giving you, it hurts me what is going on,

specially regarding your sons, I am sorry for my

handwriting, you know that I have been through. I was

under treatment while I was here, in the Hudson

County, I am going to give you an advice, I am telling

you for your own good, when you go to prison take

good care of yourself, trust in God, what else I can tell

you, I wish you the best and forgive me because I have

lied, I want to you to understand me better, nobody

knows how is been in here, I did not want to harm you

but if I did not do it, I would be like you, remember I

love you and it when I come out, I am going to try to

help you O.K.

I wish you can write down to me, to this address

875867C/506072 (BRAVO) (EAST WING 3 ROOM)

PO Box 4004

CLINTON N.J. 08809

I love you, M. Maria (MC)

Defense counsel began his questioning by trying to establish the timing of

this letter. Torres was confused about dates and where she had lived when,

noting, at one point, "It's 17 years ago." 1 Counsel showed Torres four letters

she purportedly wrote to defendant, none of which she could identify, saying

1

That statement appears to be off by at least a year or so. Torres's son was

killed in early March 2003, when she was around twenty-two years old.

Defendant was convicted of his murder in September 2004. The dates of the

other letters were not mentioned in the record, but the envelope defendant

contends contained the letter quoted in the text, which is undated, appears to be

postmarked sometime in 2005. Defendant's new trial motion was heard in late

October 2005, and he was sentenced on November 4, 2005.

A-0409-19

12

she "just [didn't] remember." Torres eventually identified three of the letters as

hers, but denied writing this letter, although she testified she remembered

addressing the envelope. Torres claimed the letter "says the same thing as the

others, but this is not my handwriting."2 She claimed not to recall whether she

dictated the letter to someone else to write.

Torres claimed she wrote to defendant because she wanted to ask "him

what had happened to [her] son because nobody wanted to explain to [her]

anything." Torres admitting saying defendant was a good man and a good father

in other letters, but denied ever saying she was "that stern" with her son,

explaining counsel should understand "that the words that are written in Spanish

not necessarily mean exactly the same thing when it is written in English."

Directed to the line stating, "forgive me my love," counsel asked whether Torres

had ever asked defendant to forgive her. Torres responded she "was trying to

be affectionate towards him to see if I would get him to tell me what he did to

my son," although still denying she wrote the letter.

Torres also denied ever saying to defendant that she "punished the boy but

it was not to kill him," insisting it was defendant who punished the child. She

2

Although entered into evidence at the hearing, the other letters were not

included in the appendix.

A-0409-19

13

admitted communicating to defendant that were he to appeal, she would have to

testify against him again "because of the deal [she] made with the prosecutor."

Asked what her deal was, she answered "to tell the truth." Asked to read again

the line near the end of the letter asking defendant "to forgive me because I have

lied," Torres replied: "And that I lied about what? Why don't you let me tell

you what was my lie, because everything I said [in court] was the truth." Torres

continued to assert that her testimony at trial had been truthful, and maintained,

as she had already explained, that she "used to play with [defendant] with his

mind to see he would be able to tell me what is it that he did to my son. It is the

only thing that [I] wanted to do. Even to this day I don't know what he did to

the child."

After counsel had completed their questioning, the court asked Torres

whether she had testified truthfully at trial, and about the line in the letter saying,

"I wish you the best and forgive me because I have lied," asking specifically,

"Do you know what that means?" Torres responded that her trial testimony had

been entirely truthful, including what defendant did to the child. Responding to

the request for forgiveness, Torres explained she "told the truth there. If I had

to say it again I will say again all the things that he used to do to the child. And

that's it." Torres added it was "very painful to revive all of that again."

A-0409-19

14

The PCR judge, who had not presided over the trial, found Torres's

testimony credible. Although noting that Torres denied the handwriting was

hers, and repeatedly said she didn't recall having anyone else write the letter or

writing it herself, the judge found Torres at some point "acknowledged

indirectly to having authored the letter." Relying on Torres's repeated assertions

that she was "playing" with defendant's mind, however, the judge found Torres's

testimony established "the letter was not meant to recant her trial testimony; it

was a ploy meant to solicit information from petitioner regarding the baby."

"Based on Torres' numerous and unequivocal statements that she testified

truthfully at [defendant's] trial, along with her explanations as to why she wrote

a letter that appeared to contradict her trial testimony," the judge concluded

defendant did not satisfy the third prong of the Carter test. Specifically, the

judge wrote that "[t]he letter is not 'believable' and does not 'so seriously

impugn[] the entire trial,'" quoting State v. Carter, 69 N.J. 420, 427 (1976).

Because defendant could not show that "Torres'[s] letter 'would probably change

the jury's verdict if a new trial were granted,'" Carter, 85 N.J. at 314, the judge

found defendant was not entitled to a new trial and, thus, notwithstanding

appellate counsel's deficient performance in failing to challenge the denial of

A-0409-19

15

the motion for new trial on direct appeal, could not establish he was prejudiced

thereby under the second prong of Strickland.

Defendant appeals, raising the following arguments:

THE PCR COURT ERRED IN DENYING

DEFENDANT'S PETITION FOR POST-

CONVICTION RELIEF BECAUSE APPELLATE

COUNSEL WAS INEFFECTIVE IN FAILING TO

APPEAL THE DENIAL OF MR. ALVARADO'S

MOTION FOR A NEW TRIAL BASED ON THE

EXCULPATORY EVIDENCE CONTAINED IN THE

LETTER WRITTEN BY MS. TORRES, WHICH

WARRANTS A NEW TRIAL.

In his pro se supplemental brief, defendant adds the following points:

POINT I

THE PCR COURT ERRED IN ITS EVIDENTIARY

HEARING DENIAL, AS THE FINDING OF

CREDIBILITY IS NOT SUPPORTED BY THE

RECORD, BECAUSE THE WITNESS'S

TESTIMONY SHOWS THAT SHE LIED UNDER

OATH DURING THE HEARING, WHICH

UNDERMINES THE TRUSTWORTHINESS OF HER

TESTIMONY, WHICH WAS SOLELY USED IN

SECURING APPELLANT'S CONVICTION.

MOREOVER, THE PCR COURT ERRED WHEN IT

MADE A DETERMINATION AS TO THE

TRUTHFULNESS OF THE WITNESS, AS THIS

DUTY IS TO BE LEFT TO A JURY.

A. Ms. Torres's testimony was untruthful, and

therefore cannot be relied upon to support the PCR

court's findings.

A-0409-19

16

B. The PCR court erred when it made a credibility

determination of the witness's trial testimony, as such

determination is only to be made by a jury.

POINT II

THE PCR COUNSEL WAS CONSTITUTIONALLY

INEFFECTIVE WHEN HE FAILED TO FILE

APPELLANT'S PRO SE LETTER BRIEF WHICH

VIOLATED APPELLANT'S RIGHT TO DUE

PROCESS OF LAW AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONST. AND ART. 1 PAR. 10 OF THE

NEW JERSEY CONSTITUTION.

As we determined in Alvarado III that defendant established the first

prong of Strickland based on the failure of his appellate counsel to argue the

trial court should not have denied his new trial motion without an evidentiary

hearing, our only task here is to determine if the remand court was correct that

defendant suffered no prejudice from that failure because Torres's letter does

not entitle defendant to a new trial. See Strickland, 466 U.S. at 694-95 (stating

grant of new trial because of ineffective assistance of counsel depends on

whether result would have been different but for counsel's deficiency); State v.

Bray, 356 N.J. Super. 485, 499 (App. Div. 2003) (explaining PCR court must

determine the merits of the claim omitted on direct appeal in order to assess

whether deficient performance of appellate counsel would or would not have

prejudiced the defense).

A-0409-19

17

As our Supreme Court regularly reminds, "[o]ur rules governing post-

conviction relief are the last line of defense against a miscarriage of justice. "

Nash, 212 N.J. at 526. "[T]he purpose of post-conviction review in light of

newly discovered evidence is to provide a safeguard in the system for those who

are unjustly convicted of a crime." State v. Ways, 180 N.J. 171, 188 (2004).

Nevertheless, because, "[a] jury verdict rendered after a fair trial should not be

disturbed except for the clearest of reasons," our courts review a claim alleging

newly discovered evidence "with a certain degree of circumspection to ensure

that it is not the product of fabrication, and, if credible and material, is of

sufficient weight that it would probably alter the outcome of the verdict in a new

trial." Id. at 187-88.

"[R]ecantation testimony, a species of newly discovered evidence

generally regarded 'as suspect and untrustworthy,' is subject to especially close

scrutiny." Id. at 196-97 (quoting Carter, 69 N.J. at 427). "Consequently, the

burden of proof rests on those presenting such testimony to establish that it is

probably true and the trial testimony probably false." Carter, 69 N.J. at 427.

The Court has explained the test for the trial judge

in evaluating a recantation upon a motion for a new trial

is whether it casts serious doubt upon the truth of the

testimony given at the trial and whether if believable,

the factual recital of the recantation so seriously

A-0409-19

18

impugns the entire trial evidence as to give rise to the

conclusion that there resulted a possible miscarriage of

justice. His [or her] first duty is, therefore, to determine

whether the recanting statement is believable.

[Ibid. (quoting State v. Puchalski, 45 N.J. 97, 107-108

(1965)).]

Our job as a reviewing court is to "engage in a thorough, fact-sensitive

analysis to determine whether the newly discovered evidence would probably

make a difference to the jury." Ways, 180 N.J. at 191. As the Court instructed

in Carter, however, "[t]he determination of the credibility or lack thereof of

recantation testimony is peculiarly the function of the trial judge who sees the

witnesses, hears their testimony and has the feel of the case." 69 N.J. at 427.

Critically important, a witness's "[m]anner of expression, sincerity, candor and

straightforwardness are just some of the intangibles available to the trial judge

in evaluating the credibility of recantation testimony." Id. at 427-28. Because

a reviewing court lacks that "advantage, [it] should ordinarily defer to the trial

judge's findings on this sensitive issue as long as the proper criteria are used."

Ibid.; see also Ways, 180 N.J. at 196-97 (noting "deference is particularly

warranted in the context of recantation testimony").

This, of course, is not classic recantation testimony. The alleged recanting

witness, Torres, insists her testimony at trial was truthful and the letter, an effort

A-0409-19

19

to cajole defendant into telling her what he had done to her son, was not.

Importantly, not one, but two trial judges, having heard Torres testify — the trial

judge at the N.J.R.E. 104 hearing and at trial, and the PCR judge at the remand

hearing following Alvarado III — have found her to be a credible witness. 3

While defendant's counsel insists that Torres's explanation for the letter

was not believable, and defendant, even more blunt, claims Torres "lied multiple

times" during her testimony, we are not so free to discount that the PCR judge

believed what she had to say about the letter and the truthfulness of her trial

testimony. See Ways, 180 N.J. at 196-97; Carter, 69 N.J. at 427. We are also

keenly aware of the dangers of substituting our view of a witness's credibility

for the trial judge's based on our reading of a cold record. See Nash, 212 N.J.

3

In denying defendant's new trial motion, the trial judge noted defense counsel's

vigorous cross-examination of Torres and her demeanor at trial, stating:

She was understandably shaken at the trial. She's

talking about her seventeen-month-old son, no matter

who was at fault, and even if nobody was at fault, he's

dead. So, clearly, she's upset. She's talking about the

person she apparently at least at one time loved, and

apparently she's telling us [in the letter] still does love

him sitting about twenty feet away from her. She's

testifying against him.

And notwithstanding that, the judge stated he "found her testimony extremely

credible and straightforward at the trial."

A-0409-19

20

at 540 ("An appellate court's reading of a cold record is a pale substitute for a

trial judge's assessment of the credibility of a witness he has observed

firsthand."). As Judge Jayne observed, "the best and most accurate record (of

oral testimony) is like a dehydrated peach; it has neither the substance nor the

flavor" of the real thing. Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104

(App. Div. 1952).

That substance and flavor is especially critical here, as we have already

acknowledged Torres's letter could be read two ways — "as an effort to assuage

her conscience and excuse herself for having testified truthfully against

Alvarado," or "as an apology and explanation for having testified untruthfully

with respect to some or all of her testimony." Alvarado II, slip op. at 19. The

PCR judge concluded the letter was not an apology for Torres having testified

untruthfully against defendant at trial. And the judge believed Torres when she

said her trial testimony had been true, and she had not lied about anything,

including the injuries defendant had inflicted on her son in the months before

his death. We defer to those findings, which were based on the judge's first-

hand observation of the witness and her answers to his and the parties' questions.

See Nash, 212 N.J. at 540-41.

A-0409-19

21

Although we defer to the judge's credibility findings, we are also mindful

that had the letter been written before or during trial, the State would have had

no basis to object to its use by the defense to impeach Torres's testimony. See

Strickler v. Greene, 527 U.S. 263, 280 (1999); State v. Nelson, 155 N.J. 487,

497-98 (1998). Accordingly, we have reviewed the trial record to consider

whether Torres's letter, had it been admitted, "would probably make a difference

to the jury." Ways, 180 N.J. at 191.

Defendant conceded in his statement to the police that he caused the baby's

death. Defendant told police that Torres went out to the store in the morning to

get milk for the baby. When the child saw her put on her coat and get ready to

leave, he'd started to cry. The baby took a bottle but later began to cry again.

Defendant said he was watching Italian league soccer on television, and he

pressed the baby to his chest to quiet the child's crying. Defendant said the baby

quieted down "after that," and he laid the child on his bed and went back to

watch the game. Defendant then heard the baby gasping for air, "like . . . he

can't breathe." Defendant called Torres to come home, which she immediately

did, but the baby was unresponsive by the time she arrived.

Asked at the end of his statement if there was anything else he wanted to

say, defendant added this:

A-0409-19

22

What I can say? So, you know, if something happen

with the baby, I thinks, I'm responsible because, you

know, if, maybe if I don't press him like that[,] the baby

didn’t go and die.

Q: Okay.

A: So, I feel, I feel so bad because you know, I didn't

want to kill him. Definitely I didn't wanna kill him.

But you know. We never know when this stuff's gonna

happen you know. Um, I did this before with him. And,

you know, his reaction was normal you know. And I

think this time it, it's gonna be the same thing. But you

know, it's, it's not a, it's not a same thing. So, I don't

know. That's all I have to say.

The State's forensic pediatric pathologist testified to evidence discovered

during the postmortem exam that defendant had indeed done "this before with"

the child. Specifically, the pathologist found a healing rib fracture inflicted, in

his opinion, from ten to fourteen days and up to a month before the child's death.

The pathologist also testified the child, who was about thirty-one inches tall and

weighed twenty-two pounds, suffered three distinct injuries at the time of his

death that could not have been inflicted simultaneously. There was a line of

small reddish bruises along the child's backbone, which to the pathologist

resembled multiple fingerprints, "certainly compatible with the tip ends of

fingers pressing against the skin," as well as larger bruises on the lower left and

right front of the child's chest, "almost like a palm in the front and fingers along

A-0409-19

23

. . . the back." The child also suffered from bruises and abrasions along his jaw

line, a scrape around his mouth and a torn upper frenula, consistent with

"something, force pushing up on the jaw, pushing the upper lip . . . and

essentially pushing upward to tear the frenula." Finally, the child suffered a

deep muscle injury to his left thigh.

The pathologist testified that when "multiple ribs crack, you can hear them

and you feel [the chest] becomes lax." The doctor illustrated his point with an

analogy, "you know when you break a stick, you hear it crack and it just bends,

it collapses. You know it when you're doing it." The doctor further explained

that "you can't squeeze the chest, push up on the face and cause an injury to the

left thigh" simultaneously. The doctor opined those injuries would have had to

occur at different times. And although the interval between each may have been

brief, as all occurred shortly before death, he testified that "regardless of the

time frame between them . . . that would be repetitive and it would also have to

be intentional. These [injuries] don't happen on their own."

That testimony was devastating to the defense in two respects. It

corroborated defendant's statement to the police that he had done "this before

with" the child and undercut his contention that he had not acted intentionally

in causing the child's death.

A-0409-19

24

Defendant's counsel had opened to the jury conceding defendant had

caused the child's death, but asserted he had done so recklessly, making him

guilty of manslaughter but not murder. In his summation, defense counsel again

conceded the child's death was not an accident. He argued of the three versions

jurors had heard as to how it happened — the one where defendant was playfully

tossing the child in the air and unable to catch him, the statement he gave to

police that "something happened and it's my responsibility," and the version

offered by defendant's fellow inmate at the jail — the "real version," the "true

version" was the last, that defendant had gotten frustrated with the baby when

he wouldn't stop crying during the game, slammed him into the wall and threw

him towards the bed where he hit the bedpost and slid to the floor.

That version was the only one that could account for all three injuries the

pathologist claimed the child suffered at the time of his death that might be

consistent with reckless, and not intentional conduct. Counsel argued the

"whole set of injuries that happen[ed]" as a result of defendant slamming the

child into the wall made that version the most consistent with the doctor's

testimony. He also argued that defendant's two outbursts during the trial, both

before the jury, the first when he complained the prosecutor was not letting

defense counsel ask questions and the second when he stood up and pointed

A-0409-19

25

toward his fellow inmate at the end of his testimony and said — in English: "I'm

going to make sure people in jail know you're a f…ing snitch," demonstrated

defendant was concededly "a little hotheaded." 4 Counsel contended those two

"little snapshot[s]" revealed defendant "can't control himself. Temper problem,

anger problem." He argued that, as with striking the child, defendant didn't

appreciate the risk of such reckless outbursts, making clear defendant was

"impulsive" and "probably a poor thinker." 5

Defense counsel argued the only two important witnesses had been the jail

house informant and the medical examiner. He dismissed Torres, saying

"[s]ome people think she's sad and pathetic and you feel sorry for her, and other

4

Defendant employed a Spanish interpreter throughout the trial and all court

proceedings.

5

Defense counsel moved for a mistrial immediately after defendant's second

outburst, the threat against the jail house informant, arguing it compromised the

defense and "poisoned" his efforts going forward. The prosecutor urged the

judge to consider that defendant "seeing his defense . . . has been destroyed, to

put it mildly, by both [a] forensic pathologist[] and by direct witnesses[,] may

have decided that his only alternative to a conviction is to have an outburst."

The judge denied the motion, in part because defendant's outburst wasn't

inconsistent with the defense defendant was mounting — "He gets frustrated and

upset. When things don't go his way, he gets upset and he has an outburst."

Defense counsel stated that, although it wouldn't be his preference, he would

"be summing up to that" if his mistrial motion was denied. We note defendant's

outburst, and the prosecutor's assessment of the State's case to that point,

occurred before Torres testified.

A-0409-19

26

people are going to say you're just as culpable, how dare you." He argued that

assuming everything she said was true, it didn't make defendant a murderer.

Counsel highlighted Torres's testimony claiming defendant admitted he put hot

sauce on the baby's bottle as a practical joke, and promised he wouldn't do it

again when she didn't find it funny, as "not the mindset of somebody who wanted

to kill the kid."

Although we have no doubt Torres's testimony was harmful to defendant,

having reviewed the entire trial record, even more damning than Torres's

accusations was defendant's own unstudied admission, corroborated by the

medical examiner, that defendant had done "this before with" the child.

Moreover, defendant's explanation of why he employed the same "pressing"

technique on the day of the baby's death — that "[the baby's] reaction was

normal," the first time, leading defendant to think "it's gonna be the same thing"

this time, reflected intent not impulsiveness.

Accordingly, we affirm the PCR court's determination, made after hearing

Torres testify, that the 2005 letter does not cast serious doubt on the testimony

she gave at defendant's trial, and conclude that even were Torres's letter before

the jury, it did not have the power to likely alter the verdict in light of the State's

other evidence against defendant, none of which relied on Torres's testimony in

A-0409-19

27

any particular. Even were the jury to believe Torres lied about defendant's prior

acts against the child, defendant's admission he "pressed" the child on a prior

occasion, corroborated by the pathologist's discovery of a healing rib fracture,

and defendant's concession that his doing so again caused the child's death, make

it unlikely anything Torres had to say would have changed the jury's verdict,

even from murder to manslaughter.

We thus affirm the denial of defendant's first petition for PCR on the basis

that defendant failed to establish he suffered any prejudice from appellate

counsel's failure to argue defendant's motion for a new trial, based on Torres's

letter, should not have been denied without an evidentiary hearing. We find

defendant's arguments to the contrary, including those made in his pro se brief,

to be without merit. 6 See R. 2:11-3(e)(2).

6

We include in that the argument presented in Point II of defendant's pro se

brief that PCR counsel was ineffective for having failed to file defendant's "pro

se letter brief" with the trial court in advance of the evidentiary hearing we

ordered in Alvarado III. In that brief, included in defendant's pro se appendix,

defendant argued: "The court should grant defendant's PCR and order a new trial

even if Ms. Torres fails to appear for the evidentiary hearing because the trial

court, as well as the appellate courts have doubts concerning her credibility."

As Torres appeared at the hearing and testified, PCR counsel's alleged failure to

have filed defendant's pro se brief with the PCR court could not have resulted in

any prejudice to him. See Strickland, 466 U.S. at 694.

A-0409-19

28

We turn next to defendant's appeal in A-2252-19 from the denial of his

second PCR petition without an evidentiary hearing based on the United States

Supreme Court's decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The

Court in McCoy held that when a defendant expressly asserts he wishes to

maintain his innocence and does not want to admit guilt, "his lawyer must abide

by that objective and may not override it by conceding guilt," notwithstanding

the lawyer's belief that conceding guilt would be the only hope of assisting the

defendant's case. Id. at 1509.

Following the Court's decision in McCoy, defendant attempted in January

2019 to file a timely second petition for PCR, alleging his trial counsel violated

his Sixth Amendment-secured autonomy by conceding defendant recklessly

caused the victim's death over defendant's objection. The criminal division,

however, refused to file the petition, advising defendant he could not proceed

with his second PCR while his first remained pending. Defendant wrote to the

division advising he was aware his first petition remained pending but was

attempting to insure he could avail himself of the newly recognized right in

McCoy by filing a new petition within a year of that opinion, which was issued

May 14, 2018, in accordance with Rule 3:22-12(a)(2)(A).

A-0409-19

29

Following the trial court's denial of defendant's first petition in June 2019,

defendant re-filed his second PCR petition based on McCoy. The court denied

both the petition and defendant's subsequent motion for reconsideration. While

acknowledging that defendant's second petition was timely filed in accordance

with Rule 3:22-12(a)(2)(A), the court nevertheless denied it on the basis of Rule

3:22-4, reasoning that defendant could have brought his new claim during the

"prior proceedings" on his first PCR petition.

Defendant appeals, arguing:

THE LOWER COURT ERRED IN DENYING

APPELLANT'S PCR PETITION, WHEN IT DID NOT

CONDUCT AN EVIDENTIARY HEARING TO

ASCERTAIN IF APPELLANT'S SIXTH

AMENDMENT RIGHT TO AUTONOMY IN HIS

OWN DEFENSE WAS VIOLATED, PURSUANT TO

MCCOY V. LOUISIANA, 584 U.S. (2018), WHEN

TRIAL COUNSEL TOLD THE JURY THAT

APPELLANT WAS GUILTY, DESPITE HIS

ADAMANT DENIALS OF GUILT.

We affirm the denial of defendant's petition, although for reasons different from

those expressed by the trial court. See Hayes v. Delamotte, 231 N.J. 373, 387

(2018) (directing that a "trial court judgment that reaches the proper conclusion

must be affirmed even if it is based on the wrong reasoning").

Rule 3:22-12(a)(2)(A) provides that

A-0409-19

30

Notwithstanding any other provision in this rule, no

second or subsequent petition shall be filed more than

one year after the latest of:

(A) the date on which the constitutional right asserted

was initially recognized by the United States Supreme

Court or the Supreme Court of New Jersey, if that right

has been newly recognized by either of those Courts

and made retroactive by either of those Courts to cases

on collateral review.

[Emphasis added.]

We agree with defendant that McCoy announced a newly recognized

constitutional right. Defendant does not, however, address whether the Court in

McCoy made that right "retroactive . . . to cases on collateral review" as the Rule

requires, that is applicable to those cases before the court on PCR "where all

avenues of direct appeal have been exhausted." See State v. J.A., 398 N.J. Super.

511, 514 (App. Div. 2008). Unless McCoy applies retroactively to cases on

collateral review, it is of no avail to defendant here.7

Although Justice Ginsberg made clear in McCoy that counsel conceding

a client's guilt over the client's express objection is structural error, meaning a

defendant need not show prejudice in order to be entitled to a new trial, 138 S.

7

Although our Supreme Court could determine to apply the rule of McCoy

retroactively as a matter of state law in New Jersey PCR proceedings, see

Danforth v. Minnesota, 552 U.S. 264, 282 (2008), until it does, we are bound by

the strictures of Rule 3:22-12(a)(2)(A).

A-0409-19

31

Ct. at 1511, the decision is silent as to whether it is to be applied retro actively

to cases on collateral review. Two circuit courts considering the issue, however,

have ruled McCoy does not apply retroactively to collateral challenges of final

convictions. See Smith v. Stein, 982 F.3d 229, 233-35 (4th Cir. 2020); Christian

v. Thomas, 982 F.3d 1215, 1224-25 (9th Cir. 2020).

Those courts reason the Supreme Court has held that new rules of

constitutional law, such as the one announced in McCoy, are "generally

applicable only to cases that are still on direct review." Smith, 982 F.3d at 233

(quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)). The only exception

for procedural rules such as this one has been if the rule is truly a "'watershed

rul[e] of criminal procedure' implicating the fundamental fairness and accuracy

of the criminal proceeding." Whorton, 549 U.S. at 416. The Fourth Circuit,

however, noted "the Supreme Court has never found a new procedural rule to be

'watershed' even though it has considered the question more than a dozen times."

Smith, 982 F.3d at 235 (citing Whorton, 549 U.S. at 418 (collecting cases)).

More recently, the Supreme Court itself noted that in the thirty-two years

since it announced the exception for watershed rules of criminal procedure in

Teague v. Lane, 489 U.S. 288, 311 (1989), "the Court has never found that any

new procedural rule actually satisfies that purported exception." Edwards v.

A-0409-19

32

Vannoy, 141 S. Ct. 1547, 1555 (2021). The Edwards Court declared that

"[c]ontinuing to articulate a theoretical exception that never actually applies in

practice offers false hope to defendants, distorts the law, misleads judges, and

wastes the resources of defense counsel, prosecutors, and courts ." Id. at 1560.

It accordingly announced "[t]he watershed exception is moribund," and

abandoned it. Ibid. The law is now that "new procedural rules apply to cases

pending in trial courts and on direct review. . . . [b]ut . . . do not apply

retroactively on federal collateral review." Id. at 1562.

Given the Court's announcement in Edwards that no new procedural rule

will apply retroactively in federal habeas proceedings, we are confident the new

rule announced in McCoy does not apply here as a matter of federal law, and

thus, that defendant's second PCR petition is barred by Rule 3:22-12(a)(2)(A).

Our disposition makes it unnecessary to resolve our doubts that Rule 3:22-

4(b)(2)(A) was properly invoked by the trial court in light of the terms of our

limited remand in Alvarado III.

Affirmed.

A-0409-19

33