Opinion
DOCKET NO. A-2776-14T2
09-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KASEEM CAMEL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2800. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kaseem Camel appeals from an October 31, 2014 order, denying his petition for post-conviction relief (PCR). On this appeal, he presents the following points of argument:
POINT I - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO HAVE LAKEESHA KELLY TESTIFY AS AN ALIBI WITNESS.
POINT II - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL FAILED TO COMMUNICATE THE STATE'S LAST PLEA OFFER.
Having reviewed the record in light of the applicable legal standards, we find no merit in those arguments and we affirm.
The procedural history and trial evidence are detailed in our opinion affirming defendant's conviction on direct appeal, State v. Camel, A-2248-09 (App. Div. March 27, 2012), and in the PCR judge's written opinion dated October 31, 2014. A summary will suffice here. In 2008, defendant was convicted of aggravated manslaughter, aggravated assault, and weapons offenses, in connection with the shooting of three people, one of whom died. The shooting took place at a housing complex in Newark at around 5:00 p.m. on November 29, 2006.
In statements to the police made shortly after the shooting, the two surviving victims identified defendant as the shooter. One of the victims confirmed that information in Grand Jury testimony. However, by the time of the trial in September 2008, the victims each recanted their earlier identifications and claimed they did not know who shot them. After a Gross hearing, the trial judge permitted the prosecutor to confront the two with their prior statements and allowed the statements to be introduced in evidence.
State v. Gross, 121 N.J. 1 (1990).
In his PCR filing, defendant raised several claims of ineffective assistance of counsel. For purposes of this appeal, we need only address the two claims he has pursued here. Defendant contended that his attorney failed to call his girlfriend Lakeesha Kelly as an alibi witness, and failed to communicate to him the State's final plea offer.
By order dated July 17, 2015 we granted defendant's motion to expand the record to include a March 2014 affidavit from Kelly. The affidavit does not specify the date of the murder. It states that defendant arrived home "at about 5 pm" on "the day in question."
After holding an evidentiary hearing at which defendant, Kelly, and defendant's former trial counsel testified, Judge Verna G. Leath rejected those claims. Based on the attorney's testimony, the judge found that trial counsel communicated the State's plea offers to defendant. She also found that trial counsel had interviewed Kelly prior to the trial, and had determined that there were significant weaknesses in her proposed testimony and an alibi defense was unlikely to succeed. According to the attorney, Kelly claimed that on the day of the killing, defendant came home from work before 5:00 p.m. and stayed home all night thereafter. However, the attorney testified that Kelly was not clear in her recollection of the time and was unable to explain how she allegedly recalled defendant's time of arrival on that particular evening. Nor were Kelly or defendant able to document the claim that defendant was actually employed in November 2006. Judge Leath noted similar problems in Kelly's PCR hearing testimony. She found that trial counsel was not ineffective in deciding not to call Kelly as a witness.
In his PCR testimony, defendant asserted that in November 2006, he lived in East Orange and worked at an occupational center in Orange from 8:00 a.m. to 4:00 p.m. However, he readily admitted that he also sold drugs in the same Newark housing complex where the victims, two of whom were also drug dealers, were shot. He denied being in Newark on the day of the shooting. --------
On this appeal, our review of Judge Leath's decision is limited.
When reviewing a PCR court's determination, we generally defer to the court's factual findings, including credibility
determinations, if they are supported by "adequate, substantial and credible evidence." However, we review legal issues de novo. Finally, when considering mixed questions of law and fact, we defer to "supported factual findings," but "review de novo the lower court's application of any legal rules to such factual findings." [State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013) (citations omitted).]
Moreover, the PCR judge's evaluation of defense counsel's decision whether or not to call a witness is necessarily deferential.
Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"
[State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984)).]
After reviewing the record, we find no basis to second-guess Judge Leath's evaluation of witness credibility, and we conclude that her decision is supported by substantial credible evidence. See L.A., supra, 433 N.J. Super. at 17. Based on the facts as she found them, we agree that defendant's trial counsel did not render ineffective assistance. Rather, he communicated the State's plea offers to defendant, and he engaged in reasonable trial strategy in deciding not to call Kelly as a witness.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION