Opinion
DOCKET NO. A-1881-14T3
04-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DRITAN JONUZI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-11-2659. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dritan Jonuzi appeals from the November 17, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following an altercation, Jonuzi was charged with third-degree aggravated assault and conspiracy to commit aggravated assault. Following a jury trial he was found guilty of aggravated assault and acquitted on the conspiracy count. His motion for a new trial was denied and he was sentenced to a term of four years in prison.
In December 2010, we affirmed Jonuzi's conviction and sentence. State v. Jonuzi, No. A-4934-09 (App. Div. Dec. 27, 2010). He filed a PCR petition pro se, and thereafter a brief was filed by assigned counsel. Jonuzi asserted that his trial counsel was constitutionally ineffective in his failure to present exculpatory witnesses and evidence at trial and to object to certain hearsay statements. He also asserted deficiencies on the part of appellate counsel.
Defendant was represented at the trial and appellate levels by the same attorney. --------
Following oral argument on Jonuzi's petition, Judge Bernard E. DeLury, Jr., denied relief in a comprehensive written decision of November 17, 2014. He reviewed the arguments made in support of Jonuzi's motion and determined that he had failed to make the requisite showing to be entitled to an evidentiary hearing. He further found that Jonuzi had failed to prove he was denied the effective assistance of counsel, noting there was nothing in the trial record to indicate that trial counsel's performance was deficient, nor was there a showing of how the outcome of the trial would have been different.
Specifically, the PCR judge noted that the letters of family and friends that defendant claimed provided exculpatory evidence were not provided until after the trial and his resulting conviction. Therefore,
these witness statements should not be considered in the determination of ineffectiveness of trial counsel because there is no indication that trial counsel knew of these witnesses ahead of time . . . . The creation of these documents after the conviction and while the matter was on appeal greatly diminish the reliability of the certification and letters.
The judge also noted that the certifications of the witnesses provided with the PCR petition were not sufficient to show that the outcome of the trial would have been different. There were inconsistencies in the statements of the various witnesses and none of them placed themselves with defendant at the time of the incident. The judge also found that the issue of identity of the victim's attacker was raised and explored with witnesses at the trial.
As to appellate counsel, the judge stated "[h]e was fully aware of the issues and chose to present what he perceived to be his best chances for success on appeal. The fact that this argument failed to persuade the Appellate Division is not prima facie evidence of his ineffectiveness."
Jonuzi raises the following issues on appeal:
POINT I: DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF
(A) Counsel was ineffective for failing to object to repeated hearsay statements that identified the defendant as the perpetrator of the crime
(B) Counsel was ineffective for failing to investigate exculpatory witnesses provided by defendant and for failing to present them at trial
(C) Counsel was ineffective for failing to challenge the out-of-court identification of defendant
POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); State v. Preciose, 129 N.J. 451, 460 (1992). In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A court reviewing a PCR petition based on ineffective assistance of counsel claims has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We find insufficient merit in all of Jonuzi's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the thoughtful reasoning set forth in Judge DeLury's decision. As the judge found, Jonuzi's statement that his trial counsel was deficient in not investigating and presenting exculpatory witnesses was a bald assertion and lacked merit. "The decision regarding which witnesses to call and put forth in the defense's case are strategic decisions made by the attorney." Furthermore, there was no evidence that the list of witnesses provided to the PCR judge had been given to counsel at the time of trial. The only alibi witness proffered by Jonuzi was his father who thereafter refused to testify at trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION