Opinion
DOCKET NO. A-5346-12T2
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN B. MCNEIL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-09-0709. Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a March 14, 2013 order denying his petition for post-conviction relief (PCR). Defendant argues that his trial counsel rendered ineffective assistance. We affirm.
A grand jury indicted and charged defendant with third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count One); third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:35-7 (Count Two); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Three); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Five). Counts Two and Four were dismissed prior to trial.
The police conducted a surveillance operation targeting illegal drug transactions. A camera, which had been attached to a nearby pole, sent a video feed to a remote location. Police officers were stationed in the vicinity to arrest individuals suspected of engaging in drug transactions.
The video showed a woman approach a man, talk to him, and then walk away. A detective knew the identity of the woman, as he had lived in the area for fifteen years. A second man, whom the detective recognized as defendant, then approached the woman. The two spoke and exchanged money. Defendant walked across the street, within 50 yards of an elementary school, and the woman followed.
The detective testified at trial that the video footage showed defendant "dipping," meaning that he put loose drugs into the woman's hands. The police arrested the woman several blocks away from where the transaction took place, with loose crack cocaine in her possession.
At trial, the jury viewed the surveillance video. The video did not contain verbal statements of any individual. The woman was unable to identify defendant as the person who sold her the drugs. The detective testified, however, that he could personally identify defendant.
The jury found defendant guilty on Counts One, Three and Five. The judge merged Counts Three and Five into Count One and, in July 2006, sentenced defendant to an extended-term of eight years in prison with four years of parole ineligibility, consecutive to the prison term he was serving at the time.
Defendant appealed from the convictions and primarily argued that his rights to due process and confrontation were violated, and that his sentence was excessive. We affirmed the convictions in an unpublished opinion. State v. McNeil, No. A-1923-06 (App. Div. Dec. 12, 2008), certif. denied, 199 N.J. 543 (2009).
In April 2012, defendant filed this PCR petition. Judge Jeanne T. Covert conducted oral argument, rendered a comprehensive seventeen-page written decision, and denied the petition. The judge concluded that defendant filed the petition beyond the five-year time bar imposed by Rule 3:22-12a(1). She also concluded that defendant failed to make a prima facie showing of ineffective assistance of counsel.
Defendant raises the following points on appeal:
POINT I
DUE TO THE CONSTITUTIONAL ISSUES RAISED IN THE INSTANT APPEAL, THE TIME LIMITATIONS FOR FILING A PETITION FOR [PCR] PROVIDED BY R. 3:22-12 SHOULD BE RELAXED.
POINT II
[DEFENDANT] WAS DENIED DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WHEN THE TRIAL COURT ALLOWED THE JURY TO LISTEN TO A VIDEO-TAPE DURING ITS DELIBERATIONS (NOT RAISED BELOW).
POINT III
[DEFENDANT] IS ENTITLED TO A REMAND AND AN EVIDENTIARY HEARING TO DETERMINE WHETHER HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL.
POINT IV
ALTHOUGH THE APPELLATE DIVISION CONSIDERED ON DIRECT APPEAL THE ISSUE OF WHETHER [THE DETECTIVE] TESTIFIED AS AN EXPERT WHEN HE IN EFFECT PROVIDED INADMISS[I]BLE LAY TESTIMONY, THE ISSUE SHOULD NONETHELESS BE CONSIDERED IN LIGHT OF SUBSEQUENT CASE AUTHORITY.
POINT V
THIS COURT SHOULD CONSIDER ALL OTHER POINTS OF CONTENTION WHICH WERE RAISED BY [DEFENDANT] IN HIS PETITION FOR [PCR] OR BY COUNSEL IN HIS BRIEF AND AT THE PCR HEARING.
After carefully considering defendant's contentions, we conclude that his arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Covert in her written opinion. We add the following comments.
As to the five-year deadline imposed by Rule 3:22-12a(1), we agree with the judge that defendant has not shown any justification for filing the petition nearly six years from the date of his sentence. As a result, we conclude that the petition is time-barred. However, on the merits, defendant has failed to make a prima facie showing of ineffective assistance of counsel.
For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either of the performance or prejudice prongs of the Strickland test.
Defendant's contention raised for the first time on this appeal — that his trial counsel was ineffective by allowing the jury to view the surveillance video — is barred by Rule 3:22-4(a) because such an argument could have been raised on his direct appeal from the convictions. Although it is procedurally barred, we conclude that defendant is unable to meet either prong of Strickland. Even if defendant was able to meet the first prong, which he cannot, the video contained no verbal statements and he has otherwise failed to show how the proceeding would have been different. Moreover, there was overwhelming evidence of guilt including the detective's observations of defendant and the woman, both of whom the detective had known from the community.
Finally, defendant contends that the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also R. 3:22-10(b) (stating that a hearing is only required if the defendant presents a prima facie case in support of PCR, there are material issues of fact that cannot be resolved by reference to the existing record, and an evidentiary hearing is required to resolve the claims for relief).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION