Opinion
DOCKET NO. A-0860-12T2
06-02-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO J. PRATTS a/k/a VINCENT A. KINCY, REHEN ORTIZ, TONY PINGALO, ANTINIO PRATT, TONY PRATTS, ANTONIO PINGOLO, TONY PINGNALO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0207.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Antonio J. Pratts appeals from the trial court order denying his petition for post-conviction relief (PCR). We affirm.
On December 20, 2007, defendant was apprehended at the Absecon train station within minutes of reportedly robbing the victim inside the victim's apartment. Police were immediately contacted, and the suspect was described as wearing a grey hoodie, carrying a yellow backpack, and riding a bicycle towards the station. Police apprehended defendant on the train. One of the train conductors turned over a yellow backpack found in a storage area near the location where defendant boarded the train. Police returned defendant to the victim's apartment and the victim identified him as the individual who robbed him. While being processed at the police station, defendant told police: "Look, I just went in there and I shoved the guy a few times. That's all that happened. I just wanted to get my girlfriend back."
A grand jury indicted defendant on charges of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six). Defendant pled not guilty to the charges.
At trial, the witnesses included the victim, who recounted how defendant entered into his apartment and attacked him, as well as a real estate agent who happened to be on the scene at the time defendant left the victim's apartment and to whom the victim reached out after defendant ran out of his house. Both the victim and the real estate agent testified they provided a description of defendant and the fact that he left the scene on a bicycle heading in the direction of the train station.
Defendant testified and explained that he entered the victim's apartment because he heard that his girlfriend had gone to the victim's apartment to turn a "trick." When he entered the apartment, he saw his girlfriend undressed on the bed. The victim confronted him with a knife, at which point he told his girlfriend to leave and he threatened to "kick [the victim's] ass." He also testified that his girlfriend told him that she had intended to steal money from the victim and that the backpack recovered by police belonged to her. The jury convicted defendant of terroristic threats and criminal trespass, as a lesser-included offense of burglary.
Prior to sentencing, defendant filed an ethics complaint against trial counsel because trial counsel failed to raise a diminished capacity defense based upon his diabetic condition. Although the jury was not presented with evidence of defendant's diabetic condition, the court, during trial, received a note from the jail nurse after defendant became confrontational with the court and staff, which resulted in the court holding him in contempt. The nurse's note alerted the court that defendant was a diabetic. After questioning by the court, defendant agreed to trial counsel's continued representation of him. The court imposed a ten-year custodial term with a five-year period of parole ineligibility. On appeal, we affirmed the conviction and sentence imposed, declining to address defendant's ineffective assistance of counsel claims. State v. Pratts, No. A-0567-09 (App. Div. February 22, 2011)(slip op. at 22). The Supreme Court denied certification. State v. Pratts, 207 N.J. 189 (2011).
In denying defendant's PCR petition, Judge Max A. Baker concluded that none of the claimed errors, had they not occurred, would have likely affected the outcome of the case. He noted that trial counsel had been successful "to a large degree in that the more serious charges . . . [defendant] was found not guilty." He also reasoned that trial counsel's failure to object to the jury hearing about the other evidence found in the backpack was inconsequential because, for example, the pie cutter was not the weapon that had been used to commit the offenses. More importantly, Judge Baker observed defendant had been identified by the victim and the real estate agent and took the stand to tell his side of the story. He noted that it was then up to the jury to assess credibility and that the jury believed defendant "to some degree because they found him not guilty of the more serious charges, but they didn't believe him 100 percent." The judge was convinced by the outcome that defendant's "trial counsel clearly did an okay job. Maybe he wasn't perfect, but that's not the standard." Finally, the judge rejected defendant's contention that trial counsel was ineffective because he failed to produce expert testimony concerning his medical condition. Judge Baker found there was nothing in the record to indicate that defendant's diabetic condition was causally related to his conduct at the time he committed the offenses. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I
DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF
A. FAILURE TO PURSUE DIMINISHED CAPACITY DEFENSE
B. FAILURE TO OBJECT TO INADMISSIBLE HEARSAY
C. THE ADMISSION OF EVIDENCE OF DEFENDANT'S BAD CHARACTER
D. THE CONFLICT OF INTEREST ISSUE
E. THE HARASSMENT JURY CHARGE ISSUE
F. CUMULATIVE ERROR
In his pro se supplemental brief, defendant specifically contends his diabetic condition resulted in him becoming confused, argumentative and combative, which negated the mens rea of the offenses.
We have considered the points in light of the record, arguments advanced in the briefs and applicable legal principles. We conclude the points raised and arguments advanced are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Baker in his June 13, 2012 oral opinion. We add the following brief comments related to defendant's contention that trial counsel was ineffective for failing to present expert testimony concerning his diabetic condition and to also raise a diminished capacity defense.
The test for ineffective assistance of counsel was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) first, that counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) second, that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In making that determination, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. State v. Parker, 212 N.J. 269, 279 (2012). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Id. at 280. Thus, both prongs of the Strickland/Fritz test must be satisfied before PCR may be granted. Ibid. We apply the Strickland standard and review the reasonableness of counsel's assistance with "'a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
Defendant's theory of the case was that he was on a mission to rescue his girlfriend from herself because he had heard that she was planning to engage in "tricking." "Diminished capacity refers to evidence that can negate the presence of an essential mental element of the crime." State v. Delibero, 149 N.J. 90, 98 (1997). Nothing in defendant's testimony remotely suggested that he lacked the requisite mental element of purposeful or knowing conduct in the commission of the offenses for which he was convicted. Moreover, while during trial, defendant produced a letter from a nurse at the Atlantic County adult detention facility confirming that he is diabetic, his PCR petition lacks any certification or report from an expert opining that defendant's diabetic condition would have negated his ability to form the essential mental elements for the offenses charged. As such, defendant's contention that diminished capacity should have been advanced on his behalf is nothing more than a bald assertion of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION