Opinion
DOCKET NO. A-4895-12T1
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DRAKE PRIMUS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. 06-03-0355. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief.) PER CURIAM
Defendant Drake Primus appeals the trial court's March 14, 2013 order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.
After a 2008 jury trial with two co-defendants, Primus was found guilty of first-degree robbery, second-degree aggravated assault, and fourth-degree unlawful possession of a weapon. The trial court imposed upon Primus an extended custodial sentence of thirty-five years on the robbery charge, subject to the parole ineligibility requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2.
The State's proofs showed that Primus and the other men robbed and slashed the throat of the victim with a box cutter knife. After his attackers fled, the victim was able to speak with the police, who apprehended the robbers, including Primus. Blood from the victim was found on the sleeve of Primus's sweater, and he also was found in possession of the victim's truck keys.
In a lengthy unpublished opinion on the consolidated direct appeals of all three defendants, we upheld the convictions and sentences, mainly focusing on Confrontation Clause issues presented by the admission of the victim's excited utterances to the police. State v. Primus, No. A-5034-08 (App. Div. Aug. 1, 2011). The Supreme Court denied Primus's petition for certification. 209 N.J. 98 (2012).
Primus raised four issues in his ensuing PCR petition alleging ineffective assistance of counsel by his attorneys: (1) his trial counsel failed to object to the judge's instruction advising the jury that defendants were presumed innocent "even if" they chose not to testify, as opposed to the "whether or not" wording in the model charge; (2) his trial counsel allegedly coerced Primus not to take the stand; (3) his trial counsel failed to move to suppress other unspecified evidence apart from the victim's hearsay statements; and (4) his counsel on direct appeal failed to raise these same issues.
Judge Raymond A. Reddin rejected these PCR arguments in an oral ruling without an evidentiary hearing, amplifying his oral ruling in a supplemental written opinion dated March 14, 2013. In his sole point in his brief on this appeal, Primus argues that we should reverse the trial court's denial of his petition and remand for an evidentiary hearing on his claims of ineffective assistance.
The judge who presided over the trial has since retired.
The governing law is well established. The Sixth Amendment of the United States Constitution guarantees a person accused of crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-88, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
As Judge Reddin correctly recognized, this case is not a "rare instance" in which the presumption of trial counsel's effectiveness has been overcome. The proofs against Primus and his co-defendants were exceedingly strong, and his criticisms of his attorney's performance are without merit. We add only the following short comments respecting his specific claims.
The "even if" phraseology that the trial judge used in the jury charge, apparently inadvertently, concerning defendants' election not to testify was innocuous. The gist of the model charge was appropriately conveyed in the court's instruction. Current N.J. Model Jury Charges (Criminal) Election Not to Testify (2013) (instructing that a defendant is "presumed innocent whether or not he/she chooses to testify"). The inclusion of the "even if" words in the spoken instruction could not objectively be construed as a normative comment by the judge that defendants should have testified. Trial counsel was not obligated to object to the trial court's paraphrasing of the Model Jury Charges.
Defendant's decision not to testify was manifestly voluntary and not coerced, as is confirmed by the colloquy in the trial record. There is no basis to think that Primus's testimony, had he testified, would have credibly explained away his bloody sleeve, his possession of the victim's keys, and the victim's identification of defendant as one of his attackers, moments after the robbery.
The ineffectiveness claims based upon trial counsel's alleged and unspecified lack of adequate investigation, and counsel's failure to file a motion to suppress, is based upon sheer speculation that such efforts would have been fruitful. As Judge Reddin rightly observed, the proofs of guilt here were "overwhelming."
For these same reasons, defendant's claims of ineffective assistance by his former appellate counsel are equally unavailing.
There was no need for an evidentiary hearing on this PCR petition because the petition failed to present a prima facie case to justify such an exercise. State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION