Opinion
DOCKET NO. A-3737-10T4
03-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE LAMARR WILLIAMS, a/k/a YUMAL WILLIAMS, ANDRE L. WILLIAMS, ANDREW YUMAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-02-0161, 04-02-0162.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In 2005, a jury found defendant Andre Williams guilty of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b); and possession of a defaced firearm, N.J.S.A. 2C:39-3(d). Following the jury's verdict, defendant entered a plea of guilty to certain persons not to have weapons, N.J.S.A. 2C:39-7.
Defendant was sentenced to the following: a five-year prison term subject to thirty months of parole ineligibility for unlawful possession of a weapon; a ten-year prison term subject to sixty months of parole ineligibility for possession of a weapon for an unlawful purpose; an eighteen-month prison term for possession of a prohibited weapon; and a five-year prison term subject to five years of parole ineligibility for certain persons not to possess weapons. All of these sentences were made concurrent to each other and consecutive to the sentence that defendant was then serving.
In this appeal, defendant appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In our decision on direct appeal affirming the jury's verdict, State v. Williams, No. A-0333-06 (App. Div. March 25, 2009), certif. denied, 200 N.J. 206 (2009), we addressed defendant's contention that his motion to suppress the evidence was improvidently denied. We disagreed with that assertion. We also recounted the facts as demonstrated by the evidence at defendant's trial, which we now summarize briefly.
For approximately thirty minutes, officers of the Elizabeth Police Department surveilled a group of eight men, all of whom were wearing jeans, Timberland boots, and white tee-shirts. One of the men, who was on a bicycle, had a large red or orange object on his right wrist. The officers identified that person as defendant.
A car with New York license plates circled the area and came to a stop near the corner where the group of men were standing. Defendant approached the car and moments later pointed toward the westerly direction of the street. The car then proceeded in that direction. One of the men in the group then followed, proceeding in the westerly direction. After a short time, the individual returned to the group.
Thereafter, an individual wearing a cowboy hat approached defendant and briefly spoke with him. Defendant pointed at the individual and then again toward the westerly direction of the street. The individual proceeded in that direction followed by two members of defendant's group. The officers then watched a red vehicle stop next to the group.
The officers believed they were observing narcotics transactions. When the group began to disperse, the officers returned to their car, and drove toward the remaining men. One officer testified that as he called out from the passenger seat of his car to ask defendant to approach the officers, defendant looked at the officer and began to pedal away on his bike at full speed. The officer got out of his vehicle, ordered defendant to stop, and pursued him on foot.
Shortly thereafter, defendant dismounted his bicycle and jumped over a wall while the officer followed him. Defendant motioned towards his right side and the officer saw that defendant was holding a black handgun. Defendant then climbed over a fence into a backyard. While the pursuing officer was attempting to climb the fence, his partner arrived and subdued defendant. The officers recovered the handgun and an orange Nextel phone from defendant.
Defendant filed a pro se PCR petition. PCR counsel submitted a brief and appendix in support of the petition. A non-evidentiary hearing was held on October 15, 2010. In his oral opinion denying defendant's petition, the PCR judge addressed defendant's arguments that his trial counsel and motion to suppress counsel were both ineffective for failing to call as a witness, Husain Williams, at the suppression hearing and trial, respectively.
Defendant contends that Williams would have testified that he observed defendant just prior to his arrest, and that defendant was bare-chested, wearing slippers or sandals, thereby raising the issue of misidentification. Accepting that Williams would have testified as represented, the PCR judge made the determination that the strategy of both trial counsel and motion to suppress counsel "was absolutely appropriate in deciding not to call that witness." The PCR judge analyzed the facts and further determined that neither counsel was ineffective for failing to call the witness. The PCR judge concluded that defendant had not made a prima facie showing of prejudice.
On appeal, defendant raises the following points for our consideration:
POINT ONE
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING AND BY DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
POINT TWO
DEFENDANT'S MOTION AND TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
II.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see also Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Harris, supra, 181 N.J. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court[.]" Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here, as there was no evidentiary hearing and no credibility determinations were made.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment 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). In order to prevail on a claim of ineffective assistance of counsel, defendant must satisfy a two-prong test by establishing that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment of the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also State v. Goodwin, 173 N.J. 583, 596 (2002). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).
We address defendant's claim that his motion counsel and trial counsel were ineffective for failing to call Husain Williams as a witness.
Defendant's motion strategy was based on the assertion that the initial stop by the officers was unconstitutional and not supported by reasonable suspicion, not that the officers had arrested the wrong individual. This strategy by motion counsel was not deficient. Nor was trial counsel ineffective, given the fact that defendant was observed by the officers for thirty minutes and was chased by them as he tried to flee on his bicycle. Moreover, the handgun and orange Nextel phone were recovered from defendant.
We reject the other arguments raised by defendant in his brief as lacking sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of motion counsel or trial counsel under the Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION