Opinion
DOCKET NO. A-2628-10T4
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABDULLAH ALI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 06-06-1857.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted for three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree terroristic threats, N.J.S.A. 2C:12-3; and criminal trespass, N.J.S.A. 2C:18-3a. The criminal trespass charge was dismissed and the jury acquitted defendant of the criminal restraint and terroristic threat charges. The jury also declined to convict defendant of the first- and second-degree charges but instead, convicted him of three counts of second-degree sexual assault, N.J.S.A. 2C:14-2, and one count of fourth-degree assault, N.J.S.A. 2C:12-1(a). The sentencing court granted the State's motion to impose a discretionary extended term of imprisonment, N.J.S.A. 2C:44-3(a), and imposed concurrent sentences of twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the sexual assault charges and time served for the simple assault.
Defendant filed a direct appeal in which he raised the following issues:
POINT I
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW)
POINT II
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A SECOND[-] DEGREE OFFENSE.
POINT IV
ASSUMING THE TRIAL COURT'S IMPOSITION OF A DISCRETIONARY EXTENDED TERM WAS APPROPRIATE, THE MAXIMUM 20 YEAR EXTENDED TERM WITH AN 85 PERCENT PAROLE DISQUALIFIER WAS CLEARLY MANIFESTLY EXCESSIVE.
POINT V
THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED EXTENDED TERMS ON COUNTS II AND III AS WELL AS ON COUNT I.
We affirmed his convictions and remanded for re-sentencing in an unpublished opinion. State v. Ali, No. A-4164-07 (App. Div. Jul. 6, 2009). The Supreme Court denied his petition for certification, 200 N.J. 475 (2009). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a PCR petition on December 21, 2009. A brief and amended petition were submitted on behalf of defendant. The PCR court denied defendant's petition by order dated July 28, 2010, and set forth its reasons in a written opinion.
Defendant presents the following issues for our consideration in his appeal.
POINT I
THE ORDER DENYING THE DEFENDANT'S PETITION SHOULD BE REVERSED BECAUSE THE PCR COURT'S ENFORCEMENT OF THE PROCEDURAL BAR OF RULE 3:22-4 WAS CONTRARY TO THE REMEDIAL PURPOSES OF POST-CONVICTION RELIEF AS ARTICULATED BY THE SUPREME COURT IN STATE V. RUE.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT III
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. THE INDICTMENT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.
B. THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.
C. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
We are not persuaded by any of these arguments and affirm.
As a preliminary matter, defendant's arguments addressing the indictment and cumulative trial errors and the remaining arguments raised regarding trial counsel in Point IV of PCR counsel's appellate brief lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), because they are procedurally barred, R. 3:22-4.
We next turn to defendant's argument that the PCR court erred in denying his petition without an evidentiary hearing. Defendant contends that he presented prima facie evidence that his trial counsel was ineffective because he failed "to keep him apprised of the status of the case and review the discovery with him; [failed] to competently advise him of his right to testify and to discuss with him the potentially exculpatory nature of the testimony that could have been el[i]cited; [failed] to request jury instructions on the lesser-included offenses of third degree aggravated sexual contact and fourth degree sexual contact; and the cumulative effect of trial counsel's deficiencies[.]" We disagree.
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, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) 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 to 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, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A petitioner seeking PCR bears the burden of establishing by a preponderance of the evidence that he is entitled to relief. State v. Mitchell, 126 N.J. 565, 579 (1992). "To sustain that burden, specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision." Ibid. However, in arguing that his counsel failed to keep him apprised of the status of his case or review discovery with him, defendant has identified no information that was not provided to him prior to trial that would have led to a different result at trial. The lack of specificity in this argument precludes any determination that either prong of the Strickland/Fritz test has been satisfied and therefore cannot provide a basis for relief.
Defendant also contends his trial counsel was ineffective in failing to request instructions for the lesser-included offenses of third-degree aggravated sexual contact and fourth-degree sexual contact. As noted, the jury convicted him of charges that were lesser-included offenses of the charges for which he was indicted. At trial, defendant did not deny having sexual intercourse with the victim but contended the activity was consensual. To be entitled to a charge on third-degree aggravated sexual contact and fourth-degree sexual contact, the evidence must present "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994).
N.J.S.A. 2C:1-8(d) defines a lesser-included offense as an offense that (1) "is established by proof of the same or less than all the facts required to establish the commission of the offense charged;" (2) "consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein;" or (3) "differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission."
Defendant contends that his trial counsel was ineffective for failing to request a jury charge on sexual contact which, he contends, was a lesser-included offense. We disagree.
The jury convicted defendant of three counts of second-degree sexual assault, which in this case required proof that he committed "an act of sexual penetration with another person" and "use[d] physical force or coercion, but the victim does not sustain severe personal injury." See N.J.S.A. 2C:14-2(c)(1). An essential element of this offense is penetration, which was not disputed by defendant. In contrast, sexual contact, the offense defendant contends should have been charged, is "an intentional touching . . . for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Because of the difference in the definitions of the essential elements of penetration and contact in N.J.S.A. 2C:14-1, the two offenses "are to be viewed as generally distinct forms of touching." Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:14-2 (2012). It is only if a basis exists for a jury to find that penetration did not occur that the lesser-included offense of criminal sexual contact should be charged to the jury. See State v. Gallagher, 286 N.J. Super. 1, 14 (App. Div. 1995), certif. den. 146 N.J. 569 (1996). However, since defendant did not deny that penetration occurred, a charge on sexual contact would not have been appropriate. This claimed deficiency, therefore, fails to satisfy the first prong of the Strickland/Fritz test.
Defendant also claims that his trial counsel did not provide effective assistance to permit him to make an election as to whether he should testify. In his certification, he states:
Moreover, my attorney never discussed with me testimony that might have been elicited during the trial should I have chosen to take the witness stand on my own behalf. Ultimately, although A.D. was not assaulted as she alleged, I did not testify on my own behalf because of trial counsel's failure to go over the discovery with me, coupled with trial counsel's lack of preparation on my case. Quite frankly, I simply lost
confidence in my attorney's ability and/or desire to competently represent my interests. I also felt that I was not being provided with the information that I needed to make intelligent and informed decisions regarding my case. Under these limiting circumstances, therefore, I felt like I did not have any other choice, especially with my prior record, but to do what counsel told me to, namely, not to testify at the trial on my own behalf. Certainly, as noted above, my trial attorney never discussed with me testimony that might have been elicited from me if I took the witness stand at trial on my own behalf.
As the PCR court observed, defendant failed "to state what testimony would have been elicited that would have changed the outcome of the case, had he testified." His certification can fairly be characterized as a general disavowal of confidence in his trial counsel. When the trial court inquired about his decision not to testify, he betrayed no such lack of confidence but rather, affirmed that the decision not to testify was his voluntary choice:
THE COURT: You understand that you have the right to testify in this case. You have the constitutional right not to testify in this case.
Do you understand that?
THE DEFENDANT: Yes, sir. Yes, your Honor.
THE COURT: All right.
Have you made a decision whether you wish to testify
in this case?
THE DEFENDANT: Yes, I have.
THE COURT: And what is that decision, sir?
THE DEFENDANT: I don't think it's
necessary.
THE COURT: I didn't hear you. I'm sorry.
THE DEFENDANT: I don't think it's necessary.
THE COURT: Okay.
And you've talked to your attorney about that, but that is your own decision?
Is that correct?
THE DEFENDANT: That is correct, your Honor.
THE COURT: And you made that voluntarily of your own free will.
THE DEFENDANT: Absolutely my own volition.
THE COURT: And your attorney's talked to you about that, and she's given you advice in that regard, but ultimately this is your choice.
Do you understand that?
THE DEFENDANT: That is correct, your Honor.
THE COURT: And if you were to take the stand you could be confronted with the fact on cross-examination that you
have convictions for first-degree crimes, second-degree crimes, third-degree crimes, and the jury would be allowed to know the length of the sentences and the degrees of the crime and the number of the convictions but not what you were convicted of.
You understand that, right?
THE DEFENDANT: Yes, your Honor.
THE COURT: And that's played a role in your determination, right?
THE DEFENDANT: That is correct.
The one consistent representation in both defendant's certification and statement to the court is his awareness of the detrimental effect evidence of his prior convictions would have. The court fully explained what the sanitized evidence of his convictions would consist of and he acknowledged that this fact "played a role in [his] determination" not to testify.
We are satisfied that defendant's spare and conclusory assertions were inadequate to constitute prima facie evidence of the ineffectiveness of his trial counsel. Therefore, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Finally, defendant argues that he was denied the effective assistance of appellate counsel because the arguments presented in his petition for PCR were not raised on direct appeal. We are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION