Opinion
DOCKET NO. A-1048-14T2
06-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUINCY C. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-07-1273. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Quincy Brown appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we affirm.
On July 24, 2007, defendant and co-defendant Cecil Marshall were indicted by a Bergen County Grand Jury and charged with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count three); and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count four).
The hearing on the motion to suppress took place on April 7, 2010. The judge denied the motion, finding Detective Brian Lucas "extremely credible" and concluding there was a reasonable and articulable basis for the motor vehicle stop. The judge further concluded that the stop and search were justified under the totality of the circumstances.
Prior to the hearing on the motion, Marshall pled guilty to count one. As a condition of the plea he agreed to testify on behalf of the State against defendant and to provide an allocution regarding both defendants' involvement in the charged crimes. During Marshall's guilty plea he stated under oath that he and defendant jointly possessed the cocaine with the intent to distribute.
Defendant proceeded to trial and was convicted by a jury on all four counts on April 15, 2010. Marshall did not testify at trial. On May 28, 2010, defendant was sentenced to a sixteen-year prison term on count one with an eight-year parole disqualifier, and a concurrent four-year term on count three with a two-year parole disqualifier. Count two was merged with count one, and count four was merged with count three. Additional fines and penalties were imposed, including an aggregate driver's license suspension of forty-eight months.
We affirmed the conviction and sentence in an unpublished opinion, but remanded for modification of the aggregate driver's license suspension to twenty-four months. State v. Brown, No. A-2188-10 (App. Div. June 18, 2012) (slip op. at 14), certif. denied, 212 N.J. 462 (2012).
We derive the salient facts from our previous opinion:
Prior to trial, defendant moved to suppress evidence seized from his motel room at the time of his arrest. The court conducted a hearing at which one witness, Detective Brian Lucas, an eight-and-one-half-year veteran of the Bergen County Prosecutor's Office, testified. According to Detective Lucas, on April 5, 2007, Sergeant Rich McKay requested that he go to the Capri Inn in Little Ferry to investigate a maroon Taurus station wagon whose registered owner, according to a [database] check, had two different dates of birth but the same Social Security number. Upon checking with the motel clerk, there was no guest with the vehicle owner's name registered at the motel. Based upon information provided by the motel clerk, police learned that the vehicle belonged to Cecil Marshall, a motel guest. A criminal
history check of Cecil Marshall revealed a number of prior arrests as well as robbery convictions. Sergeant McKay directed Detective Lucas to conduct a stationary surveillance of the vehicle. Detective Lucas parked his vehicle in a manner that afforded him the ability to see the Taurus from his position.
Detective Lucas's vehicle had tinted windows and he was attired in plain clothes. During his surveillance, he observed no activity associated with the vehicle and was subsequently relieved of his surveillance duty and reassigned to another location to await further instructions. When he received information that two males and a female had entered the vehicle and were now traveling on Route 46 eastbound, he commenced a mobile surveillance of the vehicle, which crossed over the George Washington Bridge and traveled into New York City.
The vehicle traveled onto Henry Hudson Parkway South and then onto Riverside Drive. It next turned onto 116th Street and "eventually" made its way up to 125th Street, where it commenced "squaring the block," which Detective Lucas, based upon his training and experience, described as a counter—surveillance measure by which a motorist travels around a block in an attempt to detect or identify anyone who might be following the vehicle.
The vehicle traveled to 118th Street, where the female passenger exited the vehicle and lingered in the area. The Taurus pulled away and next traveled to 143rd Street, where it was parked and remained for several minutes. The driver then pulled away, traveling to Bradhurst Avenue before driving down 123rd or 124th Street in what Detective Lucas described as a "creeping" manner. The driver of the
Taurus parked the car, and the two men exited the vehicle and walked away, out of view of the surveillance.
The two men were gone for approximately forty minutes before returning to the vehicle, leaving the area and returning to 143rd Street where the Taurus was once again parked. The driver, later identified as Cecil Marshall, exited the vehicle and approached an unoccupied P.T. Cruiser parked directly behind the Taurus. Marshall removed a plastic bag from the P.T. Cruiser and returned to the rear of the Taurus where he met his passenger, later identified as defendant, who was near the trunk. Marshall placed the bag in the trunk, closed it, and the two men then walked away. Next, they approached what appeared to be an occupied Grand Marquis, entered the vehicle, and shortly thereafter exited with a plastic bag and returned to the Taurus, in which they placed the plastic bag.
The two men then entered an apartment building, returned to the Taurus, and shortly thereafter drove away, returning to the Capri Inn. The men removed the plastic bags from the vehicle and entered the motel. They remained in the motel room for some time, but eventually exited the room carrying different plastic bags which they placed in the Taurus and then drove away.
After observing the Taurus proceeding at a noticeably slower speed than other vehicles traveling on Route 46 and also changing lanes without signaling, Detective Lucas signaled for the vehicle to stop. Detective Lucas testified he approached the driver's side and identified himself as a police officer while Detective Robert Tilton approached the passenger side, also identifying himself as a police officer. As soon as Marshall rolled down the window, the officer detected an odor of burnt marijuana.
Marshall exited the vehicle at Detective Lucas's request, at which point the detective commenced questioning Marshall regarding his whereabouts. Marshall responded that he had eaten dinner at a friend's home. Detective Lucas advised Marshall that he smelled burnt marijuana, and Marshall indicated that he had previously used marijuana. He verbally consented to the officers searching the vehicle and also executed a consent to search form. The search uncovered no contraband. However, Detective Lucas noticed that "right behind the . . . driver's seat was a folding chair that had a very large cushion attached to it." He elaborated that the cushion "seemed excessively large . . . for the frame and the rest of the chair. It . . . stood out to [him] as being unusual." When he touched the cushion, it was "extremely rigid and [his] fingers [c]ould barely push into the material." A canine dog brought to the scene for purposes of detecting the presence of marijuana appeared to have a strong reaction to the seat cushion. Detective Lucas testified that when the "concealed compartment" within the cushion was opened, although no contraband was inside, "there was an odor of raw marijuana."
Marshall next verbally consented to a search of the motel room but executed the written consent form after officers transported him, in handcuffs, back to the motel room. Marijuana and cocaine were discovered as a result of the search.
[Brown, supra, slip op. at 2-7.]
Defendant filed a PCR petition on January 10, 2013, which was supplemented by designated counsel. Oral argument on the petition was heard on April 7, 2014. The PCR judge, who was also the motion and trial judge, issued an order and written opinion denying the petition in its entirety on May 13, 2014. This appeal followed.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR].
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PRESENT THE CO-DEFENDANT AS A DEFENSE WITNESS DURING THE MOTION TO SUPPRESS.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO CALL THE CO-DEFENDANT AS A DEFENSE WITNESS AT TRIAL.
D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO THOROUGHLY DISCUSS WITH HIS CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY IN HIS OWN DEFENSE.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR], IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
POINT III
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR], IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision[]" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "[W]here the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, supra, 181 N.J. at 420-421). A PCR court's interpretations of law are provided no deference and are reviewed de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).
Defendant argues that defense counsel provided ineffective assistance of counsel by failing to call Marshall as a witness during the motion to suppress or at trial, and by failing to consider or discuss with defendant the possibility of defendant testifying on his own behalf at trial. We disagree and affirm substantially for the reasons set forth in the comprehensive and well-reasoned opinion of the PCR judge. We briefly add the following.
In support of his argument that defense counsel was ineffective because he failed to call Marshall as a defense witness, defendant has provided unsworn reports of an investigator who interviewed Marshall in 2013. The reports suggest that Marshall denied defendant's involvement and did not intend to testify against defendant. However, defendant has not provided an affidavit or certification from Marshall to support his position in the PCR petition. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification."), certif. denied, 162 N.J. 199 (1999). In addition to the deficiency of the unsworn reports, defendant's contention that Marshall would have been a favorable witness is refuted by Marshall's plea allocution under oath which inculpated defendant.
Similarly, defense counsel's alleged failure to "thoroughly discuss with his client all relevant ramifications associated with" deciding whether to testify at trial is supported only by self-serving assertions and bare allegations. Ibid. ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."). Defendant's assertion is again refuted by the trial record. Defendant engaged in a comprehensive colloquy with the trial judge concerning his right to testify. During the colloquy, defendant acknowledged both his right to testify and his discussing that right with his attorney. Moreover, defendant has failed to provide an affidavit or certification addressing his proposed testimony or how he was prejudiced by not testifying.
In reviewing PCR denials, we engage in "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (citations and internal quotation marks omitted). "In matters of trial strategy, we accord great deference to the decisions of counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991). "Decisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds[.]" State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). A defendant in a PCR petition "must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. 2065, 80 L. Ed. 2d at 694-95).
We note that "[a]dequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. Here, we find nothing in the record to support defendant's assertions that counsel rendered ineffective assistance by not employing Marshall as a defense witness or by defendant not testifying on his own behalf. The record is similarly devoid of support that the performance by defendant's trial counsel was deficient in that he failed to offer any advice or that he offered "affirmative misadvice." See State v. Gaitan, 209 N.J. 339, 356 (2012) (citing Padilla v. Kentucky, 559 U.S. 356, 369-370, 130 S. Ct. 1473, 1484, 176 L. Ed. 2d 284, 296 (2010)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Here, defendant's certification in support of his petition lacks any substantive factual support and only offers self-serving assertions and bare allegations. Cummings, supra, 321 N.J. Super. at 170. Further, defendant has failed to offer any specific instances, acts, or omissions constituting ineffective assistance of counsel. See State v. Jack, 144 N.J. 240, 249 (1996). As such, defendant has failed to make out a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 463.
Notwithstanding our determination regarding defendant's failure to establish that counsel's performance was deficient, we briefly address the second Strickland prong. Upon consideration of the record, we conclude that defendant has also failed to demonstrate how any alleged deficiency resulted in a prejudice that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52 (citation omitted).
Finally, we reject defendant's argument that the court erred in denying his petition without an evidentiary hearing. An evidentiary hearing is required where the defendant has shown a prima facie case and the facts on which he relies are not already of record. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2016). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Given our determination as to the substantive issues raised on appeal, we do not need to address defendant's arguments regarding the PCR judge's denial of the petition on procedural grounds.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION