Opinion
DOCKET NO. A-3666-11T4
06-21-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT COOK, a/k/a LITTLE RAH, ROBERT QUENTIN COOK, ROBERT QUINTIN COOK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, 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NOT FOR PUBLICATION WITHOUT THE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 Grall and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1113.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert Cook appeals from the September 26, 2011 Law Division order, which denied his petition for post- conviction relief (PCR) grounded on the ineffective assistance of counsel. We affirm.
Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The charges stemmed from the death of Reginald Taylor after he was shot in the head at point blank range while standing on a street in Irvington. At trial, two eyewitnesses identified defendant as the shooter, one of whom recognized defendant from the neighborhood.
The trial judge sentenced defendant to a fifty-year term of imprisonment subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments, fee and penalty and ordered defendant to pay restitution in the amount of $7141.
Defendant appealed his conviction and sentence. We affirmed the conviction, but vacated the sentence and remanded for resentencing. State v. Cook, No. A-0727-06 (App. Div. Apr. 3, 2009). Our Supreme Court denied certification. State v. Cook, 200 N.J. 207 (2009).
Defendant timely filed a PCR petition, claiming in a supporting certification that trial counsel did not adequately review discovery with him and prepare him to testify, and advised him not to testify and did not advise him that he could testify despite that advice. In a September 7, 2011 oral decision, the trial judge denied the petition without a hearing. The judge reviewed the colloquy that occurred during the trial about defendant's right to testify:
THE COURT: Mr. Cook, could you stand please? Could we have Mr. Cook sworn in?The judge concluded based on this colloquy that ineffective assistance of counsel claim lacked credibility and merit. This appeal followed. On appeal, defendant raises the same claims he raised before the trial judge.
(Defendant sworn)
THE DEFENDANT: Robert Cook.
THE COURT: All right. Mr. Cook, I've been informed that you have decided not to testify in this case. Is that correct?
THE DEFENDANT: Yes.
THE COURT: You've had an opportunity to discuss this matter with [trial counsel]?
THE DEFENDANT: Yes.
THE COURT: He's explained to you that you have a Constitutional right to testify and a Constitutional right to decline to testify. Is that true?
THE DEFENDANT: Yes.
THE COURT: He's also explained to you that if you decide not to testify in this case that you have a right to have the jury instructed that they shall not hold your
failure to testify against you. Is that correct?
THE DEFENDANT: Yes.
THE COURT: Has [defense counsel] answered all your questions with regard to this issue, that is the issue of whether you should testify or not testify?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions that you would like to ask him now before I complete this hearing?
THE DEFENDANT: No.
THE COURT: Are there any questions that you would like to ask me on the issue of whether or not you should testify?
THE DEFENDANT: No.
THE COURT: All right. Are you satisfied that you have all the information you need to make an informed decision with regard to your testifying or not testifying?
THE DEFENDANT: Yes.
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 459-64 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. 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-pronged analysis in New Jersey).
"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.
Applying the above standards, we discern no reason for an evidentiary hearing. Defendant failed to make a prima facie showing that counsel rendered ineffective assistance. The record confirms that defendant knowingly and intelligently waived his right to testify at trial after the judge extensively questioned him under oath. Further, defendant points to no testimony he would have provided or information in the discovery that could have countered the testimony of two eyewitnesses who positively identified him as the shooter.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION