Opinion
DOCKET NO. A-1105-11T2
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS P. NESBITT, Defendant-Appellant.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-02-0358.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Carlos P. Nesbitt appeals from the September 16, 2011 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Following a jury trial, defendant was convicted of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); second- degree distribution of marijuana, N.J.S.A. 2C:35-5a(1), 2C:35-5b(10); second-degree possession of marijuana with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), second-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1), 2C:35-5b(2); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
The record reveals that the following evidence was presented at trial. On January 14, 2005, federal Drug Enforcement Administration agents contacted the Atlantic City Police Department about a suspicious package, addressed to Jennifer Harris, being shipped to an Atlantic City apartment complex. A canine unit had alerted the agents that a DHL package contained a controlled dangerous substance. A controlled delivery of the package was arranged on January 17, 2005. An undercover agent posing as a DHL delivery person went to the designated apartment building and found a note taped to the door with instructions to leave the package outside the apartment. The ersatz delivery person left the package pursuant to those instructions. Defendant opened the door, looked around in all directions, took the package, and went back inside. The police, who had obtained a search warrant, knocked on the door, gained entry to the apartment, and discovered defendant with large quantities of drugs and drug paraphernalia.
On September 15, 2006, the trial judge sentenced defendant to an extended term of fifteen years with seven and one-half years of parole ineligibility. Defendant appealed his conviction on the basis that the trial court incorrectly denied his motion to suppress. We affirmed on the opinion below. State v. Nesbitt, No. A-1334-06 (App. Div. June 2, 2008). On October 6, 2008, the Supreme Court denied defendant's petition for certification. State v. Nesbitt, 196 N.J. 596 (2008).
Defendant filed a petition for PCR on February 19, 2011 with supporting brief and certification. He raised the following argument:
I received ineffective assistance of trial counsel in that my attorney:
a. failed to subpoena the lead detective, Det. Doran as a defense witness at suppression hearing at trial;
b. failed to ask for mistrial when Inspector Sylvester testified that the mail carrier told him that I was receiving mail at apartment number 3. The mail carrier never testified, therefore, Inspector Sylvester's testimony as to what the mail carrier told him should not have been allowed;
c. failed to investigate and inform the jury that an unknown
person knocked on my front door and told me that I had a package at the front of the building;
d. failed to subpoena employee of Office Max as defense witness to testify that I was not the person who dropped off the package nor the person to whom the package was to be delivered;
e. failed to present an entrapment defense and to ensure that my explanation was included in the jury charge;
f. failed to object to hearsay testimony;
g. failed to investigate that a note was left on the front door of the apartment complex instructing the mail carrier where to leave the package;
h. failed to have handwriting analysis performed on note to compare with my handwriting to ascertain whether I was the person who wrote the note for the mail carrier.
On July 29, 2011, Judge Bernard E. DeLury, Jr., who presided over the trial, heard oral argument. He rendered a comprehensive written opinion issued on September 16, 2011. Initially, the judge observed that defendant's ineffective assistance of counsel argument required a showing that counsel's performance fell so below the standard expected of a reasonable attorney that it undermined the proper functioning of the adversarial process. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984). Additionally, he noted, defendant must demonstrate that counsel's performance so prejudiced defendant that a reasonable probability existed 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.
The judge first addressed defendant's contention that counsel should have offered an explanation for why he took the package that was addressed to Harris. The judge noted that a jury instruction on defendant's version was limited by the testimony and evidence presented at trial. Because defendant did not testify at trial, counsel's ability to argue that the package did not belong to defendant was restricted. However, in closing argument, defense counsel argued that, while defendant took "temporary custody" of the package, this did not mean that it belonged to him. He implied that Harris might have asked defendant to retrieve the package. Noting that courts give great deference to trial counsel's strategic choices, the judge found that counsel made a sensible strategic decision and showed reasonable competence in presenting this argument during his closing argument. The judge found that defendant failed to show his counsel's actions were unreasonable under the first prong of the Strickland standard.
Judge DeLury also considered defendant's argument that counsel should have made hearsay objections during trial on four distinct occasions. The judge noted that on three of those instances, defense counsel was conducting the questioning, and could not be deemed ineffective for failing to object to his own questions. On the fourth occasion, in response to the State's question, a police officer testified that the mail carrier said "as far as she knows, there's no Jennifer Harris or nobody named Harris residing in that apartment complex." Admitting this was inadmissible hearsay, the State argued that it was harmless as it did not implicate defendant directly in any criminality. The judge determined that the failure to object was not ineffective assistance, since it was counsel's reasonable strategic choice not to draw the jury's attention to the testimony and defendant could not show how the outcome of the case would have differed if an objection had been made.
Defendant also argued that counsel was ineffective for failing to investigate the case, specifically, by failing to subpoena the lead detective as a witness for the suppression hearing and at trial, and by failing to subpoena an employee from the place of shipment. The judge rejected this argument, observing that such contentions must be supported by affidavits or certifications from those individuals as to what they would have said during their testimony. State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002). Additionally, defendant claimed that counsel should have conducted a handwriting analysis of the note left on the front door of the apartment building. However, defendant failed to provide evidence that the note was not written by him. The judge found that this alleged inefficiency did not meet either prong of the Strickland test.
Finally, Judge DeLury addressed defendant's argument that counsel was ineffective for failing to object to the jury charge. Defendant asserts that the jury instructions did not contain any reference to his version of events and the rationale for his conduct, and as such, the jury had no ability to discern whether he had the requisite intent to be found guilty. The judge noted that the jury instructions derived straight from the Model Jury Charges for the offenses committed. More importantly, as the judge explained, because defendant did not testify or present any witnesses, his version of the facts was never presented to the jury. As such, they could not have been offered in a jury charge.
On this basis, Judge DeLury denied defendant's PCR petition. Additionally, because defendant did not make a prima facie case of ineffective assistance of counsel, the judge chose not to hold a plenary hearing. This appeal followed.
On appeal, defendant raises the following arguments for our consideration:
POINT ONE: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BASED ON DEFENSE COUNSEL'S DEFICIENT REPRESENTATION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
A: The trial court erred in finding that defense counsel provided effective assistance at trial and adequately presented defendant's explanation for the retrieval of the package from the apartment vestibule.POINT TWO: THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S COUNSEL DID NOT OMIT A VITAL OBJECTION TO THE JURY CHARGE.
B: The court below erred in finding that trial counsel did not omit appropriate objections during trial.
C. The trial court erred in finding that counsel had properly investigated this case.
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, supra, 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, 58 (1987). In order to establish an ineffective assistance of counsel claim, a defendant must first show "that counsel's performance was deficient." Fritz, supra, 105 N.J. 42, at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must then demonstrate "that the deficient performance prejudiced the defense." Ibid.
A defendant is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1996) (citing State v. Preciose, 129 N.J. 451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We have carefully considered defendant's contentions in view of the applicable law and the record, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorney's performance was deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We affirm substantially for the reasons expressed by Judge DeLury in his thorough and well-reasoned written opinion rendered on September 16, 2011.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION