Opinion
A-0988-21
12-14-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAL C. NURSE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief). Matthew J. Platkin, Attorney General, attorney for respondent (Kaili E. Matthews, Deputy Attorney General, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted December 7, 2022
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 15-07-0704.
Joseph E. Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Kaili E. Matthews, Deputy Attorney General, of counsel and on the brief).
Before Judges Haas and Mitterhoff.
PER CURIAM
Defendant Jamal C. Nurse appeals from the Law Division's October 4, 2021 order denying his petition for post-conviction relief (PCR). We affirm.
The underlying facts concerning the offenses involved in this matter are set forth in our prior opinion on defendant's direct appeal from his convictions for robbery and other charges in State v. Nurse, Docket No. A-3528-16 (App. Div. Jan. 2, 2019). Therefore, those facts will not be repeated here. In that decision, we affirmed defendant's convictions and twelve-year aggregate sentence, which was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ibid.
Defendant thereafter filed a timely petition for PCR. Defendant asserted his trial attorney provided him with ineffective assistance because she: (1) refused to cross-examine Nicole Biggs, one of the witnesses who testified for the State at trial, about whether she was testifying against him because he had broken off their relationship; (2) failed to file an interlocutory appeal to challenge the trial court's denial of his motion to suppress the identifications provided by other witnesses; (3) incorrectly advised defendant not to accept the State's initial plea offer of a ten-year sentence; and (4) failed to investigate and call alibi witnesses at trial.
Following oral argument, Judge David H. Ironson rendered a thorough written decision on the first three contentions presented by defendant. The judge concluded that defendant did not satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. The judge found that defendant raised only bald assertions to support his allegations and his arguments on these three points were belied by the record.
Specifically, the judge rejected defendant's contention that his trial counsel should have questioned Biggs about whether her testimony was motivated by defendant's decision to end their relationship. While the attorney did not raise this subject with Biggs, the judge found she "thoroughly cross-examined Ms. Biggs on several other issues." Among other things, defendant's attorney cross-examined Biggs about: "her interactions with the police"; "whether she was read her Miranda rights[,] and whether the police told her that she could be charged in a conspiracy or as an accessory." The attorney also asked Biggs whether facing charges would affect her "potential nursing career" and "about her text message conversations with [d]efendant." Thus, Judge Ironson found that "trial counsel's conduct did not fall below an objective standard of reasonableness on this issue."
Miranda v. Arizona, 384 U.S. 436 (1966).
Judge Ironson next found that "trial counsel's failure to file an interlocutory appeal was not deficient." The judge noted that in this court's decision on defendant's direct appeal, we rejected defendant's argument that the trial court erred in denying his pretrial motion to suppress the identification testimony of the two witnesses. Nurse, slip op. at 9-23. Therefore, defendant failed to demonstrate that an interlocutory appeal would have been successful.
Judge Ironson also rejected defendant's contention that his trial attorney incorrectly advised him not to accept the State's plea offer of a ten-year sentence subject to NERA. Defendant continually insisted he was innocent of all of the charges against him. Under those circumstances, a court could not accept any attempt by defendant to plead guilty to an offense he maintained he did not commit. See State v. Smullen, 118 N.J. 408, 415 (1990) (stating that "[e]ven if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea.").
Finally, Judge Ironson determined that an evidentiary hearing was needed to review defendant's claim that his trial counsel improperly failed to investigate an alibi witness. Defendant submitted a certification stating "he had various alibi witnesses, including his uncle, Morris Franklin, who could verify that he was home on the night" the offenses were committed. Defendant also submitted a one-page report written by a defense investigator who had spoken to Franklin about his claim. The judge observed that defendant did not provide certifications from Franklin or identify any of the other alleged witnesses. Therefore, the judge ruled that an evidentiary hearing should be held on this issue.
Judge Ralph E. Amirata assumed responsibility for the handling of this matter, and he conducted an evidentiary hearing on October 4, 2021. At the beginning of the hearing, defendant's PCR attorney told the court that defendant would not be testifying at the hearing and that he would not be calling any other witnesses.
The State called defendant's trial attorney. The attorney testified she was in contact with defendant's "family during the period that he was incarcerated through the trial," and that she had no recollection of defendant ever telling her that he wanted a family member to provide him with an alibi defense. The attorney also did not recall ever hearing from Franklin concerning the trial.
At the conclusion of the hearing, Judge Amirata rejected defendant's argument that his trial attorney was ineffective because she did not call alibi witnesses on his behalf. The judge found the attorney credibly testified that she "maintained contact with . . . defendant and maintained contact with . . . defendant's family" and "[c]ertainly discussed the facts and circumstances with not only . . . defendant, but . . . defendant's family and was in a position to analyze and make a determination as to how to appropriately handle the case under the circumstances based on [these] interactions . . . ." Despite these contacts, the attorney "ha[d] no recollection of the [purported] witnesses approaching her to testify." Under these circumstances, Judge Amirata found that the attorney's trial performance was not deficient. This appeal followed.
On appeal, defendant raises the same arguments he unsuccessfully presented to Judge Ironson and Judge Amirata. Defendant contends:
POINT I
BECAUSE [DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR PCR.
(A) Legal Standards Governing Applications For [PCR].
(B) Defense Counsel was Ineffective, For Among Other Reasons, Failing to Investigate and Call Alibi Witnesses at Trial.
(C) Defense Counsel was Ineffective for Refusing to Cross-Examine Ms. Biggs at trial regarding her Retaliatory Testimony against Defendant.
(D) Defense Counsel was Ineffective for Failing to File an Interlocutory Appeal.
(E) Defense Counsel was Ineffective for Advising Defendant Not to Accept the State's Initial Plea Offer.
POINT II
IN THE ALTERNATIVE, BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE, THE PCR COURT ERRED IN DENYING A FULL PLENARY EVIDENTIARY HEARING.
(A) Legal Standards Governing [PCR] Evidentiary Hearings.
(B) In the Alternative, [Defendant] is Entitled to a Full Plenary Evidentiary Hearing.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div. 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, material issues of disputed facts lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. Preciose, 129 N.J. at 462.
On the other hand, where the judge conducts an evidentiary hearing on one of the issues, we must uphold the judge's factual findings on that issue, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15).
To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz, 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 (1984).
Having considered defendant's contentions in light of the record and the applicable law, we affirm the denial of defendant's PCR petition substantially for the reasons detailed at length in Judge Ironson's written opinion on the first three issues and on Judge Amirata's oral decision on the alibi issue following an evidentiary hearing. We discern no abuse of discretion in the judges' consideration of the issues, or in Judge Ironson's decision to deny the petition without an evidentiary hearing on the three remaining issues defendant presented. We are satisfied that the trial attorney's performance was not deficient, and defendant provided nothing more than bald assertions to the contrary.
Affirmed.