Opinion
DOCKET NO. A-1036-14T1
01-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HERMAN PROCTOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0450. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Herman Proctor appeals from the June 20, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was tried for two second-degree drug crimes, but was convicted only of a third-degree lesser included charge of possession of cocaine, N.J.S.A. 2C:35-10(a)(1). He was sentenced to two years of probation. On direct appeal, defendant raised the following arguments,
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.We affirmed the conviction and the Supreme Court denied his petition for certification. State v. Proctor, No. A-0175-09 (App. Div. Jan. 11, 2011), certif. denied, 206 N.J. 330 (2011).
A. The Police Did Not Have Probable Cause to Arrest Defendant.
B. The Evidence Must Be Suppressed As The Arrest Warrant Made No Mention of Herman Proctor And Therefore His Arrest Was an Illegal Warrantless Arrest.
POINT II: DEFENDANT'S STATEMENT AT THE POLICE STATION MUST BE SUPPRESSED AS THE POLICE VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT AND STATE CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION.
POINT III: THE TRIAL COURT ERRED IN FAILING TO HEAR DEFENDANT'S R. 3:18-1 MOTION AT THE END OF STATE'S CASE.
POINT IV: THE JURY VERDICT WAS INCONSISTENT.
POINT V: THE SENTENCING COURT SITTING IN THE LAW DIVISION, CRIMINAL PART ERRED IN ORDERING DEFENDANT TO MAKE CHILD SUPPORT PAYMENTS.
POINT VI: THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF THIRD DEGREE POSSESSION OF CDS, IN VIOLATION OF N.J.S.A. 2C:35-10(a) (1) WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
In this appeal defendant raises the following issues:
POINT I: THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT II: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule 3:22-2(a), a criminal defendant is entitled to PCR 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.
With regard to claims of ineffective assistance of counsel, the governing law is well-established. The Sixth Amendment of the United States Constitution guarantees a person accused of a crime the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685-88, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "[A]n otherwise valid conviction will not be overturned merely because defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314). An evidentiary hearing only becomes necessary when a defendant presents a prima facie basis to support the grant of relief and defendant alleges facts outside the trial record. See Preciose, supra, 129 N.J. at 462.
Defendant argues here that errors pertaining to the issuance of the search warrant require relief. The search warrant is a part of the trial record, and defendant challenged the validity of the warrant on direct appeal, although not raising the specific issues presented in his PCR petition. Now he alleges that the Mercer County Assignment Judge Linda R. Feinberg did not have the authority to sign a search warrant for a Somerset County location. Judge Feinberg, however, was the designated "wiretap judge" for Somerset County and had previously issued the wiretap that provided the information that led to the issuance of the warrant in question. Further, as a Superior Court judge, Judge Feinberg had statewide authority to issue a warrant. R. 3:1-2. Thus, she was the logical choice and had the legal authority to issue the search warrant.
Defendant also points out a perceived error in the caption of the search warrant in that the right side of the caption referred to an "affidavit in support of arrest warrants and search warrant," whereas the left side of the caption referred to "In the matter of" wire interceptions. We see no error in the caption, nor do we recognize any possible harm to defendant if some technical error in the caption went unnoticed by trial counsel. Any such defect would not meet the standard of a "substantial denial in the conviction proceedings" required by Rule 3:22-2(a). Defense counsel provided legal representation that helped to bring about a favorable result for his client, one short of complete exoneration, but without any incarceration. Defendant has provided no evidence whatsoever of ineffective assistance of counsel.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION