Opinion
DOCKET NO. A-1470-12T2
01-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAJES K. RABAIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-11-26060. Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Hajes K. Rabaia appeals from an order entered on October 19, 2012, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
We set forth the factual background to defendant's conviction in an earlier opinion:
[O]n July 6, 2007, defendant and [N.D.] were at a casino in Atlantic City. [N.D.] was seated at a three-card poker table. Defendant was observing [N.D.] play from a distance of about three feet. [N.D.] won about $10,000. [N.D.] and defendant left the gaming area and proceeded to the area where wagering chips are exchanged for cash. Defendant cashed out twenty-eight dollars. [N.D.] cashed out $9800 and took the remaining $200 in chips.
Shortly thereafter, a casino security officer observed defendant and [N.D.] "tussling on the floor" near the restroom. [N.D.], who was seventy-two years old at the time, was holding onto defendant's shirt while defendant tried to get away. [N.D.] told the security officer that defendant had taken his money.
Several security officers arrived at the scene. One testified that he observed defendant trying to put on a torn shirt and that both men were breathing heavily. The officers took [N.D.] to a security room on the fourth floor. An officer tried to escort defendant to the security room. According to the security officer, defendant pushed him and ran down a ramp. The officer said that defendant did not get very far because he tripped. Defendant was taken away. He was searched and found in possession of $10,000 in cash.
[N.D.] testified that he did not know defendant. He said that he had not conversed with him, and did not place any bets for him. [N.D.] stated that he did not want defendant to come to the restroom with
him. He said that defendant entered the restroom, grabbed him from behind, took the money out of his pocket, and then hit him, causing his glasses to fall off. [N.D.] grabbed defendant's shirt to stop him from taking his money.
Defendant told a different story. He said that he met [N.D.] at the poker table. He stated that he needed money to settle a court case. Defendant stated that he gave [N.D.] $200 in chips to play for him. Defendant said that when [N.D.] won $4800 in one hand, he and [N.D.] began to jump up and down in excitement. Defendant could not, however, explain why the security videotapes did not show this.
Defendant stated that he expected to get half of [N.D.]'s winnings. They went together to the cashier, and [N.D.] allegedly told the cashier that $200 of his winnings belonged to defendant. Defendant and [N.D.] went to the restroom, where they argued about splitting the money. According to defendant, [N.D.] pushed him against the wall. At that point, the money fell out of [N.D.]'s pocket and his glasses fell to the floor.
Defendant grabbed the money. [N.D.] started screaming. Defendant said that he and [N.D.] agreed that defendant would keep the money in his pocket, each would get $2 00 to play, and they would play until defendant had to leave. Defendant stated that, when they left the restroom, there were ten people in the area. Defendant testified that [N.D.] got nervous and said that he beat him and took his money. Defendant denied hitting or touching [N.D.]
[State v. Rabaia, No. A-1013-08 (App. Div. Feb. 2, 2011) (slip op. at 2-4).]
Defendant was charged under Atlantic County Indictment No. 07-11-2606 with second-degree robbery, N.J.S.A. 2C:15-la(1). After a three-day trial, the jury found defendant guilty of second-degree robbery. On June 3, 2008, the court sentenced defendant to fifteen years of incarceration, with an eighty-five percent period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal, and on February 21, 2011, we affirmed his conviction and sentence. Rabaia, supra, slip op. at 13. Defendant filed a petition for certification, which our Supreme Court denied on September 9, 2011. State v. Rabaia, 208 N.J. 336 (2011).
On August 13, 2011, defendant, then represented by private counsel, filed the petition for PCR under review. Defendant claimed that he had been denied the effective assistance of counsel because his trial attorney generally failed to properly investigate or prepare for trial. Defendant alleged his trial counsel: (1) failed to adequately correspond with defendant prior to trial and sentencing; (2) failed to seek copies of original security videos used to create a composite tape used by the State at trial, which allegedly evidenced a social relationship between defendant and the victim; (3) failed to seek records of defendant's gambling debts or then imminent eviction; (4) failed to investigate potential witnesses; and (5) failed to investigate potential mitigating sentencing factors. Defendant further argued that the court should conduct an evidentiary hearing on these issues.
On October 19, 2012, the court heard oral argument and denied defendant's petition, without an evidentiary hearing. The PCR judge noted that he had presided over defendant's trial and observed that defendant's trial counsel was "a very experienced trial lawyer" who was prepared for trial. Nevertheless, the judge stated that even the most skilled lawyer could not have successfully defended this case in light of the overwhelming evidence against defendant, particularly the videotape evidence. The judge further noted that defendant repeatedly perjured himself during his trial testimony.
This appeal followed. On appeal, defendant argues:
POINT I
THE PCR COURT ERRED IN DENYING MR. RABAIA'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.
II.
To prevail on a claim of ineffective assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution, defendant must establish: (1) "'that counsel's performance was deficient'"; and (2) that "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984)). Defendant is generally entitled to an evidentiary hearing if he presents a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013).
To establish a prima facie claim, he must "must allege specific facts and evidence supporting his allegations." Id. at 355. The trial court has discretion to dispense with an evidentiary hearing "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); accord State v. Preciose, 129 N.J. 451, 462-64 (1992).
Here, the record supports the PCR judge's findings regarding the competency of defendant's trial counsel, defendant's perjury, and the overwhelming evidence of guilt presented by the State at trial. Defendant's claims generally consist of bald assertions as to the prejudicial impact of trial counsel's alleged deficiencies. Moreover, despite allegedly failing to adequately correspond with defendant, the record indicates defendant's trial counsel was prepared and well versed in defendant's preferred trial strategy.
The only specific prejudice defendant alleges arises out of the failure to seek copies of the original video tapes. Defendant argues that these tapes may have supported his testimony regarding a social relationship between defendant and the victim. In light of the trial record and overwhelming evidence undermining defendant's account, we see no reasonable probability that these tapes could have affected the outcome of the trial. We conclude that the PCR court correctly determined that defendant was not denied the effective assistance of counsel because his attorney did not adequately prepare for trial.
In addition, the trial court did not abuse its discretion in deciding the matter without holding an evidentiary hearing. The existing record was sufficient to resolve defendant's claims, and defendant failed to present a prima facie case of ineffective assistance of counsel.
To the extent we have not specifically addressed any of defendant's arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION