STATE OF NEW JERSEY VS. BENJAMIN LEVINE (07-05-0864, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2421-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BENJAMIN LEVINE,
Defendant-Appellant.
________________________________
Argued October 26, 2017 – Decided November 15, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
07-05-0864.
Benjamin Levine, appellant, argued the cause
pro se.
David M. Liston, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Mr.
Liston, of counsel and on the brief).
PER CURIAM
Defendant appeals from an October 8, 2015 order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Following a trial, a jury convicted defendant of third-degree
unlicensed practice of medicine, N.J.S.A. 2C:21-20 (count one);
second-degree theft by deception, N.J.S.A. 2C:20-4 (count two);
two counts of fourth-degree falsification of records, N.J.S.A.
2C:21-4(a) (counts six and eight), and third-degree insurance
fraud, N.J.S.A. 2C:21-4.6 (count seven). After appropriate
mergers, the judge sentenced defendant to an aggregate eight-year
term and ordered him to pay restitution. On direct appeal, we
affirmed defendant's conviction, but remanded to permit the entry
of an amended judgment of conviction to correct the restitution
amount. State v. Levine, No. A-4065-09 (App. Div. July 23, 2012)
(slip op. at 2, 38), certif. denied, 213 N.J. 387 (2013).
Defendant thereafter filed a timely petition for PCR. For
the most part, defendant attempted to relitigate the same issues
he had unsuccessfully raised in his direct appeal. He also made
other assertions that could have been raised on direct appeal.
Finally, defendant asserted that his trial counsel had been
ineffective because the attorney failed to argue that the criminal
charges involved in this case should have been handled by the
State Board of Medical Examiners rather than a court.
Following oral argument, the judge denied defendant's
petition. In his oral decision, the judge found that the bulk of
defendant's contentions were barred by either Rule 3:22-5 or Rule
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3:22-4,1 because defendant had either raised them on direct appeal
or should have raised them in that proceeding. The judge also
rejected defendant's claim that his attorney provided ineffective
assistance because he did not assert that the State Board of
Medical Examiners had jurisdiction over the criminal charges
contained in the indictment.2 The judge concluded that in the
face of the overwhelming evidence of defendant's guilt presented
at trial, "defendant received a more than adequate defense; he
received a very good defense." This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE
DEFENSE COUNSELORS IS OBJECTIVELY BASED ON A
PRIMA FACIE CASE WHERE THE COUNSELORS DID NOT
DO ANY INVESTIGATION TO DETERMINE THE STATUS
OF DEFENDANT'S LICENSE AND FAILED TO INTERVIEW
THE WITNESSES SO THAT ALL NOTES DOCUMENTS AND
FILES WOULD BE BROUGHT TO COURT TO PROVIDE THE
TRUE FACTS RELATED TO STATE MEDICAL BOARD
LICENSING STATUTES IN RELATION TO THE CRIMINAL
LAW. (Not Raised Below).
1
Rule 3:22-5 provides that "[a] prior adjudication upon the merits
of any ground for relief is conclusive whether made in the
proceedings resulting in the conviction . . . or in any appeal
taken from such proceedings." Rule 3:22-4 states that subject to
exceptions not applicable here, "[a]ny ground for relief not raised
. . . in any appeal taken [from a conviction] is barred from
assertion in" a first petition for PCR.
2
On direct appeal, we rejected defendant's assertion that the
State Board of Medical Examiners had exclusive jurisdiction over
the charges against him. Levine, supra, (slip op. at 2, 5, 16).
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POINT II
THE LOWER PCR AND TRIAL COURTS MADE MULTIPLE
ERRORS INCLUDING FAILURE TO ARRAIGN ON #07-
05-00864 THAT MUST ALLOW AQUITTAL. (Not Raised
Below).
POINT III
THE LOWER PCR COURT SHOULD HAVE KNOWN THAT
GILLET DID NOT HAVE THE AUTHORITY OR THE
JURISIDICTION TO PROSECUTE THIS CASE, SO
GILLET ENGAGED IN "BAD FAITH" AND LIES TO
PREVENT THE JURY AND COURT FROM KNOWING.
(Raised Below Point VIII, Reply Point V) (But
Without New Case).
POINT IV
NO COURT OR PROSECUTOR CAN ADD VERBIAGE TO A
CRIMINAL STATUTE TO CHANGE THE INTENT OF THE
LEGISLATURE UNLESS THERE IS AMBIGUITY AND NO
AMBIGUITY EXISTED IN THE STATUTE; BUT, JUDGE
PULLEN CAUSED AMBIGUITY FOR THE JURY BY
REFUSING TO DEFINE THE ELEMENT OF POSSESSION
OF A LICENSE AND FAILING TO CHARGE THE JURY
WITH THE ADMINISTRATIVE LICENSING STATUTES IN
A PHYSICIAN LICENSING CASE, AS DEFENDANT
POSSESSED A LICENSE. (Not Raised Below).
POINT V
THE TRIAL COURT VIOLATED ITS SCHEDULING
DISCRETION BY DENYING REPRESENTATION OF
DEFENDANT'S ATTORNEY. (Raised Below Point I).
When petitioning for PCR, the defendant must establish by a
preponderance of the credible evidence that he or she 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
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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.), 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. Preciose, supra, 129
N.J. at 462.
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 v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984); 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, supra,466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude that they are
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without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add the following brief comments.
As defendant notes in the point headings to his brief, he did
not raise Points I, II, or IV before the trial court. "We generally
'decline to consider questions or issues not properly raised to
the trial court . . . unless the questions so raised on appeal go
to the jurisdiction of the trial court or concern matters of great
public interest.'" State v. Marroccelli, 448 N.J. Super. 349, 373
(App. Div. 2017) (quoting State v. Robinson, 200 N.J. 1, 20
(2009)). Neither of those exceptions applies to this case and,
therefore, we will not consider defendant's newly-minted
contentions here.
We also reject the arguments defendant raises in Points III
and V because, as the trial judge found, they are barred by Rule
3:22-5. In Point III, defendant once again contends that this
matter should have been referred to the State Board of Medical
Examiners, which was the same argument he presented in Points I
and VIII of the brief defendant's attorney submitted in defendant's
direct appeal. Levine, supra, (slip op. at 2, 5). Similarly,
defendant's assertion in Point V that the trial court did not
permit an attorney defendant wanted to retain to represent him at
trial mirrors the argument defendant unsuccessfully raised in
Point I of the pro se supplemental brief he filed in his direct
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appeal and in Point X of his supplemental reply brief in that
matter. Id. at 4, 7.
As our Supreme Court made clear in Preciose, "[p]ost-
conviction relief is neither a substitute for direct appeal,
. . . nor an opportunity to relitigate cases already decided on
the merits[.]" Preciose, supra, 129 N.J. at 459 (citations
omitted). Because defendant unsuccessfully raised the exact same
arguments on direct appeal that he attempted to present to the PCR
court, the trial judge properly rejected these contentions under
R. 3:22-5.
Affirmed.
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