STATE OF NEW JERSEY VS. OMAR BRIDGES (05-11-2686 AND 05-11-2687, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon an y 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-0281-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR BRIDGES,
Defendant-Appellant.
_______________________________
Submitted February 13, 2020 – Decided April 29, 2020
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 05-11-2686
and 05-11-2687.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Omar Bridges appeals the June 22, 2018 order that denied his
petition for post-conviction relief (PCR) without an evidentiary hearing. For
reasons that follow, we affirm.
I.
Defendant was indicted under two separate indictments. Following his
conviction in 2007 by a jury, we reversed the convictions and remanded for a
new trial. See State v. Omar Bridges, No. A-0806-07 (App. Div. Sept. 8, 2010)
(slip. op. at 44). After the second jury trial held in 2012, defendant was
convicted under indictment 05-11-2686 of first- degree attempted murder of a
police officer, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree
aggravated assault of a police officer, N.J.S.A. 2C:12-1(b)(1) (count two); third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five);
second-degree possession of a weapon, a handgun, for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count six); second-degree possession of an assault weapon,
N.J.S.A. 2C:39-5(f) (count seven); and third-degree receiving stolen property,
N.J.S.A. 2C:20-7 (count nine). He also was convicted under indictment 05-11-
2687 of second-degree possession of a firearm by a convicted felon, N.J.S.A.
2C:39-7(b).
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Defendant was sentenced to an aggregate, extended term of thirty years in
prison on indictment 05-11-2686 subject to the No-Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, and to a ten-year consecutive term under indictment 05-11-
2687 with a five-year period of parole ineligibility. We affirmed defendant's
conviction and his sentence on each count except count seven, which was
remanded to the trial court for reconsideration. See State v. Omar Bridges, No.
A-1817-12 (App. Div. July 2, 2014) (slip. op. at 25-26). Defendant's petition
for certification was denied. State v. Bridges, 220 N.J. 101 (2014).
Defendant was resentenced in June 2016. On indictment 05-11-2686,
defendant was sentenced to an aggregate prison term of twenty-eight years, nine
months subject to NERA, and on indictment 05-11-2687, to a term of ten-years
in prison with a five-year period of parole ineligibility to run concurrently with
the other indictment.
Defendant filed a PCR petition and also appealed his sentence as
excessive. The PCR petition was withdrawn without prejudice pending the
outcome of the appeal. In 2017, we affirmed defendant's sentence. See State v.
Omar Bridges, A-00518-16 (App. Div. Feb. 7, 2017).
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Defendant's PCR petition was reinstated. Following oral argument, the
PCR court denied defendant's petition on June 22, 2018. Defendant appeals that
order.
The convictions arose from an incident in Newark in October 2004 where
"[defendant] and others stole a Jaguar, engaged in a shoot-out with occupants of
a black Subaru, and shot a police officer during an ensuing chase." Bridges,
slip. op. at 2.
Officer [Eduardo] Patinho stopped the patrol car
approximately ten feet from the Jaguar and turned on
the patrol car's spotlight, which illuminated the left side
of the Jaguar. The officer then got out of the patrol car,
service weapon drawn, and repeatedly yelled to the
Jaguar's rear passenger, "let me see your hands." The
passenger shot Officer Patinho through his left
shoulder. After shooting the officer, the passenger
"[stuck] his head out the window" and the officer "[got]
a clear shot at him, looking at him." Officer Patinho
fired five rounds at "the individual behind the driver's
side of the Jaguar" before the passenger shot him in the
jaw and “blew everything out."
[Id. at 6-7.]
Defendant's PCR petition and his supporting certifications alleged
ineffective assistance of counsel. Defendant raised issues about his trial
counsel's performance at trial by failing to ask questions, make objections or
appropriately cross-examine witnesses, including Officer Patinho. Defendant
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claimed his attorney did not object when references were made at trial about
gang affiliation (the gang claim). Defendant argued his attorney did not ask for
a Gross1 hearing before co-defendant Alphonese Ollie testified (the Gross claim)
or a Rule 104 hearing regarding a photograph of Ollie (the photo claim).
Defendant argued his trial attorney should have asked for a Wade2 hearing and
a "taint" hearing regarding Officer Patinho's identification of defendant during
the trial (the identification claim). Defendant alleged his trial counsel
misadvised him about the penal consequences of a supposed plea offer, claiming
he did not know he was extended term eligible (the guilty plea claim).
Defendant also claimed ineffective assistance by his appellate counsel.
Appeals counsel allegedly failed to argue that Brady3 was violated by the State's
failure to provide Ollie's photograph in discovery because defendant alleged the
photograph was exculpatory (the appellate photo claim). Defendant also alleged
his appellate counsel failed to raise an issue about the gang affiliation testimony
(the appellate gang claim).
1
State v. Gross, 121 N.J. 1 (1990).
2
U.S. v. Wade, 388 U.S. 218 (1967).
3
Brady v. Maryland, 373 U.S. 83 (1963).
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The PCR court denied the petition following oral argument. In its
comprehensive written opinion, the PCR court found that certain issues—the
identification issue, the gang claim, the Gross claim, and the photo claim—were
raised in defendant's prior appeal and thus, were barred by Rule 3:22-5 from
being raised again. Even if they were not barred, the PCR court found these
issues did not satisfy the Strickland standards.
The PCR court found that trial counsel's cross-examination of Officer
Patinho about his brief observation of defendant fell "within the wide range of
presumptively reasonable professional assistance." The PCR court determined
defendant was not prejudiced because his attorney emphasized in summation
that Officer Patinho's observation was quite brief. The PCR court concluded
defendant did not establish the verdict would have been affected had there been
further cross-examination about this issue.
On the issue of gang affiliation, the trial court ruled in an in limine motion
that Ollie could not testify about defendant's gang affiliation and Ollie did not
do so at trial; Ollie only mentioned his own gang affiliation. The PCR court
reasoned because of the in limine ruling that "trial counsel did not have to object
to the admission of gang affiliation." The PCR court found counsel's
performance was not deficient nor did defendant show he was prejudiced.
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In the first trial, co-defendant Ollie testified defendant was the shooter.
In the second trial, Ollie testified he was the shooter. The PCR court rejected
defendant's argument that his trial attorney should have objected to the lack of
a Gross hearing regarding Ollie's prior statements, concluding the trial court
held a Gross hearing, in substance, before determining the prior statements made
by Ollie were reliable. The PCR court determined defendant's trial counsel
"could not have been deficient for not objecting to testimony that was duly
admitted following an entirely proper hearing." The PCR court denied
defendant's claim of prosecutorial misconduct because introduction of Ollie's
prior statements were "judicially authorized."
Defendant alleged Ollie's testimony in the first trial about who shot
Officer Patinho was coerced by the police. He claimed the prosecutor did not
provide his attorney with a photograph of Ollie showing injuries to Ollie's face.
The PCR court found this claimed lack of discovery was "refuted by the trial
record." The photograph could not be authenticated at the second trial and was
not admitted in evidence. However, because Ollie testified to the jury about the
photograph's content, defendant did not show prejudice under the second prong
of Strickland.
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The PCR court denied defendant's claim his trial attorney was ineffective
in plea negotiations. The PCR court found defendant's claim about a plea offer
by the State to be a "bald assertion" because "there [was] no proof that a plea
offer was ever tendered by the State." The pretrial memorandum, signed by
defendant prior to the first trial, stated that no plea was offered. Defendant's
claim he did not know he was extended term eligible was belied by the same
pretrial memorandum, which showed defendant's "maximum exposure was 115
years in custody, the practical equivalent of life imprisonment." Even if an offer
had been made as defendant claimed, the PCR court found a "formidable
obstacle" to any trial court accepting such a plea. Defendant testified at his first
trial that he did not shoot Officer Patinho. The PCR court reasoned that
defendant would perjure himself by pleading guilty because he would have to
admit to a factual basis for the crimes. Another issue was that defendant
certified he would have been "'compelled' to accept the State's (non-existent)
plea offer." The PCR court observed that compulsion was not consistent with
"the entry of a voluntary guilty plea as required under R[ule] 3:9-2."
Regarding defendant's claims of ineffective assistance by his appellate
attorney, the PCR court found defendant had "directly benefited from appellate
counsel's ability to 'winnow out' weaker arguments and focus on stronger ones."
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The PCR court concluded appellate counsel was not ineffective for failing to
raise claims that lacked substantive merit such as the gang issue and the
photograph issue.
The PCR court denied defendant's request for an evidentiary hearing
because defendant did not "present a prima facie case in support of his claim
that counsel was ineffective."
On appeal defendant's PCR counsel raises the following issue:
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
THE SUBSTANCE OF THE LEGAL ADVICE PLEA
COUNSEL PROVIDED TO DEFENDANT
REGARDING A POTENTIAL PLEA OFFER
TENDERED BY THE STATE PRIOR TO THE
SECOND TRIAL.
Defendant filed a separate brief raising the following issues on appeal:
POINT ONE
APPELLANT WAS SUBJECTED TO INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL BY
COUNSEL NOT RAISING A CLAIM THAT THE
STATE VIOLATED ITS OBLIGATION TO
DISCOLSE (sic) EXCULPATORY EVIDENCE
BEFORE TRIAL AND ONCE THIS EVIDENCE
BECAME KNOWN TO THE DEFENSE THE STATE
OBJECTED TO THE USE OF SAID EVIDENCE TO
BAR DEFENDANT (sic) USE.
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POINT TWO
APPELLANT WAS SUBJECTED TO INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL BY FAILING
TO MOVE FOR A GROSS HEARING WHICH
RESULTED IN AN UNFAIR TRIAL THAT
VIOLATED THE DEFENDANT'S RIGHTS
GUARANTEED BY THE U.S. CONST. AMENDS. V
AND XIV, 1; N.J. CONST. ART I, PAR 1,
THEREFORE THE MATTER SHOULD BE
REVERSED AND/OR REMANDED TO THE TRIAL
COURT TO CONDUCT A GROSS HEARING SINCE
THE CREDIBILITY OF THE STATE'S WITNESS
CLEARLY AND CONVINCINGLY CONSTITUTED
A DENIAL OF JUSTICE.
POINT THREE
DEFENDANT CONTENDS THAT HIS TRIAL
ATTORNEY WAS INEFFECTIVE FOR NOT
REQUESTING A TAINT HEARING WHERE
DEFENDANT'S CASE CLEARLY SHOWS ITS
NECESSITY.
II.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz, l05 N.J. 42 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-prong test of establishing
both that: (1) counsel's performance was deficient and he or she made errors that
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were so egregious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 694.
Defendant contends his trial attorney advised him about a fifteen-year plea
offer subject to NERA prior to the second trial. He claims he was not aware at
that time of his eligibility for an extended term sentence. Defendant argues had
he known this, he "would have been impelled to accept the far less severe term
offer of 15 w/85% NERA." He requests an evidentiary hearing to address this
claim.
The record shows defendant's allegations were supported only by self-
serving assertions and bare allegations. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999) (providing "a petitioner must do more than make bald
assertions that he was denied the effective assistance of counsel"). Defendant
presented no evidence he was offered a plea deal. He did not refute that the
pretrial memorandum he signed indicated no plea was offered. We agree with
the PCR judge that defendant's "bald" claim did not present a prima facie case
of ineffective assistance.
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Defendant's claim he did not know he was extended term eligible also
lacked support. No one refuted that the pretrial memorandum showed defendant
faced a very lengthy period of incarceration if he were convicted of the charges.
See R. 3:9-1(f) (providing that the pretrial memorandum sets forth among other
things, the pending charges, maximum possible sentence on each charge, and
the State's final plea offer). We are satisfied defendant did not show evidence
of a prima facie case of ineffective assistance on this issue.
Defendant raises three other issues in his pro se supplemental brief—the
photograph issue, the Gross hearing issue and the identification issue. We agree
with the PCR court that the issues do not warrant PCR relief.
Post-conviction relief is not a substitute for a direct appeal. R. 3:22–3.
"[A] defendant may not employ post-conviction relief to assert a new claim that
could have been raised on direct appeal . . . or to relitigate a claim already
decided on the merits . . . ." State v. Goodwin, 173 N.J. 583, 593 (2002).
We previously addressed the identification issue when we affirmed
defendant's convictions. Bridges, slip. op. at 11-21. Before the second trial,
defendant moved to suppress Officer Patinho's identification of him that had
been made during the first trial. He claimed the prior identification "would
'implicate issues of whether or not [the officer] should be allowed to make any
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in-court identification, because . . . it would be tainted by the prior
identification.'" Bridges, slip. op. at 12. Defendant argued the "principles
underlying Henderson 4 and Chen5 [both of which address pre-trial identification
procedures] apply with equal force to an in-court identification that takes place
at trial." Slip. op. at 18. We disagreed, finding that "[n]umerous safeguards
available to a defendant after an indictment and the appointment or retention of
counsel significantly distinguish pre-indictment showups from in-court
identifications at trial." Slip. op. at 21.
In this appeal, defendant argues Officer Patinho's identification was
tainted and his defense attorney was ineffective for not requesting a "taint"
hearing. We agree with the PCR court, however, that counsel's cross-
examination fell "within the wide range of presumptively reasonable
professional assistance." Defense counsel raised issues about taint in cross-
examination and in summation. The fact that the jury was not persuaded does
not mean there was ineffective assistance of counsel.
Defendant argues the PCR court erred by denying PCR relief based on
trial counsel's failure to object to Ollie's testimony without first conducting a
4
State v. Henderson, 208 N.J. 208 (2011).
5
State v. Chen, 208 N.J. 307 (2011).
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Gross hearing. Whether a prior inconsistent statement is admissible is governed
by N.J.R.E. 803(a)(1). State v. Johnson, 421 N.J. Super. 511, 516 (App. Div.
2011). A prior inconsistent statement made under circumstances establishing
its reliability can be admissible as substantive evidence. Gross, 121 N.J. at 7-9.
The record revealed that Ollie gave prior testimony that was inconsistent
with his trial testimony in the second trial. These prior statements consisted of
testimony by Ollie at his guilty plea and the first trial. Both statements were
given under oath. Over the objection of trial counsel, the trial court instructed
the jury about factors it should consider in determining whether the statement
was reliable and if so, to "weigh it along with the other evidence." If the
statement was not reliable, it could not be considered for any purpose. We agree
with the PCR court that trial counsel "could not have been deficient for not
objecting to testimony that was duly admitted following an entirely proper
hearing" and thus, that Strickland was not satisfied.
Defendant argues his appellate counsel provided ineffective assistance by
not raising the issue the State violated Brady by not disclosing Ollie's
photograph. At trial, both attorneys acknowledged the photograph of Ollie was
a "tracking" photograph that was not discovered because it was attached to the
wrong document. The photograph was not admitted in evidence because it could
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not be authenticated. However, Ollie already had testified to the jury he had
been physically assaulted.
Here, the jury heard Ollie's testimony about the alleged assault. The
photograph could not be admitted because it could not be authenticated. Both
counsel indicated on the record they were not aware of the photograph because
it had been attached to the wrong document. The issue was identified prior to
jury selection.
The PCR court did not err in determining there was not ineffective
assistance by trial counsel. Appellate counsel did not have a duty to raise every
issue advanced by defendant. See State v. Morrison, 215 N.J. Super. 540, 549
(App. Div. 1987) (providing "appellate counsel does not have a constitutional
duty to raise every non[-]frivolous issue requested by the defendant"). The
question was "whether in the absence of the undisclosed evidence the defendant
received a fair trial . . . ." State v. Nelson, 155 N.J. 487, 500 (1998). In light of
Ollie's testimony about his injuries and the content of the photograph, defendant
did not show appellate counsel handled the matter in a manner that was
professionally deficient or that defendant was prejudiced by not raising this
issue.
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We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of trial and appellate counsel
within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded
that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J.
451, 462-63 (1992).
Affirmed.
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