STATE OF NEW JERSEY VS. HAMZA ABDUL-MATIN STATE OF NEW JERSEY VS. NAJI S. MUHAMMAD (10-06-0664, 10-06-0665 AND 10-06-0666, UNION COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0849-18T1
A-1093-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAMZA ABDUL-MATIN,
a/k/a HAZMA ABDUL,
HAZMALBN ABDUL,
HAMZA ABDULMATIN,
ABDUL HEMZA, HAMZA
MATIN, HAZMA MATIN,
and HAZMA ABDULMATIN,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAJI S. MUHAMMAD, a/k/a
KHALIL ABDULLAH,
NAJI MOHAMMED,
NAIM MUHAMMAD,
NAJIR MUHAMMAD,
and NAJEE A. SIMS,
Defendant-Appellant.
__________________________
Submitted October 26, 2020 – Decided December 8, 2020
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
10-06-0664, 10-06-0665 and 10-06-0666.
Joseph E. Krakora, Public Defender, attorney for
appellant Hamza Abdul-Matin (Steven E. Braun,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Naji S. Muhammad (Karen A. Lodeserto,
Designated Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the briefs).
PER CURIAM
In these separate appeals, calendared back-to-back and addressed in a
single opinion, defendants Hamza Abdul-Matin and Naji Muhammad appeal
from the August 9, 2018 Law Division order denying their respective petitions
for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
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2
We incorporate herein the facts set forth in State v. Abdul-Matin, Nos. A-
0588-12T4, A-3811-12T4 (App. Div. Sep. 2, 2015). There, we recounted that
defendants "were charged as co-defendants with: two counts of first-degree
carjacking, N.J.S.A. 2C:15-2; two counts of first-degree robbery, N.J.S.A.
2C:15-1; second-degree possession of a handgun, N.J.S.A. 2C:39-4(a); and
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)." Id. slip
op. at 1-2. "Muhammad was charged individually with third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(3), and second-degree eluding, N.J.S.A. 2C:29-
2(b)[,]" and "Abdul-Matin was charged individually with fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2), and third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(9)." Id. slip op. at 2. Following a joint jury trial, "both defendants
were found guilty as charged with the exception that Abdul-Matin was found
guilty of lesser-included second-degree robbery rather than first-degree
robbery." Ibid. "Additionally, both defendants pled guilty to second-degree
'certain persons' weapons charges [1] in exchange for a concurrent sentence.
N.J.S.A. 2C:39-7(b)(1)." Ibid.
We summarized the underlying circumstances of the offenses as follows:
1
The certain persons offenses were charged in separate indictments.
A-0849-18T1
3
On January 5, 2010, Gary Tenis [2] and Sonny Mitchell
stopped at a Shell gas station for gas and cigarettes.
Tenis exited their black Chevy Silverado pickup truck
and entered the convenien[ce] store, while Mitchell
remained in the vehicle, speaking on his cell phone.
When Tenis returned, he was confronted by a man
dressed in all black and wearing a ski mask, later
identified as defendant, Muhammad.
Muhammad gained entry to the vehicle through the
driver's side door, pointed a gun at Mitchell, and
ordered him to exit. Heeding Muhammad's command,
Mitchell began to open the passenger door, where a
second masked man, later identified as defendant,
Abdul-Matin, forcefully removed him from the
passenger's seat. Defendants drove out of the station
and Mitchell called the police.
Shortly thereafter, officers located the pickup truck at a
traffic light and activated their overhead lights and
sirens. Defendants proceeded to speed through the light
and the officers gave chase. A second police vehicle,
driven by Officer Helder Deabreu, was dispatched to
block the pickup truck as it sped down Anna Street.
The chase concluded when the pickup truck collided
with Deabreu's cruiser.
[Id. slip op. at 4-5.]
After the crash, Muhammad was "removed" from the driver's seat "and
placed under arrest" without incident. Id. slip op. at 5. However, Abdul-Matin
was shot by police when he was observed "crouched on the backseat" holding a
2
Tenis passed away from natural causes prior to trial.
A-0849-18T1
4
gun. Thereafter, Abdul-Matin was placed under arrest and transported to the
hospital for treatment. Police recovered ski masks from both defendants and
later recovered an operable air pistol in the rear of the pickup truck. Subsequent
DNA analysis revealed that neither defendant could be excluded as possible
contributors to the DNA mixture found on the pistol's grip. In addition, police
obtained video surveillance footage of the carjacking from the Shell gas station.
We affirmed the convictions "but vacate[d] each sentence and remand[ed]
for resentencing[,]" id. slip op. at 13, resulting in Muhammad being resentenced
to an aggregate term of twenty-four-years' imprisonment, seventeen years of
which were subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
and Abdul-Matin being resentenced to an aggregate term of twenty-two-years'
imprisonment, seventeen years of which were subject to NERA. Both
defendants' petitions for certification were denied by the Supreme Court. State
v. Abdul-Matin, 225 N.J. 221 (2016); State v. Muhammad, 225 N.J. 221 (2016).
In their timely PCR petitions, defendants raised both pro se and counseled
claims of ineffective assistance of counsel (IAC). The PCR judge, Judge
Candido Rodriguez, Jr., recounted the pro se claims as follows:
(1) Trial counsel acquiesced to a supplemental jury
instruction that deprived . . . [d]efendants of the right to
a unanimous jury verdict.
A-0849-18T1
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(2) Trial counsel conceded [d]efendants['] guilt to . . .
offenses charged. Specifically, . . . trial counsel . . .
stipulated that defendant[s] had neither a license nor a
permit authorizing [them] to purchase, carry, or
otherwise possess a firearm on the date of the incident,
and that the recovered handgun was operable.
(3) Trial counsel failed to contest the jury verdict being
against the weight of the evidence. Trial counsel failed
to move to set aside the jury's verdict, pursuant to Rule
3:18-2.
(4) Trial counsel's failure to object to []misconduct by
the prosecutor during summations cumulatively
deprived [d]efendants of their right to a fair trial.
In the counseled submissions, Abdul-Matin asserted his "trial counsel was
ineffective by failing to investigate the case and present a defense of voluntary
intoxication." Additionally, both defendants alleged ineffective assistance of
"appellate counsel" by "appellate counsel fail[ing] to raise cognizable issues on
direct appeal . . . ."
Following oral argument, Judge Rodriguez denied defendants' petitions.
In a comprehensive written decision filed August 8, 2018, the judge reviewed
the factual background and procedural history of the case, applied the governing
legal principles, and concluded defendants "failed to establish a prima facie case
of [IAC] as to their trial . . . and appellate counsel, by a preponderance of the
evidence." "[V]iewing the facts in [the] light most favorable to . . .
A-0849-18T1
6
[]defendants," the judge found defendants failed to show that either counsel's
performance fell below the objective standard of reasonableness set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome
would have been different without the purported deficient performance as
required under the second prong of the Strickland/Fritz test. Additionally, the
judge concluded that "defendants [were] not entitled to an evidentiary hearing"
because they failed to present any issues that could not be resolved by reference
to the existing record.
In his written decision, the judge meticulously addressed each claim in
turn. Regarding Abdul-Matin's claim that his trial counsel failed to "consult
with a medical expert to determine whether [defendant's] mental state was
impaired at the time of the incident" and "present a defense of voluntary
intoxication[,]" the judge acknowledged that defendant's medical records from
his hospitalization following the incident "show[ed] that [he] was heavily
intoxicated." According to the judge, "[d]efendant's blood level was [.089], well
above the legal limit for intoxication." In addition, in his certification submitted
in support of his PCR petition, defendant averred that he "told his attorney that
he could not remember what happened that night[,]" and "stated that he
A-0849-18T1
7
consumed 'Four Loko' an alcoholic beverage that has been banned in several
states." Defendant also "state[d] that he had a history of alcoholism."
However, the judge pointed out that this defense conflicted with "trial
counsel's defense theory and trial strategy which was . . . misidentification." In
that regard, trial counsel
argued to the jury that neither defendant . . . was
identified as the perpetrator of the carjacking and
robbery by Mr. Mitchell, the sole eyewitness to the
incident who testified at trial. Through effective cross-
examination of Mr. Mitchell, counsel was able to point
out to the jury, and then argue in her summation, that
Mr. Mitchell never saw the perpetrators' faces and was
unsure about their descriptions. Additionally, counsel
effectively attempted to impeach Mr. Mitchell's
credibility with his multiple felony convictions
involving untruthfulness.
According to the judge, "[b]y raising a voluntary intoxication defense . . .
trial counsel would have had to acknowledge . . . Abdul-Matin's involvement in
the carjacking and robbery when . . . Abdul-Matin continuously represented that
he was not guilty." Judge Rodriguez concluded that trial counsel's strategy of
advancing a misidentification defense was objectively reasonable and just
"because trial counsel's strategy was ineffective with the jury" does not equate
to trial counsel being "ineffective."
A-0849-18T1
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Nonetheless, the judge also discussed whether a voluntary intoxication
defense would have been viable under the circumstances. Relying on State v.
Cameron, 104 N.J. 42, 54 (1986), the judge noted that "for intoxication to negate
an element of an offense, there must be a showing of 'prostration of faculties
such that defendant was rendered incapable of forming an intent.'" See id. at 56(articulating six factors to be considered in determining whether a defendant's
intoxication is sufficient to satisfy the "prostration of faculties" test).
The judge pointed out that to support "his claim that he was 'heavily
intoxicated' at the time of the incident," in addition to his certification, defendant
submitted a "report by Dr. Zhongxue Hua, dated October 1, 2017."
[I]n his report, which was prepared specifically for the
purpose of this proceeding, Dr. Hua states that he
reviewed defendant's hospital records from the night of
the incident. According to Dr. Hua, the records indicate
that defendant's BAC was 0.08 g/dL when his blood
specimen was collected at 10:49 p.m. Further,
according to Dr. Hua, defendant's BAC was
approximately 0.113 g/dL at the time of the incident
based on retrospective BAC extrapolation. Notably,
Dr. Hua never interacted with defendant and never
made any personal observations of defendant's
demeanor or conduct on the night of the incident. Dr.
Hua speculates that, at a BAC of 0.113 g/dL, defendant
could have experienced "mental confusion, emotional
instability, loss of critical judgment, memory
impairment, sleepiness, and slowed reaction time."
[(citations omitted).]
A-0849-18T1
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However, the judge reasoned that "[n]one of these speculative symptoms
point to 'extreme' intoxication capable of causing 'prostration of faculties such
that defendant was rendered incapable of forming an intent'" under Cameron.
See id. at 54-56. Likewise, defendant's September 25, 2017 certification that he
was "'heavily intoxicated' at the time of the incident," and "had been drinking
'Four Loko' 'heavily' earlier that evening," conflicted with "his videotaped
statement provided to the police on January 7, 2010, less than two days after the
incident," wherein "defendant claimed that he only had a little cup of gin and a
12% 'Four Loko' drink that evening."
Next, the judge rejected defendants' claims "that they were denied the
effective assistance of counsel where trial counsel acquiesced to a supplemental
jury instruction" on "accomplice liability" that "deprived them of their right to
a unanimous jury verdict." Relying on State v. Parker, 124 N.J. 628, 633 (1991),
where the Court acknowledged that "a jury does not have to agree unanimously
on whether an actor's criminal role is that of a principal or an accomplice[,]"
Judge Rodriguez determined "the supplemental instruction was correct,
permissible[,] and proper." The judge explained:
After the court read the jury instructions including the
instructions on accomplice liability, the State requested
a supplemental jury charge. Specifically, the State
A-0849-18T1
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requested that with respect to accomplice liability, the
jurors did not have to be unanimous as long as they
found that defendants acted with a common purpose.
The court re-read the accomplice liability charge with
the supplemental instruction included.
[(citation omitted).]
The judge then turned to defendants' claims that their trial attorneys were
ineffective because they "conceded their guilt by consenting to trial stipulations
that the air pistol was an operable firearm, and that . . . defendants did not have
a license or a permit authorizing them to purchase, carry[,] or possess the air
pistol on the date of the incident." Notably, as the judge astutely pointed out,
these stipulations "did not concede . . . guilt because the State was still required
to prove all the other elements of the relevant charges." Further, Judge
Rodriguez explained:
Defense counsel's strategy was to disassociate
defendants from the weapon by stipulating that, in fact,
neither [d]efendant[] had a license or permit
authorizing them to purchase, carry or possess.
Essentially, counsel was attempting to separate the
carjacking that occurred outside of the Shell [g]as
[s]tation from the police chase on Newark Avenue. [3]
[(citation omitted).]
3
The judge also pointed out that Muhammad's "[c]ounsel cross-examined the
forensic scientist regarding DNA and how it is transferred, and then argued to
the jury that the fact defendant's DNA was found on the gun does not actually
prove that he had the weapon in his hands."
A-0849-18T1
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However, as to Muhammad, the judge acknowledged that
[d]uring summation[,] counsel made statements
conceding . . . defendant's guilt of . . . crimes charged.
For example, counsel stated: "Now from that point
forward, make no mistake. Naji Muhammad took
chase. Naji Muhammad did wrong. Naji Muhammad
is guilty of some of the things that are alleged in this
indictment, and I'm not saying he's not."
[(citation omitted).]
However, Judge Rodriguez explained:
Considering the incriminating evidence that defendant
was apprehended immediately after he cut off a police
vehicle and crashed, trial counsel made a strategic
decision to concede defendant's involvement in the
chase. Although counsel conceded defendant's
involvement in the police chase, he effectively
attempted to mitigate the circumstances by offering a
logical explanation for defendant's actions. On cross-
examination counsel elicited form Sergeant Cockinos
that defendant's driving privileges were suspended at
the time of the chase. Counsel then used this
information to suggest to the jury that defendant fled
from the police not because he had just been involved
in a carjacking and robbery, but because he wanted to
avoid a ticket for driving while suspended.
[(citations omitted).]
Next, the judge considered defendants' claims "that trial counsel was
ineffective for failing to move to set aside the jury's verdict pursuant to [ Rule]
3:18-2[,]" on the ground that "[t]here [were] no eyewitness identifications of
A-0849-18T1
12
defendants as the assailants[,]" "[t]he physical description given by the
victim . . . did not match . . . defendant[s]" and "the surveillance video from the
Shell Gas Station failed to reveal the identities of the assailants." In concluding
that the carjacking conviction was supported by the evidence, and a motion to
set it aside "would have been denied[,]" the judge explained:
Mr. Mitchell's account of what happened to him and
Mr. Tenis on the night of the incident was corroborated
by video surveillance footage from the gas station,
which was in evidence.
There was very strong circumstantial evidence
linking defendants to the carjacking. Defendants were
observed in the Silverado approximately three minutes
after the 911 call was made. Once defendants saw the
police, they immediately fled, taking the police on a
high-speed chase that ended in a crash. Once
defendants were removed from the truck, the police
found a gun inside the truck and ski masks on
defendants. At trial, Mr. Mitchell identified the gun as
the same gun that was pointed at him during the
carjacking. Neither defendant[] could be excluded as a
contributor to the DNA found on the gun. Mr. Mitchell
also identified the ski mask[s] found on defendants as
the ski masks that looked like the ski masks worn by
the carjackers. Mr. Mitchell identified [Muhammad's]
jacket as being similar to the jacket worn by the
carjacker with the gun. Finally, Mr. Mitchell testified
that the carjacker who dragged him out of the truck was
wearing something gray and, indeed, [Abdul-Matin]
was wearing a gray hooded sweatshirt on the night of
the incident.
[(citations omitted).]
A-0849-18T1
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The judge also rejected Abdul-Matin's specific claim that trial counsel was
ineffective by not moving "to dismiss the robbery count[s]" on the ground that
"there was no evidence that defendants attempted to steal anything other than
the Silverado." The judge reasoned that because "carjacking and robbery are
separate [and] distinct charges[,]" trial counsel "had no legal basis to move to
dismiss the robbery charges and convictions . . . ." See State v. Drury, 190 N.J.
197, 211 (2007) ("We cannot . . . conclude, based on a plain language analysis
of the elements of robbery and carjacking, that the latter is merely a variety of
the former."). Moreover, the judge noted that "the Appellate Division reviewed
the sentence[s] . . . and . . . could have sua sponte dismissed the robbery
conviction[s] but instead remanded to resentence . . . defendants to concurrent
terms of imprisonment with the carjacking charge."
Turning to defendants' claims that trial counsel was ineffective in
responding to the prosecutor's improper comments during summations, first, the
judge provided a verbatim recitation of the objectionable comments as follows:
But in the scheme of things that's a difficult situation.
That proof is overwhelming because they're caught in
the car. They don't have the burden to say anything, but
what are they going to say?
They don't have to say a word, . . . they don't have to do
a thing. It is entirely the burden on the State. But here's
A-0849-18T1
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one thing that you can notice. There is no evidence
whatsoever to contradict a single thing that Jane
Caparuba, John Kokkinos, or any of the other officers
said about the timeline.
Now you saw Ms. Caparuba, and the unique thing is
you get to judge credibility, just the [twelve] of you,
whoever deliberates, you decide the credibility,
whether you believe them. You watched that woman
walk in through those doors, you watched her walk
right past you and sit up on the stand, that woman.
Liar? Total liar, huh? Come into court, that woman
comes in here, puts her hand right here, and swears
before god to tell you the truth, and she lies about [ten]
minutes of lying. Every other officer comes in and tell
you the same thing, and they all lie, too. They are all
conspiring and lying.
[(citations omitted).]
Next, Judge Rodriguez rejected defendants' claims of ineffectiveness,
explaining:
At the conclusion of the State's summation, both trial
attorneys for defendants voiced their concerns
regarding the prosecutor's comments. The curative
instruction was given after the objections were made.
This was done because the defense attorney requested
time till the next day to prepare for research and
argument. In response to these concerns, the court gave
curative instructions. The jurors were instructed to
disregard any comments made by the prosecutor
regarding . . . defendant[s'] silence and the credibility
of the State's witnesses, and as jurors they were not to
place themselves in the victim's situation. The [c]ourt
further stated that defendants were presumed innocent
until found guilty; that the burden was on the State to
A-0849-18T1
15
prove defendant[s'] guilt beyond a reasonable doubt;
and that, to find defendant[s] guilty, the jury was
required to find that the State proved each element of
each charge beyond a reasonable doubt.
The judge also rejected Abdul-Matin's claims that his appellate counsel
was ineffective by "fail[ing] to argue that his robbery conviction[s] should have
been dismissed[,]" and by "failing to argue that the trial court committed
reversible error when it gave an untimely curative instruction" in connection
with the prosecutor's objectionable comments during summation. The judge
determined "[a]ppellate counsel's conduct was objectively reasonable[,]" and
defendant could not establish prejudice. As to the purported untimely curative
instruction, the judge elaborated:
The jury instruction was given in a timely manner.
After the State finished its summation, the [c]ourt
advised the jurors and counsel that it was going to let
the jurors leave for the day. Defense counsel did not
speak or ask to be heard before the jurors were excused;
rather, counsel for . . . Abdul-Matin waited until the
jurors left before informing the court that he had three
objections to the prosecutor's closing argument. Here,
. . . Abdul-Matin properly and timely raised [his]
ineffective assistance of counsel claims in this PCR.
Finally, Judge Rodriguez rejected Abdul-Matin's "claims that the errors
made by trial counsel, when viewed cumulatively, deprived him of effective
assistance of counsel, even if individually they did not rise to the level of
A-0849-18T1
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prejudice under Strickland." The judge concluded Abdul-Matin "failed to
demonstrate that counsel committed a single error that caused him prejudice or
resulted in a deprivation or a fair trial. As such, there is no cumulative error,
and defendant is not entitled to the relief sought." The judge entered a
memorializing order, and these appeals followed.
On appeal, Abdul-Matin raises the following points for our consideration:
POINT I
TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
FOR FAILING TO INVESTIGATE DEFENDANT'S
CASE AND TO PRESENT A DEFENSE OF
VOLUNTARY INTOXICATION.
POINT II
TRIAL DEFENSE COUNSEL ACQUIESCED TO A
SUPPLEMENTAL JURY INSTRUCTION WHICH
DEPRIVED DEFENDANT OF THE RIGHT TO A
UNANIMOUS JURY VERDICT.
POINT III
TRIAL DEFENSE COUNSEL SHOULD NOT HAVE
CONCEDED GUILT AS TO THE UNLAWFUL
POSSESSION OF A WEAPON COUNT.
POINT IV
TRIAL DEFENSE COUNSEL FAILED TO MOVE
FOR A JUDGMENT OF ACQUITTAL DUE TO THE
VERDICT BEING AGAINST THE WEIGHT OF THE
EVIDENCE.
A-0849-18T1
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POINT V
TRIAL DEFENSE COUNSEL FAILED TO MOVE
FOR A MISTRIAL IN RESPONSE TO
PROSECUTORIAL MISCONDUCT DURING
SUMMATION WHEN THE PROSECUTOR
COMMENTED UPON DEFENDANT'S RIGHT TO
REMAIN SILENT AND WHEN THE PROSECUTOR
SHIFTED THE BURDEN OF PROOF.
POINT VI
APPELLATE DEFENSE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE ISSUES
REGARDING THE TRIAL COURT'S FAILURE TO
TIMELY INSTRUCT THE JURY REGARDING THE
PROSECUTOR'S PREJUDICIAL COMMENTS
MADE DURING SUMMATION AND FOR FAILING
TO RAISE THE ISSUE REGARDING THE
SHIFTING OF THE BURDEN OF PROOF.
POINT VII
APPELLATE DEFENSE COUNSEL WAS
INEFFECTIVE BY FAILING TO RAISE THE ISSUE
OF THE TRIAL COURT'S FAILURE TO DISMISS
THE ROBBERY COUNTS OF THE INDICTMENT.
POINT VIII
TRIAL DEFENSE COUNSEL'S ERRORS
CUMULATIVELY DENIED DEFENDANT A FAIR
TRIAL.
Muhammad raises the following points for our consideration:
POINT [I]
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THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
WHY TRIAL COUNSEL FAILED TO OBJECT TO A
SUPPLEMENTAL JURY CHARGE THAT
EXPLAINED TO THE JURORS THEY DID NOT
HAVE TO AGREE UNANIMOUSLY THAT
[DEFENDANT] ACTED AS A [PRINCIPAL] OR AN
ACCOMPLICE.
POINT [II]
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED FROM TRIAL
COUNSEL AS TO WHY HE CONCEDED
[DEFENDANT'S] GUILT TO ILLEGALLY
POSSESSING AN OPERABLE FIREARM AND
ADMITTING HIS INVOLVEMENT IN ELUDING
POLICE.
POINT [III]
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO MAKE A TIMELY
OBJECTION TO THE STATE'S HIGHLY
PREJUDICIAL SUMMATION.
Merely raising a claim for PCR does not entitle a defendant to relief or an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of IAC, material issues of disputed
A-0849-18T1
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fact lie outside the record, and resolution of those issues necessitates a hearing.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding
whether to grant an evidentiary hearing "should view the facts in the light most
favorable to a defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992).
However, "[a] court shall not grant an evidentiary hearing" if "the defendant's
allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed,
the defendant "must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient to demonstrate
counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.
In turn, "we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to [PCR], . . . then an evidentiary hearing need not be granted." Ibid.(alteration in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)). We
also typically review a PCR petition with "deference to the trial court's factual
findings . . . 'when supported by adequate, substantial and credible evidence.'"
State v. Harris, 181 N.J. 391, 415 (2004) (alteration in original) (quoting Toll
Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where,
A-0849-18T1
20
as here, "no evidentiary hearing has been held, we 'may exercise de novo review
over the factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)
(alteration in original) (quoting Harris, 181 N.J. at 421). We also review de
novo the legal conclusions of the PCR judge. Harris, 181 N.J. at 415-16 (citing
Toll Bros., 173 N.J. at 549).
To establish a prima facie claim of IAC, a defendant must satisfy the two-
prong Strickland/Fritz test, and "bears the burden of proving" both prongs of an
IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,
350 (2012). Specifically, a defendant must show that (l) "counsel's performance
was deficient[,]" and he "made errors so serious that counsel was not functioning
as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable
probability is defined as "a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
Under the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
A-0849-18T1
21
'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is
strongly presumed to have rendered adequate assistance[,]" Strickland, 466 U.S.
at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.
at 56. However, "'[r]easonable competence' does not require the best of
attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of
detailed rules for counsel's conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant." Strickland, 466 U.S. at
688-89.
For that reason,
an otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or
her counsel's exercise of judgment during the trial. 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. 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.
[State v. Castagna, 187 N.J. 293, 314-15 (2006)
(citations, internal quotation marks, and brackets
omitted).]
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Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689.
Of course, "[a]n ineffective assistance of counsel claim may occur when
counsel fails to conduct an adequate pre-trial investigation." Porter, 216 N.J. at
352. "[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." State v.
Chew, 179 N.J. 186, 217 (2004) (quoting Strickland, 466 U.S. at 691). "A
counsel's failure to do so will 'render the lawyer's performance deficient.'"
Porter, 216 N.J. at 353 (quoting Chew, 179 N.J. at 217). However, "when a
petitioner claims his trial attorney inadequately investigated his case, he must
assert the facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification." Cummings, 321 N.J. Super. at 170 (citing
R. 1:6-6).
Under the second Strickland prong, defendant must prove prejudice.
Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an
exacting standard[,]" and "'[t]he error committed must be so serious as to
A-0849-18T1
23
undermine the court's confidence in the jury's verdict or the result reached.'"
State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting
Castagna, 187 N.J. at 315). "Important to the prejudice analysis is the strength
of the evidence that was before the fact-finder at trial." State v. Pierre, 223 N.J.
560, 583 (2015). In that regard, "a verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors than one with
overwhelming record support." Ibid. (quoting Strickland, 466 U.S. at 696).
The Strickland/Fritz standard applies equally to both trial and appellate
counsel. State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998); see also
State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987). Indeed, "[t]he
right to effective assistance includes the right to the effective assistance of
appellate counsel on direct appeal." State v. O'Neil, 219 N.J. 598, 610 (2014).
However, while appellate counsel "should bring to the court's attention
controlling law that will vindicate [his] client's cause[,]" appellate counsel "does
not have an obligation 'to advocate ad infinitum[.]'" Id. at 612. Like trial
counsel, appellate counsel is not obligated to raise issues "counsel deems [to be]
without merit[,]" State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007)
(quoting R. 3:22-6(d)), and "[t]he failure to raise unsuccessful legal arguments
does not constitute [IAC]" at either the trial or appellate level. State v. Worlock,
A-0849-18T1
24
117 N.J. 596, 625 (1990). In fact, in Jones v. Barnes, 463 U.S. 745 (1983), the
United States Supreme Court held that appellate advocates must exercise
"professional judgment" in "winnowing out weaker arguments on appeal and
focusing on . . . a few key issues[,]" selecting only "the most promising issues
for review." Id. at 751-52. The Jones Court also cautioned against "judges . . .
second-guess[ing] reasonable professional judgments" of appellate counsel. Id.
at 754.
Applying these principles, we are satisfied defendants failed to make a
prima facie showing of IAC under the Strickland/Fritz test, and we discern no
abuse of discretion in the judge's denial of defendant's PCR petition without an
evidentiary hearing. On appeal, defendants renew the same contentions that
were soundly rejected by Judge Rodriguez in his well-reasoned written decision.
Based on our review of the record, we conclude Judge Rodriguez thoroughly
addressed defendants' contentions, and we affirm for the reasons expressed in
the judge's decision. We also conclude that the arguments are without sufficient
merit to warrant further discussion here. R. 2:11-3(e)(2).
Affirmed.
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