State of New Jersey v. Charles M. Lowy ( 2024 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0983-22
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    CHARLES M. LOWY,
    Defendant-Appellant.
    _______________________
    Submitted February 13, 2024 – Decided March 13, 2024
    Before Judges Whipple and Mayer.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Indictment No. 18-07-0573.
    Jennifer Nicole Sellitti, Public Defender, attorney for
    appellant (Frank M. Gennaro, Designated Counsel, on
    the brief).
    Esther Suarez, Hudson County Prosecutor, attorney for
    respondent (Stephanie Davis Elson, Assistant
    Prosecutor, on the brief).
    PER CURIAM
    Defendant Charles M. Lowy appeals from the denial of his petition for
    post-conviction relief (PCR) without an evidentiary hearing. He contends he
    was entitled to an evidentiary hearing concerning his trial counsel's alleged
    ineffective assistance. He also argues he is entitled to a new PCR proceeding
    because his PCR counsel was ineffective.         Discerning no merit in those
    arguments, we affirm largely for the reasons stated by Judge Angelo Servidio in
    his written decision of September 29, 2022.
    We rely on the facts outlined in detail in our opinion affirming defendant's
    conviction upon direct appeal, State v. Lowy, No. A-0898-19 (App. Div. Feb.
    16, 2021) (slip op. at 2-8), and only repeat what is essential to a determination
    of the issues raised here.
    Defendant lived in Jersey City and went to a nearby park every day to feed
    the pigeons. Defendant was sixty-eight years old, suffered health problems—
    including spinal stenosis—and required a cane to walk. Defendant became
    embroiled in an argument with a seventy-seven-year-old man in the park and
    stabbed him with a knife. Defendant was charged with first-degree murder,
    N.J.S.A. 2C:11-3(a)(l) or (a)(2); fourth-degree unlawful possession of a weapon,
    N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful
    purpose, N.J.S.A. 2C:39-4. Trial commenced on June 25, 2019, and the jury
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    2
    returned a verdict of not guilty on all counts except for the lesser -included
    offense of reckless manslaughter. Defendant was sentenced on October 4, 2019.
    After analyzing the applicable aggravating and mitigating factors, the judge
    imposed an eight-year sentence with an eighty-five percent parole ineligibility.
    N.J.S.A. 2C:43-7.2. Defendant's conviction was affirmed on direct appeal.
    On August 12, 2021, defendant filed a pro se petition for PCR, and counsel
    was assigned. PCR counsel supplemented defendant's petition to include the
    claim that trial counsel was ineffective for failing to call defendant's wife as a
    character witness.
    In his written decision, Judge Servidio denied defendant's petition without
    an evidentiary hearing. This appeal followed.
    Defendant raises the following issues on appeal.
    Point One:
    DEFENDANT DEMONSTRATED PRIMA FACIE
    CLAIMS FOR [PCR] WHICH ENTITLED HIM TO
    AN EVIDENDTIARY HEARING.
    A.   THE PREVAILING LEGAL PRINCIPLES
    REGARDING   CLAIMS    FOR    INEFFECTIVE
    ASSISTANCE OF COUNSEL, EVIDENTIARY
    HEARINGS AND PETITIONS FOR [PCR].
    B. TRIAL COUNSEL'S FAILURE TO RAISE THE
    DEFENSE OF DIMINISHED CAPACITY AT TRIAL
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    3
    CONSTITUTED INEFFECTIVE ASSISTANCE OF
    COUNSEL.
    C.   TRIAL COUNSEL'S FAILURE TO CALL
    DEFENDANT'S WIFE AS A CHARACTER
    WITNESS     CONSTITUTED    INEFFECTIVE
    ASSISTANCE OF COUNSEL.
    When a PCR court does not conduct an evidentiary hearing, we review the
    denial of a PCR petition de novo. State v. Harris, 
    181 N.J. 391
    , 420-21 (2004);
    State v. Lawrence, 
    463 N.J. Super. 518
    , 522 (App. Div. 2020). A PCR court's
    decision to proceed without an evidentiary hearing is reviewed for an abuse of
    discretion. State v. Vanness, 
    474 N.J. Super. 609
    , 623 (App. Div. 2023) (citing
    State v. Brewster, 
    429 N.J. Super. 387
    , 401 (App. Div. 2013)).
    To establish a claim of ineffective assistance of counsel, a defendant must
    satisfy the two-prong Strickland test: (1) "counsel made errors so serious that
    counsel was not functioning as the 'counsel' guaranteed the defendant by the
    Sixth Amendment," and (2) "the deficient performance prejudiced the defense."
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); State v. Fritz, 
    105 N.J. 42
    ,
    58 (1987) (adopting the Strickland two-prong test in New Jersey).
    A PCR petitioner is not automatically entitled to an evidentiary hearing.
    State v. Porter, 
    216 N.J. 343
    , 355 (2013). Rule 3:22-10(b) provides that a
    defendant is entitled to an evidentiary hearing on a PCR petition only if he or
    A-0983-22
    4
    she establishes a prima facie case in support of PCR, material issues of disputed
    fact cannot be resolved by reference to the existing record, and an evidentiary
    hearing is necessary to resolve the claims for relief. 
    Id. at 354
     (quoting R. 3:22-
    10(b)). The PCR court should grant an evidentiary hearing "if a defendant has
    presented a prima facie claim in support of [PCR]." State v. Preciose, 
    129 N.J. 451
    , 462 (1992).
    Defendant argues his trial counsel was ineffective in providing him
    assistance at trial. His chief contention is that his attorney failed to assert a
    diminished capacity defense based on defendant's alleged bipolar diagnosis and
    treatment. Additionally, defendant claims counsel should have called his wife
    as a character witness.
    Judge Servidio denied defendant's petition, finding counsel was not
    ineffective in failing to assert a diminished capacity defense.          Although
    defendant was diagnosed with bipolar disorder, there is no evidence in the record
    that suggests it affected his cognitive capacity to form the mental state necessary
    for the commission of the crime. Nothing in the medical records from the jail
    speaks to defendant's mental state at the time of the offense. After reviewing
    the record, including medical expert reports, the judge concluded defendant had
    been treated for his bipolar condition for twenty years prior to the incident and
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    5
    reported being compliant with his medications two days after. The evidence
    demonstrated defendant was "coherent, logical, alert, and fully oriented" prior
    to the incident and throughout the trial. Also, the judge noted defendant's
    assertion of self-defense and mitigating factor number five1 were inconsistent
    with a diminished capacity claim. Thus, the judge determined defendant's trial
    counsel was not ineffective based on the evidence presented.
    We also reject defendant's assertion his trial counsel was ineffective in
    failing to call defendant's wife as a character witness. Our review uncovers
    nothing in the record to support that defendant's wife witnessed any prior
    encounters between defendant and the victim. Nor was there a certification
    provided by defendant's wife in support of PCR. Moreover, defendant's lawyer
    did present a character witness—defendant's best friend—during trial.
    In short, defendant asks us to speculate, and he relies on bald contentions
    that are not supported by the record. See State v. Jones, 
    219 N.J. 298
    , 311-12
    (2014) (quoting Porter, 
    216 N.J. at 355
    ) (noting that a claim of ineffective
    assistance of counsel will not entitle a PCR petitioner to an evidentiary hearing
    where petitioner makes "bald assertions" and does not allege "facts sufficient to
    1
    "The victim of the defendant's conduct induced or facilitated its commission."
    N.J.S.A. 2C:44-1(b)(5).
    A-0983-22
    6
    demonstrate counsel's alleged substandard performance"); Porter, 
    216 N.J. at 355
     (quoting State v. Marshall, 
    148 N.J. 89
    , 158 (1997)) (noting that a defendant
    is not entitled to an evidentiary hearing where allegations of ineffective
    assistance of counsel are "'too vague, conclusory, or speculative'" and not
    supported by "specific facts and evidence"); State v. Young, 
    474 N.J. Super. 507
    , 516 (App. Div. 2023) (explaining that "[b]ald assertions are insufficient to
    establish a prima facie case of ineffective assistance of counsel").
    To the extent we have not addressed defendant's remaining arguments, we
    are satisfied they are without sufficient merit to warrant further discussion in a
    written opinion. R. 2:11-3(e)(2).
    Affirmed.
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    7
    

Document Info

Docket Number: A-0983-22

Filed Date: 3/13/2024

Precedential Status: Non-Precedential

Modified Date: 3/13/2024