State of New Jersey v. David Albright ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0319-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID ALBRIGHT, a/k/a
DAVID JEROME ALBRIGHT
and LATIF R. ABDULLAH,
Defendant-Appellant.
____________________________
Submitted January 29, 2024 – Decided February 13, 2024
Before Judges Chase and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-12-2852.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the briefs).
William Reynolds, Atlantic County Prosecutor,
attorney for respondent (Debra Boxman Albuquerque,
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant David Albright appeals from the Law Division's July 25, 2022
order denying his petition for post-conviction relief ("PCR") without an
evidentiary hearing. We affirm.
I.
We incorporate the facts leading to defendant's March 18, 2013 conviction
from our decisions on defendant's direct appeals, State v. Albright, No. A-4937-
12, (App. Div. October 19, 2015), certif. denied, 224 N.J. 125 (2016), where we
previously affirmed defendant's conviction but remanded for resentencing; State
v. Albright, No. A-3574-16 (App. Div. October 25, 2017), where we again
remanded for resentencing; and State v. Albright, No. A-5659-17 (App. Div.
October 22, 2019), where we upheld defendant's aggregate sentence of thirty
years to be served in New Jersey State Prison with fifteen years of parole
ineligibility. The facts underlying defendant's conviction are detailed in our
previous opinions and need not be repeated in their entirety. Rather, we recount
the facts relevant to defendant's petition.
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The State established at trial 1 that in July 2011, Atlantic City Police
Detective Kevin Fair was informed that defendant had an assault firearm for
sale. After confirming defendant's identity, Fair arranged for an informant to
purchase the firearm.
On the day of the sale, the police recorded two conversations between the
informant and defendant concerning where they would meet. The police then
wired the informant with an audio and video recording device, provided him
with $800 to purchase the weapon, and drove him to the planned meeting spot
in Atlantic City. The informant met defendant and drove with him to a nearby
apartment. Inside the apartment, defendant retrieved what the informant thought
was an AK-47. Defendant demonstrated how to use the weapon and then gave
him the gun in exchange for $700. The informant later returned the remaining
$100 to the police.
Before the informant left, defendant asked him to look outside the
apartment "to see if anybody was coming." When the informant saw a man
walking, defendant "went to the back" and returned with a .357 revolver from
another room but did not use the handgun. Defendant gave the informant a
1
Trial was bifurcated into the underlying weapons offenses and the certain
persons offenses.
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bicycle which he rode along Baltic Avenue to a designated meeting spot to turn
over the weapon to waiting police officers. Later at trial, the informant would
concede that while riding the bicycle to meet the police he stopped at a street
corner for approximately forty-five seconds.
Lieutenant Charles DeFebbo, of the Atlantic County Prosecutor's Office,
testified as an expert witness in firearms identification. He testified the firearm
purchased by the informant was an Arsenal SLR-95 and it was "substantially
similar" to an AK-47 assault rifle. He further testified the weapon is classified
as an assault weapon because it employs a flash suppressor and a pistol grip.
The State's firearms operability expert, Lieutenant Robert DeGaetano, tested the
Arsenal SLR-95 and found it to be operable.
Defendant testified and presented the testimony of several witnesses in an
attempt to persuade the jury that he sold the informant an airsoft replica of an
assault rifle, which he claimed the informant subsequently switched for a real
gun. Defendant admitted he violated the law by possessing the airsoft replica
without the orange tip, which distinguishes replicas from real weapons.
Defendant also testified he never possessed a real handgun but only an airsoft
replica of a handgun.
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Defendant also presented the testimony of Jamall Dennis, who was
walking on Baltic Avenue on the day defendant sold the gun. Dennis testified
he witnessed a man riding a red bike turn onto Baltic Avenue and ride by a man
who was standing on the corner. The pedestrian started jogging toward the
bicyclist which led Dennis to believe the jogging man was going to do something
to the man on the bike. Instead, they both stopped at the next intersection where
Dennis saw the jogger "pull something off" the bicyclist's back, go to a car,
return, and then "put[] something back on his back." The jogger then touched
the bicyclist on the head and the bicyclist rode away. Dennis estimated the
exchange lasted "about [twenty] seconds[.]".
On May 30, 2012, the jury found defendant guilty of second-degree
unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); third-degree
unlawful sale of an assault firearm, N.J.S.A. 2C:39-9; and second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The court then charged
the jury on two certain persons not to have weapons offenses for the handgun
and assault weapon, N.J.S.A. 2C:39-7, and the jury returned a guilty verdict on
those two counts.
On June 22, 2016, defendant filed his initial petition for PCR. On
February 8, 2017, the PCR judge dismissed his petition "without prejudice
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pending the finality of the matter in the Appellate or Supreme Court" because
defendant had a pending appeal. After that appeal was resolved, defendant
refiled his PCR petition within ninety days.
Defendant argued he was entitled to post-conviction relief due to several
errors committed by both his trial and appellate attorneys. In regard to his trial
counsel, defendant believed he was ineffective for eighteen different reasons
including failure to: file a suppression motion; challenge the extended term
motion; challenge the redundant certain persons charges; object to the state's
expert; move for a mistrial; challenge the reliability of the confidential
informant; and object to the court's sentence. He contended both trial and
appellate counsel were ineffective for failing to argue that he was not eligible
for an extended term, that Apprendi2 applied, and that the firearm was not a
sentencing factor but an element of the offense. Additionally, defendant raised
the following arguments: appellate counsel was ineffective for failing to argue
his consecutive sentence correctly on appeal; trial counsel did not object to the
jury charge; at sentencing the judge failed to place reasons on the record;
resentencing was required; and his need for rehabilitation. Lastly, he claimed
2
Apprendi v. New Jersey, 530 U.S. 466 (2000)
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PCR counsel failed to argue the entire Atlantic County Prosecutor's Office
should be disqualified.
In her written decision, the PCR court methodically addressed each issue
individually, and specifically analyzed the petition's timeliness under Rule 3:22-
12 and whether the argument was or could have been raised under Rule 3:22-
4(a)(1). Even though she found defendant's procedural violations a valid basis
for denial, the PCR court then scrutinized each issue substantively. Finally, the
PCR court separately determined whether each allegation was entitled to an
evidentiary hearing. On February 25, 2021, the court denied defendant's entire
PCR petition in its entirety without an evidentiary hearing.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PCR COURT ERRED BY PROCEDURALLY
BARRING DEFENDANT'S PETITION.
POINT II
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO OBJECT TO THE
QUALIFICATIONS OF THE STATE'S EXPERT
WITNESS REGARDING DEFENDANT'S ALLEGED
ASSAULT FIREARM.
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Defendant's pro se supplemental brief presents the following additional
arguments for our consideration:
POINT I
DEFENDANT WAS DEPRIVED OF HIS SIXTH
AMENDMENT RIGHT TO THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
POINT II
DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL ON THE APPEALS.
POINT III
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS POST-CONVICTION RELIEF
CLAIMS.
II.
A PCR petition is neither "a substitute for direct appeal . . . nor an
opportunity to relitigate cases already decided on the merits . . . ." State v.
Preciose, 129 N.J. 451, 459 (1992) (citation omitted). When a petitioner claims
ineffective assistance of counsel as a basis for relief, they must show counsel's
performance was deficient, and but for those errors, they would not have been
convicted. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); State
v. Fritz, 105 N.J. 42, 52 (1987). There is a strong presumption counsel "rendered
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adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690. When
petitioning for PCR, the defendant must establish, by a preponderance of the
credible evidence, that he is entitled to the requested relief. State v. Nash, 212
N.J. 518, 541 (2013); Preciose, 129 N.J. at 459. To sustain that burden, the
defendant must allege and articulate specific facts that "provide the court with
an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
A defendant is also entitled to effective assistance of appellate counsel,
but "appellate counsel does not have a constitutional duty to raise every
nonfrivolous issue requested by the defendant . . . ." State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745 (1983)).
Appellate counsel will not be found ineffective for failure to raise meritless
issues or errors an appellate court would deem harmless. See State v. Echols,
199 N.J. 344, 361 (2009).
We conduct a de novo review when a PCR court does not hold an
evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). A defendant is
entitled to an evidentiary hearing if they present a prima facie case supporting
PCR, the court determines there are material issues of fact that cannot be
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resolved based on the existing record, and the court finds an evidentiary hearing
is required to resolve the claims presented. R. 3:22-10(b); see also State v.
Porter, 216 N.J. 343, 354 (2013).
III.
Having considered defendant's claims, the record, and applicable legal
principles, we affirm for the substantive reasons set forth in the PCR judge's
thorough and well-written opinion. We add the following comments.
In his counseled brief, defendant argues the PCR court was wrong to find
his PCR petition procedurally barred as untimely and raises issues that it should
have been brought up on direct appeal. Moreover, he contests the substantive
findings of only one of the alleged instances of ineffective assistance of counsel
made to the PCR court, namely that his trial counsel failed to object to the expert
qualifications of Lt. DeFebbo. We address each contention in turn.
A.
PCR is not a substitute for appeal from conviction and may not be filed
while such appellate review or motion is pending. R. 3:22-3. Once an appeal is
filed, then upon notification by the public defender, the PCR petition is to be
dismissed without prejudice. R. 3:22-6A(2). However, the five-year bar on the
filing of a PCR under Rule 3:22-12(a)(3) states in pertinent part:
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A petition dismissed without prejudice pursuant to R.
3:22-6A(2) because a direct appeal, including a petition
for certification, is pending, shall be treated as a first
petition for purposes of these rules if refiled within 90
days of the date of the judgment on direct appeal,
including consideration of a petition for certification,
or within five years after the date of the entry pursuant
to Rule 3:21-5 of the judgment of conviction that is
being challenged.
[(emphasis added).]
On June 22, 2016, defendant filed his initial petition for PCR. Because
he had an appeal pending, the PCR court dismissed it without prejudice on
February 8, 2017. Defendant's sentence on his third and final appeal was
affirmed on October 22, 2019. Defendant refiled his PCR on January 15, 2020.
Because this filing was within ninety days of the final disposition, it should have
been considered a timely filing of his first petition for PCR. R. 3:22-12(a)(3).
B.
Collectively, Rules 3:22-4(a) and 3:22-5 provide procedural bars such that
"a defendant may not employ [PCR] 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) (citing respectively R.
3:22-4 and R. 3:22-5). These rules incorporate some exceptions, and the
procedural bar will be lifted "[i]f an issue could not reasonably have been raised
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in a prior proceeding, if it involves the infringement of constitutional rights, or
if it presents exceptional circumstances involving a showing of fundamental
injustice." Mitchell, 126 N.J. at 585. Accord State v. Hannah, 248 N.J. 148,
178 (2021); State v. McDonald, 211 N.J. 4, 30 (2012); State v. Reevey, 417 N.J.
Super. 134, 148-49 (App. Div. 2010) ("fundamental injustice," as prescribed in
Rule 3:22-4(a)(2), expressly includes claims of ineffectiveness of counsel).
To defeat this procedural bar, "the claim must be one that a reasonable
attorney, aware of the facts and law could not reasonably have raised." Mitchell,
126 N.J. at 585. This procedural bar also cannot be dodged by the
"constitutional attiring" of a claim in "ineffective assistance of counsel
clothing." State v. Moore, 273 N.J. Super. 118, 125 (App. Div. 1994).
Defendant, citing to the fundamental injustice part of Rule 3:22-4(a)(2)
and Preciose, 129 N.J. 451, contends his claims of ineffective assistance of
counsel could not have been raised earlier and the PCR court should not have
dismissed the claim on this basis. The underlying basis of his ineffective
assistance of counsel claim is that trial counsel should have objected to Lt .
DeFebbo's qualification as an expert in firearms identification. He argues this
claim is particularly suited to his petition for PCR. The trial court held this
claim was barred because he did not "raise the argument at any prior
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proceeding." If, as defendant contends, "[t]he real issue in this matter is the lack
of objection from the trial attorney," this issue is better suited for a PCR petition.
See State v. Taccetta, 200 N.J. 183, 192-93 (2009).
C.
N.J.R.E. 702 allows an expert who is qualified "by knowledge, skill,
experience, training, or education" to testify in the form of an opinion "[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact"
in understanding the evidence. Our Supreme Court has explained the
requirements for expert testimony under N.J.R.E. 702:
1) the intended testimony must concern a subject matter
that is beyond the ken of the average juror; 2) the field
testified to must be at a state of art that such an expert's
testimony could be sufficiently reliable; and 3) the
witness must have sufficient expertise to offer the
intended testimony.
[State v. Rosales, 202 N.J. 549, 562 (2010) (quoting
State v. Jenewicz, 193 N.J. 440, 454 (2008)); see also
State v. Olenowski, 253 N.J. 133, 143 (2023).]
The Court expounded these requirements are to be construed "liberally in light
of [N.J.R.E.] 702's tilt in favor of the admissibility of expert testimony." Ibid.(quoting Jenewicz, 193 N.J. at 454).
The State presented Lt. DeFebbo as an expert in firearms identification.
During voir dire, he testified to being qualified as an expert on firearms
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identification over three dozen times. He further stated he first became a
firearms instructor in 1992, and by 2001, he had accumulated the requisite
teaching experience necessary to become range master. At the time of his
testimony at this trial, he was the range master for both Atlantic County as well
as the Atlantic City Police Department and responsible for training all the
Atlantic County Prosecutor's Office Detectives in firearms twice per year, as
well as overseeing other firearms instructors in Atlantic County. Lt. DeFebbo
was certified in munitions, airsoft weapons, tasers, AR-15 assault rifles, and P-5
submachine guns. He also led training courses for these weapons. To maintain
these certifications, he needed to attend forty to eighty hours of class per year.
During his career, he conducted over five hundred firearms identifications.
Lt. DeFebbo testified an AK-47 was a prohibited firearm and that under
the law if a firearm is "substantially similar" to an AK-47, it is classified as an
assault weapon. He identified the firearm taken from defendant as an assault
weapon because it was "substantially similar" due to its flash suppressor and
pistol grip.
Defendant argues Lt. DeFebbo's testimony revealed he never fired an AK-
47. However, we have held "vulnerabilities in an expert's background" should
be "explored in cross-examination," and should not be used "as a reason to
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exclude a party's choice of expert witness." Jenewicz, 193 N.J. at 455. For
example, in State v. Krivacska, 341 N.J. Super. 1, 32-33 (App. Div. 2001), we
upheld a trial judge's decision to permit a psychologist to give an expert opinion
about a "mentally handicapped" person, even though the psychologist did not
specialize in evaluating mentally handicapped people and had no experience
with cognitive impairment issues
Likewise, here, although we recognize Lt. DeFebbo's lack of familiarity
with this specific weapon, "[w]e are nevertheless satisfied that the trial judge
properly exercised his discretion in determining that [he] was qualified to testify
as an expert witness." Ibid. Rather than evincing an abuse of discretion, Lt.
DeFebbo's deficiencies were fodder for defense counsel to highlight during
cross-examination and closing argument to discredit Lt. DeFebbo's opinion. See
State v. Olenowski, 255 N.J. 529 (2023) (abuse of discretion standard applies to
appellate review of criminal expert admissibility issues except for reliability
determinations). Further, the judge charged the jury that it was "not bound" by
the expert's opinion, was free to "reject it," and was to consider the expert's
qualifications in assessing credibility. See State v. Burns, 192 N.J. 312, 335
(2007).
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The PCR court stated, and we agree, "even if trial counsel raised an
objection regarding Lt. DeFebbo's qualifications as an expert, it would have very
likely been denied." Indeed, as the PCR court correctly understood, the issue
was not whether Lt. DeFebbo had ever seen the exact weapon presented in the
instant case, but whether he was qualified to identify it and give an expert
opinion on whether it was substantially similar to an AK-47 because it had a
flash suppression and pistol grip.
Additionally, the PCR court found trial counsel asked multiple questions
regarding Lt. DeFebbo's specific knowledge of the weapon that defendant sold.
Further, although Lt. DeFebbo did not fire the weapon and had never fired an
AK-47, the court noted "Lt. DeFebbo was offered in firearms identification, not
operability." As the PCR court properly recognized, defendant's claim is devoid
of both factual and legal merit, as Lt. DeFebbo's qualifications demonstrated his
familiarity with firearms identification, and the trial court was well within its
discretion to find that he was an expert in firearms identification. Thus, the PCR
court was correct in finding that trial counsel's position on the expert's
qualifications did not "fail to meet the standard of 'reasonable competence,'" nor
that defendant "was prejudiced by trial counsel's performance in this regard."
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IV.
The PCR judge also correctly determined that an evidentiary hearing was
not required. As stated above, a hearing on a PCR petition is only required when
a defendant presents a prima facie case for relief, the existing record is not
sufficient to resolve the claims, and the court decides that a hearing is required.
Porter, 216 N.J. at 354-55. In this case, the existing record was sufficient to
resolve defendant's claims. Moreover, as we have concluded, defendant failed
to present a prima facie case for relief.
The remainder of defendant's arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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