STATE OF NEW JERSEY VS. HASSAN A. JONES (11-11-1343, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4078-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HASSAN A. JONES, a/k/a NAEEM
JOHNSON,
Defendant-Appellant.
________________________________
Submitted May 30, 2018 – Decided July 20, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 11-11-1343.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Nicole
Handy, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
A jury convicted defendant Hassan A. Jones of second-degree
sexual assault, third-degree criminal restraint, third-degree
aggravated assault, and third-degree terroristic threats.
Defendant withdrew the direct appeal that he filed. Two-and-a-
half years after his conviction, he filed a petition for post-
conviction relief (PCR). After conducting an evidentiary hearing,
Judge Christopher J. Garrenger issued an order and written decision
denying the petition. Defendant appeals contending:
POINT I
SINCE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL, THE DENIAL OF HIS
PETITION FOR POST-CONVICTION RELIEF WAS [AN]
ERROR.
A. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE
INVESTIGATION.
B. FAILURE TO OBJECT TO OBTAIN EVIDENCE.
C. FAILURE TO CALL CERTAIN WITNESSESS.
We affirm substantially for the reasons set forth in Judge
Garrenger's well-written decision.
To prove ineffective assistance of plea counsel, a defendant
must show that counsel's performance was deficient and but for
counsel's errors, there is a reasonable probability that defendant
would not have pled guilty. Strickland v. Washington, 466 U.S.
668, 687, 694 (1984); State v. DiFrisco, 137 N.J. 434, 457 (1994).
Where, as here, the PCR judge conducts an evidentiary hearing, we
must uphold his factual findings, "so long as those findings are
supported by sufficient credible evidence in the record." State
2 A-4078-16T4
v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson,
200 N.J. 1, 15 (2009)). Additionally, we defer to his findings
that are "substantially influenced by [the judge's] opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." Ibid. (alteration in
original) (quoting Robinson, 200 N.J. at 15). We owe particular
deference to the judge's credibility determinations. See State
v. Locurto, 157 N.J. 463, 474 (1999). We, however, do "not defer
to a PCR [judge's] interpretation of the law; a legal conclusion
is reviewed de novo." State v. Nash, 212 N.J. 518, 540-41 (2013).
The record of defendant's trial revealed that three children
were born from defendant's and the victim's tumultuous ten-year
relationship; the victim filed eight domestic violence complaints
during the last five years of their relationship that were all
withdrawn, and obtained a restraining order against defendant.
According to the victim's testimony, one night, after defendant
returned home and she refused his demands to have sex, he verbally
threatened her, physically assaulted her and forced her to have
intercourse against her will. The victim recorded the entire
incident on her cell phone, which she placed in her pants' back
pocket when he entered the house because she feared that a domestic
dispute would occur and she wanted to document it. Three days
later, she filed a criminal complaint against defendant.
3 A-4078-16T4
In his PCR petition, defendant asserted counsel's inadequate
investigation failed to reveal that the victim had a history of
making false accusations – eight altogether – against him that she
withdrew. He argued that, with this knowledge, counsel could have
impeached her credibility by questioning her about the veracity
of those accusations.
Judge Garrenger determined that the prior complaints would
not have been admitted as false accusations because the
admissibility of prior false accusations is governed by N.J.R.E.
608(b), which requires a hearing be held to determine if the
accusations were definitively false, and there was no evidence
presented that the victim's prior accusations were false. That
said, the judge pointed out that counsel did cross-examine the
victim regarding the withdrawn complaints. Yet, the judge found
credible counsel's evidentiary hearing testimony that he refrained
from delving too deeply into those accusations out of concern it
would open the door to allow the State, through re-direct
examination of the victim, to provide the jury details concerning
her numerous allegations of defendant's abusive acts.1
We agree with Judge Garrenger's assessment that counsel's
trial strategy to not highlight the victim's withdrawn complaints
1
The police reports regarding the incidents contained defendant's
admissions of verbal and physical assaults against the victim.
4 A-4078-16T4
was not proof of ineffective assistance of counsel. We further
add that defendant did not assert facts through affidavits or
certifications based upon personal knowledge, what a more adequate
investigation would have revealed and how that inadequacy
prejudiced his defense. See State v. Porter, 216 N.J. 343, 352
(2013); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Thus, defendant's mere "bald assertions" do not support a
claim of ineffective assistance. Cummings, 321 N.J. Super. at
170.
Next, defendant contended counsel failed to object to the
admissibility of the cell phone recording. He maintains counsel
erred in admitting to its admissibility because the State had to
prove the four factors set forth in State v. Driver, 38 N.J. 255,
287 (1962), that (1) "the device was capable of [taping] the
conversation or statement; (2) the operator was competent; (3) the
recording is authentic and correct; [and] (4) no changes, additions
or deletions have been made."
Judge Garrenger found no merit to this argument because the
State – through the victim's testimony – provided a proper
foundation to admit the recording under Driver. He underscored
the flaw of defendant's argument by pointing out that it
contradicted his PCR certification "that the recording only
contains a 'heated argument' and that he never physically
5 A-4078-16T4
assaulted" the victim. We conclude the judge's determination is
on point, and agree with him that defendant has not shown the
recording would have been excluded if counsel sought to bar its
admission. "The failure to raise unsuccessful legal arguments
does not constitute ineffective assistance of counsel." State v.
Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, 466 U.S. at
688; Fritz, 105 N.J. at 52).
Lastly, defendant contended counsel was ineffective for not
calling two witnesses, defendant's sister and nephew, to testify
at trial to impeach the victim's credibility. To prove this
contention, the witnesses testified at the evidentiary hearing
that the victim stated she was remorseful about making the charges
against defendant and considered dropping them. Both witness,
however, stated the victim never said the incident did not occur.
Counsel testified he was aware of the sister's potential testimony
– and had constant contact with her during the trial – but decided
not to have her testify because the victim never told her that the
rape did not occur. As for the nephew, counsel stated he was
never informed that the nephew also heard the victim say she
regretted making the charges. The nephew's testimony confirmed
that he did not tell counsel – nor was he told to do so – about
the victim's alleged remorse.
6 A-4078-16T4
Relying upon the pronouncement in Strickland, 466 U.S. at
693, 689, that a trial counsel's decision to call witnesses is
strategic and a PCR court's review of such decision is "highly
deferential," Judge Garrenger stated:
Counsel performed a satisfactory pre-trial
investigation and the strategic decision not
to call [the witnesses] . . . is entitled to
the same high deference offered to all such
decisions. The [c]ourt finds that [c]ounsel's
actions were not deficient and [defendant] has
failed to satisfy the first prong of
Strickland.
He further determined that without the testimony of these
witnesses, counsel sought to impeach the victim through his cross-
examination of her by "highlight[ing] [the] gap between the times
the alleged incident occurred and her actual filing of the
complaint, along with emphasizing matters not contained on the
[cell phone] recording in an attempt to . . . raise doubt in the
jurors' minds." In short, the judge saw nothing wrong with
counsel's reasoning that the sister would not have provided
beneficial trial testimony for the defense. We add that, even if
counsel was aware of the nephew's potential testimony, the same
reasoning would have applied to the nephew' testimony.
Giving deference to the judge's fact-finding because the
record supports it, we agree with his application of Strickland
7 A-4078-16T4
to determine that counsel's exercise of trial strategy in not
calling the two witnesses was not ineffective assistance.
Affirmed.
8 A-4078-16T4