STATE OF NEW JERSEY v. FARAD ANDREWS (14-09-2348, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3358-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FARAD ANDREWS, a/k/a
FRAD ANDREWS, JABAD
PARKER, RODDY WILLIAMS,
NEHEMIAH N. HENDERSON,
NEHEMIAH A. HENDERSON,
DOMINICK C. PLUMMER,
NAHEMIAH HENDERON,
and FARD T. ANDREWS,
Defendant-Appellant.
_________________________
Submitted May 31, 2022 – Decided August 10, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-09-
2348.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, of
counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Farad Andrews appeals from a Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Before us, he presents the following arguments:
POINT I
THE PCR COURT IMPROPERLY DENIED
DEFENDANT'S CLAIM THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF HIS PLEA
COUNSEL WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING[.]
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS FOR INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. TRIAL COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE BY
NEGLECTING TO CHALLENGE COUNT
ONE OF THE INDICTMENT, BY FAILING
TO OBJECT TO THE JURY INSTRUCTIONS
AND SENTENCE, AND BY FAILING TO
PROPERLY ADVISE DEFENDANT THAT HE
WAS SUBJECT TO PUNISHMENT FOR
FIRST[-]DEGREE ARMED ROBBERY.
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POINT II
DEFENDANT'S POST-CONVICTION RELIEF
CLAIMS ARE NOT PROCEDURALLY BARRED[.]
Having reviewed the record considering the applicable legal standards, we are
unpersuaded by defendant's arguments and affirm substantially for the reasons
set forth by the PCR judge in his oral decision.
The procedural history and trial evidence are detailed in our unpublished
decision affirming defendant's conviction and sentence on direct appeal, State
v. Andrews, No. A-0436-16 (App. Div. Aug. 1, 2018), and in the PCR judge's
oral decision issued May 20, 2021. A brief summary of the relevant facts and
proceedings will suffice here.
Kesha Congleton, an Essex County Sheriff's Officer, and her live-in
partner, Kaliffe Conover, had just finished exercising in an Essex County park
around 1:00 a.m. when two men, one of them with a mask covering his face
pointing a .22 caliber handgun, demanded their possessions. The unmasked
assailant then stated, "I know her, she's good"; the other armed assailant
lowered his mask for five seconds to reveal his face, and they both left without
taking any of Congleton's and Conover's possessions. Moments later,
Congleton and Conover flagged down a police patrol car to report the robbery
attempt and gave the officers a description of the assailants. Shortly
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thereafter, Congleton and Conover spotted two men who they suspected were
the assailants, alerted the police by calling 911 and followed the men. Police
vehicles responded, and the two suspects were apprehended.
In an ensuing show-up identification, Congleton stated she was ninety
percent sure that one of the men, later identified as defendant, was the
assailant who lowered his mask and held the gun, but that the other man was
not involved in the robbery. The police also showed her a black revolver that
she stated was the gun held by defendant. In a separate show-up identification,
Conover confirmed Congleton's identifications. Their trial testimony was
consistent with their show-up identification statements.
Defendant was charged with first-degree attempted robbery, N.J.S.A.
2C:15-1 and N.J.S.A. 2C:5-1; second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(1); possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39-4(a)(1); and fourth-degree possession of a defaced
firearm, N.J.S.A. 2C:39-3(d). He was found guilty of all but the fourth-degree
charge.
On direct appeal, defendant's two contentions were found unpersuasive.
First, he claimed the jury instruction for the charge of attempted robbery was
deficient because attempted robbery is a second-degree offense under N.J.S.A.
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2C:5-4(a), but the instruction permitted the jury to convict defendant of
first-degree armed robbery. Andrews, slip op. at 4. Although we agreed that
the initial instruction provided to the jury was incorrect because an offense of
first-degree attempted robbery did not exist, we held the trial court cured the
error when it properly reinstructed the jury regarding first-degree robbery. Id.
at 6.
Second, defendant challenged the trial court's admission of testimony
concerning the show-up identifications by Congleton and Conover. Id. at 7.
We concluded that considering the discretion afforded to the court's credibility
assessments, there was no reason to upset its ruling that the identifications
were reliable and thus admissible. Id. at 14.
Seven months after our Supreme Court denied defendant's petition for
certification, State v. Andrews, 237 N.J. 189 (2019), defendant filed a pro se
PCR petition. PCR counsel was subsequently appointed to represent
defendant.
After hearing the parties' arguments, the PCR judge issued an oral
decision denying defendant's petition without an evidentiary hearing and
memorialized his ruling in a confirming order. Applying the well-recognized
two-prong test to establish ineffectiveness assistance of counsel, Strickland v.
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Washington, 466 U.S. 668, 687 (1984), and State v. Fritz, 105 N.J. 42, 58
(1987), the judge found defendant failed to establish a prima facie case for
ineffective assistance of counsel "or otherwise establish any legal basis for
post-conviction relief." In addition to finding that some of defendant's eleven
claims were factually without merit, the judge also determined that some were
procedurally barred under Rules 3:22-4 and -5 because they were raised or
could have been raised on direct appeal.
In this appeal, defendant maintains his trial counsel provided ineffective
assistance when he failed to: (1) challenge the indictment charging attempted
first-degree armed robbery; (2) advise him that he could be sentenced for a
first-degree offense; and (3) request a limiting instruction minimizing the
negative impact of testimony regarding defendant's hand tattoos. We address
these contentions in turn.
Challenge to Charge of Attempted First-Degree Armed Robbery
Defendant fails to establish under Strickland's second prong how he was
prejudiced by counsel's failure to challenge the jury charge of the non-existent
offense of first-degree armed robbery. We determined on defendant's direct
appeal that any purported error in the charge was not clearly capable of
producing an unjust result at trial because the court
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reinstructed the jury on the elements of robbery by
stating "[N.J.S.A. 2C:15-1] . . . provides that an
attempted robbery is a crime of the second-degree
except that it is a crime of first-degree if the actor is
armed with, or uses, or threatens the immediate use of
a deadly weapon."
[Andrews, slip op. at 7.]
The indictment cited the correct statute, N.J.S.A. 2C:15-1, which does not state
that an actual robbery must take place. Both the indictment and jury charge of
first-degree robbery were supported by the victims' trial testimony. Hence, the
PCR judge was correct in finding that this court had addressed the substance of
this contention in defendant's direct appeal, thereby making the claim
procedurally barred under Rule 3:22-5.
Exposure to a First-Degree Sentence
The record demonstrates defendant was informed through the pretrial
memorandum he signed stating his sentencing exposure to a first-degree
offense, which the trial court reviewed with him during the pretrial hearing.
Thus, there is no merit to defendant's assertion that had he been aware he
might be sentenced as a first-degree offender, he would have testified at trial.
Moreover, defendant makes no showing of prejudice that had he testified at
trial, or that there was a reasonable probability he would not have been
convicted or would have received a lighter sentence. Defendant's contention is
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nothing more than a bald assertion which does not establish ineffective
assistance of counsel because he fails to explain in an affidavit what testimony
he would have provided that would have affected the jury's verdict to his
favor. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Limiting Instruction Regarding Defendant's Hand Tattoos
Defendant argues that his tattoos reflect gang affiliation or could be
reasonably interpreted as such, thereby making him appear prone to
criminality. Testimony concerning the tattoos on defendant's hand was elicited
during defense counsel's cross-examination of the victims to establish that
defendant was not one of the assailants. The victims did not indicate that the
assailant who pointed the gun had tattoos on his hand, therefore counsel
stressed the armed assailant could not have been the tattooed defendant. The
PCR judge properly held this was a strategic decision and thus not ineffective
assistance of counsel. See State v. Reddick, 76 N.J. Super. 347, 352
(App. Div. 1962) ("[A] defendant is bound by his own counsel's trial tactics
and strategy provided that defendant's right to a fair trial is not impugned." ).
Defendant does not present any argument overcoming the presumption that
counsel made a reasonable tactical decision not to request an instruction
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concerning gang affiliation because such an instruction may have suggested to
the jury that defendant was a gang member and placed him in a negative light.
Moreover, defendant does not point to any trial evidence that his tattoos
reflected gang affiliation or could have been reasonably interpreted as such,
and thus making the jury believe that he was prone to criminality. Counsel
was therefore not ineffective in failing to request a limiting instruction to
eliminate or minimize any prejudicial evidence where such evidence was not
presented to the jury.
Because defendant failed to set forth a prima facie case of ineffective
assistance of counsel, he was not entitled to an evidentiary hearing. See State
v. Preciose, 129 N.J. 451, 462 (1992).
To the extent we have not discussed any other arguments raised by
defendants lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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