Opinion
DOCKET NO. A-0189-10T4
08-23-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE GARRETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-03-0490.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Assistant Prosecutor, on the brief). PER CURIAM
Defendant George Garrett appeals the April 8, 2010 denial of his petition for post-conviction relief (PCR), arguing that he received ineffective assistance of trial counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was indicted in Hudson County Indictment No. 06-03-0490, charging him with, on November 7, 2005, third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of less than one-half ounce of heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-5a(1) and 2C:35-7 (count three); and second-degree possession of heroin with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-5a(1) and 2C:35-7.1 (count four). In counts five through eight, he was charged with the same offenses involving cocaine. In count nine, he was charged with third-degree distribution of less than one-half ounce of heroin to Danny Perez a/k/a Johnny Pacheco, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3). Count ten charged that the distribution occurred within 100 feet of a school and count eleven that it occurred within 500 feet of public housing. Counts twelve, thirteen and fourteen alleged the same charges as counts nine through eleven in relation to a sale of heroin to Rafael Rosado. Count fifteen charged defendant with fourth-degree resisting arrest by flight, N.J.S.A. 2C: 29-2a.
Defendant was acquitted of six counts after a two-day jury trial and, after the appropriate merger of counts, was sentenced on counts four, eight and fifteen to an aggregate sentence of ten years in prison subject to a five-year period of parole ineligibility. We affirmed defendant's conviction on direct appeal. State v. Garrette, No. A-2719-06 (App. Div. Aug. 5, 2008).
Defendant's last name is spelled both "Garrett" and "Garrette" in the documents.
At trial, Jersey City police officers testified they saw defendant sell drugs to two individuals directly in front of their unmarked car. They testified to the following facts regarding the events surrounding the sale. Defendant took something from a pouch and handed it to the two men in exchange for money. Defendant and the other men attempted to flee to avoid apprehension, but the officers ultimately arrested the three men and found cocaine and heroin in the pouch. The transactions took place across the street from the Montgomery Garden public housing complex.
One of the two men arrested with defendant, who had an extensive criminal record and admitted to having an almost twenty-year drug addiction, testified for the defense that he bought heroin from someone other than defendant in the Montgomery Garden housing complex immediately prior to his arrest.
The first two points raised by defendant on direct appeal were raised as plain error and read as follows:
POINT I
WHEN THE JURORS ASKED QUESTIONS OF FACT DURING DELIBERATIONS, THE JUDGE IMPROPERLY INFORMED THEM THEY WOULD HAVE TO RELY ON UNAIDED MEMORY, ALTHOUGH VIDEOTAPES OF THE PROCEEDING WERE AVAILABLE TO REFRESH THEIR MEMORIES. (Not raised below)
POINT II
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not raised below)
In his PCR application, defendant argued that his counsel's failure to object to the trial court's actions that he raised on direct appeal, as well as poor trial preparation and failure to report a sidebar conference to defendant, constituted ineffective assistance of counsel. Defendant also argued that appellate counsel's rush to complete the appeal without proper records, failure to retract counsel's letter brief and failure to submit defendant's pro se brief all constituted ineffective assistance of appellate counsel. The trial court denied defendant's petition without the evidentiary PCR hearing he requested.
Defendant raises the following issue on appeal:
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING TO DEVELOP THE RECORD FOR HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
Defendant argues that the trial court erred in denying him an evidentiary hearing to assess his claims of ineffective assistance of counsel. Rule 3:22-1 does not require an evidentiary hearing in every PCR proceeding, but rather grants trial courts discretion as to whether or not one should be held. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining whether defendant has established a prima facie case, the court should construe the facts in the light most favorable to the defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 194 (1999).
To establish a claim of ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 ( 1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
"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 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Additionally, a defendant's dissatisfaction with his or her counsel's exercise of judgment is not sufficient to overturn a conviction based on a claim of ineffectiveness. Id. at 314.
The State's proofs at defendant's two-day trial were overwhelming. Two police officers saw defendant hand something from his pouch to two individuals in exchange for money. The police recovered the pouch containing heroin and vials of cocaine, as well as the drugs purchased by the two men, which they had discarded on the ground when confronted by the police. In defense, one of the two men arrested with defendant testified that he bought heroin from an unidentified person, not defendant.
Even if defense counsel had objected at trial so that the two issues were not reviewed on a plain-error basis, there would have been no grounds for reversal. The jury asked specific factual questions during deliberation. The court instructed them to rely on their memory of the testimony during the brief trial. As we indicated in our decision on defendant's direct appeal, "[d]efendant presents no evidence that any particular part of the testimony would have cleared up any of the jury's questions nor that any of the questions were germane to the jury's finding of guilt." Garrette, supra, slip op. at 6.
On direct appeal, defendant also took issue with one phrase in the model jury charge then in effect relating to defendant's election not to testify, which stated that he "is presumed to be innocent even if he chooses not to testify." Id. at 7. Defendant argued that "even" should have been replaced with "regardless of whether or not." Ibid. Even had the court given the modified charge requested by defendant on appeal, there is no reason to believe such a slight change would have affected the verdict.
We note that the final sentence of the current model jury charge reads: "[Defendant] is presumed innocent whether or not he/she chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009).
Defendant argues that his appellate counsel did not raise the trial court's refusal to consider a motion for judgment of acquittal after discharge of the jury, which defendant sought to file pro se. R. 3:18-2. Even if the trial court had considered such a motion, in light of the strength of the State's case, there is no reason to believe the court would have set aside the verdict of the jury.
Defendant also argues that his trial and appellate counsel were unprepared and failed to inform him of the proceedings or honor his requests. Such vague allegations without concrete references to harm are not sufficient to necessitate an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 15 (explaining that a court need not hold an evidentiary hearing if "the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing"), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION