Opinion
DOCKET NO. A-0826-12T2
05-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STANLEY WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Maven. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-12-1947. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Stanley Williams appeals the May 31, 2012 Law Division order denying him post-conviction relief (PCR). We affirm.
I
On June 18, 2009, after three days of jury selection, defendant entered a guilty plea to the second count of his December 7, 2007 indictment, third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3). When he entered his plea, defendant answered the following question under oath in the affirmative:
[D]id you with the purpose to defraud the New Brunswick Board of Education or the knowledge that you were facilitating a fraud to be perpetrated on anyone utter as true to the New Brunswick Board of Education a writing, specifically a prescription blank bearing the name of a Dr. Amegor, knowing that it had been forged or falsely made, to represent that it was signed by Dr. Amegor?After the question and affirmative response, at the invitation of the court, the prosecutor asked defendant: "And you knew and your purpose was to defraud or to facilitate a fraud on the Board of Education[, c]orrect?" Again, defendant answered in the affirmative.
In accord with the plea agreement, on August 31, 2009, defendant was sentenced to five years' probation subject to 365 days' county jail time. He agreed to forfeit his teaching position, to relinquish his teacher's license, and to permanent disqualification from holding public office.
Defendant thereafter appealed his sentence to this court during the excessive sentence oral argument calendar on October 18, 2010. See R. 2:9-11. The sentence was affirmed. Defendant's petition for certification to the Supreme Court was denied on April 12, 2011. 205 N.J. 520. On August 5, 2011, defendant filed a pro se PCR petition and was assigned counsel, who briefed the matter.
Defendant had been employed as a special education teacher in a high school in New Brunswick. After being questioned about his excessive absences, defendant presented the school superintendent with a medical excuse for excess time off during the 2006-2007 school year, written on a blank prescription form purportedly issued by a doctor with an office in Newark. When the school superintendent's office attempted to verify the doctor's note, they learned that the alleged treating physician was a pediatrician who was unacquainted with defendant. Defendant later admitted to the authorities that he purchased the blank prescription form for $25 in order to falsify documentation providing him with a medical excuse in order to avoid disciplinary action by his employer.
On appeal, defendant raises the following point for our consideration:
POINT IDefendant alleges that relief should have been granted based on ineffective assistance of counsel because his trial attorney did not advise him properly regarding the State's ability to satisfy the statutory element of "purpose." Defendant contends that the State could not prove that his presentation of a forged medical excuse established his purpose to defraud another of "a property, right, interest[,] or estate."
THE LOWER COURT ERRED IN DENYING MR. WILLIAMS' PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
We turn first to the language of the statute. It provides: "A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor: . . . [u]tters any writing which he knows to be forged." N.J.S.A. 2C:21-1(a)(3). "[A] forged instrument is uttered when it is offered as genuine accompanied by words or conduct indicating that it is genuine, without regard to whether it is so accepted." State v. Gledhill, 67 N.J. 565, 572 (1975) (internal quotation marks omitted).
A governmental unit can be the victim of forgery when, for example, voting records are forged. See State v. Longo, 132 N.J.L. 515, 519 (Sup. Ct. 1945), aff'd, 133 N.J.L. 301 (E. & A. 1945). Similarly, when a defendant forges a prescription to obtain controlled substances, the State is considered to have been "defrauded" because of its interest in the regulation and control of drugs. State v. Felsen, 383 N.J. Super. 154, 160-61 (App. Div. 2006). And, we note, the mental state required for forgery is "purpose to defraud" or "knowledge that [the actor] is facilitating a fraud or injury to be perpetrated by anyone." See N.J.S.A. 2C:21-1(a).
State v. Felsen is enlightening. The criminal purpose in that case was not to deprive another of a property interest, since the defendant, although presenting a forged prescription, presumably paid for the drugs he obtained. It sufficed that he knew at the time he uttered the forged prescription that another would rely upon it in a context where the State had a substantial interest in the transaction, albeit not a property interest. See Felsen, supra, 383 N.J. Super. at 162. The fraud in that case was perpetrated solely upon the State's regulatory scheme. Ibid.
The State has a substantial interest in the education of its students. Defendant's employer was entitled to request a medical excuse for his excessive absences, but defendant was not entitled to present a forged document in order to continue his employment and protect himself from otherwise justified disciplinary action. In this case, defendant's fraud affected not only his employer but the public's interest in the education of its students. That no actual loss of "property, right, interest[,] or estate" occurred as a result is inconsequential. Accordingly, this case is similar to Longo and Felsen in that there was no intent to defraud another of actual property or a property interest, but the statutory requirement of purpose to defraud was nonetheless met. In any event, defendant's claim conflicts with his acknowledgment at the time the plea was entered that he uttered the forged medical excuse with the purpose to defraud the New Brunswick Board of Education.
To demonstrate ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test by demonstrating that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must also establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).
In this case, defendant fails to meet the Strickland test because his counsel's performance was simply not deficient. Defendant's claim that the State could not prove a fraudulent purpose, and that his attorney should have so advised him, is simply a bald allegation unsustainable after even a cursory examination of the statute, the circumstances which gave rise to the charges, and the sworn responses that defendant gave during the plea colloquy. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Thus there was no deficient performance on the part of counsel.
Counsel's assistance was within the range of competence expected of attorneys in criminal cases. See DeFrisco, supra, 137 N.J. at 457. Furthermore defendant, in light of his confession, and the proofs otherwise available to the State, cannot establish that there is a reasonable probability that, but for his attorney's errors, he would have insisted on going to trial. See ibid.
Hence we are persuaded that the PCR judge was correct when he concluded that no prima facie case was established on this point. The plea colloquy tracked the statute; the facts as developed in defendant's sworn responses, as in his earlier confession, made clear that he presented the forged medical excuse with the expectation that his public employer would rely upon it and allow him to continue to work without suffering disciplinary action.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION