STATE OF NEW JERSEY v. MARVIN HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0941-04T50941-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN HARRIS,

Defendant-Appellant.

________________________________________________________________

 

Argued April 24, 2006 - Decided July 14, 2006

Before Judges Cuff, Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-02-06-1186-I.

Edward J. Crisonino argued the cause for appellant (Mr. Crisonino, on the brief).

James F. Smith, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorneys; Mr. Smith, on the brief).

PER CURIAM

Defendant, Marvin Harris, appeals his judgment of conviction on Atlantic County Indictment No. 02-06-1186-A, after a bench trial, on Count Two, aggravated assault by pointing a firearm at David Grippo, a fourth-degree offense, proscribed by N.J.S.A. 2C:12-1b(4); Count Three, unlawful possession of a weapon, a handgun, a third-degree offense, proscribed by N.J.S.A. 2C:39-5b; and Count Five, possession of a weapon for an unlawful purpose, a second-degree offense proscribed by N.J.S.A. 2C:39-4a. Defendant was sentenced to six-years imprisonment, three years to be served without parole pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on Count-Five; four years imprisonment to run concurrent on Count Three; and eighteen months imprisonment, eighteen months to be served without parole, concurrent to Count Five, on Count Two, for an aggregate sentence of six years, three years without parole. We affirm.

This appeal stems from events that occurred on April 17 and 18, 2002, in Linwood and Pleasantville. David Grippo and Andrea Kandle were employed by Caesar's Casino in Atlantic City. The two originally became acquainted when they worked together at the Showboat Casino. Grippo and Kandle occasionally ate lunch together, and from their conversations about "partying," Grippo learned that Kandle had a good source from which she could secure cocaine.

Grippo had planned a barbeque for himself and three friends on April 17, 2002, and wanted to have some cocaine on hand for the occasion. He planned with Kandle to buy cocaine from Kandle's source after work that day. The two made arrangements for Grippo to meet Kandle at her home in Linwood, where she lived with defendant.

Grippo arrived at Kandle's home between 4:00 and 5:00 p.m. and met defendant for the first time. Grippo found defendant to be "overly cordial." He put his arm around Grippo's neck as if he had known Grippo for years and, shortly after Grippo's arrival, went with Grippo and Kandle into a bedroom where all three of them snorted cocaine. Grippo then gave defendant some money to buy cocaine. Defendant left Kandle's house and was gone for about one hour. Grippo and Kandle drank beer and wine and talked until defendant's return. When defendant returned, defendant gave Grippo the cocaine he had purchased and Grippo left Kandle's house and returned with the cocaine to his home in Pleasantville.

After Grippo left her house, Kandle drank beer and talked with defendant. Later, they began to argue. As a result, Kandle left the house in her car. Remembering Grippo's barbeque and knowing people would be awake there, Kandle proceeded to Grippo's home in Pleasantville and arrived about 1:00 a.m.

Three people had attended Grippo's barbeque: two men and one woman. After Grippo returned from dropping off his girlfriend, he was getting ready for bed when his doorbell rang. Grippo answered the door and saw Kandle in a white sweat suit, intoxicated and with a glass of wine in her hand. Kandle had left her vehicle running in front of Grippo's house, with a door open. Grippo shut off the vehicle, closed the vehicle's door, and invited Kandle in. Kandle explained to Grippo that she and defendant had been fighting.

About fifteen minutes after Kandle's arrival, Grippo testified he heard loud knocking and rattling at his front door and at windows along his house. One of Grippo's friends was asleep on a couch by that point; the other tried to restrain Grippo's dog, which was barking at the commotion outside Grippo's front door. Grippo answered the door and found defendant there in an agitated state.

Defendant demanded to know if Kandle was in Grippo's house, and when Grippo said she was, defendant proceeded past Grippo, stepping into his house. Grippo at that point put his hands on defendant's shoulders and told him, "[P]lease, take your problems out of [my] house." Defendant responded by pulling a handgun out of his pocket pointing it at Grippo's left temple, and saying, "Whoa, whoa, whoa." Grippo took defendant's words as a command to "back off." Grippo, therefore, took, his hands off defendant's shoulders. Grippo realized that Kandle had positioned herself behind him when defendant began addressing her. Defendant asked Kandle, "[W]hat the fuck are you doing to me?" When Kandle did not respond, defendant said, "Fuck this, I'm taking my shit, and I'm getting out of here." Defendant then turned away, left Grippo's house, got into his automobile and drove off.

Grippo tried immediately to use his telephone to summon police, but Kandle was already using Grippo's phone to call her ex-husband. Kandle wanted her ex-husband to go to her house and check on their children because she feared defendant was on his way back there with his gun.

Grippo eventually obtained his telephone from Kandle and dialed 911. Grippo was awaiting the arrival of the police on his front porch when he saw defendant pull into his driveway. The police arrived thirty seconds after defendant and as soon as they did, defendant got out of his car and fled on foot. A Pleasantville police officer responding to the scene saw defendant running between two houses about one block from Grippo's home. Other Pleasantville police officers eventually found defendant beneath some bushes in a nearby field. Police dragged defendant out of the bushes, handcuffed him, placed him under arrest and took him to the Pleasantville police station. Defendant was subsequently questioned by Pleasantville Detective Charles Oglesby who testified at trial that he read defendant his Miranda rights and defendant waived them. Defendant initially told the detective he did not bring a gun with him to Grippo's residence and, in fact, did not even own a gun. Defendant later admitted that he did own a gun and offered to lead Oglesby to it. Defendant accompanied the detective to Kandle's house in Linwood, where he showed the detective a gun hidden behind a piece of fence under some leaves on the property. Detective Oglesby retrieved the weapon, a forty-five caliber Colt semi-automatic pistol, which was operable and loaded, with one bullet in its chamber.

Defendant presents the following arguments for our consideration:

POINT ONE

THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE DEFENDANT TO WAIVE A TRIAL BY JURY.

POINT TWO

THE 404(b) EVIDENCE OFFERED BY THE PROSECUTOR SHOULD NOT HAVE BEEN ADMITTED.

POINT THREE

EVERY POLICE OFFICER THAT TESTIFIED VIOLATED THE RESTRICTIONS OF STATE V. BANKSTON.

POINT FOUR

A RULE 104(c) HEARING SHOULD HAVE BEEN HELD BEFORE THE DEFENDANT'S CUSTODIAL STATEMENTS WERE ADMITTED IN EVIDENCE.

POINT FIVE

THE TRIAL PROSECUTOR ON THE CASE SHOULD HAVE BEEN DISQUALIFIED.

POINT SIX

COUNSEL'S CONDUCT AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. THEREFORE, THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL.

POINT SEVEN

THE EFFECT OF THE NUMEROUS ERRORS WAS TO DENY APPELLANT HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL.

Defendant's contentions contained in Points I through VII were not brought to the trial judge's attention during trial and are raised for the first time on appeal. If an error has not been brought to the trial court's attention, an appellate court will not reverse on the ground of such error unless the defendant shows plain error: i.e., error "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the [judge, as trier of fact] to a result [he] otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Frequently, an appellate court, besides invoking the plain error rule, assigns a certain interpretation to counsel's failure to raise the error below: it notes that the failure can be taken to mean that counsel did not consider the error to be significant in the context of the trial. Id. at 333. Errors created by counsel will not ordinarily be grounds for reversal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

I

The trial judge heard defendant's motion to suppress a statement made by him, which was provided by his pre-trial counsel to the assistant prosecutor. The judge suppressed the statement on the basis that it was provided to the prosecutor in violation of defendant's right to the effective assistance of counsel. Defendant contends that as a result of having ruled on his suppression motion, the judge should not have granted his motion to waive his Sixth Amendment right to trial by jury.

The waiver of trial by jury in criminal actions is governed by Rule 1:8-1(a), which states:

(a) Criminal Actions. Criminal Actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial.

Here, defendant waived his right to jury trial with the consent of the prosecutor. The following colloquy took place:

[DEFENSE COUNSEL]: Your Honor, this morning my client informed me that it's his intention to request a waiver of the jury. I've informed Ms. MacDonald of that decision. We actually have had discussions all along, my client and myself, about the relative merits of the judge versus jury, and even up to yesterday, my client was fence sitting, and this morning when I came into the courtroom, aft -- during what he tells me a lot of thought and discussion, he wants to waive that right to a jury trial and have it decided by a judge. He's given me, I believe, sufficient reason -- sufficient knowledge of the circumstance, and his thought is that you know quite a bit about the law and the jury wouldn't.

THE COURT: Well, except that this could be a fact-sensitive case more than it is a legal-issue case, am I correct?

[DEFENSE COUNSEL]: Absolutely.

THE COURT: Okay.

[DEFENSE COUNSEL]: I don't know what evidence is going to be presented here. At this point my understanding was that there's a possibility that some of the principals might not be here.

THE COURT: Okay. Where did the idea come from: Did it come from you? Did he --

[DEFENDANT]: From me.

THE COURT: It came from you, sir.

[DEFENDANT]: Mnhmm.

THE COURT: Okay. Do you understand, sir, that it is generally held within the business in which we engage as criminal justice that you stand a better shot of having -- creating reasonable doubt in the minds of one juror, because it takes all 12 to agree that you've been proven guilty beyond a reasonable doubt; and, therefore, you have a one in 12 opportunity or chance so to speak to have that doubt, and if all 12 don't agree, well, you could get an acquittal, you could get a hung jury which would be a mistrial, but it's commonly felt that with just one person making the call, who would be myself, the prosecutor need only convince one person as opposed to 12 people. Have you considered that?

[DEFENDANT]: Yes, I have.

THE COURT: And you wish to waive --

[DEFENDANT]: Yes, I do.

THE COURT: -- jury? No threats of violence or force being used against you to make this decision, sir?

[DEFENDANT]: No.

THE COURT: And you are of clear mind today, not under the influence of anything?

[DEFENDANT]: Your Honor, please.

THE COURT: Those questions have to be asked so --

[DEFENDANT]: No, I'm of clear mind --

THE COURT: -- okay.

[DEFENDANT]: -- and under the influence of nothing except a little stress maybe but --

THE COURT: Okay.

[DEFENDANT]: -- other than that --

THE COURT: Prosecutor's position?

[ASSISTANT PROSECUTOR]: Thank you, Judge. Assistant Prosecutor Casey MacDonald on behalf of the State. I reviewed Rule 1:8-1, the relevant rule. It appears that it is the defendant's decision to waive, although he doesn't have a constitutional right to waive. He only has a constitutional right to a trial. The decision is ultimately in the Court's discretion, and the case law notes indicate it should be decided after consideration by all the relevant factors including the gravity of the crimes charged. This is a second-degree Graves Act offense. These are serious charges. However, it appears the defendant has -- is aware of this and has taken into account and made a cost benefit assessment of his odds and wishes to proceed. So the State will not object. We will consent as the rule requires. I do note that it seems that the case law requires that the defendant's waiver ought to be placed in writing. I think there's a form he should fill out, and with that, we leave it in the Court's discretion.

THE COURT: Okay. I believe we do have waiver -- we usually use them in conjunction with a plea to an accusation, but I believe it includes waiver of trial by jury. Take a look at that, and see if that's the right document.

[DEFENSE COUNSEL]: Absolutely. Yes, it would.

THE COURT: Okay.

[DEFENSE COUNSEL]: I'll have it filled out, Judge --

THE COURT: Okay.

[DEFENSE COUNSEL]: -- and then I assume you would have to rule?

THE COURT: I will indicate my approval at this time. I will do it.

In State v. Dunne, 124 N.J. 303 (1991), our Supreme Court set forth the standard a court should use in weighing whether to grant a defendant's request to waive trial by jury. In Dunne, the defendant requested a jury trial waiver in a homicide case and the trial court denied his request. Id. at 306. Our Supreme Court, quoting from the United States Supreme Court in Patton v. United States, 281 U.S. 276, 312-13, 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930), set forth the principles that should guide a trial court in ruling on a request for waiver:

Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a factfinding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

[Dunne, supra, 124 N.J. at 310 (quoting Patton, supra, 281 U.S. at 312-13, 50 S. Ct. at 263, 74 L.Ed. at 870).]

The Court determined that under the United States Constitution and under art. I, 9, 10 of the New Jersey Constitution, there is no right to trial by a judge alone. The Court, however, recognized, as did the United States Supreme Court in Patton, that the constitutional right to trial by jury was personal to the defendant and could be waived.

Rule 1:8-1(a) is the provision in our Rules that deals with non-jury trials in criminal cases. Like the federal rule, our state Rule mandates that the defendant must first obtain the approval of the trial court in order to waive the right to a jury trial. Our Rule differs from the federal rule in that except in capital cases pursuant to N.J.S.A. 2C:11-3c(1), our Rule does not require the approval of the prosecutor; it merely requires notice to the prosecutor that the defendant has waived the right. See State v. Davidson, 225 N.J. Super 1 (App. Div. 1988).

[Id. at 312-13.]

The Court then set forth a three-prong test that should be used in deciding a jury trial waiver. The three prongs are:

(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;

(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and

(3) determine with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant's request in the circumstances of the case.

[Id. at 317.]

The Court pointed out, however, that "[a] court must always ensure . . . that denying a defendant's request for non-jury trial never denies the defendant a fair trial. Id. at 316. The Court further stated:

Although there is no "judicial calculus that unerringly resolves each case," the "evidential axis" that we described in R.G.D. provides a useful analogy. At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence. The sources of principled decision-making will remain rooted in a statement of reasons that will accompany the decision. This statement of reasons will give structure to the trial court's discretionary judgment and will soundly guide appellate review.

[Id. at 317-18 (citations omitted).]

Although the trial judge in this case did not set forth the reasons he was granting defendant's request to waive trial by jury, the reasons for defendant's request were able to be inferred. Defense counsel stated, "At this point my understanding was that there's a possibility that some of the principals might not be here." Further, the record reveals that defendant waived his right because he believed (1) the trial judge knew the law thoroughly, (2) Kandle would not appear to testify, and (3) the trial judge would be friendly to him. The judge fully advised defendant that he probably would fare better with a jury than he would with just a judge, but defendant nevertheless insisted on a bench trial. Defendant was also aware of the Graves Act consequences of a conviction on the second-degree offense of possession of a weapon for an unlawful purpose.

We are satisfied, given the totality of the circumstances, including the prosecutor's consent to the waiver and the defendant's insistence on waiver, after an opportunity to fully confer with his counsel, that the jury trial waiver satisfies the Dunne requirement of a voluntary, knowing and competent waiver requested in good faith. Although the trial judge's questioning of defendant was brief, the answers gave rise to the inference that the decision to waive was at least in part driven by trial strategy. We are of the view that, given the factors recited above, defendant cannot relinquish the right he possesses under the Sixth Amendment's jury trial guarantee in order to secure a tactical advantage and then after the tactic fails, complain that he was denied the right he relinquished. See State v. Carroll, 256 N.J. Super. 575, 599-601 (App. Div.), certif. denied, 130 N.J. 18 (1992).

II

Just prior to the trial, the assistant prosecutor indicated she wished to enter evidence pursuant to N.J.R.E. 404(b). The evidence consisted of testimony that defendant sold cocaine to Grippo and that the defendant used cocaine with Kandle and Grippo on April 17, 2002. Defendant was never charged with the use or sale of cocaine. Defense counsel stated he had no objection to the admission of this evidence. Defendant contends that despite defense counsel's lack of objection, the trial judge should have barred admission of this evidence sua sponte.

Evidence Rule 404(b) bars admission of evidence of other crimes, wrongs or acts by a defendant. "Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

The relevance, however, of the evidence that the defendant sold cocaine to Grippo in this case was to show why Grippo had gone to defendant's house on April 17, 2002. Therefore, as res gestae leading up to the offending incident, the evidence was necessary as background to explain the subsequent events. Additionally, the record reflects that defense counsel agreed to the admission of the testimony about the use and sale of cocaine in order to establish a basis for attacking Grippo's and Kandle's abilities to perceive and recollect what happened on the night in question, because of Grippo and Kandle's impairment from the use of cocaine and alcohol.

There is no indication from the judge's findings of fact that the testimony affected the court's determination on the charges pending against defendant. Therefore, defendant cannot gain his conviction's reversal by suggesting that the lower court might have used the testimony about cocaine to convict him on the weapon charges. See State v. Sullivan, 24 N.J. 18, 36-37, cert. denied, 355 U.S. 840, 78 S. Ct. 52, 2 L. Ed. 2d 51 (1957); State v. Mara, 253 N.J. Super. 204, 213 (App. Div. 1992). We are convinced, given defense counsel's acquiescence in its admission, that the admission of the testimony, in the context of the events that transpired prior to the offending incidents, was not error, let alone plain error. See Macon, supra, 57 N.J. at 333; Harper, supra, 128 N.J. Super. at 276-77.

III

The State called three law enforcement witnesses, Officers Ellis and Riggin and Detective Oglesby. All three witnesses began their testimony by relating hearsay statements made to them either by a dispatcher or by other police personnel. Defendant contends the admission of these statements violated State v Bankston, 63 N.J. 263 (1973).

In Bankston, the Supreme Court held: "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. See State v. Branch, 182 N.J. 338, 351 (2005).

Officer Ellis testified that he received a call about a disturbance occurring at 105 West Verona Avenue. He then said the call was a "disturbance with a gun." He further testified that he heard the subject was running. Officer Riggin testified that he got a call for a domestic dispute at 105 West Verona Avenue and that the dispute involved a weapon. Detective Oglesby testified that he received a page from Lieutenant Gaines about an incident at 105 West Verona. He testified that he was told a handgun was pointed at the victims and a male was in custody. The Lieutenant also told him the police had not recovered the weapon.

There is nothing in the record indicating that the judge was influenced to convict defendant by the testimony that the police went to Grippo's residence in response to a report of a person with a gun. Indeed, the two victims who called the dispatcher gave testimony, which was thoroughly subject to cross-examination. Additionally, the judge based his decision to find defendant not guilty of the charges involving Kandle on Kandle's testimony "that she did not see the gun pointed at her." We are satisfied that to the extent that the admission of the officers' testimony concerning their dispatch to Grippo's residence was error, it did not constitute "plain error." See Sullivan, supra, 24 N.J. at 36-37; Mara, supra, 253 N.J. Super. at 213.

IV

Detective Oglesby testified at trial about statements made to him by defendant while defendant was in custody at the Pleasantville police department. Defendant contends no N.J.R.E. 104(c) hearing was held to determine whether these statements were admissible. However, defendant's contention is not consistent with the record. An N.J.R.E. 104 hearing on the admissibility of defendant's statement to police was conducted on January 23, 2004. Defendant's appellate counsel has failed to order a transcript of the proceeding. Although no such transcript has been supplied, the record reflects that the assistant prosecutor referenced the Miranda hearing in a colloquy with the judge over the relevance of questioning directed by defense counsel to Detective Oglesby dealing with the reliability of eyewitness testimony. In light of counsel's apparent misstatement and without a transcript of the January 23, 2004 hearing, we must presume that defendant's statements were properly ruled admissible and reject defendant's claims to the contrary. See State v. Bishop, 350 N.J. Super. 335, 351-52 (App. Div.), certif. denied, 174 N.J. 192 (2002); State v. Wilkerson, 38 N.J. Super. 166, 168 (App. Div. 1955).

V

The prosecutor who tried defendant's case also represented the State on the motion to suppress the statement provided by defendant's pre-trial defense counsel. That statement essentially laid out defendant's defense to the charges. The statement said that defendant had a gun but that he did not point it or threaten anyone with the gun. Defendant alleges the trial prosecutor became aware, through the actions of defense counsel, of the trial strategy defendant would employ in defending the case. Defendant relies on State v. Sugar, 84 N.J. 1 (1980), in support of this claim. However, unlike Sugar, where the State obtained statements made by the defendant to his attorney in violation of the defendant's Sixth Amendment Rights by the police deliberately taping those conversations, here there was no governmental overreaching or infringement of the attorney-client privilege. At most the statement that was sent to the prosecutor represented an attempt by defense counsel to gain defendant's admission into PTI or to instigate plea negotiations. Defendant has cited no authority that would preclude a prosecutor exposed to a defendant's exculpatory out-of-court statements from participating in a defendant's trial.

VI

Defendant claims counsel's conduct at trial constituted ineffective assistance of counsel, thereby entitling defendant to a new trial. The United States Supreme Court enunciated the standard for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). Our Supreme Court adopted the Strickland standard in State v. Fritz, 105 N.J. 42 (1987). "[I]neffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result." Strickland, 466 U.S. at 686; 104 S. Ct. at 2064 80 L. Ed. at 692-93. The Strickland court set forth a two-prong test to be utilized in determining ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Defendant contends that his trial counsel failed to render him effective assistance of counsel by his (1) failure to object to numerous occasions of hearsay testimony; (2) failure to object to the admission of extremely prejudicial 404(b) evidence; (3) failure to request a Rule 104(c) hearing before the defendant's custodial statements were admitted into evidence; (4) failure to move to disqualify the prosecutor who read the statement provided to the prosecutor by defense counsel; and (5) allowance of a bench trial before the same judge who had already read the statement provided to the prosecutor by defense counsel. The defendant submits that any one of the deficiencies constitutes ineffective assistance of counsel.

We are convinced that because the subjective trial strategy of defendant's trial counsel is necessarily implicated in defendant's ineffective assistance of counsel claim, the issue is more properly decided by way of a post-conviction relief (PCR) petition pursuant to Rule 3:22-1. We thus decline to address defendant's assertions here. See State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, ___ U.S. ___, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). If on a PCR petition, defendant makes out a prima facie case of ineffective assistance at trial, then the court should allow an evidentiary hearing before making a determination on the merits of defendant's claim. See State v. Preciose, 129 N.J. 451, 459-64 (1992).

We are satisfied that the trial judge did not err in allowing defendant to proceed without a jury and defendant's conviction was based on competent evidence at trial and that the trial court's findings were not improperly influenced by inadmissible evidence. Accordingly, defendant's conviction is affirmed.

 
Affirmed.

Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).

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A-0941-04T5

July 14, 2006