STATE OF NEW JERSEY v. GERMAN GONZALEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3431-04T43431-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERMAN GONZALEZ,

Defendant-Appellant.

_____________________________________

 

Submitted November 9, 2006 - Decided December 27, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-05-00487.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecu-tor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of coun-sel).

PER CURIAM

Defendant appeals from an order entered on January 18, 2005 that denied his petition for post-conviction relief. We find no merit in his appeal and affirm.

Defendant was indicted and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). A jury found defendant guilty on all counts. After merging some convictions, defendant was sentenced on the second-degree aggravated assault conviction to a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and on the possession of a weapon for an unlawful purpose conviction to a concurrent five-year term of imprisonment. Defendant appealed. We affirmed in all respects, except to remand for the correction of an error regarding the merging of convictions, and the Supreme Court denied defendant's petition for certification.

Defendant filed a petition for post-conviction relief, which the trial judge denied for reasons set forth in an oral decision. Defendant appealed, raising the following arguments for our consideration:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

II. THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

III. DEFENDANT'S CONVICTION SHOULD BE REVERSED AS THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT DUE PROCESS.

In his petition for post-conviction relief, defendant asserted that he was denied the effective assistance of counsel because his trial attorney failed to meet with him more than once, failed to prepare adequately for trial and failed to call certain witnesses on his behalf. The trial judge rejected these contentions, indicating that much of what defendant asserted had been raised on direct appeal and defendant's argument that his trial attorney had only met with him once was insufficient without a further demonstration as to how he was prejudiced as a result.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 105 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1984). This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Ibid.

In determining whether counsel was deficient, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." Ibid. To rebut that presumption, a defendant must prove that he was prejudiced by counsel's deficient performance by demonstrating "a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2086, 80 L. Ed. 2d at 698. A reasonable probability was defined by the Court as that which is sufficient to undermine confidence in the outcome. Ibid.

The trial judge concluded that defendant failed to demonstrate that the outcome of the trial would have been different if counsel had met with him more often, explaining how he reached that conclusion in the following way:

I don't find anything in the record which would indicate that this result would have been different had the defendant, defense counsel, done anything else. There might have been some trial strategy which was involved and there might have been some reason why the defense attorney did what he did, but the [c]ourt, in searching the record, doesn't find any basis on which it could find that the result would have been different; that had the jury had other instructions or had they had a lesser included this would have been a different verdict.

We affirm substantially for the reasons set forth by the trial judge. We add only the following regarding defendant's argument that the trial judge should have conducted an evidentiary hearing.

An evidentiary hearing is warranted if the defendant has presented a prima facie case in support of post-conviction relief. State v. Goodwin, 173 N.J. 583, 596 (2002). To establish a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits under the test set forth in Strickland. Ibid. Bald assertions will not suffice. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Here, defendant asserted that his attorney only met with him once prior to trial. Even if true, we reject the argument that such a fact warrants further examination at an evidentiary hearing. Defendant has not suggested what he believes would have occurred at any additional pretrial meetings with his trial attorney. Defendant also argues that his attorney did not call witnesses to testify at trial, but he did not identify these witnesses nor did he indicate what these unnamed witnesses would have said if called to testify. Accordingly, we view defendant's contentions as "bald assertions" that did not warrant the conducting of an evidentiary hearing and, thus, reject the arguments contained in Points I and II of defendant's brief.

We also conclude that the argument contained in Point III is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-3431-04T4

December 27, 2006