STATE OF NEW JERSEY v. YASSAR ALLAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5611-03T45611-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YASSAR ALLAN,

Defendant-Appellant.

 

Submitted: January 11, 2006 - Decided February 2, 2006

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Number 92-04-0418.

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

James Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yassar Allan appeals from an order entered on May 22, 2002, denying his petition for post-conviction relief (PCR) following an evidentiary hearing conducted in the Law Division pursuant to our remand in State v. Allan, A-4064-99T1 (Jun. 21, 2001). The following is relevant to our consideration of the arguments advanced on appeal.

On February 23, 1996, defendant was convicted of first-degree attempted murder, aggravated assault, and weapons charges as contained in Passaic County Indictment Number 92-04-0418. Following his indictment in 1992, and throughout his jury trial defendant was represented by Otto F. Blazsek. On July 29, 1996, defendant was sentenced to a term of imprisonment of sixteen years, with an eight-year period of parole ineligibility, to run concurrently with a sentence being served by him on a federal conviction. In an unreported opinion, we affirmed the judgment of conviction. State v. Allan, A-6694-96T1 (Dec. 15, 1998).

On or about October 21, 1999, defendant filed his PCR petition, contending he had been provided ineffective assistance of counsel. As one of the bases for that assertion, defendant claimed that Blazsek had an impermissible conflict of interest while representing him at trial, impairing defendant's constitutional right to counsel and warranting reversal of his convictions. See State v. Bellucci, 81 N.J. 531, 543 (1980); State v. Sheika, 337 N.J. Super. 228, 244 (App. Div. 2000), certif. denied, 169 N.J. 609 (2001).

Defendant contended that Blazsek's representation of defendant's cousin, Ibrahim H. Allan, in an unrelated criminal matter created the conflict of interest. Blazsek had undertaken representation of Ibrahim in October 1994, after he was charged in Passaic County Indictment Number 94-10-1229 with third-degree tape piracy, N.J.S.A. 2C:21-21c(4); third-degree threat of harm to a public servant, N.J.S.A. 2C:27-3a(3); and fourth-degree attempt to hindering prosecution, N.J.S.A. 2C:5-1 and 2C:29-3b(1). At that time, Ibrahim was also facing criminal prosecution in federal court on charges of counterfeit audio tape manufacturing and distribution. Blazsek did not represent Ibrahim on the federal charges.

Ibrahim cooperated with federal authorities, including implicating defendant in the counterfeit tape operation. His cooperation was brought to the attention of the Law Division, resulting in imposition of a probationary term on Ibrahim's convictions on the charges contained in Indictment Number 94-10-1229.

The focal issue during the evidentiary hearing conducted on defendant's PCR petition on February 14, and February 15, 2000, was whether Blazsek had a conflict of interest that precluded him from representing defendant during the trial conducted in February 1996 on the charges contained in Indictment Number 92-04-0418. Blazsek testified that although he was aware Ibrahim had agreed to cooperate and provide information in the federal investigation concerning pirated tapes, he did not know the specifics of that information and was unaware that Ibrahim had any information that would have implicated defendant. Finding Blazsek's testimony credible, Judge Stephen H. Womack rejected defendant's contention that he had been provided ineffective assistance of counsel, and entered an order on March 20, 2000, denying the PCR petition.

On his appeal from that order, defendant argued that Blazsek's conflict of interest had resulted in a substantial denial of his constitutional right to counsel, and that Blazsek's representation of him at trial otherwise constituted ineffective assistance of counsel, warranting reversal of his convictions. After reviewing the record and considering the written and oral arguments of counsel, we affirmed the denial of defendant's claim that he had been denied effective assistance of counsel based on allegations of pre-trial and trial errors by Blazsek. State v. Allan, A-4064-99T1 (Jun. 21, 2001) (slip op. at 13-14). However, in remanding the matter for further proceedings concerning the issue of Blazsek's purported conflict of interest, we stated in pertinent part:

Based on the record developed at the hearing conducted on February 14 and 15, 2000, the judge found credible Blazsek's testimony that he was unaware, during his representation of either defendant or Ibrahim, that Ibrahim had agreed to cooperate with federal authorities in their investigation and prosecution of defendant. The findings, analysis and conclusions of the PCR judge concerning the conflict-of-interest issue are logical and are supported by the evidence presented to the judge. Assuming the credibility of Blazsek's testimony, there was no conflict or potential for a conflict giving rise to the ineffective assistance of counsel.

However, we are troubled by the information contained in the September 8, 1995 sentencing transcript pertaining to Ibrahim's negotiated plea bargain. It was agreed before us at oral argument that the information contained therein was not made available to the PCR judge. That information, and any additional information it may lead to, could impact on the PCR judge's determination concerning the credibility of Blazsek's testimony. Because of the strong policy established by the Court, disapproving attorney conflicts of interest, and the implications of that policy when applied to criminal matters, we conclude, as in Sheika, supra, that "[t]he interests of justice strongly militate in favor of a remand to the Law Division for further exploration of the facts and development of the record." 337 N.J. Super. at 246.

Specifically, the September 8, 1995 transcript makes clear that the sentencing judge, Blazsek, and Chief Assistant Prosecutor Kayne had a number of discussions designed to induce the judge to accept the previously-rejected negotiated plea bargain. It is also clear that the focus of those discussions was to apprize the judge of the extent of Ibrahim's cooperation with federal authorities "in a number of on-going investigations[,]" and that Blazsek "has put on the record what [Ibrahim] has done so far for the federal government and what [he] continue[s] to do for them." Our review of this record indicates that the reference to "the record" most likely is a reference to the in-chambers un-recorded, un-transcribed conferences.

The transcript suggests that Blazsek may have discussed details of the federal investigation with the prosecutor and sentencing judge, or that those details were disclosed by Kayne to the judge in the presence of Blazsek. The PCR judge should re-visit his credibility findings concerning Blazsek's testimony and afford defense counsel an opportunity to examine Blazsek concerning the circumstances surrounding the September 8, 1995 hearing. Defendant should also be permitted the opportunity to review the Adult Presentence Report prepared concerning Ibrahim's sentencing, and to call such other witnesses defense counsel believes bear on the credibility of Blazsek's credibility. The State should also have an opportunity to rebut the defendant's presentation.

[Id., slip op. at 16-18.]

On remand, Judge Womack conducted an additional evidentiary hearing on defendant's PCR petition on October 26, 2001, December 11, 2001, and April 11, 2002. Both Blazsek and prosecutor Kayne testified at length. On May 10, 2002, the PCR judge placed his findings and conclusions on the record, denying defendant's application for post-conviction relief. The judge stated, in pertinent part:

The court was able to hear the witnesses. I was able to observe their demeanor, the manner in which they testified, the manner in which they answered questions, . . . I was able to discern whether or not they appeared to be fully cooperative and responsive in their answers or in any way attempted to evade.

And on the issue of credibility, I certainly find the testimony of Mr. Blazsek to be credible in that he says that he did not, in fact, know that Yassar Allan was ever named . . . by Ibrahim Allan as a figure involved in illegal activity, that he never received any written communication that would have indicated that Yassar Allan had been named or, again, implicated in the activity.

Again, noting that the three memos that detail Ibrahim Allan's participation were not given to Mr. Blazsek as a part of the discovery on Ibrahim's state case. And, indeed, given the nature of the charges and the fact that a plea agreement had already been negotiated, the court finds that that is not unusual and there . . . would have been no reason to give Mr. Blazsek this information.

* * * *

Based on the facts before the court, . . . I find that the defendant has failed to establish by a preponderance of the evidence that there was any conflict of interest[.] . . .

As I tried to previously outline, these were federal investigations on the one hand regarding piracy . . . and the State[] . . . was . . . apparently not conducting additional investigations over and above the charges that they had against Ibrahim . . . and that the whole transaction arose, again, as a result of Ibrahim's desire to help himself out and to get the non-custodial term.

There was testimony regarding whether or not Mr. Blazsek knew or should have known that Yassar Allan was connected with Northeast Plastics which was also a business that was named in . . . the FBI memo.

Mr. Blazsek's testimony on that issue was that during the time he represented Yassar, that Yassar had indicated that he was in the art business in Philadelphia, that the present charges against Yassar had arisen because of a conflict with the victim on Yassar's indictment, which . . . had arisen originally, I guess, in connection with the employment at the art business. Mr. Blazsek says he had no reason to know or to be able to identify or associate Yassar with Northeast Plastics.

And from a reading of the memo, it would indeed seem to indicate that Basem Allan was, in fact, the owner and operator of Northeast Plastics. He may have had partners, but this was not information that, even in regard to the nature of the business in which Yassar was involved, that Mr. Blazsek should have seen red flags or picked up on a sign that there was a potential conflict. Again, I find Mr. Blazsek credible on that particular issue.

On May 22, the court issued an order denying defendant's PCR petition.

On appeal, defendant presents the following arguments for our consideration:

POINT ONE

TRIAL COUNSEL'S NEGOTIATION OF A PLEA BARGAIN THAT REQUIRED ANOTHER CLIENT TO COOPERATE WITH FEDERAL AUTHORITIES IN PROSECUTING DEFENDANT CONSTITUTED A CONFLICT OF INTEREST RESULTING IN THE DENIAL OF DEFENDANT'S RIGHT TO THE ASSISTANCE OF COUNSEL.

A. Trial Counsel had a Per Se Conflict of Interest in Representing both Defendant and Ibrahim Allan.

B. Trial Counsel had a Potential Conflict of Interest in Representing both Defendant and Ibrahim Allan and Defendant has Demonstrated a Great Likelihood of Prejudice.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion, R. 2:11-3e(2), and we affirm substantially for the reasons articulated by Judge Womack in his oral opinion delivered on May 10, 2002. The findings by the judge are complete and based upon credibility determinations that are supported by substantial evidence contained in the record. State v. Arthur, 184 N.J. 307, 320 (2005); State v. Locurto, 157 N.J. 463, 474 (1999); State v. Johnson, 42 N.J. 146, 161 (1964). Based on these findings, defendant has failed to demonstrate there was a great likelihood of prejudice to him as a result of his representation by Blazsek at trial. State v. Norman, 151 N.J. 5, 25 (1997); State v. Drisco, 355 N.J. Super. 283, 292-93 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). Blazsek testified at length, responded to all questions and never wavered in his denial of any knowledge about the content of the information Ibrahim provided to federal authorities.

Affirmed.

 

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A-5611-03T4

February 2, 2006