STATE OF NEW JERSEY v. CIRILIEN JULES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6355-04T46355-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CIRILIEN JULES,

Defendant-Appellant.

 

Submitted September 13, 2006 - Decided October 12, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-02-0328.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Leo Hernandez, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Cirilien Jules appeals from the June 1, 2005 order denying his petition for post-conviction relief (PCR). We affirm.

Following a 1999 jury trial, defendant was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1b; second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. Each of these charges arose from an incident during which defendant and another man were approaching one Michael Kenny as Kenny was standing near and preparing to enter his automobile. Kenny saw that defendant was trying to pull a bandana over his face and was pointing a handgun at Kenny as he approached. When Kenny opened the door of his car, the other man saw a police radio inside of Kenny's car and called to defendant, saying, "no, no, no, he's a cop." At that point, defendant began to put the handgun back into his pocket and started to walk away. According to Kenny, after he apprehended defendant and arrested him, defendant said "I didn't rob you; I was going to do you, but the other guy said no."

After the jury found defendant guilty of the charges, defendant was sentenced to a ten-year prison term, to which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied, on the first-degree count. Defendant's sentences on the two other counts were imposed to be served concurrently. On appeal, we affirmed defendant's conviction and sentence without prejudice to his right to raise arguments concerning the effectiveness of counsel in a PCR petition. State v. Jules, 345 N.J. Super. 185 (App. Div. 2001). Defendant's petition for certification was denied. State v. Jules, 171 N.J. 337 (2002).

In his PCR petition, which was originally filed pro se and which was revised and refiled with the assistance of counsel, defendant argued that his trial counsel was ineffective in several respects. In particular, he argued that counsel was ineffective in failing to present defendant's testimony; in failing to ensure that defendant was aware that the decision about whether or not to testify was his, and not counsel's to make; in failing to request a jury charge on the defense of renunciation; and in failing to request a charge on assault as a lesser included offense of armed robbery. The PCR petition further asserted that the trial judge erred in failing to include a charge on assault, sua sponte. The PCR judge considered and rejected each of these arguments for reasons she expressed on the record on May 26, 2005.

On appeal, defendant raises, through counsel, each of the arguments included in the PCR petition and asserts as well that the cumulative effect of trial counsel's errors deprived him of a fair trial. In his supplemental pro se brief, he contends that the PCR judge erred in failing to convene an evidentiary hearing and he asserts additional, new arguments that counsel was ineffective. Specifically, he contends that his attorney should not have permitted him to stand trial because of his limited comprehension of the English language; that trial counsel failed to investigate errors in the indictment and on the verdict sheet; that counsel failed to advise him of the penal consequences of a conviction; and that his attorney failed to ensure that he had the opportunity to appear on June 1, 2006. We have considered each of these arguments in light of the record and the applicable legal precedents and have concluded that they are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm and add only the following observations.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney made serious professional errors and that the attorney's deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Judged against this well-settled standard, defendant's claims lack merit.

First, we find no evidence of ineffective assistance with respect to defendant's decision not to testify. Although every criminal defendant has a constitutional right to testify on his or her own behalf, and although the decision about whether or not to testify is defendant's to make, see State v. Savage, 120 N.J. 594, 626-28 (1990), defense counsel's obligation is to advise the defendant of that right. See State v. Bey, 161 N.J. 233, 269-71 (1999). The record of the trial proceedings includes extended colloquy among defendant, his trial counsel and the court about his right to testify and about the risks and benefits of exercising that right. The transcript makes it abundantly clear that defendant was repeatedly advised that the choice was his to make.

Second, defendant's argument that counsel was ineffective in failing to request a charge on the defense of renunciation is meritless. The affirmative defense of renunciation requires defendant to prove that he "abandoned his effort to commit the crime, or otherwise prevented its commission, in circumstances that manifest a complete and voluntary renunciation of his criminal purpose." N.J.S.A. 2C:5-1d. Moreover, the renunciation must be voluntary in the sense that it is not motivated by an outside influence. See State v. Alston, 311 N.J. Super. 113, 121 (App. Div. 1998). The only evidence in the record relating to defendant's decision to put the gun away and to leave Kenny was the warning shout from his associate and his own statement to Kenny that he changed his mind only when warned that his intended victim was an off-duty police officer.

Third, we reject defendant's argument that trial counsel was ineffective in failing to request a charge on assault as a lesser included offense and that the trial judge erred in failing to give that charge sua sponte. As the PCR judge concluded, there was no evidence at trial that defendant intended to assault his victim and no evidence that his purpose in approaching him with his gun drawn was anything other than an intent to rob him of whatever possessions or valuables he might have had. As the PCR judge noted, merely "because a robbery is thwarted by a defendant's belated learning that . . . the intended victim is a police officer does not convert an attempted robbery into an assault." Compare N.J.S.A. 2C:15-1 (robbery) with N.J.S.A. 2C:12-1 (assault). Moreover, there was no rational basis in the record on which the jury could have acquitted defendant on the charged offense while convicting him of the one he now suggests should have been charged. See State v. Harris, 357 N.J. Super. 532 (App. Div. 2003); State v. Viera, 346 N.J. Super. 198 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Similarly, we reject the assertion, in the context of a PCR appeal, that the judge erred in failing to give, sua sponte, the charge now requested. That argument could, and should, have been raised on direct appeal. Having failed to do so, defendant is precluded from raising it in a PCR petition. R. 3:22-4.

Nor do we find merit in any of the points raised in defendant's pro se supplemental brief. We first note that each of defendant's additional arguments could, and should, have been raised as part of his direct appeal and each is therefore barred from being raised in a PCR petition. See R. 3:22-4. Moreover, the nature of each of defendant's arguments is such that none may proceed in the absence of supporting evidence. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's claims of inadequate investigation into the grand jury proceeding or the sufficiency of the verdict sheet, inadequate attention to his ability to understand English, and inadequate advice about the consequences of being convicted are merely defendant's conclusory assertions. They are not supported by the requisite "affidavits or certifications," see ibid., and are therefore insufficient to create a prima facie case of ineffective assistance. See ibid. For the same reasons, these claims are insufficient to have required the PCR judge to convene an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 459 (1992). Similarly, his assertion that he was improperly deprived of an opportunity to appear on June 1, 2006 is meritless in light of the fact that the proceedings were concluded on May 26, 2005.

Finally, because we have found no merit in any of the specific arguments relating to assertions of ineffective assistance of counsel made either by defendant himself or by counsel on his behalf, we reject as meritless the argument that there was a cumulative effect of these purported errors that deprived defendant of the right to a fair trial.

Affirmed.

 

By our August 24, 2006 Order, we granted defendant leave to file a supplemental pro se appellate brief, provided that he do so by September 12, 2006. Although defendant did not timely avail himself of that opportunity, we have elected to accept the supplemental pro se brief he filed on September 15, 2006 and have considered the arguments advanced therein.

(continued)

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A-6355-04T4

 

October 12, 2006