STATE OF NEW JERSEY v. ABDUL ALIM ABDULLAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2040-06T42040-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDUL ALIM ABDULLAH,

Defendant-Appellant.

_______________________________

 

Submitted September 11, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

98-07-1600.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

of counsel and on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor,

attorney for respondent (Jack R. Martin, Assistant

County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Abdul A. Abdullah appeals from the denial of his post conviction relief (PCR) petition. Over a period of six days commencing on June 24, 2002, and ending on July 3, 2002, defendant was tried before a jury and convicted of murder, N.J.S.A. 2C:11-3a(1)(2), two counts of second-degree burglary, N.J.S.A. 2C:18-2, two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. After merging the relevant charges, the court sentenced defendant to a life term with thirty years of parole ineligibility on the murder conviction, and to a consecutive term of ten years with five years of parole ineligibility on the second-degree burglary conviction.

Defendant filed a direct appeal to this court raising the following arguments.

POINT I

 
THE EVIDENCE PRESENTED TO THE JURY CREATED A RATIONAL BASIS FOR A VERDICT CONVICTING DEFENDANT OF THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. THE COURT'S FAILURE TO GRANT DEFENDANT'S REQUEST FOR A JURY INSTRUCTION ON THE LESSER OFFENSE DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, PAR. 1,9,10.)

 
POINT II

 
NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 10.) (Not Raised Below.)

 
A. The Prosecutor's Repeated Comments That Defendant And His Alibi Witness Were Liars Was Improper.

B. The State Improperly Denigrated The Defense.

 
POINT III

 
THE ADMISSION OF GRUESOME CRIME SCENE AND AUTOPSY PHOTOGRAPHS DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, PAR. 9,10.)
 
POINT IV

 
THE CUMULATIVE EFFECT OF THESE ERRORS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND A NEW TRAIL IS IN ORDER. (Not Raised Below.)

 
POINT V

 
AS THE OFFENSES INVOLVED A SINGLE INCIDENT AND A SINGLE VICTIM, THE COURT ERRED IN ORDERING THAT DEFENDANT SERVE A MAXIMUM SENTENCE ON THE BURGLARY WHILE ARMED CONVICTION CONSECUTIVE TO THE MAXIMUM SENTENCE IMPOSED ON THE MURDER CONVICTION.

 
 
In a pro se brief, defendant raises the following additional points:

POINT I

 
THE DENIAL OF THE MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM THE APARTMENT THAT THE DEFENDANT HAD CO-LEASED WITHOUT A SEARCH WARRANT WHERE THERE WAS NO JUSTIFIABLE EXIGENCY WAS A CLEAR VIOLATION OF THE FOURTH AMENDMENT OF THE U.S. CONSITTUION.
 
POINT II

 
THE DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS TO DNA TESTING PRIOR TO HIS TRIAL THEREFORE THE DEFENDANT'S CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR THE OFFICE OF THE PUBLIC DEFENDER TO PROVIDE FOR THE REQUESTED DNA TESTING TO BE CONDUCTED.
 
POINT III

 
THE STATE VIOLATED BRADY BY FAILING TO DISCLOSE THE JAIL TELEPHONE TOLL RECORDS FROM JANUARY 15, 1 999 TO FEBRUARY 21, 1999 THAT WERE IN THE STATE'S POSSESSION PRIOR TO DEFENDANT'S TRIAL AND AS A RESULT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL.

 
POINT IV

 
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE MULTIPLE INSTANCES OF OTHER CRIMES EVIDENCE WITHOUT A PROPER CURATIVE INSTRUCTION THEREFORE THE CONVICTION SHOULD BE REVERSED.

 
POINT V

 
THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL.

 
 
In a supplemental brief, defendant's counsel raises the following additional point:

POINT VI

 
TRIAL COURT VIOLATED DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL WHEN IT SENTENCED HIM TO CONSECUTIVE MAXIMUM TERMS, INCLUDING DISCRETIONARY PERIODS OF PAROLE INELIGIBILITY, BASED UPON FACTS NEITHER ADMITTED BY DEFENDANT NOR FOUND BY THE JURY.

[State v. Abdullah, 372 N.J. Super. 252, 263-65 (App. Div.), certif. granted, 182 N.J. 208 (2004), aff'd in part, reversed in part, 184 N.J. 497 (2005).]

We rejected these arguments and affirmed. Id. Thereafter, the Supreme Court affirmed defendant's conviction, but reversed the ten-year sentence imposed in connection with the burglary charge, and remanded for the trial court "to determine the sentence anew" in accordance with State v. Natale, 184 N.J. 458, 495-96 (2005). State v. Abdullah, 184 N.J. 497, 515 (2005). On remand, the trial court imposed the same sentence. On October 18, 2005, defendant filed this PCR petition alleging ineffective assistance of counsel.

We described in detail the facts supporting defendant's conviction in our published opinion affirming his conviction. Abdullah, supra, 372 N.J. Super. at 260-263. We will thus incorporate those facts by reference here. In denying defendant's PCR petition, Judge Connor noted that all arguments raised by defendant attacking his sentence have been thoroughly reviewed and thereafter rejected by both this court and the Supreme Court. With respect to arguments attacking defense counsel's performance at trial, defendant did not provide any competent evidence showing that counsel's decisions and trial strategy fell below the standards of competence expected of an attorney in this state.

Defendant now appeals from this decision raising the following arguments.

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT DURING THE PLEA BARGAINING STAGE.

B. TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.

C. TRIAL COUNSEL FAILED TO INVESTIGATE OR DEVELOP A DEFENSE BASED ON DEFENDANT'S MENTAL CONDITION.

D. TRIAL COUNSEL FAILED TO ARGUE IN FAVOR OF PASSION PROVOCATION MANSLAUGHTER.

E. TRIAL COUNSEL FAILED TO EFFECTIVELY COUNTER THE STATE'S DNA EVIDENCE.

F. TRIAL COUNSEL FAILED TO PRESENT MITIGATING FACTORS DURING SENTENCING.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Defendant's supplemental brief

POINT I

THE INEFFECTIVE REPRESENTATION THAT DEFENDANT WAS SUBJECTED TO AT HIS PCR HEARING AMOUNTED TO NO PCR REVIEW AT ALL THEREFORE THE DEFENDANT SHOULD BE AFFORDED A NEW PCR HEARING WITH THE ASSIGNMENT OF A NEW ATTORNEY REQUIRED TO ASSIST DEFENDANT.

POINT II

THE PCR JUDGE ABUSED HIS DISCRETION BY DEPRIVING DEFENDANT OF HIS RIGHT TO BE PRESENT AT HIS PCR HEARING SINCE DEFENDANT HAD PERSONAL KNOWLEDGE OF THE INEFFECTIVE TRIAL COUNSEL CLAIM BEING RAISED WHICH DEFENDANT COULD HAVE PRESENTED GIVEN THE DEFICIENT REPRESENTATION OF PCR COUNSEL THEREFORE A NEW PCR HEARING SHOULD BE GRANTED.

We reject these arguments and affirm. Our standard of review here is well-settled.

In State v. Fritz, 105 N.J. 42, 58 (1987) this Court adopted the standard articulated by the United States Supreme Court for evaluating ineffective assistance of counsel claims. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the Court created a two-prong test for evaluating claims of ineffective assistance of counsel. Under the test, a reviewing court must determine: (1) whether counsel's performance "fell below an objective standard of reasonableness," id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and if so, (2) whether there exists a "reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

[State v. Castagna, 187 N.J. 293, 313-14 (2006)]

Here, defendant has not presented any evidence that defense counsel's trial performance fell below the professional standard expected by an attorney practicing in this state. Indeed, implementation of some of the approaches urged by defendant in this PCR petition would have constituted ineffective assistance of counsel. By way of example, defendant raised at trial an alibi defense, arguing that he had not been in the victim's home at the time she was killed. Abdullah, supra, 372 N.J. Super. at 263. In this light, any arguments raised now concerning defendant's state of mind would have directly undermined this trial strategy.

As to argument Point I-A, as noted by Judge Connors, given the particularly heinous facts involved here, the State had no obligation to offer defendant a plea bargain. Thus, any arguments alleging counsel's failure to apprise defendant of a plea bargain are inconsequential. The balance of the arguments raised rely on mere speculation, and do not warrant further comment here.

Finally, the arguments raised by defendant in his supplemental brief concerning the ineffective assistance of PCR counsel lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(2).

Affirmed.

 

The parties have not included the transcript of the re-sentencing hearing as part of this appellate record. It is not contested, however, that the trial court re-sentenced defendant to the same terms and conditions as previously imposed.

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A-2040-06T4

October 1, 2008