STATE OF NEW JERSEY v. RAJHN KALIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0778-07T40778-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAJHN KALIM,

Defendant-Appellant.

_______________________________

 

Submitted February 10, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-05-1186, 00-05-1187, 00-11-3129 and 00-11-3130.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rajhn Kalim appeals from the May 10, 2007 order denying his petitions for post-conviction relief (PCR). We affirm.

Tried to a jury in February 2001, defendant was found guilty under Indictment No. 00-05-1186 of first-degree robbery (Count One); third-degree unlawful possession of a weapon (Count Two); and second-degree possession of a weapon for an unlawful purpose (Count Three). On the same day, the same jury found defendant guilty under Indictment No. 00-05-1187 of second-degree possession of a weapon by a convicted felon (collectively, the grocery store convictions).

On May 16, 2001, the court sentenced defendant on Indictment No. 00-05-1186: on Count One to a thirty-year term of imprisonment, subject to NERA; and on Count Two to a five-year term of imprisonment, to run concurrent with the sentence imposed on Count One. The court merged Count Three with Count One. On the conviction for possession of a weapon by a convicted felon under Indictment No. 00-5-1187, the court sentenced defendant to a consecutive five-year term of imprisonment.

On appeal of the grocery store convictions, defendant argued in part that the trial court had improperly curtailed his counsel's cross-examination of Shelley Foster, the only witness who identified him as the perpetrator. We affirmed the convictions, but remanded for re-sentencing. State v. Kalim, No. A-0374-01 (App. Div. June 27, 2003). On November 24, 2003, the Supreme Court denied defendant's petition for certification. State v. Kalim, 178 N.J. 252 (2003).

On remand, the court sentenced defendant to a thirty-year term of imprisonment with a seventeen-year period of parole ineligibility on Count One, and to a concurrent five-year term of imprisonment on Count Two. On the conviction for possession of a weapon by a convicted felon, the court sentenced defendant to a five-year concurrent term of imprisonment.

In June 2001, defendant was tried to a jury and found guilty under Indictment No. 00-11-3130 of first-degree robbery (Count One); third-degree unlawful possession of a weapon (Count Two); and second-degree possession of a weapon for an unlawful purpose (Count Three). On the same day, the same jury found defendant guilty under Indictment No. 00-11-3129 of second-degree possession of a weapon by a convicted felon (collectively, the restaurant convictions).

On October 15, 2001, the court sentenced defendant on Indictment No. 00-11-3130: on Count One to a life term of imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1a; on Counts Two and Three, the court sentenced defendant to concurrent terms of five years and ten years, respectively. On the conviction under Indictment No. 00-11-3129 for possession of a weapon by a convicted felon, the court sentenced defendant to a ten-year concurrent term of imprisonment.

On appeal of the restaurant convictions, defendant argued in part that "the trial judge violated [his] right to present a defense by denying [his] request for an adjournment to consult with and present the testimony of an expert in the field of drug and alcohol intoxication." We affirmed, determining that defendant's arguments were meritless. R. 2:11-3(e)(2). State v. Kalim, No. A-1926-01 (App. Div. Jan. 21, 2003). On July 3, 2003, the Supreme Court denied defendant's petition for certification. State v. Kalim, 177 N.J. 489 (2003).

In March 2006, defendant filed a pro se petition for PCR, challenging the grocery store convictions. On November 4, 2006, assigned counsel filed a brief in support of defendant's petition, arguing "the defendant received ineffective assistance of counsel in that trial counsel failed to cross-examine a State's witness as to her abuse of drugs and how that might impact on her ability to observe and recollect." Specifically, defendant challenged the testimony of Shelley Foster, contending that trial counsel, after eliciting from Foster that she had been previously charged with possession of drugs, failed to question her "as to how long she had been using, how often she used, her drug of choice [or] whether she was using at the time of the incident about which she was giving testimony."

In July 2006, defendant filed a pro se petition for PCR, challenging the restaurant convictions. On January 21, 2007, assigned counsel filed a brief in support of defendant's petition, arguing that "the defendant received ineffective assistance of counsel in that trial counsel failed to assert an applicable affirmative defense in negating the defendant's state of mind." Defendant contended that:

Despite [his] history of drug abuse and the withdrawal through which [he] suffered while in custody, trial counsel did not bring up the issue until the date of trial. It wasn't until that time that [trial counsel] tried, without success, to get the trial adjourned so that he might consult with an expert in the field of drug abuse.

On May 10, 2007, the trial court conducted oral argument on defendant's petitions. On the same day, the court entered an order, supported by an oral decision, denying the petitions.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE [U.S. CONST.], AMENDS. VI, XIV; [N.J. CONST.], ART. I, PAR. 10 WHEN TRIAL COUNSEL ON INDICTMENT NO. 00-11-3130 FAILED TO ASSERT AN APPLICABLE AFFIRMATIVE DEFENSE OF NEGATING THE DEFENDANT'S STATE OF MIND.

POINT II.

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE [U.S. CONST.], AMENDS. VI, XIV; [N.J. CONST.] ART. I, PAR. 10 WHEN TRIAL COUNSEL ON INDICTMENT NO. 00-05-1187 FAILED TO CROSS-EXAMINE THE STATE'S KEY WITNESS AS TO HER ABUSE OF DRUGS AND HOW THAT MAY HAVE IMPACTED HER ABILITY TO OBSERVE AND RECOLLECT.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. Preciose, supra, 129 N.J. at 463-64; see also State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that neither argument is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

As to the restaurant convictions, defendant claims he was "clearly intoxicated with cocaine at the time of the robbery," and trial counsel was ineffective by failing to assert a defense of voluntary intoxication in negating defendant's state of mind through the testimony of an expert witness. We disagree.

Self-induced intoxication is a defense where the underlying criminal offense requires a purposeful or knowing mental state. State v. Cameron, 104 N.J. 42, 52 (1986). "A trial court is only required to instruct the jury on intoxication if there is a rational basis for a conclusion that defendant's faculties were so prostrated that he or she was incapable of forming an intent to commit the crime." State v. Green, 318 N.J. Super. 361, 370 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). In determining whether a rational basis exists, the court views the evidence in the light most favorable to defendant. State v. Bauman, 298 N.J. Super. 176, 195 (App. Div.), certif. denied, 150 N.J. 25 (1997). Here, the record does not support defendant's assertion that he was legally intoxicated as a result of consuming cocaine prior to committing the robbery.

Defendant testified that he "was very much high," feeling as if he was "floating out [of] the restaurant." However, defendant failed to support his bold assertion of intoxication with any other evidence. In fact, the testimony of the trial witnesses were devoid of evidence supporting defendant's contention.

The robbery victim, Jacqueline Rogers, not only conversed with defendant while in close proximity to him, but also observed him walk out of the restaurant and enter a motor vehicle parked in front of an adjoining building. Glen Gutzmore, the owner of the restaurant, observed defendant enter the motor vehicle and drive away from the area of the restaurant. Gutzmore followed defendant for approximately one to one and one-half miles, maintaining close observation of defendant's vehicle. After defendant pulled his motor vehicle into a McDonald's parking lot, he was confronted by Sergeant Keith Benson of the East Orange Police Department and Patrolman George Holmes of the City of Orange Police Department.

None of the aforesaid witnesses observed evidence to support defendant's contention of intoxication, although collectively, they heard him speak, and observed him walk and operate a motor vehicle. Because of the insufficiency of evidence supporting defendant's contention of intoxication, we conclude that his trial counsel was not ineffective for failing to engage an expert.

 
As to the grocery store convictions, defendant claims that his trial counsel failed to cross-examine Shelley Foster as to her use of drugs. We disagree. Although Foster had a pending 1994 controlled dangerous substance charge against her at the time of the trial, approximately seven years later, no evidence existed of her drug use since 1994. However, there is evidence in the record that she knew defendant from the neighborhood, and that she joked with defendant in the grocery store before leaving and before defendant committed the robbery. Accordingly, even if it was error for the attorney not to have more fully cross-examined her regarding her prior drug use, given the strength of her identification of defendant, we conclude the error was harmless.

Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

(continued)

(continued)

10

A-0778-07T4

August 3, 2009