STATE OF NEW JERSEY v. LALL RAMNAUTH, a/k/a LALL B RAMNAUTH, LALL B. RAMNUTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0625-08T40625-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LALL RAMNAUTH, a/k/a LALL B.

RAMNAUTH, LALL B. RAMNUTH,

Defendant-Appellant.

__________________________________

 

Submitted May 4, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

02-10-1261.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR") following a plenary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.

A jury convicted defendant of attempted second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The trial court sentenced defendant to an aggregate seven years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant appealed from the judgment of conviction, entered on October 10, 2003, and this court affirmed defendant's convictions and sentence in an unpublished opinion. State v. Ramnauth, No. A-1631-03T4 (App. Div. Mar. 24, 2005). The Supreme Court denied defendant's petition for certification. 183 N.J. 590 (2005).

In our earlier opinion, we summarized the factual background underlying defendant's convictions.

Defendant and his wife resided with his father-in-law and mother-in-law at their home in New Brunswick. On the evening of July 30, 2002, defendant, who appeared to be intoxicated, had an argument with both his mother-in-law and father-in-law. His father-in-law told defendant to leave the house and not return until he was sober.

The next day, the father-in-law went to work. Defendant was seen at about 8:00 a.m. in his father-in-law's workplace walking towards his father-in-law with a piece of wood in his hand, a stick measuring in width approximately one by four inches. The two had a brief argument and then defendant was seen striking his father-in-law, who at that time was wearing a safety helmet. The first strike came down on the helmet, but the next several strikes hit his arms and shoulders, causing skin abrasions. No doubt defendant attempted to cause serious bodily injury. Clearly, he used the stick as a weapon. The father-in-law fell to the ground unconscious, but he revived before police officers arrived.

Defendant filed a timely petition for PCR in which he contended he had ineffective representation from the attorney who represented him at trial. Counsel represented defendant in connection with that petition, and the trial court, after hearing testimony and receiving briefs, denied the petition. This appeal followed. Defendant raises the following arguments on appeal:

The trial court erred in denying defendant's petition for post-conviction relief.

A. Counsel operated under an impermissible conflict of interest because he represented, in previous matters, members of the victim's immediate family.

B. Counsel failed to investigate and impeach the State's proofs and investigate and obtain exculpatory witnesses and evidence on defendant's behalf for trial.

C. Counsel failed to sufficiently meet and discuss the case with defendant; and counsel interfered with defendant's right to testify on his own behalf at trial by erroneously advising defendant not to testify due to prior criminal history even after this history was revealed to the jury during trial.

D. Counsel was ineffective for failing to assess and advise defendant about immigration consequences.

We note first the principles which inform our analysis of these contentions. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "'must show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58.

Having reviewed the transcript of the PCR proceedings, we find no basis in that record for defendant's assertion that his trial attorney had an impermissible conflict of interest. Prior to this incident, defendant's trial attorney had represented defendant on approximately four other occasions, primarily in municipal court. He had, in addition, represented defendant's wife on a charge of shoplifting and had also represented defendant's brother-in-law on a third-degree theft charge. Both of these matters had concluded well in advance of defendant's trial, and neither matter proceeded to trial. Defendant's trial attorney was able to secure entry into pre-trial intervention for defendant's brother-in-law and negotiated a guilty plea for defendant's wife. It was defendant who referred his wife and his brother-in-law to defendant's trial attorney. Defendant's trial attorney never met the victim of this assault until he appeared as a witness at defendant's trial and had had no prior dealings with him of any sort.

We have no quarrel with the legal principles defendant puts forth in his brief with respect to an attorney's duty of undivided loyalty to his client. In our judgment, however, they do not bear upon the present situation. We consider defendant's argument that these two earlier professional relationships in some manner impinged upon his motivation to vigorously challenge the credibility of the victim through cross-examination to be baseless.

Defendant has provided no evidence that his trial attorney, as a result of his prior representation of defendant's brother-in-law or defendant's wife, obtained information about the victim that affected his cross-examination of the victim. Nor has he demonstrated that the attorney's cross-examination of the victim was anything but appropriate.

Nor can we perceive that there was anything inherent in that earlier representation which would have warranted disqualification of the attorney. Indeed we have held that the fact that defendant's attorney was a personal friend of one of the witnesses against the defendant was not a basis to disqualify the attorney. State v. Copling, 326 N.J. Super. 417, 438 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).

RPC 1.7 sets forth the general rule governing conflicts of interest in the practice of law and provides, in substance, that an attorney may not represent a client if that representation involves "a concurrent conflict of interest." RPC 1.7(a)(2) states that there is concurrent conflict of interest if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer." Defendant failed to show a "significant risk" that the representation he received from his trial attorney was "materially limited" by the fact that his trial attorney had represented two of the victim's relatives--who also happened to be relatives of defendant. The trial court correctly rejected this contention.

We turn now to defendant's second contention, that his attorney provided ineffective representation because he failed to investigate to obtain evidence to impeach the State's proofs and exculpate defendant. Defendant fails to identify what evidence his trial attorney failed to obtain. His argument, moreover, overlooks the fact that defendant admitted to his attorney that he had struck his father-in-law with the piece of wood and that there were two independent eyewitnesses who saw the attack. The trial court was entirely correct in rejecting this assertion.

Defendant's next argument, that his trial attorney did not meet with him a sufficient number of times in advance of trial, and that his attorney interfered with his right to testify in his own defense, are similarly baseless. The latter assertion is directly contradicted by the trial transcript, for defendant assured the trial court that the decision not to testify was his own and that his trial attorney had not forced him or coerced him not to take the stand. Certainly, it is not ineffective representation for an attorney to advise a client not to testify because the attorney is convinced the client will make a poor witness.

As to the former, defendant admits, as he must, that there is no requirement that an attorney meet a particular number of times with a client. And we find no reason to hold it against the trial attorney that by the time he testified at the PCR hearing in 2008, he was unable to remember directly how many times he met with defendant following his arrest in 2002. The attorney did say, however, that he met with defendant more than he might have with another client facing similar charges because of their prior relationship.

Finally, we share the prosecutor's uncertainty with respect to defendant's final argument, that his trial attorney was ineffective for failing to advise him about the potential immigration consequences of a conviction. The case law upon which he relies, State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), and State v. Vieira, 334 N.J. Super. 681 (Law Div. 2000) (as well as the subsequently decided State v. Nunez-Valdez, 200 N.J. 129 (2009)), all involve defendants who entered negotiated pleas of guilty and later contended they did not realize the full consequence of a decision to plead guilty. Defendant did not plead guilty but proceeded to trial.

The order denying defendant's PCR petition is affirmed.

 

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A-0625-08T4

July 26, 2010