STATE OF NEW JERSEY v. ALTAREK HAMLET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0811-08T40811-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALTAREK HAMLET,

Defendant-Appellant.

 

Submitted January 25, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-10-4362 and 01-10-4363.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Altarek Hamlet appeals the May 13, 2008 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Tried with his codefendant Arin L. Gibbs on Indictment 01-10-4362, defendant was convicted by a jury of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree eluding, N.J.S.A. 2C:29-2b. Defendant entered a guilty plea to a related second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7b under Indictment 01-10-4363.

On January 3, 2003, defendant was sentenced to an extended term pursuant to N.J.S.A. 2C:44-3d to concurrent sixty-year terms of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robberies. Defendant was also sentenced to a concurrent twenty-five-year term subject to NERA on the carjacking, five years on the unlawful possession of a weapon, and ten years with a five-year term of parole ineligibility for eluding. Additionally, he received a ten-year sentence on the conviction for certain persons not to possess. His sentence was affirmed on December 30, 2004. State v. Hamlet, No. A-4591-02 (App. Div. Dec. 30, 2004). His petition for certification was denied on May 25, 2005. State v. Hamlet, 183 N.J. 590 (2005). Defendant filed his petition for PCR on April 11, 2006, and oral argument was conducted on May 13, 2008.

The facts developed at trial can be briefly summarized. On July 25, 2001, Matthew Manning and Ricardo Frazier were sitting on Manning's front porch in Irvington, listening to music from Manning's car stereo. The car was parked in the driveway; the key was in the ignition. Defendant and Gibbs, who were seemingly just passing by, walked over to talk to Manning and Frazier about the car when defendant abruptly pulled out a gun. He went up the stairs towards Manning and Frazier, who unsuccessfully attempted to escape. While pointing the gun at them, defendant searched Frazier's pockets and ordered Manning to turn over his cash. Manning threw his money into nearby shrubbery, where it was retrieved by Gibbs.

Defendant and Gibbs jumped into Manning's car and drove off. Manning immediately spotted a police vehicle and waved down Officer Michael Campbell of the Irvington Police Department. Campbell radioed headquarters, activated his siren and lights, and pursued Hamlet and Gibbs for several blocks. After running a red light, defendant crashed into a tractor-trailer. Gibbs fled from the passenger's side of the vehicle; defendant tried to flee from the driver's side but Campbell apprehended him. A gun was retrieved from the scene. Manning and Frazier identified the two men from photo arrays. Neither defendant testified at trial.

Defendant was asked whether he wanted the jury to be given the Defendant's Election Not To Testify instruction, and the following exchange took place:

THE COURT: All right.

Now, you have the right to have me read to the jury a certain charge that they cannot hold it against you that you chose not to be a witness in this case. You have a constitutional right not to be a witness in this case, and they cannot hold it against you because you have chosen not to testify in the case, that you have the constitutional right to remain silent.

Do you want me to charge that to the jury? You [want] me to read that charge to the jury?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: If I may actually

THE DEFENDANT: No.

THE COURT: No?

THE DEFENDANT: Yeah.

THE COURT: No, you do not want that read to the jury?

THE DEFENDANT: No. Yeah.

THE COURT: Is that correct?

THE DEFENDANT: That's correct.

After the colloquy with defendant, Gibbs indicated that he did want the instruction given. It was not included, however, in the court's final charge to the jury and was the basis for the reversal of Gibbs's conviction and remand for a new trial.

Defendant now raises the following points:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIM.

1. DEFENDANT'S PETITION IS NOT BARRED.

2. DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

3. AT THE VERY LEAST, THE VERIFIED PETITION BY DEFENDANT WARRANTED AN EVIDENTIARY HEARING.

The PCR judge found that defendant's arguments were barred by Rule 3:22-4 because they related to claimed errors readily addressed by way of direct appeal. Nonetheless, the judge went on to consider the merits of defendant's ineffective assistance of counsel claim. He found that no prima facie showing had been made both because counsel did not commit unprofessional errors and because of the level of overwhelming evidence against defendant.

In his pro se submission to the PCR court, defendant raised the following points:

POINT I

Sixth and fourteenth Amendment Violation involving ineffective assistance of appellate counsel for failure to raise:

A. THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY REFUSING TO DEFINE KEY LEGAL TERMS AS REQUESTED BY THE JURY.

B. THE TRIAL COURT FAILED TO DELIVER THE ELECTION CHARGE REQUESTED BY CO-DEFENDANT.

C. THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL [SUA] SPONTE, OR AT LEAST CURATIVE INSTRUCTION TO DISREGARD THE TESTIMONY OF OFFICER CAMPBELL.

POINT II: THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL ONCE IT REALIZED THE DOCUMENTS THAT [WERE] MARKED INTO EVIDENCE [WERE] FALSE.

POINT III: THE DEFENDANT'S ALLEGED CONDUCT DOES NOT CONSTITUTE CARJACKING. THE TRIAL COURT THEREFORE ERRED IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL AS TO THAT CHARGE.

PCR counsel filed a supplemental submission in support of defendant's pro se petition in which he contended that "trial counsel's interference with defendant's request for the election charge constitutes ineffective assistance of counsel." He also contended that the failure to raise this issue on direct appeal constituted ineffective assistance of appellate counsel. PCR counsel characterized the record as indicating that defendant wanted the instruction read but was prevented from communicating this to the trial court by his attorney.

Under the familiar test on a claim of ineffective assistance of counsel, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends that his ineffective assistance of counsel claims are not barred by Rule 3:22-4 because they implicate constitutional issues. Rule 3:22-4 states that "[a]ny ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction . . . , or in any appeal taken in any such proceeding is barred from assertion in a proceeding under this rule." A PCR court will entertain an issue not raised on direct appeal, however, when "the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding," "enforcement of the bar would result in fundamental injustice" or "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." Ibid. The Court "generally [has] declined to read the exceptions to Rule 3:22-4 narrowly." State v. Preciose, supra, 129 N.J. at 476.

In fact, "[defendants who petition for PCR] are rarely barred from raising ineffective-assistance-of-counsel claims on post-conviction review." Id. at 459-60. "Such claims may fall within Rule 3:22-4(c), which affords post-conviction review for constitutional claims that could have been raised earlier, because those claims are grounded in the Sixth Amendment and the New Jersey Constitution." Id. at 460 (citing State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)).

"Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Ibid. (citing R. 3:22-4(a)). See also State v. Lane, 279 N.J. Super. 209, 225 (App. Div. 1995). Consideration of such claims on direct appeal is generally not appropriate because they involve "allegations and evidence that lie outside the trial record" and may require testimony from the attorney against whom the claim is asserted. State v. Preciose, supra, 129 N.J. at 460.

Defendant argued before the PCR court that appellate counsel was ineffective for, among other things, failing to raise the election model jury charge issue on direct appeal. The PCR court ruled that

Rule 3:22-4 states any grounds for relief not raised in a prior proceeding under this rule or in the proceedings resulting in the conviction or in a Post Conviction proceeding brought and decided prior to the adoption of this rule or any appeal taken in any such proceedings are barred from assertion in a proceeding under this rule. There's three exceptions to the rule: (A, B and C) and as that rule sets forth in Rule 3:22-4, these arguments in this case do not fall under any of the exceptions.

Petitioner's arguments [regarding the election charge] were in fact raised by his co defendant on appeal or not reached by Appellate Division because co defendant Gibbs was reversed based upon the first argument.

There's no doubt that these arguments could have and should have been brought up on direct appeal by [defendant], however procedural rules are not an end to themselves but a means to observe a sense of justice, see Preciose. Therefore, Petitioner['s] claims will be assessed by the Court for substantive merit as well.

The PCR court then addressed the merits of defendant's claim, despite its finding that the issue was procedurally barred.

The court noted that the second prong of the Strickland test requires a showing that the outcome would have been different but for counsel's unprofessional errors. In this case, the judge rightly concluded that the proofs against defendant were overwhelming. Defendant led police in a brief high speed chase in the hijacked car, stopping only to attempt flight when the car could go no further. He confessed. There were "excellent identifications from the witnesses." Even if appellate counsel erred by omitting the argument, the import of the error was negligible when weighed against the overwhelming proofs. The court therefore concluded that defendant failed to make the requisite showing of ineffective assistance. We agree.

Defendant also asserts that a prima facie case of ineffective assistance of counsel was established because of counsel's interference with defendant's desire to have the election charge read to the jury. The record simply does not support the assertion. We do not agree that defendant's attorney pressured him into rescinding his request for the instruction to be given. The record indicates only that defendant was confused by the judge's question about the charge and that he said he did not want the instruction to be administered.

Assuming for the sake of argument, that defendant's attorney, as a matter of trial strategy, wrongly convinced defendant to waive his right to have the charge given, the implementation of trial strategy does not meet the Strickland test. Because of the strong presumption that counsel was acting effectively, an attorney's strategy at trial is not generally second-guessed. See State v. Gary, 229 N.J. Super. 102, 115 (App. Div. 1988). Challenges to trial strategy do not satisfy the first prong of the Strickland test for ineffective assistance of counsel.

Again, assuming for the sake of argument only, that defendant met his burden to establish the first prong of Strickland, he clearly failed to establish that but for counsel's unprofessional errors, the outcome would have been different. State v. Allegro, 193 N.J. 352, 367 (2008). To reiterate, defendant was followed while operating a highjacked motor vehicle from the point of the robbery to the point of collision with a tractor-trailer. The victims were able to identify him from a photo array. Defendant was arrested moments after he exited the victim's car, and a gun was seized from the scene. He confessed. Given these overwhelming proofs, defendant has not succeeded in undermining our confidence in the conviction. He has not established a prima facie case of ineffective assistance of counsel.

In his last point, defendant contends that at a minimum, the verified petition warranted an evidentiary hearing. We do not agree. Rule 3:22-10 provides that a defendant will be entitled to an evidentiary hearing only when a prima facie case has been established. "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(a). Viewing the facts in the light most favorable to defendant, the issuance of the instruction would not have changed the outcome. See State v. Preciose, supra, 129 N.J. at 462-63. As he did not establish a prima facie case for ineffective assistance of counsel, the trial court's decision to deny him an evidentiary hearing was not error.

 
Affirmed as to the denial of PCR; remanded for the purpose of correcting the judgment of conviction.

Defendant's convictions for both carjacking and robbery were subject to NERA. The judgment of conviction, however, indicates only the carjacking count resulted in a NERA sentence. Where there is a discrepancy between the oral imposition of sentence and the written judgment of conviction, the oral sentence controls. State v. Pohlabel, 40 N.J. Super. 416 (App. Div. 1956). We remand for the sole purpose of correcting the judgment.

Model Jury Charge (Criminal), "Defendant's Election Not To Testify" (2009).

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A-0811-08T4

March 8, 2010