STATE OF NEW JERSEY v. OMAR WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2046-08T42046-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR WRIGHT,

Defendant-Appellant.

__________________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0155.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Omar Wright appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following point for our consideration:

POINT ONE

THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH 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.

Defendant filed a pro se supplemental brief without any point headings. See Rule 2:6-2(a)(5) (requiring the appellant's legal argument to "be divided, under appropriate point headings . . . into as many parts as there are points to be argued"). We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

A jury found defendant guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon with the intent to use it unlawfully, N.J.S.A. 2C:39-4(d). On May 21, 2004, defendant was sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended term of eight years in prison with a four-year period of parole ineligibility. We affirmed defendant's conviction on appeal, State v. Omar Wright, No. A-6014-03 (App. Div. July 14, 2006), but remanded the matter to the trial court for re-sentencing based upon the holding in State v. Natale, 184 N.J. 458 (2005). State v. Wright, supra, (slip op. at 16).

On January 16, 2008, defendant filed a pro se PCR petition. Assigned PCR counsel subsequently submitted a legal brief and a supplemental petition in defendant's handwriting. In large part, defendant alleged that trial counsel rendered ineffective assistance. In particular, defendant claimed that trial counsel failed to subpoena alibi witnesses; told the jurors in his opening statement that alibi witnesses would exonerate defendant and none were presented; conducted the pre-trial evidentiary hearing on defendant's motion to suppress ineffectively; and failed to object to off-the-record sidebar conferences.

Additionally, defendant claimed appellate counsel was ineffective "in failing to brief the motion to suppress physical

evidence issue." Defendant also moved to recuse the trial judge from considering the PCR petition.

A hearing on the PCR petition was held on August 25, 2008 before the trial judge. After denying the motion for recusal, the judge considered the merits of defendant's claims of ineffective assistance of trial counsel. Regarding the failure to subpoena alibi witnesses, the judge observed that defendant had not "submitted [anything] that would demonstrate that there was an alibi -- any witnesses, any certifications by affidavit or . . . otherwise . . . indicating that there was such a witness who was not . . . produced." The judge then noted that trial counsel made "no reference whatsoever to alibi in [his] opening statement."

The judge further concluded that defendant made no specific "suggestion of how defense counsel was inadequate in his performance" during the motion to suppress hearing. The judge did not recall the specific circumstances regarding the decision to hold off-the-record sidebars, but determined that defendant had failed to demonstrate with any specificity how counsel was ineffective or that anything "substantively worthy of being placed on the record . . . took place . . . ."

The judge next rejected the argument that appellate counsel was ineffective because he failed to raise any issue on direct appeal concerning the denial of defendant's motion to suppress. The judge concluded that there was no issue of any merit that could have been raised on appeal. He denied defendant's petition and this appeal followed.

Defendant's essential argument before us is that he established a prima facie case of ineffective assistance of counsel and that the judge mistakenly exercised his discretion by not according him an evidentiary hearing. We disagree.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated 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. We apply the same standard to defendant's claims of ineffective assistance of appellate counsel. See State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)).

While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2010); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "Once a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" Rountree, supra, 388 N.J. Super. at 206 (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)).

It is clear that defendant has failed to establish a prima facie case of ineffective assistance of trial counsel. There were no affidavits or certifications indicating that alibi witnesses were available to testify at his trial, who they might be, or what their testimony would be. The claim in his certification that he was praying at a mosque when the assault occurred, and that other people were with him, is insufficient to compel an evidentiary hearing. Moreover, contrary to defendant's claim, trial counsel did not mention the possibility of an alibi defense in his opening statement.

Defendant fails to specifically state why trial counsel's performance at the evidentiary hearing on the motion to suppress was ineffective, and our review of the transcript fails to reveal any deficiency. There is nothing in defendant's petition that identifies specific instances of sidebar conferences wherein substantive discussions were held, or that, if indeed such conferences occurred, defendant was somehow prejudiced. See State v. D.D.M., 140 N.J. 83, 97 (1995) (rejecting the defendant's PCR claims, in part, by noting his failure "to provide[] the court[] with any . . . documentation" such as "supporting affidavits from any and all parties present at [an unrecorded] side-bar conference" that was critical to the defendant's allegations); see also State v. Paduani, 307 N.J. Super. 134, 143 (App. Div.) (holding there must be a specific showing of prejudice to mandate reversal because of missing transcripts), certif. denied, 153 N.J. 216 (1998)).

Defendant likewise failed to demonstrate a prima facie case of ineffective assistance of appellate counsel. We have said that an evidentiary hearing is not required where "[t]he only possible reason for a hearing . . . would [be] for original appellate counsel to explain why []he did not raise the issues defendant now finds so persuasive as grounds for reversal." State v. Moore, 273 N.J. Super. 118, 127 (App. Div.), certif. denied, 137 N.J. 311 (1994). Defendant has failed to set forth any substantive argument of alleged error by the trial judge in denying the motion to suppress.

The issues raised in defendant's pro se submission on appeal are without sufficient merit to warrant discussion in this opinion. see R. 2:11-3(e)(2).

 
Affirmed.

At the PCR hearing, the judge indicated that defendant had not yet been re-sentenced. Neither party has advised us of the sentence that was ultimately imposed.

Before us, defendant characterizes his petition as having raised "five main points." In addition to his claims of ineffective assistance of trial and appellate counsel, defendant contends that his three other claims were: 1) that the petition was not time-barred; 2) that the trial court erred in not giving a cross-racial identification charge; and 3) that prosecutorial misconduct required a new trial. The judge below did not consider the petition to be time-barred, nor has the State raised that issue on appeal. However, the issue of whether a cross-racial identification charge was required was specifically raised on direct appeal, and rejected. Further consideration is barred by Rule 3:22-5. Any claim of prosecutorial misconduct at trial could have been raised on direct appeal, but was not. Further consideration of that issue is barred by Rule 3:22-4.

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A-2046-08T4

April 29, 2010