STATE OF NEW JERSEY v. DERRICK BETHEA

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(NOTE: The status of this decision is Published.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2792-08T4

STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


DERRICK BETHEA,


Defendant-Appellant.


________________________________________________________________

October 21, 2010


Submitted October 13, 2010 - Decided


Before Judges Wefing and Baxter.


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 99-04-0638, 99-09-1642 and 01-05-0766.


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


Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).


PER CURIAM


Defendant Derrick Bethea1 appeals from a May 14, 2008 order denying his petition for post-conviction relief (PCR). In

three separate trials, defendant was convicted of swindling and cheating at casino gaming, a fourth-degree crime, N.J.S.A. 5:12-113(a). His convictions stemmed from incidents that occurred at the Showboat Casino, Indictment no. 99-09-1642; Bally's Casino, Indictment no. 01-05-0766; and Trump Plaza Casino, Indictment no. 99-04-0638. We affirmed defendant's convictions on Indictment nos. 99-09-1642 and 01-05-0766. State v. Bethea, No. A-0945-01 (App. Div. May 28, 2003). We also affirmed his conviction on the remaining indictment. State v. Bethea, No. A-3137-00 (App. Div. July 2, 2002). The Supreme Court denied defendant's petition for certification on A-0945-01. State v. Bethea, 178 N.J. 30 (2003). Defendant apparently did not seek certification as to A-3137-00.

In his PCR petition, defendant asserted that trial counsel rendered ineffective assistance by failing to: communicate with him to prepare for the trial; file a probable cause motion; advise him that he had the right to represent himself and to conduct his own examination of the State's witnesses; challenge "the identity of the hands in this case, which the State alleged belonged to [him]"; argue that defendant did not "past post" the wagers and therefore committed no crime; file motions to dismiss the indictment based upon both unreasonable delay in bringing the case to trial and insufficiency of the evidence presented to the grand jury; object to hearsay and prosecutorial misconduct; move for recusal of the judge; argue to the jury that his behavior constituted "normal harmless gambling"; correctly argue the defense of selective prosecution; and move for additional pretrial discovery, which would have included "the order of the casino management" requiring dealers to remove the rules of gaming "from the table." He also asserted that the State's witnesses committed perjury, the videotape made at the casino had been altered, and appellate counsel rendered ineffective assistance.

In a written decision issued on April 24, 2008, Judge Garofolo rejected each of these claims. Addressing defendant's selective prosecution claim, the judge observed that defendant had wrongly focused on whether or not the casino had improperly selected him for prosecution, rather than, as the law required, demonstrating that the State had unfairly singled him out. As to the claim that trial counsel had failed to communicate with defendant, the judge observed that defendant had not pointed to specific instances in the record where counsel's failure to file motions resulted in demonstrable prejudice. The judge likewise rejected defendant's claims that trial counsel failed to object to hearsay evidence, finding that defendant had mischaracterized the record, because counsel did object to hearsay. As to the issue of trial counsel's failure to object to prosecutorial misconduct, the judge observed that because there was nothing improper about the prosecutor's argument in summation that it was the jury's responsibility to decide the issue of guilt or innocence, such an objection could not have succeeded even if an objection had been made.

Turning to defendant's claim that appellate counsel was ineffective because he failed to raise all of the appropriate issues, the judge noted that in A-0945-01, appellate counsel had raised nine issues on appeal, but we had deemed all nine meritless. As to A-3137-00, Judge Garofolo noted that because defendant had not provided any specific examples of appellate counsel's inadequacies, such claims were barred by State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), which requires a defendant to present more than "bald assertions."

Addressing defendant's claim that no crime was committed, the judge observed that an attempt to place wagers after the dealer had stopped the betting constituted a violation of N.J.S.A. 5:12-113(a) because such a practice constituted a "trick or sleight of hand." See N.J.S.A. 5:12-113(a).

As to defendant's claim that the videotape of the casino floor and roulette table had been altered, the judge rejected this claim because it was unsupported by any evidence to support an attack on the authenticity of the videotape. The judge also rejected defendant's contention that the testimony of Anna Dellagata was perjured, reasoning that defendant had "twist[ed]" Dellagata's testimony to make it appear that "she altered her story."

The judge also considered defendant's claim that the flight charge given to the jury on two of three indictments denied him a fair trial. The judge observed that in each trial, a witness had testified that defendant ran away when casino security approached him to question him about his bets, and therefore the flight charge was proper. The judge also noted that flight had not been charged in the jury trial on Indictment no. 99-09-1642.

Last, the judge rejected defendant's claim of cumulative error, because counsel did not commit errors amounting to ineffective assistance of counsel or, if any such errors were made, those errors did not prejudice defendant or undermine the fairness of the trial.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSELS [sic].


A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.


B. The Time Bar of R. 3:22-4 Concerning the Opportunity to Raise Certain Issues Previously Does Not Apply to Appellant's Case.


C. The Defense Should Have Been Allowed to Present a Defense of Selective Enforcement.


D. No Crime was Committed.


E. Counsel Failed to Communicate With His Client as Required By the Rules of Professional Responsibility of the State of New Jersey.


F. Counsel Failed to Enter All Appropriate Objections or, When Objections Were Entered, to Properly Explain to the Court the Reasons for the Objections.


G. Cumulative Error.


H. The State's Witnesses Committed Perjury Resulting in a Tainted Verdict.


I. The Video Tape was Altered.


J. The Flight Charge was Inapplicable to This Case.


K. Appellate Counsel was Ineffective.


L. Petitioner's Civil Rights were Violated.


Having carefully reviewed defendant's contentions in light of the record and applicable law, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons expressed by Judge Garofolo in his comprehensive and well-reasoned written opinion of April 24, 2008. R. 2:11-3(e)(2).

Affirmed.

1 Defendant's first name is spelled as Derick in one indictment and as Derek in the other two. The record contains only one of the three judgments of conviction. We use the spelling of his first name that is contained in the notice of appeal.