STATE OF NEW JERSEY v. PAUL REID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4162-07T44162-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL REID,

Defendant-Appellant.

 

Submitted May 10, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-03-0430.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Tracey A. Agnew, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Paul Reid appeals from the December 14, 2007 decision denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); one count of first-degree kidnapping, N.J.S.A. 2C:13-1b; one count of second-degree armed robbery, N.J.S.A. 2C:15-1; two counts of aggravated manslaughter, N.J.S.A. 2C:11-4a; and two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2a. He was sentenced on October 14, 2004, to two consecutive terms of thirty years without parole on the felony murder counts, for a total of sixty years without parole. The sentence on the kidnapping conviction was imposed concurrent to the sentences on the felony murder counts, and the remaining counts were merged. Defendant appealed, and in an unreported decision, we affirmed his conviction. State v. Reid, No. A-1701-04 (App. Div. Feb. 9, 2006). Defendant's petition for certification was denied on July 17, 2006. State v. Reid, 188 N.J. 220 (2006). Defendant's petition for PCR was filed November 20, 2006. Judge Callahan denied the application in a twenty-eight-page decision setting forth a cogent analysis of the issues.

On appeal, defendant contends that his PCR attorney was ineffective because he failed to obtain an affidavit from a potential witness, and instead submitted an investigator's statement. He also alleges that the court abused its discretion by denying him an evidentiary hearing.

Defendant's convictions arose from his involvement in the attempted robbery and murder of two separate victims, Joong Ahn and Mun Ahn. The bodies of the victims were left in a vehicle set afire in a bus company's parking lot; the medical examiner testified one victim died from strangulation and the other from blunt trauma to the brain and smoke inhalation.

Defendant was represented at trial by Anthony P. Peduto, who died in September 2008. Hudson County Prosecutor's Investigator Efrain Diaz was a lead investigator in the matter. In the certification defendant submitted in support of his PCR application, he asserts that Peduto simultaneously represented Diaz while representing him during the trial. He further claims that if he had known his trial attorney also represented Diaz, he would have obtained other counsel.

In support of defendant's claim, PCR counsel supplied an investigative report summarizing an interview with Paulette Walker, defendant's sister. She asserted that sometime in 2002 after the family had retained Peduto, she learned from the friend who had referred counsel to them that Peduto was also representing Diaz. In the investigative report, defendant's sister claimed that she, along with her husband and sister-in-law, confronted Peduto, who admitted that he was representing Diaz. Peduto refused to disclose the nature of the representation but asked the family if they had a problem with it. They told him it was not a problem only because they were afraid they would not be refunded their money and did not have enough time to hire a new attorney. It is for this reason that defendant claims ineffective assistance of PCR counsel: he maintains that the information Walker provided to the investigator should have been reduced to a certification or affidavit, and submitted to the court in that form.

Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691 (1984). "[T]he right to counsel'" means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, 10.

To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, "defendant must show that counsel's performance was [truly] deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must establish "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. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The benchmark for assessing ineffective assistance of counsel claims is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).

In this case, we do not agree that counsel's election to present Walker's claims by way of investigative report, as opposed to certification or affidavit, "'materially contributed'" towards the denial of PCR. See ibid. (citation omitted). Judge Callahan did note that defendant failed "to provide facts sufficient to support the[] claim. At no time did petitioner include affidavits or certifications." The denial of PCR, however, was not based on that omission.

In order to refute defendant's claim, the State presented a certification from Diaz in which he categorically denied that he, any members of his family, friends, or coworkers were ever represented by Peduto. The judge gave credence to the certification submitted by Diaz, not just because of the format in which the information was presented, but because he found it to be more credible than the assertions made by defendant and his family.

In our view, counsel's failure to obtain affidavits or certifications, even if for argument's sake we characterized it as ineffective assistance of counsel, was not a decision that "'materially contributed'" to the denial of PCR. See ibid. (citation omitted). PCR was denied because the judge did not believe the substance of the claim. For that reason, the manner in which defendant's proofs were presented was not dispositive.

Additionally, defendant asserts that an evidentiary hearing should have been conducted so that Peduto could have testified regarding his alleged representation of Diaz. Essentially, other than the unembellished assertion that defendant established a prima facie case which warranted an evidentiary hearing, no specific evidence has been brought to our attention which required it. More is necessary. Given Diaz's certification, and the court's reliance upon it, defendant simply did not present a prima facie case of ineffective assistance of counsel. Therefore, no evidentiary hearing was required. See State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div. 1999) (citation omitted). The motion judge's decision not to grant an evidentiary hearing is therefore also affirmed.

 
Affirmed.

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A-4162-07T4

July 9, 2010