STATE OF NEW JERSEY v. BYRON HIGGINBOTHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4541-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BYRON HIGGINBOTHAM,

Defendant-Appellant.

_________________________________

October 19, 2010

Submitted October 12, 2010 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-10-1042.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Byron Higginbotham appeals from a January 23, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I

A jury convicted defendant of four counts of burglary, N.J.S.A. 2C:18-2a(1); four counts of theft by unlawful taking, N.J.S.A. 2C:20-3a; eluding police, N.J.S.A. 2C:29-2b; and obstruction of justice, N.J.S.A. 2C:29-1a. After merger, the trial judge sentenced defendant to an aggregate term of twenty-one years in prison with ten and one-half years of parole ineligibility. As we noted in our opinion affirming the conviction on direct appeal, the trial evidence of defendant's guilt was "overwhelming." State v. Higginbotham, No. A-3549-04 (App. Div. Oct. 3, 2006) (slip op. at 3), certif. denied, 189 N.J. 104 (2006).1 Defendant's PCR petition followed.

Because defendant's PCR appeal is limited to certain aspects of the police investigation, we briefly summarize the evidence pertaining to that issue. The police suspected defendant of committing several burglaries in which gold jewelry was stolen from private homes in several different New Jersey municipalities. A task force composed of police officers from those towns followed defendant to a pawn shop in Philadelphia. As soon as defendant left the pawn shop, one of the officers entered the shop, interviewed the owner and recovered several pieces of jewelry that the owner said he had just purchased from defendant. The burglary victims later identified the recovered jewelry.

At the trial, Detective Sergeant David Mansue described in detail the process by which the New Jersey police cooperated with the Philadelphia Police Department in turning over the jewelry to the Philadelphia police to be logged and photographed, before taking the jewelry back to New Jersey.2 Defendant's counsel cross-examined Mansue at length about this process and the police descriptions of the jewelry. In his closing, defense counsel highlighted contradictions between the descriptions of the jewelry the police claimed they recovered from the pawn shop, and the pawn shop owner's description of the jewelry he allegedly bought from defendant.

In his PCR petition, defendant contended, among other things, that his trial counsel failed to effectively cross-examine the police witnesses about the jewelry recovered from the Philadelphia pawn shop. In a detailed oral opinion, issued January 23, 2009, Judge Ostrer concluded that defense counsel effectively cross-examined the witnesses and appropriately highlighted inconsistencies between their testimony and that of the shop owner. The judge found that defense counsel had raised questions about the source of the jewelry the police allegedly recovered. Judge Ostrer further rejected defendant's argument that "there is no record in the Philadelphia police department of any log of any jewelry seized at the [pawn shop]." Defendant presented no legally competent evidence to support that allegation.

II

On this appeal, defendant raises the following points for our consideration:

POINT I: POST-CONVICTION RELIEF COUNSEL FAILED TO FULLY INVESTIGATE AND ADVANCE THE ISSUE RAISED IN DEFENDANT'S PETITION CONCERNING THE DEFENDANT'S ALLEGED SALE OF JEWELRY IN A PHILADELPHIA PAWN SHOP DEPRIVING DEFENDANT OF A FULL AND FAIR HEARING.

POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10. (PARTIALLY RAISED BELOW)

POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(E)(2). We add the following comments.

New Jersey courts analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Preciose, 129 N.J. 451, 463 (1992); State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694). See also Fritz, supra, 105 N.J. at 60 61.

We must review counsel's performance with extreme deference and "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Fisher, 156 N.J. 494, 500 (1998) (quoting Fritz, supra, 105 N.J. at 52). "[P]rejudice is not presumed, and must be proven by the defendant." Ibid.

Judged by those standards, defendant's complaints about his trial counsel are without merit. His trial attorney vigorously challenged the police testimony about the jewelry they allegedly recovered from the pawn shop. Defendant produced no legally competent evidence that any additional investigation concerning the jewelry would have turned up evidence helpful to the defense. "[B]ald assertions" are not sufficient to establish a prima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Therefore, the trial court did not err in denying the petition without holding an evidentiary hearing. See Preciose, supra, 129 N.J. at 462.

Defendant also contends that his PCR counsel did not vigorously advocate on his behalf and failed to investigate the paper chain of custody documents for the jewelry taken from the pawn shop. The record does not establish that his PCR counsel failed to conduct that investigation and, more to the point, there is no evidence that such an investigation would have yielded any information helpful to the defense. In fact, it appears that the Philadelphia inventory of the jewelry was introduced in evidence at the trial. The New Jersey police photographed the jewelry and Detective Mansue testified that the jewelry he recovered from the pawn shop was the same jewelry depicted in the photographs shown to the jury. Moreover, the actual jewelry was produced at the trial. See State v. Morton, 155 N.J. 383, 447 (1998). ("Because the custodians were law enforcement officers . . . the prosecutor was not obligated 'to negate every possibility of substitution or change in condition of the evidence.'" (quoting State v. Brunson, 132 N.J. 377, 393 (1993))).

Contrary to defendant's contention, his PCR counsel zealously presented defendant's case, questioning the source of the jewelry in several points of her brief as well as at oral argument. Further, at defendant's request, Judge Ostrer also permitted defendant to participate in the oral argument. There is no doubt that the PCR court heard and considered every argument defendant wished to present. We find no basis to disturb Judge Ostrer's well-reasoned decision.

Affirmed.

1 We remanded to the trial court on a sentencing issue not pertinent to this PCR appeal.

2 Although defendant has not provided us with copies of the trial exhibits, Mansue testified that the Philadelphia police provided the New Jersey police with an inventory of the recovered jewelry, and it appears from the trial transcript that the inventory log was entered in evidence as S-134.