STATE OF NEW JERSEY v. WALTER RONELL GRIGGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0174-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER RONELL GRIGGS1,

Defendant-Appellant.

_______________________________________

June 15, 2011

Submitted May 24, 2011 Decided

Before Judges Yannotti and Skillman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-02-00177.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Walter Ronell Griggs appeals from an order entered by the Law Division on October 24, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant and co-defendant John Clark were charged under Union County Indictment No. 95-02-00177-I, with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and conspiracy, N.J.S.A. 2C:5-2 (count six). Defendant and Clark were tried before a jury, which found them not guilty on count one but guilty on the remaining counts.

The trial court sentenced defendant to thirty years of imprisonment without parole for felony murder. The court imposed a concurrent ten-year term of imprisonment, with five years of parole ineligibility, for possession of a weapon for an unlawful purpose and a concurrent five years of imprisonment for possession of a handgun without a permit. The court merged defendant's other convictions with his felony murder conviction, and imposed appropriate assessments.

Defendant appealed. We remanded the matter and directed that the trial court make appropriate findings with regard to defendant's and Clark's claims that the assistant prosecutor had used her peremptory challenges in a racially discriminatory manner. State v. Clark, 316 N.J. Super. 462, 477 (App. Div. 1998). Following the remand, we affirmed defendant's convictions but held that the trial court erred by failing to merge the conviction for possession of a weapon for an unlawful purpose with the robbery and felony murder convictions. State v. Clark, No. A-7511-95 (Aug. 12, 1999) (slip op. at 34). The Supreme Court denied defendant's petition for certification. State v. Griggs, 163 N.J. 10 (2000).

On November 27, 2000, defendant filed a petition for PCR in the Law Division. Defendant alleged that he had been denied the effective assistance of counsel because his trial attorney had an impermissible conflict of interest; he was denied the right to counsel of his choice; and he was entitled to a hearing on the conflict of interest claim.

The PCR court issued an order denying PCR because, on the date scheduled for the hearing on his petition, defendant absented himself from the court room. We reversed the court's order and remanded the matter for an evidentiary hearing on defendant's claim that he was deprived of effective assistance of counsel because of an impermissible conflict of interest. State v. Griggs, No. A-554-05 (May 11, 2007) (slip op. at 3).

The PCR court conducted the evidentiary hearing on October 24, 2008. At the hearing, attorney Hassen Abdellah (Abdellah) testified that he was related to defendant's attorney, Muhammad Bashir (Bashir), and rented office space in his building to Bashir. Abdellah said that he and Bashir maintained separate law practices.

Abdellah also testified that he had been approached by someone on defendant's behalf with regard to representation of defendant in this case. In discussing the matter, Abdellah learned that the victim might be someone related to his mother's family. He said that he could not take the case. Abdellah gave the person the names of several attorneys, one of which was Bashir.

Abdellah additionally testified that he was not sure whether he and Bashir were sharing office space at that time. He thought that they started sharing space sometime in 1994 or 1995. Abdellah said that he owned the building and had an office there. There was another room "in the back" of the building that Bashir eventually occupied.

Abdellah further testified that Bashir had his own secretary. Abdellah said that, at the time, the majority of his work was criminal, although he handled some civil cases. Abdellah also stated that he and Bashir referred cases "back and forth" but he did not believe that they had many "co-defendant cases[.]" He said that Bashir had his own filing cabinets, as well as a computer designated for his cases.

Abdellah also testified that Bashir had his own clients and his own trust account. At one time, Bashir had his own telephone number. Abdellah stated that he and Bashir are "actually cousins" although they tell others that they are "brothers" because they "were raised together." Abdellah said that he and Bashir used to do "almost everything" together.

On cross-examination, Abdellah testified that, although he and Bashir had a personal relationship, that relationship is separate and apart from their professional relationship. He said that he did not know anything about defendant's case. He had cut himself off from anything to do with the case and did not discuss the matter with Bashir. Abdellah also was not sure of his relationship to the victim. Abdellah did not personally know the victim and had no personal contact with him.

Bashir testified that one of defendant's relatives had retained him to represent defendant. He said that, at the time, he was sharing office space with Abdellah. Bashir stated that he was "[t]angentially" related to Abdellah. His relationship to Abdellah was "like [a] way down the line kind of a thing[.]" He stated that he rented space in Abdellah's office.

Bashir additionally testified that he and Abdellah did not share secretaries, filing space, computer resources or bank accounts. Bashir stated that he and Abdellah had a personal relationship. They had "known each other almost forever" and "grew up together" in the same neighborhood. On cross examination, Bashir testified that he did not share clients with Abdellah. Bashir also said that he did not speak "in detail" with Abdellah about his cases.

Defendant's aunt, Elaine Asya Aquil (Aquil), also testified. She stated that she had been involved in obtaining a lawyer to represent defendant in this case. She went to Abdellah, whom she knew from the community. Aquil and Abdellah discussed the charges against defendant, and Abdellah said that he could not represent defendant because the victim was his cousin. He suggested that she speak with Bashir, who was eventually retained to represent defendant. Bashir had not discussed the conflict issue with her. She spoke with Bashir about the case several times and saw him during the course of defendant's trial.

After hearing the arguments of counsel, the PCR court placed its decision on the record. The court stated that

The mere fact that someone shares an office [does not] mean that there is a conflict, and this is strictly an office-sharing situation that was whereby two attorneys were under the same roof, one attorney paying rent to the other attorney, apparently when he could afford it, but having two separate operations wherein they did not share secretaries.

They had separate bank accounts, separate files, separate client base, separate billing, and separate space completely. They paid their own secretaries, they had their own filing systems, and they had their own bank accounts.

And while they may have discussed, as lawyers do from time to time, issues of particular cases, there's no evidence discussing a particular issue in this case. Mr. Bashir may have under -- although there's no proof in this case that he did, spoken to Mr. Abdellah in a hypothetical manner about any issues he might have had with this case, but there's no evidence before this Court that he did.

And this is not unusual for attorneys to bounce off one another questions of law or to pick another attorney's brain whether they're in the same firm or not. Frequently attorneys will call brother attorneys who they respect and have such discussions.

I further find as true that . . . Mr. Abdellah . . . showed . . . sensitivity from the very first contact with Mr. Griggs' family about the potential conflict, thereafter had no communication about the case, that he purposely stayed away from the case once he determined the potential conflict, and that he apparently [did not] even realize that Mr. Bashir represented Mr. Griggs until after the conviction.

And although Mr. Bashir is unsure where the initial contact was, I'll accept Ms. Aquil's representation that it was . . . in the same office complex that the attorneys shared, although Mr. Bashir had a recollection that he had a conversation with somebody about Mr. Griggs at his father's place where he had an office . . . before he shared space with Mr. Abdellah, and that he and his father both arranged for the surrender of Mr. Griggs to the authorities.

There's no doubt that . . . Mr. Bashir and Mr. Abdellah are closed friends. They're very close friends. I leave to people with better knowledge of genealogy than I whether they're related or not.

The court concluded that Abdellah and Bashir operated their respective legal practices independently, and there was no potential conflict of interest or even an appearance of such a conflict. The court stated that a knowledgeable citizen, acquainted with the relevant facts, could not conclude that Abdellah and Bashir practiced law together. The court entered an order dated October 24, 2008, denying PCR. This appeal followed.

Defendant raises the following argument for our consideration:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S CONFLICT OF INTEREST, EITHER ACTUAL OR POTENTIAL, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

We are convinced from our review of the record that defendant's arguments are without merit. We accordingly affirm the order denying PCR substantially for the reasons stated by the PCR court in its decision from the bench on October 24, 2008. We add the following comments.

A defendant's right to counsel under the Sixth Amendment to the United States Constitution includes legal representation that is "unimpaired" by a conflict or interest or divided loyalties. State v. Norman, 151 N.J. 5, 23 (1997). A per se conflict of interest arises when a private attorney, or any lawyer associated with that attorney, simultaneously represents co-defendants without a valid waiver. Id. at 24-25.

In other cases, the court must evaluate the potential or actual conflict of interest and "a great likelihood of prejudice must be shown" in order "to establish constitutionally defective representation of counsel." Id. at 25. In Norman, the Court held that although the attorneys for the co-defendants engaged in partnership negotiations and shared office space, this did not give rise to a presumption of prejudice because the record established that the attorneys had conducted their respective practices independently with "separate phones, secretaries, files, and bank accounts." Id. at 26.

In State v. Murray, 345 N.J. Super. 158 (App. Div. 2001), certif. denied, 172 N.J. 179 (2002), we determined that the defendant had not been denied the effective assistance of counsel where the defendant's attorney and the attorney for the co-defendant shared office space, had separate clients and earnings, maintained separate client files, separate business and financial accounts and had not shared in the representation of clients, with the exception of certain pro forma court appearances. Id. at 171-72.

We concluded that the attorneys' relationship did not give rise to a "significant likelihood of prejudice." Id. at 172. We also concluded that counsel's representation of the defendant did not give rise to an appearance of impropriety. Id. at 173.

Here, the PCR court concluded that, although Bashir and Abdellah shared office space and had a close personal relationship, they maintained separate legal practices with no shared economic interests, financial dependency or ready access to confidential information. The PCR court concluded that, under the circumstances, there was no actual conflict of interest, significant likelihood of prejudice to defendant, or appearance of impropriety.

We are satisfied that there is sufficient credible evidence in the record to support the PCR court's findings of fact. State v. Locurto, 157 N.J. 463, 470-71 (1999). Therefore, we conclude that the PCR court correctly determined that defendant was not denied the effective assistance of trial counsel. Defendant's arguments to the contrary do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 In the notice of appeal, defendant is referred to as Walter Griggs. However, defendant is referred to as Walter Ronell Griggs in the judgment of conviction and the order at issue in this appeal.