STATE OF NEW JERSEY v. ATTISON ROYER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0453-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ATTISON ROYER,

Defendant-Appellant.

________________________________________________

November 28, 2011

Submitted September 21, 2011 - Decided

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-12-1730.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Attison Royer appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm the denial of his petition, substantially for the reasons set forth by Judge Patrick J. Roma in his written opinion.

Defendant is serving an aggregate term of six years subject to three years parole ineligibility after his conviction for two counts of fourth degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and 5(b)(12) (Counts One and Three); three counts of third degree school zone offenses, N.J.S.A. 2C:35-7 (Counts Two, Four and Six); third degree distribution, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (Count Five); and third degree possession, N.J.S.A. 2C:35-10(a)(1) (Count Seven).

Defendant filed a direct appeal, and we affirmed. State v. Royer, No. A-4998-05 (App. Div. Oct. 29, 2007). Defendant subsequently petitioned the trial court to reduce his sentence, which was denied.

The conviction arose out of defendant's distribution of marijuana and cocaine in Hackensack to undercover police officer Janet Jones. On the evening of December 1, 1995, members of the Hackensack Police Department's narcotics investigation unit were engaged in an undercover operation. Hackensack Detective Gutierrez, Detective Sergeant Carroll, Detective Sergeant Loquido, and Paterson Police Officer Jones were members of the team. Gutierrez witnessed defendant engage in a hand-to-hand narcotics transaction with Jones. After the buy, Jones met at a prearranged apartment with her back-ups, Gutierrez and Carroll, and tendered the narcotics evidence to Loquido. Carroll was advised about a potential suspect. Carroll knew defendant prior to December 1 and prepared a photo array, which included defendant. Jones identified defendant from the array.

On the evening of January 5, 1996, Jones purchased marijuana and cocaine from defendant at the same location. At trial, Carroll testified that he already knew defendant and that he observed him make the exchange with Jones.

Defendant filed a pro se PCR petition on April 23, 2009. PCR counsel submitted a brief and appendix in support of his petition. On March 26, 2010, a non-evidentiary hearing was held, and the judge denied the petition on April 1, 2010 in a written opinion. Judge Roma thoroughly addressed defendant's arguments that: (a) trial counsel was ineffective for failure to object to the testimony of Officer Gutierrez that he knew defendant prior to the drug offenses; and (b) appellate counsel was ineffective for failing to raise that issue and the issue of cumulative error. Judge Roma stated,

At the same time, Detective Gutierrez's testimony was minimally prejudicial, in that he only said he knew the petitioner based on the fact that [he was] a police officer in the City of Hackensack. Detective Gutierrez did not say that he knew the petitioner because he had previously arrested him or anything of the sort. Weighing the probative value against the risk of prejudice, it is clear that the testimony did not unduly prejudice the petitioner.

Defendant filed an appeal from the denial of his PCR. In a single point heading, defendant now presents the following issues for our consideration in his appeal:

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE ON APPEAL THAT THE STATE WENT TOO FAR IN ADVISING THE JURY ABOUT HOW THE OFFICERS KNEW MR. ROYER AND BOTH TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO CHALLENGE THE COURT'S FAILURE TO GIVE A MANDATORY LIMITING INSTRUCTION.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also State v. Goodwin, 173 N.J. 583, 596 (2002). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).

First, we address defendant's claim that his trial counsel was ineffective for failing to object to the testimony of Gutierrez concerning his prior knowledge of defendant. PCR counsel did not raise the issue of Carroll's testimony, which is being asserted for the first time in this appeal.

We generally defer to a trial court's ruling on the admissibility of evidence, including admission of evidence of other crimes. State v. Erazo, 126 N.J. 112, 131 (1991). We reverse only when a ruling "constitute[s] an abuse of discretion." Ibid.; see also State v. Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings."), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). If the testimony were admitted in error, we must determine whether that error inappropriately contributed to the jury's verdict. R. 2:10-2. We conclude it did not.

Defendant's trial strategy was based on asserting misidentification by law enforcement and producing alibi witnesses. Two alibi witnesses testified on behalf of defendant. Lorraine Acevedo stated that on December 1, 1995, she was together with defendant at a discotheque for the entire evening. Marie Planton testified that on January 5, 1996, she spent the evening with defendant. As grounds for admissibility to rebut the asserted misidentification, the trial court determined that the State could introduce evidence that Gutierrez and Carroll knew defendant prior to the drug sales.

During cross-examination, defense counsel vigorously challenged the witness' identification of defendant. Defense counsel asked Carroll questions about similarities in physical characteristics between defendant and two other men who had been arrested at 197 Central Avenue. The State then elicited the following on re-direct:

Q. [C]an you point specifically to a date that you saw Attison Royer on Central Avenue prior to December 1st, 1995?

A. I believe it was October 24th, sir.

A. And do you recall what address you saw Attison Royer on October 24th, 1995?

A. Oh, Central Avenue, sir. Can I refer to a report if there is one available? I don't know the exact address.

Outside of the presence of the jury, Carroll's recollection was refreshed with his police report, and he then testified that he saw defendant on October 24, 1995, at 163 Central Avenue. Carroll also testified that defendant gave his address as 605 Cedar Lane on October 24, 1995. At no time did Carroll testify that the "report" was generated by the police or that it was the product of any prior criminal activity by defendant. Defense counsel objected to this testimony concerning the October 24 incident and asked for a curative instruction, which request was denied by the trial court.

Nothing suggests the jury's verdict was a product of bias or a belief that Carroll or Gutierrez's recognition of defendant inferentially suggested defendant had been involved in past criminal activity. Here, Carroll and Gutierrez were asked whether they knew defendant prior to the arrest, which they answered affirmatively. The series of questions reflected their recognition of defendant from the community and not from past criminal activity or a past criminal investigation.

We determine the statements had no "capacity to prejudice the defendant by implying that he had committed previous criminal acts or was otherwise disposed toward criminal behavior." State v. Ramos, 217 N.J. Super. 530, 538 (App. Div.), certif. denied, 108 N.J. 677 (1987). Accordingly, the statements were not "'clearly capable of producing an unjust result.'" State v. Macon, 57 N.J. 325, 337 (1971) (quoting R. 2:10-2).

As to defendant's ineffective appellate counsel argument, in commenting on the assertion of ineffective assistance of counsel with regard to Gutierrez, Judge Roma explained,

"Finally, seeing as [defendant] has failed to prove ineffective assistance of trial counsel with respect to all of the aforementioned, this Court must similarly find a failure on [defendant's] part to prove ineffective assistance of appellate counsel."

We agree and apply the same reasoning to the testimony of Carroll. Accordingly, the claim of error constituting ineffective assistance of appellate counsel is unfounded.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness either of appellate counsel or trial counsel within the Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.