STATE OF NEW JERSEY v. JOSEPH ELCHIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0625-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH ELCHIN,

Defendant-Appellant.

_______________________________

July 20, 2011

Submitted: March 9, 2011 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0881.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Joseph Elchin pled guilty, pursuant to a plea agreement, to second-degree attempted luring or enticing a child by various means, N.J.S.A. 2C:13-6; third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4a; and fourth-degree purchasing a handgun without first securing a permit to purchase. In pleading guilty, defendant admitted he engaged in internet and telephone conversations with a girl whom he reasonably believed to be twelve years old to have a sexual encounter with her,1 agreed to meet her in person for the purpose of engaging in a sexual act, and was arrested while on his way to meet her. Defendant also admitted the police recovered an unregistered shotgun in his home pursuant to a search warrant, and was barred from legally possessing a firearm based on his prior convictions for fourth-degree criminal sexual conduct and second-degree aggravated assault.

Defendant was sentenced to an aggregate five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. Defendant appealed, arguing only that the sentence imposed was excessive. We affirmed.

Defendant thereafter timely filed a petition for post-conviction relief (PCR), arguing, in part, that trial counsel was ineffective because he failed to investigate and raise entrapment and impossibility defenses, invasion of privacy, and violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretapping Act), N.J.S.A. 2A:156A-1 to -34. Defendant raised no claims of ineffective assistance of appellate counsel.

In denying the petition without a hearing, the judge concluded, in part: (1) the impossibility defense set forth in State v. Condon, 391 N.J. Super. 609 (App. Div.), certif. denied, 192 N.J. 74 (2007), did not apply because defendant took a substantial step toward the commission of the underlying crime and could be guilty under N.J.S.A. 2C:5-1a(3); (2) defendant failed to specify what trial counsel failed to investigate; (3) the entrapment defense did not apply because the police used tactics approved in State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007); (4) defendant had no reasonable expectation of privacy when chatting with an undercover officer via the internet and telephone; and (5) the police did not violate the Wiretapping Act. This appeal followed.

On appeal, defendant raises the following contentions:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DEPRIVED ELCHIN OF HIS CONSTITUTIONAL RIGHTS AND RENDERED THE PLEA ALLOCUTION AS FUNDAMENTALLY UNRELIABLE.

A. Elchin Was Deprived of His Constitutional Right to the Effective Assistance of PCR Counsel.

B. Elchin Was Deprived of His Constitutional Right to Effective Assistance of Trial Counsel and Appellate Counsel.

C. The Court Should Set Aside Elchin's Plea or Remand This Case for an Evidentiary Hearing Concerning Whether Elchin Received the Effective Assistance of Trial Counsel.

D. Elchin Was Deprived of the Assistance of Effective Trial and PCR Counsel Because Both Counsel [F]ailed to Address Elchin's Lack of Understanding the Plea (Not Raised Below).

II. ELCHIN WAS DEPRIVED OF THE ASSISTANCE OF EFFECTIVE TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL BECAUSE COUNSEL FAILED TO ARGUE THAT ELCHIN'S CONSTITUTIONAL RIGHTS WERE VIOLATED IN CONNECTION WITH THE WIRETAP AND ELECTRONIC SURVEILLANCE OF HIS ISP SUBSCRIBER INFORMATION (NOT RAISED BELOW).

III. THE ATTEMPT TO ENDANGER THE WELFARE OF A MINOR CHARGE AGAINST ELCHIN SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW BECAUSE IT WAS IMPOSSIBLE FOR ELCHIN TO COMMIT THAT OFFENSE.

IV. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY ELCHIN.

Claims of ineffective assistance of counsel are well suited for post-conviction review. State v. Preciose, 129 N.J. 451, 459-60 (1992); see also R. 3:22-4(a)(1). The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Ibid. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. He must allege and articulate facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. That is, defendant must show (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey). Further,

"[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nunez-Valdez, 200 N.J 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]

We decline to address defendant's claims of ineffective assistance of appellate counsel because he did not raise those claims below. Generally, we "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); see also R. 3:22-4(a) ("any ground for relief not raised in . . . a [PCR] proceeding . . . is barred from assertion in a [subsequent petition] . . . ."); State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). No exception applies here.

In Point I, defendant makes nothing more than bald assertions that trial and PCR counsel were ineffective. For example, defendant does not specify what steps trial counsel failed to take to appropriately represent him, what defenses were available, what an investigation by trial and PCR counsel would have revealed, what material arguments PCR counsel should have raised, or how trial counsel was derelict during his plea and sentencing proceedings. Accordingly, defendant failed to establish a prima facie claim of ineffective assistance of counsel.

In Point II, defendant contends that trial and PCR counsel were ineffective in failing to argue that the detective invaded his privacy rights by illegally obtaining his ISP subscriber information. Defendant also contends for the first time on appeal that trial and PCR counsel were ineffective in failing to argue that the detective violated the Wiretapping Act by illegally obtaining his ISP subscriber information.

Although defendant did not raise the latter contention below, we nevertheless, conclude that both contentions lack merit. The police did not surreptitiously obtain defendant's ISP subscriber information in order to communicate with him; rather, the undercover detective merely logged into a public website and began "chatting" with defendant. Defendant had no legitimate expectation of privacy in his internet or telephone conversations with an undercover police officer. See State v. Evers, 175 N.J. 355, 370 (2003) (indicating there is no reasonable expectation of privacy in an e-mail sent to an undercover police officer). Also, the Wiretapping Act does not give defendant a protected privacy interest in his illicit internet or telephone communications with a law enforcement officer. Ibid.; see also N.J.S.A. 2A:156A-4b (explicitly excluding interception of "electronic or oral communication [by a law enforcement officer] where such officer is a party to the communication'" from the Wiretapping Act's purview).

Finally, we reject defendant's contention in Point III that it was legally impossible for him to attempt to endanger the welfare of a minor because the alleged victim was an adult. "If a person whom the defendant believes to be a child is an adult, then the defendant's subjective belief that the victim is a child suffices to impose liability for attempt . . . ." State v. Kuhn, 415 N.J. Super. 89, 97 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); see also N.J.S.A. 2C:5-1a(1) and (3). Defendant admitted he engaged in conversations with a person whom he believed to be a minor to have a sexual encounter with her and arranged to meet with her to achieve that goal. Consequently, the impossibility defense does not apply in this case.

1 Defendant was actually communicating with a undercover female detective. The detective and defendant had a series of internet and telephone conversations where she expressed that she was a twelve-year-old girl interested in learning about sexual matters.