STATE OF NEW JERSEY v. JIN SIG CHOI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2801-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIN SIG CHOI,

Defendant-Appellant.

_______________________________________

April 28, 2011

Submitted March 29, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1295.

Yvonne Smith Segars, Public Defender, attorneyfor appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant appeals from an order entered by the Law Division on October 19, 2009, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one); and felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (counts two and three). He was tried before a jury. At the trial, the State presented evidence which established that in 1995, Michael Suh (Suh) was operating markets in East Rutherford, Union City and Hackensack, which together would generate about $30,000 in cash each day. At the end of the day, Suh and his wife Usung would bring the money back to their home in Paramus.

Late in 1994, defendant met Jae Shik Jang (Jang), who introduced him to Sang Sun Lee (Lee). Defendant told his friend Chung Hoon Park (Park) that Jang needed a gun because he delivered bread for a living and had been robbed in the past. Several weeks later, Park purchased a .9 millimeter Smith and Wesson handgun, two magazines and bullets from Pil Jung Kim (Kim). Park met with defendant and Jang, gave them the gun, magazine and ammunition, and they gave him $500.

On the evening of January 4, 1995, defendant drove to the street in Paramus where Suh's residence was located. He dropped off Jang and Lee, drove past Suh's house, turned around and parked the car. At some point thereafter, Suh returned to his home. He was in possession of $20,000 in cash. He testified that there was an additional $100,000 in cash at home.

Suh opened the door to the two-car garage using an electronic door-opening device. Usung opened the door from the garage to the house. She waved and turned to go inside the house. Suh drove his car into the garage, activated the device to close the garage door, and noticed a man with a ski mask in the garage near Usung's vehicle. Suh sounded the horn to warn Usung of the danger.

Suh observed that another man, who was also wearing a ski mask, had entered the garage before it had fully closed and apparently tripped the device causing the door to open again. The man approached Suh's car, pointed a gun at him and pulled the trigger. The gun did not fire. Suh backed his car out of the garage. He saw Usung, who had returned to the garage. He drove away.

The police were called. They found Usung's body. She had been fatally stabbed. Two .9 millimeter bullets were found on the garage floor. The following day, the police recovered a blood-stained knife in a nearby embankment. Tests revealed that the blood on the knife was Usung's blood.

Several weeks later, an individual found a .9 millimeter handgun and a magazine on a bicycle path in Ridgewood. Tests showed that the gun was operable and the bullets found on the floor of the Suh garage had been fired from that gun. Using the serial number of the gun, the police were led to Park, who told them that defendant had purchased the gun from him.

In May 1996, Jang was located in Montana. He was returned to New Jersey and charged with murder. In 2003, the investigators learned that defendant was in Korea. He was arrested there, returned to the United States and transported to the offices of the Bergen County Prosecutor. After being informed of his Miranda1 rights, defendant agreed to give the detectives a statement.

Defendant initially denied any involvement in Usung's murder but then said that he met Jang and Lee in New York on the night of January 4, 1995. Jang told him that he had "business" to take care of in New Jersey, and defendant drove them to Suh's residence in Paramus. Defendant stated that he had previously arranged for Park to sell Jang a gun. He did not know who obtained the knife. He said that Jang and Lee had ski masks but he did not know where they had obtained them.

Defendant was convicted on all three counts. The court merged the felony murder convictions with the murder conviction, and sentenced defendant to life imprisonment, with a thirty-year period of parole ineligibility. A judgment of conviction was entered on July 28, 2005. Defendant appealed and raised the following arguments:

I. THE COURT BELOW ERRED IN DENYING THE MOTION TO SUPPRESS STATEMENTS.

A. THE STATE DID NOT SHOW THAT DEFENDANT WAIVED HIS RIGHTS.

B. THE STATEMENTS WERE NOT VOLUNTARY.

C. THE STATEMENTS WERE TAKEN IN VIOLATION OF DEFENDANT'S RIGHT TO COUNSEL.

D. THE STATEMENTS WERE TAKEN IN VIOLATION OF THE VIENNA CONVENTION ON CONSULAR RELATIONS.

E. INTRODUCTION OF THE STATEMENTS VIOLATED THE CONFRONTATION CLAUSE.

F. INTRODUCTION OF THE STATEMENTS WAS A DUE PROCESS VIOLATION.

II. THE COURT BELOW ERRED IN DENYING THE MOTION TO SUPPRESS PHYSICAL EVIDENCE.

III. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT DURING SUMMATION.

IV. THE TRIAL COURT CONDUCTED INADEQUATE VOIR DIRE.

V. THE DEMONSTRATION OF THE GUN BEING RACKED AND A DUMMY BULLET BEING EJECTED WAS INFLAMMATORY.

We affirmed defendant's convictions in an unpublished opinion. State v. Choi, No. A-0557-05 (App. Div. Feb. 13, 2007). The Supreme Court denied defendant's petition for certification. State v. Choi, 191 N.J. 315 (2007).

In November 2007, defendant filed a pro se petition for PCR. PCR counsel filed a memorandum of law in which he raised the following contentions:

POINT I:

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO SHOW THAT HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO ADVISE HIM OF HIS RIGHT TO TESTIFY AT THE HEARING TO SUPPRESS A STATEMENT AND BODY SAMPLES AND AT TRIAL.

POINT II:

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO SHOW THAT HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO CHALLENGE THE STATE'S TRANSLATION OF A LETTER WRITTEN BY DEFENDANT IN THE KOREAN LANGUAGE.

Defendant filed a supplemental pro se brief in which he raised the following arguments:

POINT I

THE PETITIONER JIN SIG CHOI RAISES INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE NUISANCE OF THE CASE, FAILED TO ADEQUATELY COMMUNICATE WITH PETITIONER, FAILED TO ADQEUATELY ADDRESS THE FACTS RELEVANT TO THE PETITIONER'S DEFENSE AS PRIVATE RETAINED COUNSEL.

(Sub-Point A.) Counsel's Failure To Challenge The Authenticity Of The DNA Expert's Opinion That Petitioner's Saliva Was On The Cigarette Butt When Petitioner Was Not At The Scene Deprived The Petitioner Of Effective Assistance OF Counsel.

(Sub-Point B.) The Petitioner Jin Sig Choi Submit[s] That His Counsel Was Ineffective For Failing To Object To Prejudicial Testimony In Front Of Jury That He Was Arrested In Korea For The Present Offense And Extradited While In Handcuffs And Shackles In Violation Of Federal And State Due Process Provisions, And In Violation Of His Sixth Amendment To The Right Of Effective Assistance Of Counsel And In Violation Of His Due Process Under U.S.C.A. CONST. AMEND. 14; N.J.S.A. CONST. ART. 1, PAR. 10.

The PCR court considered the matter on October 19, 2009. The court placed its decision on the record, concluding that defendant had failed to establish he had been denied the effective assistance of counsel. The court additionally concluded that, since defendant had not presented a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. The court entered an order dated October 19, 2009, denying PCR.

On appeal, defendant raises the following arguments for our consideration:

POINT I:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO ADVISE HIM OF HIS RIGHT TO TESTIFY DURING A SUPPRESSION HEARING AS WELL AS AT TRIAL.

C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO RETAIN AN EXPERT TO REBUT A PORTION OF THE STATE'S TRANSLATION OF A LETTER WRITTEN BY THE DEFENDANT IN KOREAN.

POINT II:

NEITHER RULE 3:22-4 NOR RULE 3:22-5 PRECLUDED THE TRIAL COURT FROM ADJUDICATING THE ISSUES RAISED IN THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THEIR SUBSTANTIVE MERITS.

We are satisfied from our review of the record that these arguments are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). However, we add the following comments.

A claim that a defendant was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on the claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability 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. Our Supreme Court has adopted this test for evaluating ineffective-assistance-of-counsel claims raised under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Here, defendant argues that his trial sttorney was deficient because he failed to advise him of his right to testify during the suppression hearing, as well as during the trial. We disagree. The record shows that at the suppression hearing, defendant's attorney stated that, with the assistance of an interpreter, he had discussed with defendant whether he would testify. Counsel informed the court that defendant had decided he would "rather rely" on the legal arguments that counsel would make, based on the record that the State had presented.

The record also shows that during the trial, the court asked defendant whether he wished to testify, and counsel informed the court that he had discussed the matter with defendant and defendant had chosen not to testify. Defendant said that this was correct. Moreover, defendant and counsel completed a waiver form, in which counsel stated that he had advised his client of his right not to testify and his right to have the court "so inform the jury." In addition, the court reviewed the jury charge with defendant, which states that defendant has the right to testify but is not required to do so. Thus, the record establishes that defendant's attorney advised defendant of his right to testify at the suppression hearing and at trial, and defendant elected not to do so.

Defendant also argues that his trial attorney was deficient because he failed to retain an expert in the Korean language to challenge the translation by the State's expert witness of a letter that defendant wrote to Park. Defendant claims that the State's expert incorrectly translated the letter as stating that he had "tested" the weapon that Park sold to him and Jang. According to defendant, the letter stated that he had only "touched" the weapon. In support of this argument, defendant presented a certification from an investigator in the Office of the Public Defender, who asserted that he is fluent in the Korean language.

The PCR court correctly found no merit in this argument. The mere fact that the letter may have been subject to different interpretations does not mean that a jury would have accepted the interpretation offered by defendant. Moreover, the evidence was not material to the case. The State had presented the letter to show that defendant was present when the gun used in the robbery was purchased. Defendant admitted that fact when he gave his statement to the investigators. Whether he tested the gun or merely touched it had little bearing on whether he was, in fact, guilty of the charged offenses, given the extensive evidence presented concerning his involvement in the events of January 4, 1995.

Defendant additionally contends that the PCR court erred by rendering its decision without conducting an evidentiary hearing. We disagree. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).