STATE OF NEW JERSEY v. BASSEM M. ABDOLRAZEK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3573-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BASSEM M. ABDOLRAZEK,1

Defendant-Appellant.

_______________________________________

May 24, 2011

Submitted May 10, 2011 Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1342.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel;David Cardamone,Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant Bassem M. Abdolrazek appeals from an order entered by the Law Division on September 12, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was tried before a jury and found guilty of second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The court sentenced defendant on the eluding conviction to nine years of incarceration with a three-year period of parole ineligibility and a concurrent eighteen-month term on the resisting arrest conviction.

Defendant filed a notice of appeal on January 3, 2004, and raised the following arguments:

POINT I

THE JUDGE'S COMMENTS TO THE JURY, AS A PART OF THE JURY CHARGE, WHICH PRAISED THE POLICE OFFICER AND UNDERSCORED HIS "DUTY TO STOP" DEFENDANT, IMPROPERLY SERVED TO LET THE JURY KNOW THAT THE JUDGE PERSONALLY BELIEVED AND ADMIRED THE POLICE OFFICER, IN GROSS VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)

POINT II

THE DEFENDANT'S SECOND-DEGREE ELUDING CONVICTION MUST BE REVERSED BECAUSE THE TRIAL JUDGE'S CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROVING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY. (Not Raised Below)

A. N.J.S.A. 2C:2-2[(c)](1) Requires The Knowing Mental State Be Applied To The Result-Of-Conduct Element Of Second-Degree Eluding Because The Mental State Is Defined As Knowingly For The Other Material Elements Of Second Degree Eluding And It Does Not "Plainly Appear" That The Legislature Intended To Make Second Degree Eluding A Strict Liability Offense.

B. State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001[)], certif. denied, 172 N.J. 181 (2002), Was Wrongly Decided Because The Panel Failed To Interpret The Second-Degree Eluding Statute In Accordance With N.J.S.A. 2C:2-2[(c)](1) And The Principle That Penal Statutes Must Be Strictly Construed.

C. The Erroneous Jury Instructions, Objected To By Defense Counsel Below, Relieved The State Of its Burden Of Proof And Thus Defendant's Conviction For Second-Degree Eluding Must Be Reversed.

POINT III

THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.

A. Absence Of Finding Of Mental-Illness Mitigating Factor And The Resulting Balance of Factors.

B. The Apprendi/Blakely Error.

We affirmed defendant's convictions but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Abdolrazek, No. A-3244-03 (App. Div. Nov. 3, 2005) (slip op. at 20). The Supreme Court denied defendant's petition for certification. State v. Abdolrazek, 188 N.J. 270 (2006). The trial court re-sentenced defendant and entered a judgment dated March 31, 2006, imposing the same sentence. Defendant appealed and we affirmed the sentence. State v. Abdolrazek, No. A-1368-06 (App. Div. July 25, 2007). Thereafter, the Supreme Court denied defendant's petition for certification. State v. Abdolrazek, 192 N.J. 599 (2007).

In October 2006, defendant filed a pro se PCR petition in which he alleged that he was denied the effective assistance of counsel; the trial court did not consider his mental state as a mitigating factor before imposing the sentence; the presumptive term for a second-degree offense was seven years; and the trial court abused its discretion by imposing a three-year period of parole ineligibility. In November 2006, the court appointed PCR counsel. Thereafter, defendant filed a pro se motion for a change of custody pursuant to Rule 3:21-10(b).

The PCR court considered the petition on September 12, 2008. The court found that defendant's petition was barred by Rule 3:22-5 because the claims related to defendant's sentence had been previously adjudicated and decided by the Appellate Division. The court entered an order dated September 12, 2008, denying defendant's petition.

Defendant appeals and argues that he was denied the effective assistance of PCR counsel. He argues that PCR counsel was deficient because he presented no arguments to the PCR court, let alone the most effective arguments possible. Defendant contends that he did not present a prima facie showing of ineffective assistance of trial counsel because of the inadequacy of PCR counsel.

Based upon our review of the record, we are satisfied that defendant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant's claim that he was denied the effective assistance of PCR counsel must be considered under the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 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 standard for evaluating ineffective-assistance-of-counsel claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant has not shown that his PCR counsel's handling of his petition was deficient. The PCR court correctly noted that this court had previously upheld defendant's sentence against a claim that it was excessive and, therefore, the issues defendant raised in the PCR petition concerning the sentence were barred by Rule 3:22-5. Moreover, defendant had alleged that he was denied the effective assistance of trial counsel; however, defendant has not identified any argument that PCR should have raised before the PCR court in support of that claim. Thus, defendant has not shown that his PCR counsel was deficient, or that the matter would have been decided in his favor if PCR counsel had handled the matter differently.

Affirmed.

1 In the notice of appeal, appellant was incorrectly identified as "Bassem Abdorazek."