STATE OF NEW JERSEY v. AMARNAUTH PRASHAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5382-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

AMARNAUTH PRASHAD,

Defendant-Appellant.

__________________________________

April 28, 2011

Submitted: April 6, 2011 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-01-00041.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Amarnauth Prashad appeals from the denial of his petition for post-conviction relief (PCR). He is serving a seventeen-year term of imprisonment subject to the No Early Release Act1 85% parole ineligibility term for second degree aggravated sexual assault, and a concurrent eight-year term of imprisonment with a four-year period of parole ineligibility for second degree endangering the welfare of a child. The victim was his niece.

This court affirmed defendant's conviction in an unreported opinion on April 22, 2005. The Supreme Court denied defendant's petition for certification on September 14, 2005. Defendant filed a timely petition for PCR in which he and assigned counsel argued that trial counsel deprived him of his right to effective assistance of counsel because counsel did not explore whether defendant's psychiatric condition rendered him incompetent to stand trial or raise a diminished capacity defense to the charges. He also argued that appellate counsel failed to argue this issue. In support of the petition, counsel submitted a psychiatric evaluation conducted at New Jersey State Prison on December 4, 2007, which reports defendant's current problems, medications, and psychiatric history. Defendant asserts he suffers from schizophrenia and has attempted suicide by three modalities since his incarceration.

Judge DePascale held that defendant failed to establish a prima facie case and dismissed the petition without an evidentiary hearing. He found that defendant's allegation that trial counsel knew his mental health history at the time of trial or had reason to suspect that defendant's mental health may have rendered him incompetent to stand trial or might have raised a diminished capacity defense was unsupported by competent evidence. The judge considered the December 2007 mental health assessment of questionable relevance because it does not address either his mental state at the time of the acts for which he stood trial or at the time of trial.

On appeal, defendant raises the following argument:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

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

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.

In order to establish ineffective assistance of counsel, a defendant must prove that 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, the defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial"; rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, 105 N.J. 42, 61 (1987), a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

The PCR court should ascertain whether the defendant would be entitled to PCR if the facts were viewed "in the light most favorable to defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992). If that inquiry is answered affirmatively, then the defendant generally is entitled to an evidentiary hearing in order to prove the allegations. Id. at 462-63.

We observe, however, that there is a pragmatic dimension to the PCR court's determination. If 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, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, 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) (citations omitted).]

Defendant did not allege specific facts to establish that defense counsel knew or should have known of a serious psychiatric condition that would have rendered him incompetent to stand trial or presented an opportunity to negate any mental state required to convict defendant of the charged offenses. Indeed, defendant seems to have developed an alternative defense to the charges that differs dramatically from the defense he offered at trial. At trial, defendant argued he did not perform, or lacked the opportunity to perform, the acts of which he was accused; these defenses required no consideration of defendant's mental health status.

1 N.J.S.A. 2C:43-7.2.