STATE OF NEW JERSEY v. ERIC SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0140-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC SMITH,

Defendant-Appellant.

__________________________________________________

February 14, 2012

Submitted January 31, 2012 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1249.

Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).

Theodore J.Romankow, UnionCounty Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his petition for post-conviction relief (PCR). We find no merit in any of his arguments and affirm.

Defendant was charged with and found guilty by a jury of: first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). After appropriate mergers, the trial judge sentenced defendant to a twenty-eight-year prison term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the carjacking conviction, and an eighteen-year prison term, with an eighty-five percent NERA parole disqualifier on the robbery conviction; these terms were ordered to be served concurrently. On the drug conviction, the judge imposed a consecutive five-year prison term.

In his direct appeal, defendant argued the following three points:

I. TWO TESTIMONIAL REFERENCES BY THE STATE'S CHIEF WITNESS, DETECTIVE ANTHONY MARRA, THAT THE DEFENDANT WAS REPRESENTED BY THE "PUBLIC DEFENDER" IMPLIED THAT THE DEFENDANT WAS POOR, DENIED THE DEFENDANT [] HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE SUCH AN INFERENCE, ESPECIALLY WHEN THE DEFENDANT WAS CHARGED WITH ROBBERY AND CARJACKING, WAS GROSSLY PREJUDICIAL (Partially Raised Below).

II. THE COURT'S FAILURE TO DECLARE A MISTRIAL OR AT A MINIMUM TO VOIR DIRE THE JURY TO DETERMINE IF THE JURY WAS REASONABLY CERTAIN THAT FURTHER DELIBERATIONS WOULD NOT BE PRODUCTIVE, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not Raised Below).

III. THE DEFENDANT'S AGGREGATE SENTENCE OF 28 YEARS WITH 23.8 YEARS OF PAROLE INELIGIBILITY FOR CARJACKING IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We rejected these arguments and affirmed for reasons expressed in an unpublished opinion. State v. Smith, No. A-5107-05 (App. Div. Oct. 19, 2007). The Supreme Court denied defendant's petition for certification. 193 N.J. 587 (2008).

Defendant filed a timely PCR petition, arguing he was denied the effective assistance of counsel. Specifically, defendant alluded to the fact that when Detective Anthony Marra, during his testimony for the State, referred to defendant's attorney as "the [p]ublic [d]efender,"1 defense counsel objected and the judge agreed to give a curative instruction. Certainly, counsel's objection was timely and appropriate, and the court properly recognized the need for a curative instruction. Defendant argues, however, that his trial counsel was ineffective in not requesting a more appropriate instruction than that given by the trial judge. That is, the trial judge instructed the jury that

[u]nder our system of law, everyone, of course, is entitled to good representation at a criminal trial and we, therefore, have the Office of the Public Defender, who represents many people. And in this case, [trial counsel] is, indeed, representing his client.[2]

In considering in the direct appeal whether the judge erred with regard to the scope and content of this instruction, we summarized defendant's argument and held as follows:

Defendant argues that these references to his attorney being a public defender implied that he was poor and unable to afford his own lawyer. He claims particular prejudice given the nature of the crimes charged -- carjacking and robbery -- where the logical motive was pecuniary gain. The State concedes that Marra's answers were inap-propriate and that the judge's curative instruction missed the mark. It argues, however, that the references were so brief and fleeting that they did not prejudice defendant in any way.

We agree with defendant that the judge's instruction was insufficient. Instead of merely telling the jurors that defendant had a constitutional right to representation and that the public defender represented many people, he should have clearly advised the jury that they could not draw any inference whatsoever from the fact that the defendant was represented by a public defender.

[Smith, supra, slip op. at 7.]

Relying on our discussion of this issue in the direct appeal, defendant argued in the trial court, in support of his PCR petition, that his trial attorney failed to point out to the trial judge that the cautionary instruction was inadequate.

Defendant also argued in support of his PCR petition that his "trial counsel failed to request a verdict form that instructed the jury that it could find [d]efendant guilty of carjacking based upon bodily injury or the fear of immediate bodily injury." He did not, however, explain how he was prejudiced by this alleged error.

The PCR judge rejected defendant's arguments and denied relief for reasons expressed in an oral opinion. Defendant appealed, presenting the following arguments for our consideration:

I. IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.

II. PETITIONER WAS DENIED EFFECTIVE ASSIS-TANCE OF COUNSEL.

A. IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESS[] SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING.

III. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (Not Raised Below).

IV. THE RECORD IS REPLETE WITH ERROR.[3]

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding the claim that trial counsel was ineffective in failing to request a more appropriate curative instruction when Detective Marra referred to him as "the [p]ublic [d]efender."

In recognizing the lack of significance of the reference to trial counsel as the public defender in the direct appeal, we referred to State v. Martini, 131 N.J. 176, 265-67 (1993), where a similar reference was viewed -- as we categorize the remark here -- as "brief and non-responsive"; we also observed that continued objection or insistence upon further instruction "might 'well reflect [trial counsel's] desire not to highlight the topic.'" Smith, supra, slip op. at 8 (quoting Martini, supra, 131 N.J. at 266-67). And, like Martini, we conclude that defendant was not prejudiced by his trial counsel's omission (or decision not to further pursue the matter) because any harm was "surely incapable of bringing about an unjust result." Ibid. For these reasons, we conclude there is no merit to defendant's ineffective-assistance-of-counsel argument, based on the Strickland/Fritz test,4 because, even if we assume trial counsel erred, the record does not permit a finding that the prejudice prong of the test was met. That is, the record does not permit a finding that there was "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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

1The detective was asked to make an in-court identification and referred to defendant as "[t]hat gentleman sitting next to the [p]ublic [d]efender."

2Following this instruction, the same question was put to the detective and he again identified defendant as sitting next to the "[p]ublic [d]efender." Trial counsel made no further objection nor sought any further cautionary instructions.

3Point IV referred to two specific alleged errors. The first concerned the judge's comment to the jury -- after the jury had rendered a verdict and was dismissed -- that defendant had a prior first-degree conviction for armed robbery. The second concerned that part of the trial judge's charge regarding defendant's identification at the time of arrest. The former is without merit because the jury had already rendered its verdict and any information received at that time could not have prejudiced defendant. And defendant has not explained how the second aspect of this point was erroneous.

4Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).