STATE OF NEW JERSEY v. ANTHONY BEST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5227-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY BEST,

Defendant-Appellant.

_________________________________________________

February 17, 2012

 

Submitted November 29, 2011 - Decided

 

Before Judges Payne and Reisner.

 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

03-09-3072.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent (Maria

I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

On the evening of April 21, 2003, following a fight over five dollars that defendant believed he was owed for helping his friend deliver a television to a beauty salon, defendant, Anthony Best, stabbed his friend, Melvin Sandy, causing his death. After initially lying to the police concerning his involvement in the crime, he gave a full confession. He was subsequently indicted for murder, N.J.S.A. 2C:11-3a(1) and (2), fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

On the day that his trial was to commence, defendant executed a written waiver of his right to a jury and requested that the matter proceed as a bench trial. After a colloquy between defendant and the judge regarding defendant's rights and a determination by the judge that defendant's waiver had been voluntarily and intelligently made, Judge Vichness granted defendant's request for a bench trial. Following a three-day trial, Judge Vichness found defendant guilty of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and of the weapons offenses charged in the indictment. The judge sentenced defendant to thirteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter conviction and to a concurrent eighteen-month sentence for the fourth-degree weapons conviction. The third-degree weapons conviction was merged with the conviction for manslaughter and dismissed.

Defendant appealed, raising the following issues:

POINT I: THE FORMAL [MIRANDIZED] STATEMENT WAS TAINTED BY THE TWO PRIOR [UNMIRANDIZED] STATEMENTS AND SHOULD HAVE BEEN [SUPPRESSED] BASED ON THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION.

 

POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE OF JUSTIFICATION.

 

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING EXCLUDING RELEVANT AND MATERIAL DEFENSE EVIDENCE.

 

POINT IV: THE DEFENDANT'S RIGHT TO A FAIR GRAND JURY INDICTMENT PROCEEDING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.

 

POINT V: THE SENTENCE IS EXCESSIVE.

 

A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.

 

B. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.

 

We affirmed in an unreported opinion, State v. Best, No. A-5795-04 (App. Div. December 13, 2006), and certification was denied by the Supreme Court, State v. Best, 189 N.J. 650 (2007).

On March 25, 2008, defendant sought post-conviction relief (PCR). In a supplemental brief filed by assigned counsel, defendant made the following arguments:

I. THE TRIAL COURT ERRED BY ADMITTING DEFENDANT'S FINAL [MIRANDIZED] STATEMENT, WHICH WAS UNCONSTITUTIONAL AND VIOLATED DEFENDANT'S FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION.

 

II. DEFENDANT'S SENTENCE WAS EXCESSIVE BECAUSE THE TRIAL COURT ERRED IN WEIGHING THE MITIGATING FACTORS AGAINST THE AGGRAVATING FACTORS.

 

III. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY WAIVING HIS RIGHT TO A JURY TRIAL.

 

IV. THE TRIAL COURT VIOLATED PETITIONER'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION BY BARRING MATERIAL EVIDENCE.

 

Defendant's petition was heard by Judge Vichness, who denied relief without scheduling an evidentiary hearing. In a decision placed on the record after oral argument had occurred, the judge declined to consider the arguments contained in points I, II and IV of defendant's brief, determining that each had been raised on direct appeal, and thus consideration in connection with a PCR petition was barred. With respect to point III, the judge noted that he had discussed defendant's right to a jury with him prior to trial, and that he would not have authorized a bench trial unless he was satisfied beyond a reasonable doubt that defendant had freely and voluntarily waived that right. Thus, any argument by defendant that the decision to waive a jury was made by counsel without adequate consultation with him could not be factually supported. Further, the judge found that counsel's recommendation that defendant waive a jury was a sound exercise of trial strategy that could not be considered ineffective assistance of counsel under standards established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This appeal followed.

On appeal, defendant raised the following arguments:

POINT ONE -

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE FOR ADVISING HIM TO WAIVE HIS RIGHT TO A JURY TRIAL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS 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.

 

C. THE TRIAL COURT ERRED BY ADMITTING DEFENDANT'S FINAL MIRANDIZED STATEMENT, WHICH WAS UNCONSTITUTIONAL AND VIOLATED DEFENDANT'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.

 

D. DEFENDANT'S SENTENCE WAS ILLEGAL BECAUSE THE TRIAL COURT ERRED IN WEIGHING THE MITIGATING FACTORS AGAINST THE AGGRAVATING FACTORS.

 

E. THE TRIAL COURT VIOLATED PETITIONER'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION BY BARRING MATERIAL EVIDENCE.

 

Because the issues raised here are those raised before Judge Vichness, and because we agree with Judge Vichness that the substantive claims raised on direct appeal cannot be relitigated in connection with defendant's petition for PCR, see Rule 3:22-5, we focus only on defendant's claim that counsel was ineffective because she advised him to waive his right to a jury trial.

The record in the matter discloses that, on the day prior to trial, defendant rejected a plea offer of twenty years in custody, subject to NERA. At the time, defendant's potential sentencing exposure on the murder charge was to life in prison. On the day of trial, Judge Vichness indicated to defendant that jurors were available to hear defendant's case. However, he said, defense counsel had asked him whether, "if it was acceptable to [defendant,]" he would entertain trying the case as a bench trial. The judge indicated to counsel that he would. The following colloquy then took place between Judge Vichness and defendant:

THE COURT: You should understand, a bench trial doesn't mean that witnesses aren't going to get called. It doesn't mean that the "fix is in" either for the [S]tate

 

. . .

 

THE COURT: I have not decided that I'm going to find you guilty of anything or not guilty of anything.

 

A. Yes, sir.

 

THE COURT: The only thing I know about the case is the stuff that I read yesterday

 

A. Yes, sir.

 

THE COURT: in the motion [to dismiss the indictment]. The only thing that I can assure you is that at this point I'm a blank slate. I have not decided. I don't favor one side or another. I'm not someone who's going to say what the State presents, I'm going to buy. And, I'm not someone who is saying, whatever they present, I'm not going to buy any of it; okay.

 

I will listen to all of the evidence that's presented. I will give it a fair review and, based on what I hear, and based on what the law is and, as I said yesterday, as you heard me say, I will consider everything from not guilty

 

A. Yes, sir.

 

THE COURT: to passion provocation manslaughter, reckless manslaughter, aggravated manslaughter and murder.

 

A. Yes, sir, your Honor.

 

THE COURT: Okay. All right. I know that you signed a waiver of trial by jury. I know that [defense counsel] has probably explained all of this to you.

 

A. She did, your Honor.

 

THE COURT: I just feel better explaining it to you.

 

A. Thank you, sir.

 

THE COURT: Understanding all of that, do you still want to proceed without a jury?

 

A. Yes, sir.

 

. . . .

 

[THE PROSECUTOR]: Judge, I'll just say for the record, while [it is] my belief that the defendant has the right to go non jury because, frankly, the right of trial by jury is a right for the defendant. It's to really protect his rights. Generally speaking, we do believe that cases are better adjudicated by a jury. But, I do believe that the defendant does have a right to make the selection that he has made.

 

THE COURT: . . . I agree with you on the law. It doesn't come as a shock to me that the State would prefer a jury. But, you know, it's not a situation where the State always gets to decide that.

 

The defendant has made his choice. In a case like this, the defendant's choice outweighs the State's choice.

 

[THE PROSECUTOR]: Yes, Judge.

 

A. Thank you sir.

 

We are satisfied that the colloquy that we have set forth, together with the jury waiver form, adequately apprised defendant of his right to a jury trial, and we conclude, as did Judge Vichness, that his waiver of that right was knowing, voluntary and intelligent. Defendant acknowledged that he had signed the jury waiver form, and that his counsel had explained his rights to him. Those rights were further explained, in detail, by Judge Vichness, who additionally apprised defendant of the range of crimes for which he could potentially be convicted and of the judge's approach to evidence adduced at such a bench proceeding.

Defendant has produced no certification or other evidence to support his claim that he was improperly coerced into making the decision to waive a jury. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring that allegations of ineffectiveness be accompanied by evidentiary support), certif. denied, 162 N.J. 199 (1999). Further, he has offered no evidence to suggest that his counsel's strategic suggestion that a jury trial be waived caused him any prejudice. As a result, defendant has failed to establish prima facie evidence of ineffective assistance of counsel under the two-part test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). As a consequence, the denial of PCR is affirmed.

Affirmed.