STATE OF NEW JERSEY v. EARL COHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0649-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL COHEN,

Defendant-Appellant.

_____________________________________________

March 15, 2013

Argued March 5, 2013 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-11-4714.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General, Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Earl Cohen appeals from the January 4, 2011 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that, on May 27, 1998, defendant pled guilty to third-degree escape, N.J.S.A. 2C:29-5a; first-degree robbery, N.J.S.A. 2C:15-1; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from defendant's participation in a robbery while armed with a weapon. Defendant also unlawfully removed the electronic bracelet he was required to wear as part of his participation in the Intensive Supervision Program. During the plea hearing defendant told the judge that he was satisfied with the services of his attorney and was voluntarily pleading guilty. He acknowledged the weapon used in the robbery was an operable .32 caliber Smith and Wesson handgun.

On August 6, 1998, the trial judge sentenced defendant to an aggregate term of ten years in prison with eight-and-one-half years parole disqualification under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his conviction on the excessive sentence calendar and we affirmed.

Defendant filed a pro se petition for PCR on August 3, 2001. However, for unknown reasons, no court addressed his petition. Defendant filed another pro se PCR petition on February 6, 2009, using the 2001 brief and affidavit. Defendant was then assigned counsel, who also submitted a brief. Defendant contended that he received ineffective assistance of counsel because his defense attorney did not thoroughly consult with him, did not challenge the probable cause for his arrest and the arresting officer's identification, or investigate his alibi witnesses. Additionally, he claimed that NERA should not have been applied to his sentence because his handgun was inoperable.

On January 4, 2011, Judge Michelle Hollar-Gregory heard oral argument and issued a written opinion and order denying defendant's PCR petition without an evidentiary hearing. The judge explained that to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), defendant must show "some reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." She observed that in his affidavit defendant merely listed defense counsel's alleged professional shortcomings without demonstrating how the attorney breached his professional duty or how the proceeding's results would have been different. By way of example, the judge noted that defendant asserted that there was a witness on the street when the robbery took place who could support his position, but defendant failed to identify the witness. The judge determined that defendant's contentions were vague and conclusory and did not support his claim for relief.

As for defendant's NERA claim, the judge found that it was procedurally barred under Rule 3:22-4, as defendant could have raised it on direct appeal. Additionally, the judge pointed out that defendant provided no support for his claim that the gun was inoperable, which was the converse of defendant's sworn plea testimony that the gun was operable. Finding that defendant had not established a prima facie case for relief, Judge Hollar-Gregory denied his PCR petition without an evidentiary hearing. This appeal followed.

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

POINT I: THE LOWER COURT ERRED IN DENYING MR. COHEN'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIMS.

POINT II: MR. COHEN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J.42, 58 (1987). In order to establish an ineffective assistance of counsel claim, a defendant must first show that counsel s performance was deficient. Fritz, supra, 105 N.J.at 52 (quoting Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must then demonstrate that the deficient performance prejudiced the defense. Ibid.

A defendant is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J.89, 158 (1997) (citing State v. Preciose, 129 N.J.451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).

We have carefully considered defendant's contentions in view of the applicable law and the record, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorney's performance was deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Instead, defendant merely makes bald assertions without supporting his claims. See Cummings, supra, 321 N.J. Super. at 170. We affirm substantially for the reasons expressed by Judge Hollar-Gregory in her well-reasoned written opinion rendered on January 4, 2011.

Affirmed.