STATE OF NEW JERSEY v. HASSAN STEVENSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3328-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN STEVENSON, a/k/a

HASAN STEVENSON,

Defendant-Appellant.

________________________________________________________________

March 12, 2013

Submitted December 10, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-04-0577 and 03-04-0563.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Marie G. McGovern, on the brief).

PER CURIAM

Defendant Hassan Stevenson appeals from the October 12, 2010 order denying his application for post-conviction relief (PCR). We affirm.

I.

Following a jury trial, defendant was found guilty of first degree robbery, N.J.S.A. 2C:15-1 (count one); second degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and lesser included fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(3) (count two). He was also found guilty of the second degree weapon possession crime charged in a separate indictment.

The trial court merged the weapon and aggravated assault convictions arising from the jointly charged crimes with the armed robbery conviction, and sentenced defendant to a seventeen-year term of imprisonment, of which eighty-five percent would be served pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, with five years of parole supervision upon release. Further, the trial court ordered the monetary penalties, assessments, fees and fines established by statute, along with forfeiture of all monies and property seized from defendant. On the separate second degree weapon possession conviction, defendant was sentenced to a concurrent prison term of five years with similar terms regarding monetary responsibilities and property forfeiture.

Defendant appealed the judgment of conviction and the sentence. We affirmed the conviction but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). State v. Stevenson, No. A-6969-03 (App. Div. June 13, 2007). On remand, defendant was resentenced to the imprisonment terms originally imposed. The Supreme Court denied further review. State v. Stevenson, 193 N.J. 585 (2008).

We begin by referencing the essential background facts as set forth in the PCR opinion. On September 3, 2002, Sommer Williams and her friend, Marcus Evans, visited their friend, Howie, at his home in Perth Amboy. Williams wanted to leave before Evans did, so Williams went outside to wait for a cab. While Williams was waiting outside, Slick Thomas approached her and told her that she could not "be down here" because "this was his block." Williams replied that she could go anywhere and Thomas rode away on his bicycle.

A few minutes later, Thomas and defendant returned with a gun. They approached Evans, who now was outside, and defendant pointed a gun at Evans' head and Thomas demanded all of Evans' money. Evans, not believing the gun to be loaded, tried to dissuade them and started to descend the steps.

The gun was, in fact, loaded and defendant lowered the gun and shot Evans in the leg, shattering his femur and causing him to fall. Williams ran and hid behind a car, while Evans dragged himself to nearby trash cans. Defendant seemed to panic and said "come on," and both he and Thomas fled.

Perth Amboy Police Sergeant John Conway was on patrol close enough to hear the gunshot. He immediately drove to Watson Street where he spotted Williams waving her arms. While an ambulance arrived for Evans, Williams, who knew both men, named and described Thomas and defendant for Conway. The next day, Williams identified defendant from an array of photographs.

In his pro se petition for PCR, defendant alleged ineffective assistance of trial counsel for failing to subpoena or submit statements of his alleged alibi witnesses, failing to be prepared for trial, and for advising defendant not to testify at trial. In his supporting affidavit, defendant claimed that he was misidentified because he was elsewhere at the time of the shooting. He submitted additional affidavits corroborating his alibi claim.

The PCR judge conducted an evidentiary hearing over three days and heard testimony from defendant, his half-brother, sister, girlfriend, Raquel Rivers, and his two prior trial attorneys. On October 12, 2010, the judge issued a written decision and order denying PCR.

The PCR judge found that Rivers was not credible, as she claimed that Williams, the eyewitness, did not know defendant, while defendant conceded that Williams knew him. Defendant acknowledged "that there's somebody else out there with the same name Hassan Stevenson," and that Williams knew this person and she knew "the difference" between this person and himself. The court deemed all other witnesses credible, particularly trial counsel. As to defendant s primary claim of ineffectiveness for failing to pursue his alibi defense, trial counsel testified that he could not recall if the file contained alibi information when he was assigned the case. He stated that generally, if the information was valid, he would have expected his office to conduct a full investigation and he would have discussed it with defendant. Further, the State buttressed counsel s assertion by arguing that if there was a real basis for the alibi, they would have received the witness information in discovery and conducted their own investigation.

With respect to the first prong of the Strickland1 test, the

court determined that defendant s allegations of ineffectiveness were not supported by the record. The court expressly found that defendant "failed to prove that counsel was aware of defendant's alibi, that even if counsel was aware, that he neglected his alibi story and the corroborating witnesses, and that he refused to subpoena those witnesses."

Regarding the second prong of the Strickland test, the court determined that there was no evidence that the alibi would have been legitimate or would have changed the results of the trial. To satisfy this burden, defendant would have had to show that the alibi was verifiable. The court noted that defendant proffered insufficient and inadequate evidence. Lastly, there was little chance of misidentification in this case. Williams knew defendant and would not confuse him with anyone else. The court concluded that a different result was not a reasonable likelihood. As such, defendant failed to prove ineffective assistance of counsel.

II.

On appeal, defendant contends:

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL FAILED TO INVESTIGATE DEFENDANT S ALIBI DEFENSE AND/OR TO PRODUCE EXCULPATORY WITNESSES.

After reviewing the record, we are not persuaded by this contention.

We review ineffective assistance of counsel claims under the two-factor test established by the United States Supreme Court established in Strickland v. Washington, supra, and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show 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. With respect to both factors of this test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. State v. Echols, 199 N.J. 344, 357 (2009).

Also,

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350, cert. denied, ____ U.S.____, S. Ct.____, ____ L. ed.2d ____, 2013 U.S. LEXIS 1701 (2013).] WAITING ON THE CITE

We are fully cognizant of our limited role as an appellate court in reviewing findings of fact and credibility determinations of a Law Division judge. See State v. Elders, 192 N.J. 224, 243-44 (2007). We must defer to the factfindings of a PCR judge who has held an evidentiary hearing and assessed the credibility of witnesses. Id. at 244; State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

The PCR judge here concluded that defendant's key witness was not believable, and his prior defense counsels' testimony was credible and accurately reflected what occurred in 2002. In order to affirm these findings, "we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions." State v. W.B., 205 N.J. 588, 603 n.4 (2011); see also Elders, supra, 192 N.J. at 242-44. Having reviewed the record of the evidentiary hearing and the earlier proceedings, we are satisfied that such evidence exists. Accordingly, defendant did not surmount either the performance or prejudice threshold of Strickland.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).