STATE OF NEW JERSEY v. JOHN HARCHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN HARCHER, a/k/a ARTHUR

HARCHAR, JOHN HARCHAR,

BUTCH HARCHAR,

Defendant-Appellant.

__________________________________

October 1, 2013

Submitted September 17, 2013 - Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0585.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the trial court's denial of his petition for post-conviction relief ("PCR"). The petition alleged ineffective assistance of defendant's former trial attorney in connection with his conviction, following a 2006 jury trial, for failing to verify his address as required under the Registration and Community Notification Law (commonly known as "Megan's Law"), N.J.S.A. 2C:7-2(e) (count one), and failing to register a change of address as required by Megan's Law, N.J.S.A. 2C:7-2(a) and N.J.S.A. 2C:7-2(d) (count two).

The operative facts are detailed in this court's October 5, 2010 unpublished opinion, which affirmed defendant's conviction on both counts of the indictment and his corresponding sentence to a fifteen-month custodial term. See State v. Harcher, No. A-4035-08 (App. Div. Oct. 5, 2010). In summary, as the result of his 1994 conviction for endangering the welfare of a child, defendant is a sex offender and is required under Megan's Law to register his address and notify authorities of any change in that address. Before being released from prison in 2003, defendant was told that he must provide the police with an address where he would be staying and verify it with them regularly. Id. at 2. He signed a verification form acknowledging that responsibility. Ibid.

Upon release in 2003, defendant registered his mother's address with the Edison Police Department. Ibid. However, his mother later advised the police that the address only served as a mail drop because defendant was in fact homeless and lived in the woods near her apartment. Ibid. At a later point, defendant failed to verify his address as required, which prompted the police to go to the mother's address, only to find that she no longer lived there. Id. at 2-3. Additionally, defendant had tried to give the police a Post Office Box, but he was told he had to provide a street address. Presented with the circumstances, the jury found defendant guilty of the registration and change of address charges. The trial court denied defendant's motion for a judgment of acquittal.

In the first appeal, we rejected defendant's argument that there was insufficient proof that he had intended to reside at an address different than the one he had provided to the police. Id. at 6. We noted that the address defendant gave the police, i.e., his mother's address, "was no longer viable for [the registration] purpose because his mother had moved." Ibid. Consequently, we agreed with the State and the trial court that the evidence sufficed for the jury to conclude that there had been a "change in address" triggering defendant's obligation to notify the police of his whereabouts. Ibid.; see also In re T.T., 188 N.J. 321, 327 (2006). We also rejected defendant's claims that the trial court admitted improper evidence without a limiting instruction, that the jury charge was flawed, that the prosecutor's summation was unfair, and that his sentence was excessive. State v. Harcher, supra, slip op. at 4.

In his ensuing PCR petition, defendant claimed that his former trial counsel should have conducted a more extensive investigation and, in particular, should have established that an Edison police officer allegedly told defendant that he did not need to update his address. Defendant further claimed that his trial lawyer improperly coerced him into not testifying at trial.

Judge Dennis V. Nieves, the PCR judge who also presided over the jury trial, conducted an evidentiary hearing on the petition. The judge considered at the PCR hearing testimony from defendant's former trial counsel and from defendant himself. After considering that testimony, Judge Nieves concluded that defendant had not been deprived of the effective assistance of counsel. The judge found that it was an appropriate strategy decision for defense counsel to recommend that defendant not testify, particularly given counsel's perception that jurors were not likely to favorably receive defendant's appearance and manner.

Defendant now presents the following arguments for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

(a) Counsel was ineffective for failing to investigate witnesses[.]

(b) Defendant was effectively deprived from Testifying for his own defense at trial[.]

We reject these contentions and affirm the denial of the PCR application.

Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 56-58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing such claims, courts apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Applying these standards, it is abundantly clear that the denial of defendant's PCR petition was appropriate. Defendant's claim of inadequate investigation in failing to locate an unnamed police officer who allegedly would have told defendant he did not have to register is uncorroborated beyond his own assertions. Such "bald assertions" are inadequate to support PCR relief. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Moreover, even if a police officer gave defendant such a mistaken impression of his reporting obligations, it would not provide a legal justification for defendant's non-compliance with Megan's Law.

As to defendant's claims concerning his trial counsel's advice recommending that he not testify, such advice clearly falls within the zone of trial strategy and does not equate to inadequate performance. See State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting that a court's review of a criminal defense attorney's decision whether to call a witness should be "highly deferential"). We will not second-guess trial counsel's professional assessment that calling defendant to the stand would have done his client more harm than good. Indeed, at the conclusion of the PCR hearing, the judge, who had the opportunity to observe defendant in the courtroom, echoed counsel's perception that defendant would not have been a "good witness."

The testimony provided by trial counsel at the PCR evidentiary hearing also reflects that counsel discussed with defendant the reasons for counsel's ultimate advice to refrain from calling defendant to testify. The fact that counsel had indicated to the jury in his opening statement that defendant would testify does not require a finding of ineffective assistance. This is particularly so, given that counsel addressed that point in his summation by indicating that he and defendant had agreed, in light of what he argued was the insufficiency of the State's proofs, to refrain from presenting testimony from defendant. Furthermore, the jury charge contained the customary admonition to the jurors that they should not draw any adverse inference from defendant's decision to not take the stand.

In sum, defendant has demonstrated neither deficient performance by this trial attorney nor any actual prejudice. He fails to meet the Strickland/Fritz criteria for relief.

Affirmed.