STATE OF NEW JERSEY v. YAKIM ABDUL ALI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5750-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YAKIM ABDUL ALI,

Defendant-Appellant.

__________________________________

June 6, 2013

 

Submitted March 19, 2013 Decided

 

Before Judges Waugh, St. John, and Leone.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0499.

 

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

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Meghan V. Tomlinson, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Yakim Abdul-Ali1 appeals the Law Division's order denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In an indictment handed down in June 2006, Abdul-Ali was charged with second-degree eluding an officer, contrary to N.J.S.A. 2C:29-2(b) (count one); two counts of third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (counts two and three);2 third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count four); fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count five); and fourth-degree prohibited device (hollow nose bullets), contrary to N.J.S.A. 2C:39-3(f) (count six).

We summarized the relevant facts involving that indictment in our opinion disposing of Abdul-Ali's direct appeal as follows:

On the morning of January 23, 2006, the owner of a black 1997 Honda Accord discovered that her car had been stolen from the driveway of her home in Glen Ridge. She immediately notified police.

 

Slightly less than a month later, on the night of February 21, 2006, officers Christopher McMahon and Brian McDonough of the Elizabeth Police Department were on routine patrol in uniform and in a marked patrol vehicle. While stopped in traffic on Catherine Street at its intersection with East Grand Street, they observed an oncoming vehicle make a left turn from Catherine Street onto East Grand Street without signaling. Pulling behind the vehicle, they activated their lights and sirens.

According to McMahon's testimony at the suppression hearing, the vehicle came to a stop. The officers checked the Honda's license plate and discovered that it did not match the vehicle to which it was affixed. During this time, defendant, the driver of the vehicle, was sitting in the car with his hands raised over his head.

As Officer McMahon exited the patrol vehicle after checking the license plate, defendant suddenly sped off, heading east on East Grand Street. McMahon jumped into the patrol vehicle, and the officers began to pursue the fleeing Honda. Once the chase resumed, the officers immediately reactivated the siren; the overhead lights had never been turned off.

 

During the chase, defendant ignored two red lights and one stop sign, traveling at a speed of seventy miles per hour in a twenty-five mile per hour zone and constantly passing other vehicles on the road. A second patrol vehicle joined the chase. The Honda finally came to a stop on a loading ramp on Trumbull Street. The officers pulled to the left of the Honda and observed defendant exit the vehicle and throw a dark-colored object to the ground. Defendant then ran along the fence of the loading ramp, laid on the railing and rolled over it, falling approximately twenty-five feet to the ground below. The officers ran down the loading ramp to where defendant was bloodied and lying face down. They arrested him, and secured him in handcuffs. Officer McMahon searched the area where defendant had tossed the dark-colored object, and found a handgun and its magazine, which contained seven live rounds.

 

A check of the vehicle identification number of the black Honda driven by defendant revealed it was the vehicle that had been reported stolen from the driveway in Glen Ridge on January 23, 2006. The license plates attached to the vehicle on the night of defendant's arrest had been reported stolen earlier that same day.

 

[State v. Abdul Ali, No. A-4500-06 (App. Div. Nov. 2, 2009) (slip op. at 3-5).]

 

Following trial in January 2007, Abdul-Ali was found guilty of eluding, one count of receiving stolen property, and resisting arrest. He was acquitted on the weapons offenses. The second count of receiving stolen property and the prohibited device count were dismissed during trial.

At the sentencing in February 2007, after appropriate mergers and a decision to impose an extended term, the trial judge sentenced Abdul-Ali to an aggregate term of incarceration for sixteen years, with a six-year period of parole disqualification.3

We affirmed Abdul-Ali's convictions and sentence. State v. Abdul Ali, supra, slip op. at 3, 23. The Supreme Court denied certification. 201 N.J. 274 (2010).

Abdul-Ali filed his PCR petition on March 29, 2010. Following oral argument on January 14, 2011, the PCR judge placed an oral decision on the record, explaining his reasons for dismissing the petition. The implementing order was entered the same day. This appeal followed.

II.

Abdul-Ali raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING [ABDUL-ALI'S] PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

 

B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT [ABDUL-ALI] BY NOT CROSS-EXAMINING A STATE'S WITNESS REGARDING CRITICAL INFORMATION WHICH WOULD HAVE ADVERSELY IMPACTED THE STATE'S CASE AGAINST HIM

 

C. TRIAL COUNSEL WAS REMISS BY FAILING TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS IT CONSISTED ENTIRELY OF HEARSAY

 

D. SINCE [ABDUL-ALI] ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN REJECTING [HIS] PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING

 

POINT II: RULE 3:22-4 DID NOT PRECLUDE THE TRIAL COURT FROM ADJUDICATING ON ITS SUBSTANTIVE MERITS POST CONVICTION RELIEF COUNSEL'S CONTENTION THAT TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT [ABDUL-ALI] ARISING OUT OF HIS FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS THAT IT CONSISTED ENTIRELY OF HEARSAY

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Although the decision to order an evidentiary hearing pursuant to a PCR petition is discretionary under Rule 3:22-10, our Supreme Court has stated that PCR courts,

"ordinarily should grant evidentiary hearings . . . if a defendant has presented a prima facie [case] in support of post-conviction relief." To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits.

 

[State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (quoting Preciose, supra, 129 N.J. at 462).]

 

"[I]n determining the propriety of an evidentiary hearing, the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed 'in the light most favorable to defendant.'" Ibid. (quoting Preciose, supra, 129 N.J. at 463). An evidentiary hearing on an ineffective assistance of counsel claim is therefore required only where the defendant has established a prima facie case which alleges facts not already part of the record. State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also Preciose, supra, 129 N.J. at 462.

A.

We turn first to Abdul-Ali's contention that his trial attorney was ineffective in questioning one of the trial witnesses.

With respect to the allegation that Abdul-Ali received the stolen vehicle, he testified at trial that he did not know it had been stolen. According to Abdul-Ali, on the evening of February 21, 2006, his acquaintance Jamil Smith picked him up in Newark. Smith was driving the black Honda, in which two women were also passengers. They drove to a motel in Elizabeth. The motel clerk, Rajnikat Patel, checked Abdul-Ali and one of the women into one room and Smith and the other woman into another room.

According to Abdul-Ali, his companion wanted a cigarette later that evening, so he went to Smith's room to find out if he had any. Smith did not, but told Abdul-Ali that he "could take the car and go get some cigarettes from the gas station." Abdul-Ali set out in the Honda, which led to his encounter with the police shortly thereafter.

Abdul-Ali contends that his trial counsel was ineffective in cross-examining Patel because he did not ask him who was driving the Honda when he and the others arrived at the motel. According to Abdul-Ali, Patel would have testified that he saw Smith driving the stolen Honda. The PCR judge concluded that trial counsel's decision not to pursue that line of inquiry was an exercise of "reasonable professional judgment." Abdul-Ali argues that the PCR judge erred in reaching that conclusion.

Abdul-Ali has provided no proof that Patel would have given the testimony he attributes to him. There were no certifications from Patel or anyone, such as an investigator, who had spoken with him, nor were there certifications from the other participants, Smith or the two women, to support Abdul-Ali's assertion that Smith was driving the Honda or that Patel had seen who was driving.

We agree with the PCR judge that the trial counsel's decision not to question Patel about who was driving "[fell] within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Had Patel responded that Abdul-Ali was driving, his testimony would have undercut Abdul-Ali's credibility and given further evidence connecting Abdul-Ali to the car.

In addition, even if we were to conclude that trial counsel should have asked the question and that Patel would have testified that Smith was driving, Abdul-Ali has not established the second Strickland prong. There is no basis to conclude that a helpful answer to the question would have resulted in a reasonable probability that the outcome of the trial would have been different. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The State offered no testimony that Abdul-Ali had driven the car to the motel. Instead, the State sought to prove that Abdul-Ali knew the car was stolen because he fled in the car after the initial stop. In summation, the State argued that his knowledge

could be proven by the circumstances, ladies and gentlemen. Look at the circumstances.

 

Officer McMahon saw him . . . fail[] to signal, actually, to make the left turn. No signal was used. They stopped him, regular motor vehicle stop.

 

. . . .

 

They run the license plate. The license plate doesn't match the vehicle. . . .

 

That point, as they're getting out of their vehicle, before even fully getting out of the vehicle, as Officer McMahon testified, what happened?

 

The defendant leaves.

 

Ladies and gentlemen, by the circumstances, use your common sense, what, at that point, would you think?

 

The identity of the driver to the motel was, under the State's theory of the case, not significant.

B.

Abdul-Ali also contends that trial counsel was ineffective in failing to challenge the indictment on grounds that it was based on hearsay.

Although the PCR judge concluded that Rule 3:22-4 barred that issue from being raised in a PCR petition because it could have been raised on direct appeal, he also considered the issue on its merits and concluded that Abdul-Ali had not satisfied either requirement of Strickland.

A grand jury indictment is presumed valid and should only be disturbed if "manifestly deficient or palpably defective," State v. Ramseur, 106 N.J. 123, 232 (1987), based "on the 'clearest and plainest ground,'" State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). "[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001).

The State's "sole evidential obligation" in a grand jury proceeding "is to present a prima facie case that the accused has committed a crime." State v. Hogan, 144 N.J. 216, 236 (1996). The role of the grand jury is "to investigate potential defendants and decide whether a criminal proceeding should be commenced. Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Id. at 235 (citation omitted).

In support of his argument, Abdul-Ali relies on two trial court opinions that are not binding on us: State v. Chandler, 98 N.J. Super. 241 (Cty. Ct. 1967), and State v. Costa, 109 N.J. Super. 243 (Law Div. 1970). In Chandler, the defendant filed a motion to dismiss the indictment premised on the fact that the only witness who testified before the grand jury did not witness the event. Chandler, supra, 98 N.J. Super. at 244-45. The trial judge dismissed the indictment, explaining that the witness, a police detective, did not have any "relevant information" because he did not witness the alleged crime and "served only the limited purpose of consigning the prosecutor's file to the grand jury." Id. at 251. Similarly, in Costa, the defendant filed a motion to dismiss the indictment because the sole witness before the grand jury, a police officer, "simply relat[ed] what had been told him by other persons." Costa, supra, 109 N.J. Super. at 246. The judge dismissed the indictment on the grounds that it was based almost exclusively on the hearsay testimony of the police officer, who lacked any first-hand knowledge of the incident. Id. at 248.

In State v. Holsten, 223 N.J. Super. 578, 584 (App. Div. 1988), we questioned the continued viability of the holdings in Chandler and Costa in light of our decision in State v. Ferrante, 111 N.J. Super. 299 (App. Div. 1970). In Ferrante, we held that "[a]bsent misconduct or abdication by grand jurors, the question whether evidence before a grand jury was competent or incompetent, . . . [is] irrelevant on a motion to dismiss the indictment." Ferrante, supra, 111 N.J. Super. at 306.

As we explained in Holsten, "[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." Holsten, supra, 223 N.J. Super. at 585 (alteration in original) (quoting State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd on other grounds, 110 N.J. 258 (1988)) (internal quotation mark omitted); see also State v. McCrary, 97 N.J. 132, 146 (1984) (stating that "hearsay and other informal proofs are permissible in determining issues that implicate important rights," such as the bases for an indictment) (citing Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402-03, reh'g denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956)); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictment should not be dismissed. See Holsten, supra, 223 N.J. Super. at 585-86.

In addition, errors that occur during the grand jury proceeding are typically deemed cured if the petit jury finds the defendant guilty. State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000); State v. Laws, 262 N.J. Super. 551, 563 (App. Div.), certif. denied, 134 N.J. 475 (1993); State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 799, 133 L. Ed. 2d 731 (1996). But see United States v. Mechanik, 475 U.S. 66, 70 n.1, 106 S. Ct. 938, 942, 89 L. Ed. 2d 50, 56 (1986) ("automatic reversal" for "racial discrimination in the selection of grand jurors").

We agree with the PCR judge that the issue could have been raised on direct appeal, and consequently is barred by Rule 3:22-4. We also agree that the contention has no merit. First, it is highly unlikely that a motion to dismiss would have been successful and, even if it had been, it would have been easy for the State to obtain a superseding indictment. For those reasons, Abdul-Ali has failed to satisfy either prong of the Strickland test.

C.

Finally, Abdul-Ali argues that the PCR judge erred by failing to hold an evidentiary hearing. Because he failed to present a prima facie case of ineffective assistance of counsel, Abdul-Ali was not entitled to an evidentiary hearing. For that reason, the PCR judge did not err in refusing to hold such a hearing. Preciose, supra, 129 N.J. at 462.

 

Affirmed.

1 Defendant's last name appears variously in the record as Ali, Abdul Ali, and Abdul-Ali. Because he signed his name using Abdul-Ali on his original and amended petitions for post-conviction relief, we use that form in this opinion.

2 The stolen property at issue consisted of a black Honda and a set of stolen license plates on the Honda that had been issued to a different vehicle.

3 Following the trial, Abdul-Ali pled guilty to theft by deception under a second indictment not relevant to this appeal.